Boudette v. Buffington

          ORDER AFFIRMING IN PART AND REJECTING IN PART THE JUNE 28, 2019 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Christine M. Arguello United States District Judge.

         This matter is before the Court on the Recommendation (Doc. # 81) of United States Magistrate Judge Michael E. Hegarty, wherein he recommends that this Court:

• grant Defendants Quinnett and City of Cortez's Motion to Dismiss (Doc. # 22) and Defendant Sanders' Motion to Set Aside Default (Doc. # 71);

• grant in part and deny in part Defendants Buffington and Gaasche's (the “DEA Defendants”) Motion to Dismiss (Doc. # 36); and

• deny Defendant Sanders' Motion to Dismiss (Doc. # 69).

(Doc. # 81 at 46-47) On July 17, 2019, Defendant Sanders and the DEA Defendants filed Objections (Doc. ## 88, 89) to the Recommendation, and Plaintiffs Gregory Boudette and Gary Mickelson filed Responses (Doc. ## 92, 93) to the Objections on July 31, 2019. Additionally, Plaintiffs filed a Motion to Amend Complaint (Doc. # 90) that pertains to some of Magistrate Judge Hegarty's findings in the Recommendation. For the reasons that follow, the Court affirms the Recommendation in part and rejects it in part.

         I. BACKGROUND

         The Magistrate Judge's Recommendation provides a recitation of the factual and procedural background of this dispute and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this Order will reiterate only what is necessary to address Defendants' objections.

         This case arises from a United States Drug Enforcement Administration (“DEA”) investigation that involved Plaintiffs' cultivation and distribution of marijuana. The investigation, which lasted from January 2016 to January 2017, was led by former DEA Task Force Officer Matt Buffington and supervised by former DEA Resident in Charge, Glenn Gaasche. During the course of the investigation, the DEA obtained information, in part, from Defendant Shawn Sanders, who is a private citizen. See (Doc. # 1 at 2). The investigation ultimately led to the seizure of various items which were held in the custody of the City of Cortez Police Department, where Defendant Tom Quinnett is employed. (Id. at 3.)

         Plaintiffs' Complaint indicates that from 2010 to 2016, Plaintiff Mickelson and his son Christopher “grew medical marijuana in compliance with applicable Colorado law for themselves under their own physician's recommendations, and as registered care givers for other qualified Colorado medical marijuana users.” (Id.) The marijuana was “cultivated, possessed and stored at a farm located in Montezuma County, Colorado.” (Id.) However, the DEA suspected that Plaintiffs were illegally distributing marijuana across state lines.

         Accordingly, on December 9, 2016, Defendant Buffington submitted a Search Warrant Affidavit to the County/District Court of Montezuma County. (Doc. # 36-2 at 4- 15.) The affidavit described the DEA's investigation in detail and sought a search warrant authorizing the search of Plaintiffs' marijuana operation site. Judge JenniLynn Everett Lawrence determined that, based on the affidavit, there was sufficient probable cause for a warrant to issue. Consequently, the judge issued a search warrant (“December 9, 2016 Search Warrant”) permitting law enforcement to seize marijuana and evidence of marijuana distribution from the farm. (Doc. # 36-2 at 2-3.) Law enforcement officers executed the December 9, 2016 Search Warrant on December 13, 2016, and they seized various items from Plaintiffs' marijuana operation.

         Defendant Buffington submitted additional Search Warrant Affidavits on January 9, 2017, and February 6, 2017. (Doc. # 36-4 at 4-20; Doc. # 36-5 at 4-18.) The affidavits sought authorization to search various electronic devices that belonged to Plaintiffs. After determining that there was adequate probable cause, Judge Lawrence issued search warrants (“January 9, 2017 Search Warrant” and “February 6, 2017 Search Warrant”) based on each affidavit. (Doc. # 36-4 at 2-3; Doc. # 36-5 at 2-3.)

         The investigation led to Plaintiff Mickelson and his son's arrest. Christopher Mickelson pled guilty to a marijuana-related offense, but the District Attorney's Office ultimately dismissed the charges against Plaintiff Mickelson. Subsequently, Plaintiffs initiated the instant action raising the following six claims for relief:

• Claim 1 - “Illegal Search” - Plaintiffs allege Defendant Buffington impermissibly conducted an aerial search of the marijuana operation;

• Claim 2 - “Illegal Search and Seizure” - Plaintiffs allege Defendant Buffington included false information in his December 9, 2016 Search Warrant Affidavit, the Search Warrant was impermissibly broad, and various items that were seized were outside the scope of the warrant;

• Claim 3 - “Illegal Arrest” - Plaintiffs allege that Plaintiff Mickelson's arrest warrant was based on false information;

• Claim 4 - “Malicious Prosecution to Deny Rights” - Plaintiffs allege that the DEA Defendants conspired to deprive Plaintiff Mickelson of constitutional rights by causing the District Attorney's Office to file false charges;

• Claim 5 - “Illegal Seizure” - Plaintiffs allege that Defendant Quinnett wrongfully withheld some of Plaintiff Boudette's property;

• Claim 6 - “Illegal Seizure” - Plaintiffs allege that Defendant Buffington included false information in his January 9, 2017, and February 6, 2017 Search Warrant Affidavits.

(Doc. # 1 at 8-26.)

         Defendants Tom Quinnett and the City of Cortez filed a Motion to Dismiss Plaintiffs' claims against them on November 11, 2018. (Doc. # 22.) Additionally, the DEA Defendants filed a Motion to Dismiss on December 18, 2018 (Doc. # 36), and Defendant Sanders filed a Motion to Dismiss on February 12, 2019 (Doc. # 69).

         II. LEGAL STANDARDS

         A. REVIEW OF A RECOMMENDATION

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to.” An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         In the absence of a timely objection, however, “the district court may review a magistrate [judge's] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”)).^[1]

         B. PRO SE PLAINTIFF

         Plaintiffs proceeds pro se. The Court, therefore, reviews their pleading “liberally and hold[s] [it] to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). Nor does pro se status entitle a litigant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         C. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1198. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc. v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Nor does the complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).

         III. DISCUSSION

         The DEA Defendants object to the Recommendation's finding that their Motion to Dismiss (Doc. # 36) should be denied in part. Additionally, Defendant Sanders objects to the Recommendation's finding that his Motion to Dismiss (Doc. # 69) should be denied. The Court will address each objection separately. The applicable standard of review is de novo.

         A. THE DEA DEFENDANTS' OBJECTION

         The DEA Defendants are nominally implicated in Claims 1-4 and 6 of Plaintiffs' Complaint. See (Doc. # 1). In their underlying Motion to Dismiss, the DEA Defendants sought to dismiss all of Plaintiffs' claims against Defendant Gaasche-i.e., Claims 1-4 and 6. (Doc. # 36 at 1.) Additionally, the DEA Defendants sought to dismiss Claims 2-4 and 6 against Defendant Buffington. (Id.) Thus, although the DEA Defendants challenged Claim 1 as it applies to Defendant Gaasche, they did not argue that it should be dismissed insofar as the claim applies to Defendant Buffington. More specifically, the DEA Defendants raised the following arguments:

• Following the Supreme Court's decision in Ziglar v. Abbasi, there is no Bivens remedy for malicious prosecution [Claim 4];

• T he D EA Def endant s are entitled to qualified imm unity from the illegal search and seizure, false arrest, and malicious prosecution claims in [Claims] 2, 3, 4, and . . . 6;

• Plaintiffs fail to adequately allege the personal involvement of Defendant Gaasche in any count.^[2]

(Doc. # 36 at 6.)

         With respect to the DEA Defendants' arguments, Magistrate Judge Hegarty concluded that the DEA Defendant's Motion should be granted in part and denied in part. Specifically, the magistrate judge found that:

• Plaintiffs fail to allege [Defendant] Gaasche's personal participation for the “illegal search” set forth in Claim [1] and the “illegal search and seizure” described in Claim [2];

• Plaintiffs have plausibly pled [Defendant] Gaasche's personal participation for Claims [3, 4, and 6];

• Defendants Buffington and Gaasche have failed to demonstrate [that] they are entitled to qualified immunity as to Claims [2] (against Buffington only), [3, 4, and 6]; and

• Plaintiffs are not precluded by the Supreme Court's opinion in Ziglar from alleging a malicious prosecution claim against the [DEA] Defendants in violation of the Fourth Amendment.

(Doc. # 81 at 24-37) (emphasis added) (footnote omitted).

         In their Objection to the Recommendation, the DEA Defendants raise three principal arguments. Specifically, the DEA Defendants assert:

• The Recommendation erred in determining that, in evaluating the claim of qualified immunity, the Court could not consider certain documents central to the Complaint;

• The Recommendation applied the wrong analysis in deciding to recognize a new Bivens claim; and

• The Recommendation erred in finding that the Complaint sufficiently alleged Defendant Gaasche's personal participation in the alleged wrongful conduct.^[3]

(Doc. # 89 at 2-3.) Before turning to the question of whether the DEA Defendants are entitled to qualified immunity (Claims 2 and 6), the Court will consider the DEA Defendants' argument regarding the impact of the Supreme Court's decision in Ziglar (Claims 3^[4] and 4).

         1. Whether a Plaintiff May Assert a Bivens Claim for Malicious Prosecution in Light of the Supreme Court's Decision in Ziglar

         Magistrate Judge Hegarty concluded that the Supreme Court's decision in Ziglar does not preclude Plaintiffs from raising a malicious prosecution claim under Bivens. The DEA Defendants argue that a proper interpretation of the standard established in Ziglar requires the conclusion that Plaintiffs are, in fact, precluded from raising such a claim. The Court agrees with the DEA Defendants.

         a. Legal standard

         In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court “held that a right of action to enforce the fourth amendment affirmatively does exist, even though neither the fourth amendment itself nor any statute enacted by Congress expressly says as much.” Larry W. Yackle, Federal Courts 260 (3d ed. 2009) (citing Bivens, 403 U.S. at 395-97). Since 1971, the Supreme Court has only expanded the scope of Bivens twice. See Davis v. Passman, 442 U.S. 228 (1979) (involving Fifth Amendment due process); see also Carlson v. Green, 446 U.S. 14 (1980) (involving the Eighth Amendment). However, the Supreme Court subsequently “severely curtailed its willingness to entertain Bivens claims.” Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 Va.L.Rev. 865, 882 (2019). In fact, Justice Scalia and Justice Thomas have “repeatedly invited the Court to confine Bivens and its progeny to their facts.” Id. at 883 (citations omitted). “The Court all but accepted this invitation in Ziglar v. Abbasi . . . .” Id.

         In Ziglar, the Supreme Court observed that Bivens was decided during a “ancien regime, ” in which “the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective' a statute's purpose.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1855 (2017) (citations omitted). Although it did not repudiate its holding in Bivens, the Court unambiguously indicated that it no longer endorses such an approach, noting that “the Court has made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity.” Id. at 1857 (citation omitted). In fact, the Court went so far as to comment that, “in light of the changes to the Court's general approach to recognizing implied damages remedies, it is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today.” Id. at 1856.

         Commentators have observed that the Court's “stark disavowals bear the hallmarks of repudiation. But rather than directly prohibiting lower courts from applying Bivens in previously unrecognized contexts, the . . . Court adopted a test that achieves a virtually identical result.” Rice & Boeglin, supra, at 883. The test involves two steps. At step one, courts must determine whether a claim presents a “new Bivens context.” Ziglar, 137 S.Ct. at 1859. If courts answer that question in the affirmative, the analysis moves to step two, which requires a determination of whether there are “special factors counselling hesitation in the absence of affirmative action by Congress.” Id. at 1857 (citation omitted). If such factors exist, courts should not extend “a Bivens-type remedy” to the claims at issue. Id. at 1859.

         Additionally, the Court provided guidance as to how each step should be applied. With regard to step one-i.e., whether a claim presents a new Bivens context-the Court held that “[i]f the case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court, then the context is new.” Id. (emphasis added). By way of example, the Court noted that:

A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of ...