Myers v. Koopman

Filing 140

ORDER. Defendants Motion To Dismiss Plaintiffs Amended Complaint 128 filed 3/11/2011, is GRANTED in PART and DENIED in PART. Defendant City of Loveland, Colorado is DROPPED from this action, and the caption of this case is AMENDED accordingly. The stay on discovery in this case is LIFTED. By Judge Robert E. Blackburn on 6/16/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 09-cv-02802-REB-MEH
JEREMY C. MYERS,
Plaintiffs,
v.
BRIAN KOOPMAN, Detective in the Loveland, Colorado Police department, in his
individual capacity, and
CITY OF LOVELAND, Colorado, a municipality,
Defendants.

ORDER CONCERNING DEFENDANTS’ MOTION TO DISMISS
Blackburn, J.
This matter is before me on the Defendants’ Motion To Dismiss Plaintiff’s
Amended Complaint [#128]1 filed March 11, 2011. The plaintiff filed a response [#135]
and the defendants filed a reply [#136]. I grant the motion in part and deny it in part.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
In considering a motion under Fed. R. Civ. P. 12(b)(6), I must determine whether
the allegations in the complaint are sufficient to state a claim within the meaning of Fed.
R. Civ. P. 8(a). I must accept all well-pleaded allegations of the complaint as true.
McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). “However,
1

“[#128]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

conclusory allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots
Association, 987 F.2d 278, 284 (5th Cir. 1993); see also Ruiz v. McDonnell, 299 F.3d
1173, 1181 (10th Cir. 2002) (“All well-pleaded facts, as distinguished from conclusory
allegations, must be taken as true.”), cert. denied, 538 U.S. 999 (2003). I review the
challenged portion of a complaint to determine whether it “‘contains enough facts to
state a claim to relief that is plausible on its face.’” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, ___ U.S. ___, 129
S.Ct. 1937 (2009). “Thus, the mere metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded claims is insufficient; the complaint
must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims." Id. (emphases in original).2 Nevertheless,

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Twombly rejected and supplanted the “no set of facts” language of Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Tenth Circuit clarified the meaning of the “plausibility”
standard:
“plausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs “have not nudged their
claims across the line from conceivable to plausible.” The allegations
must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.
This requirement of plausibility serves not only to weed out claims that do
not (in the absence of additional allegations) have a reasonable prospect
of success, but also to inform the defendants of the actual grounds of the
claim against them. “Without some factual allegation in the complaint, it
is hard to see how a claimant could satisfy the requirement of providing
not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which
the claim rests.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974;
internal citations and footnote omitted).

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the standard remains a liberal one, and “a well-pleaded complaint may proceed even if
it strikes a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.“ Dias v. City and County of Denver, 567 F.3d
1169, 1178 (10th Cir. 2009) (quoting Twombly, 127 S.Ct. at 1965) (internal quotation
marks omitted).
III. FACTUAL ALLEGATIONS
In his amended complaint [#127], the plaintiff, Jeremy Myers, asserts a claim of
malicious prosecution against the City of Loveland, Colorado, and Brian Koopman, a
detective with the Loveland Police Department. Myers alleges that on September 5,
2007, Koopman executed an affidavit in support of a no knock search warrant which
later was executed at a property that had been occupied by Myers. Myers alleges that
Koopman “maliciously, intentionally and/or recklessly made false and misleading
statements” in the affidavit. Plaintiff’s Amended Complaint and Jury Demand [#127], ¶
14. Allegedly, Koopman’s false and misleading statements in the warrant affidavit
included a representation that “an unnamed confidential informant indicated that a
methamphetamine lab existed in the attic” of a building occupied by Myers, and that
various other facts indicative of a methamphetamine lab existed on the premises. Id., ¶
14 (A) through (M). Myers alleges that Koopman knew that “the information given by
his confidential informant . . was false.” Id., ¶ 41(a). Koopman allegedly had two video
surveillance cameras installed to monitor Meyer’s property. Myers alleges that one
camera was installed in late May 2007, and the other was installed in mid-August 2007.
Id. ¶¶ 12, 13. According to Myers, the information captured by those cameras was
inconsistent with much of the information contained in Koopman’s affidavit. Id., ¶ 15.
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Myers alleges that on September 5, 2007, Koopman obtained a no-knock search
warrant for Myers’ property based on the allegedly false and malicious statements in
Koopman’s affidavit. On Thursday, September 6, 2007, members of the Larimer County
Drug Task Force along with the Larimer County and Loveland SWAT teams executed
the no-knock warrant at Myers’ property. At the time of the search, seven field tests
were conducted on suspected drugs found in the course of the search, and each test
showed a false positive for the presence of an illegal drug. Myers alleges that Koopman
“fabricated the results maliciously or the [test] strips were intentionally and/or improperly
used to achieve a malicious pre-determined goal.” Id., ¶ 37(h). After the search was
completed, Koopman allegedly prepared or endorsed an affidavit in support of a warrant
for the arrest of Myers. Id., ¶ 34. The affidavit allegedly contained false statements to
support the issuance of an arrest warrant, and Koopman allegedly “acted maliciously,
recklessly, knowingly, intentionally, willfully and wantonly” in preparing or endorsing the
affidavit.
Myers was arrested on Friday, September 7, 2007, and was detained in the
Larimer County Detention Center until Monday, September 10, 2007. Criminal charges
were filed against Myers and several hearings were held in his criminal case between
September 7, 2007, and November 15, 2007. Ultimately, testing conducted by the
Colorado Bureau of Investigation demonstrated that no controlled substances were
recovered from Myers’ property or from the neighboring buildings that were searched on
September 6, 2007. The district attorney dropped all charges against Myers on
November 15, 2007.
IV. ANALYSIS
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Myers brings his malicious prosecution claim under 42 U.S.C. § 1983, alleging
violation of his rights under the Fourth and Fourteenth Amendments. Myers names
Koopman and the City of Loveland as defendants. The elements of a malicious
prosecution claim, applicable to a claim under § 1983 claim, are:
(1) the defendant caused the plaintiff's continued confinement or
prosecution; (2) the original action terminated in favor of the plaintiff; (3)
there was no probable cause to support the original arrest, continued
confinement, or prosecution; (4) the defendant acted with malice; and (5)
the plaintiff sustained damages.
Novitsky v. City Of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007). In the context of a §
1983 claim, however, a plaintiff also must establish the violation of one or more
constitutional rights. See Mondragon v. Thompson, 519 F.3d 1078, 1082 (2008) (§
1983 claim for malicious prosecution ultimately must rest on the Constitution and not on
common law). The defendants argue in their present motion that the Myers’ allegations
are not sufficient to state a claim on which relief can be granted. I agree in part and
disagree in part.
A. Municipal Liability
The defendants argue that Myers’ allegations do not support a municipal liability
claim against the City of Loveland. A plaintiff suing a municipality under § 1983 for the
actions of one of its police officers must prove: 1) that a municipal employee committed
a constitutional violation; and 2) that a municipal policy or custom was the moving force
behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419
(10th Cir. 2004). A municipality or other local government unit is liable for constitutional
torts only if the alleged unconstitutional acts implement a policy, ordinance or custom of
the local government. Monell v. Department of Social Services, 436 U.S. 658, 690,
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694 (1978); Garcia v. Salt Lake County, 768 F.2d 303, 308 & n.4 (10th Cir. 1985). A
municipality is responsible under § 1983 only when the execution of a government
policy or custom actually causes an injury of constitutional dimensions. Monell, 436
U.S. at 694; see also D.T. v. Independent School District, 894 F.2d 1176, 1187 (10th
Cir. 1990) (plaintiff must prove direct nexus between constitutional tort and
municipality’s authorization or approval thereof, either expressly or otherwise, by the
adoption of any plan or policy). "Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof of the incident includes proof
that it was caused by an existing, unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker." Oklahoma City v. Tuttle, 471 U.S. 808, 823
(1985).
A municipal policy is a “policy statement, ordinance, regulation, or decision
officially adopted and promulgated by [a municipality's] officers.” An act
committed by an official who has been delegated the power of
“establishing final policy” will also constitute a municipal policy.
Novitsky, 491 F.3d 1244, at 1259 (citing Pembaur v. City of Cincinnati, 475 U.S.
469, 483 (1986)). A municipal custom is a persistent and widespread practice
undertaken by municipal officials. Lankford v. City of Hobart, 73 F.3d 283, 286 (10th
Cir. 1996).
In his response to the motion to dismiss, Myers argues that Koopman was in
command of the no knock search and was the final decision maker for the City of
Loveland. Myers relies on Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) to
support his argument that Koopman’s decisions about the search and subsequent
events constitute decisions by a final decision maker for the City of Loveland. Myers

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argues that this authority effectively was delegated to Koopman by the Chief of Police.
As final decision maker, Myers argues, Koopman executed unconstitutional policies and
customs which violated Myers’ rights.
“Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered.” Id. at 481.
Myers does not allege in the operative complaint that the Chief of Police had delegated
to Koopman authority to establish final city policy about the search, nor does he allege
other facts to support the contention that Koopman possessed final policy making
authority for the city at the time of the search. Myers makes no allegation that the
search was conducted in compliance with a widespread custom or practice of the City of
Loveland. Even when the allegations in Myers’ complaint are assumed to be true, those
allegations do not state a claim for municipal liability against the City of Loveland. The
motion to dismiss is granted as to the City of Loveland.
B. Fourteenth Amendment Claim
The defendants argue that Myers has not stated a malicious prosecution claim
under the Fourteenth Amendment because all charges against Myers were dismissed
before Myers was tried on those charges. Based on the law established by the United
States Court of Appeals for the Tenth Circuit, I conclude that Myers has not stated a
viable substantive due process claim under the Fourteenth Amendment. However, I
conclude that Myers has stated a viable procedural due process claim under the Due
Process Clause of the Fourteenth Amendment.
In Taylor v. Meacham, the United States Court of Appeals for the Tenth Circuit
held that an allegedly wrongful arrest and seven-week detention can support a claim
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under the Fourth Amendment, but does not support a Fourteenth Amendment
substantive due process claim. 82 F.3d 1556, 1560 (10th Cir. 1996). In Taylor, the
Tenth Circuit noted the dictum of the United States Supreme Court that the Fourth
Amendment governs pretrial deprivations of liberty while substantive due process does
not govern pretrial deprivations of liberty. Id. (citing Albright v. Oliver, 510 U.S. 266,
274 - 275 (1994) (plurality opinion).
In Pierce v. Gilchrist, the Tenth Circuit acknowledged the distinction drawn in
Taylor between the Fourth and Fourteenth Amendments. 359 F.3d 1279, 1287 n. 5
(10th Cir. 2004). In Pierce, however, the Tenth Circuit noted that a plaintiff asserting
that he has been wrongfully detained based on “the fabrication of evidence by a
government officer acting in an investigative capacity” may have claims implicating the
Fourth and Fourteenth Amendments, depending on the circumstances. “The initial
seizure is governed by the Fourth Amendment, but at some point after arrest, and
certainly by the time of trial, constitutional analysis shifts to the Due Process Clause.”
Id. at 1285 - 1286. The Pierce court concluded that it did not need to determine where
the Fourth Amendment analysis ends and the Fourteenth Amendment analysis begins.
Id. at 1286.
Myers’ claim involves only pretrial deprivation of liberty. All charges filed against
Myers were dismissed about six weeks after he was arrested and prior to any trial on
those charges. Given the Tenth Circuit’s decision in Taylor, I conclude that a
Fourteenth Amendment substantive due process analysis is not applicable to Myers’
malicious prosecution claim. Even when the allegations in Myers’ complaint are
assumed to be true, those allegations do not state a substantive due process claim
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under the Fourteenth Amendment because Myers’ allegations concern only a pretrial
deprivation of liberty. The motion to dismiss is granted as to any Fourteenth
Amendment substantive due process claim asserted by Myers.3
On the other hand, I conclude that Myers has stated a potentially viable
Fourteenth Amendment procedural due process claim. In Mondragon v. Thompson,
the Tenth Circuit acknowledged the distinction between a Fourth Amendment and
Fourteenth Amendment analysis, as stated in Pierce. 519 F.3d 1078, 1082 (2008).
We have held that a plaintiff who claims that the government has
unconstitutionally imprisoned him has at least two potential constitutional
claims. “The initial seizure is governed by the Fourth Amendment, but at
some point after arrest, and certainly by the time of trial, constitutional
analysis shifts to the Due Process Clause.” Pierce v. Gilchrist, 359 F.3d
1279, 1285-86 (10th Cir.2004). If he has been imprisoned without legal
process he has a claim under the Fourth Amendment analogous to a tort
claim for false arrest or false imprisonment. If he has been imprisoned
pursuant to legal but wrongful process, he has a claim under the
procedural component of the Fourteenth Amendment's Due Process
Clause analogous to a tort claim for malicious prosecution. These torts
are only analogies because § 1983 suits ultimately rest on the
Constitution, not on state (or federal) common law. Pierce, 359 F.3d at
1285-88.
Id. The Mondragon court declined to determine precisely what distinguishes a Fourth
Amendment claim from a Fourteenth Amendment claim in this context. Id. at 1083 n. 6.
In Mondragon, the court addressed primarily when the plaintiff’s claims accrued
for the purpose of the applicable statute of limitations. The defendants argue that the
Mondragon court’s analysis of the difference between claims under the Fourth and
Fourteenth Amendments is dicta and otherwise is distinguishable from the present

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I note that Myers’ Fourth Amendment claim is dependent on the Fourteenth Amendment
because the Fourth Amendment is applicable to state actors only via the Due Process Clause of the
Fourteenth Amendment. See, e.g., Mapp v. Ohio, 367 U.S. 643, 660 (1961).

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case. I disagree. The Mondragon court analyzed the precise types of claims asserted
by the plaintiff to determine when those claims accrued. Id. at 1083. A determination of
the basis and proper constitutional analysis of the plaintiff’s claims was a necessary
step in determining when those claims accrued. Therefore, the Mondragon court’s
analysis of the nature of the Fourth and Fourteenth Amendment claims at issue in that
case constitutes holding.4
In this case, Myers alleges that he was jailed based on legal but wrongful
process when Koopman obtained search and arrest warrants based on information that
Koopman knew to be false and materially incomplete. Given the analysis of the Tenth
Circuit in Mondragon, I conclude that Myers has stated a viable procedural due process
claim under the Fourteenth Amendment. The defendants’ motion to dismiss is denied
as to Myers’ Fourteenth Amendment procedural due process claim.
C. Fourth Amendment Claim
Addressing Myers’ Fourth Amendment claim, the defendants argue that Myers
has not alleged specific facts to support his contention that Koopman5 acted with malice
in executing the affidavit in support of the no-knock search warrant, and in preparing or
endorsing an affidavit in support of a warrant for Myers’ arrest. I disagree. The
defendants argue that Myers' allegations of malice are as general as they were in

4

Dicta are statements and comments in an opinion concerning some rule of law or legal
proposition not necessarily involved in nor essential to determination of the case in hand. Holding consists
of those propositions along the chosen decisional path or paths of reasoning that 1) are actually decided;
2) are based on the facts of the case; and 3) lead to the judgment. Thompson v. Weyerhaeuser Co.,
582 F.3d 1125, 1129 (10th Cir. 2009).
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I do not address the issue of malice as it concerns the City of Loveland because I have
concluded that the plaintiff’s allegations do not state a claim on which relief can be granted against the
City of Loveland.

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Myers' original complaint [#1]. Addressing the original complaint, I concluded previously
that Myers' allegations on the element of malice were not sufficient because Myers
made generalized allegations applicable to a group of defendants. Order Concerning
Defendants' Motions To Dismiss [#99], filed September 27, 2010, pp. 9 - 10. In his
present complaint [#127], Myers makes specific factual allegations about Koopman’s
actions, knowledge of relevant facts, and motivations at key points in time relevant to
Myers’ malicious prosecution claim. Plaintiff’s Amended Complaint and Jury Demand
[#127], ¶¶ 14 - 16, 24 - 28, 37, 41. Assuming these specific factual allegations about
Koopman to be true, it is plausible that Myers can establish the malice element of a
Fourth Amendment malicious prosecution claim. The defendants’ motion to dismiss is
denied as to Myers’ Fourth Amendment malicious prosecution claim.
D. Absolute Immunity
Finally, Koopman argues that he is entitled to absolute prosecutorial immunity to
the extent Myers’ malicious prosecution claim “focuses on Koopman’s role in initiating
and pursuing a criminal prosecution. . . .” Motion to dismiss [#128], p. 13.
[A] prosecutor is entitled to absolute immunity for those actions that cast
him in the role of an advocate initiating and presenting the government's
case. Absolute immunity, however, does not extend to those actions that
are investigative or administrative in nature, including the provision of legal
advice outside the setting of a prosecution.
Mink v. Knox, 613 F.3d 995, 999 (10th Cir. 2010). Pre-arrest review of a search
warrant affidavit by a prosecutor, for example, does not fall within a prosecutor’s role as
an advocate and is not covered by prosecutorial immunity. Mink v. Suthers, 482 F.3d
1244, 1262 (10th Cir. 2007). Given this law, and based on the allegations in the
operative complaint, Koopman cannot be seen as having adopted the role of a
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prosecutorial advocate and thereby gaining the benefit of prosecutorial immunity. The
defendants’ motion to dismiss based on the assertion of prosecutorial immunity is
denied.
THEREFORE, IT IS ORDERED as follows:
1. That under FED. R. CIV. P. 12(b)(6), the Defendants’ Motion To Dismiss
Plaintiff’s Amended Complaint [#128] filed March 11, 2011, is GRANTED as to the
plaintiff’s claim against defendant City of Loveland, Colorado, and the plaintiff’s claim
against the City of Loveland, Colorado, is DISMISSED;
2. That under FED. R. CIV. P. 12(b)(6), the Defendants’ Motion To Dismiss
Plaintiff’s Amended Complaint [#128] filed March 11, 2011, is GRANTED to the
extent that the plaintiff asserts a substantive due process claim under the Fourteenth
Amendment;
3. That otherwise, the Defendants’ Motion To Dismiss Plaintiff’s Amended
Complaint [#128] filed March 11, 2011, is DENIED;
4. That defendant City of Loveland, Colorado is DROPPED from this action, and
the caption of this case is AMENDED accordingly; and
5. That the stay on discovery in this case is LIFTED.
Dated June 16, 2011, at Denver, Colorado.
BY THE COURT:

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