United States District Court, D. Colorado
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 ...