Myers v. Koopman

Filing 244

ORDER granting 169 Defendants' Motion For Judgment on the Pleadings; the plaintiff's claims are DISMISSED; JUDGMENT SHALL ENTER in favor of the defendant Brian Koopman against the plaintiff Jeremy C. Myers; the defendant is AWARDED his co sts to be taxed by the clerk of the court; the Defendant's Motion for Summary Judgment 230 and the Defendant's Motion In Limine 236 both are DENIED as moot; the Trial preparation Conference set for 11/16/2012, the final pretrial conference set for 11/19/2012, and the jury trial set for 11/16/2012 are VACATED. By Judge Robert E. Blackburn on 11/8/12. (kfinn, )

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,
Defendants.

ORDER GRANTING DEFENDANT’S MOTION
FOR JUDGMENT ON THE PLEADINGS
Blackburn, J.
This matter is before me on the Defendants’ Motion For Judgment on the
Pleadings [#169]1 filed March 8, 2012. The plaintiff filed a response [#170], and the
defendant filed a reply[#179]. I grant the motion.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
The defendant seeks entry of judgment in his favor under FED. R. CIV. P. 12(c).
A motion for judgment on the pleadings is evaluated under the same standard as a
motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6). Jacobsen
v. Deseret Book Co., 287 F.3d 936, 941 n. 2 (10th Cir. 2002).
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“[#169]” 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.

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,
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

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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
The operative complaint is the Plaintiff’s Amended Complaint and Jury
Demand [#127] filed March 2, 2011. In his complaint, the plaintiff, Jeremy Myers,
asserts a claim under the Fourth and Fourteenth Amendments which he labels as a
claim for malicious prosecution. The defendant is 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 which 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., ¶

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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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.
According to Myers, 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.
When Myers learned of the arrest warrant, Myers’ attorney contacted Koopman
and arranged for Myers to appear at the Loveland Police Department to surrender, post
bond, and be released. When Myers appeared on Friday, September 7, 2007,

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Koopman told the officer on duty that Myers could not post bond because Koopman
was filing additional charges. Myers was taken into custody and was detained in the
Larimer County Detention Center until Monday, September 10, 2007. Criminal charges
were filed against Myers, and hearings were held in his criminal case between
September 10, 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. On November 15, 2007, the district attorney dismissed all charges
against Myers.
IV. ANALYSIS
As applicable to a claim under § 1983, the elements of a malicious prosecution
claim include:
(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 Mondragón 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 defendant argues that the Myers’ allegations are not sufficient to
state a claim on which relief may be granted under either the Fourth Amendment or the
Fourteenth Amendment.
A. Fourth Amendment
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In Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007), the United States Court of
Appeals for the Tenth Circuit parsed the differences between a claim in the nature of
malicious prosecution under the Fourth Amendment and such a claim under the
Fourteenth Amendment. In Becker, the plaintiff, a physician, became the target of a
Medicaid fraud investigation. After administrative proceedings and the filing and
withdrawal of a civil suit by the Utah Medicaid Fraud Control Unit (MFCU), felony
charges were filed against Becker. The criminal charges alleged essentially that Becker
improperly billed the state Medicaid program. The charges were dismissed about nine
months after they were filed. Becker never was arrested or held in custody on the
charges.
After the charges were dismissed, Becker filed a civil suit asserting claims under
the Fourth Amendment and under the Due Process Clause of the Fourteenth
Amendment. Becker alleged that the MFCU had charged her falsely with Medicaid
fraud as part of a scheme to charge innocent physicians in rural areas with Medicaid
fraud to increase fraud recoveries for the MFCU. The Tenth Circuit concluded that
Becker had not stated a claim for relief under the Fourth Amendment because Becker
never was arrested, and she did not allege that any specific restrictions were placed on
her freedom of movement after the criminal charges were filed. Id. at 916. “Violation of
the Fourth Amendment requires an intentional acquisition of physical control.” Id. at
914 (quoting Brower v. County of Inyo, 489 U.S. 593, 596 (1989)).
While the consequences of unfounded criminal charges are surely grave,
the Fourth Amendment adequately covers constitutional interests in the
pre-trial exercise of government control over a person or property. A
groundless charging decision may abuse the criminal process, but it does
not, in and of itself, violate the Fourth Amendment absent a significant
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restriction on liberty.
Id. at 915.
After his arrest, Myers was detained in the Larimer County Jail for about three
days. No doubt, this detention constitutes an intentional acquisition of physical control.
Koopman argues that any claim based on this three day detention should be seen as a
Fourth Amendment false imprisonment claim, which is time barred.
According to the complaint, following Myers’ release on September 10, 2007,
there was no intentional acquisition of physical control over Myers that can form the
basis of a Fourth Amendment claim. Myers has not alleged that he was under any
restraint on his liberty, caused or imposed by Koopman, following his release on
September 10, 2007. Myers does allege that he was on bond following his release, but
he does not describe specifically the conditions of his bond. Generally, conditions of
bond do not constitute a seizure of a person sufficient to support a Fourth Amendment
claim. Becker, 494 F.3d at 915 - 916. Assuming the allegations in Myers’ complaint to
be true, the facts alleged in the complaint do not support a Fourth Amendment claim
based on events occurring after September 10, 2007, the date of Myers’ release.
A two year statute of limitations is applicable to Myers’ § 1983 claims, including
his Fourth Amendment claim. Claims under § 1983 are governed by the forum state's
statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 280
(1985); Blake v. Dickason, 997 F.2d 749, 750 (10th Cir. 1993). When, as in Colorado,
state law provides multiple statutes of limitations for personal injury actions, the general
or residual statute is applicable. Wilson, 471 U.S. at 280; Blake, 997 F.2d at 750. The
residual statute in Colorado provides a two-year statute of limitations. §13-80-102(1)(j),

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C.R.S.
In Mondragón v. Thompson, the plaintiff, Christopher Mondragón, alleged that
the defendant concocted and forged a warrant for Mondragón’s arrest. Based on the
warrant, Mondragón was jailed for approximately three months. Addressing
Mondragón’s claims, the Tenth Circuit concluded:
(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.
Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008) (footnote omitted).
For the purpose of determining the accrual date of a Fourth Amendment claim in
these circumstances, the Mondragón court concluded:
The false imprisonment ends for these purposes either when the victim is
released or when the victim's imprisonment becomes “pursuant to [legal]
process - when, for example, he is bound over by a magistrate or
arraigned on charges.” Thus, either the date of release or the date of
sufficient legal process starts the statute of limitations running for the
Fourth Amendment claim.
Mondragón v. Thompson, 519 F.3d 1078, 1082-83 (10th Cir. 2008) (quoting Wallace
v. Kato, 549 U.S. 384, 389 (2007) (emphasis omitted)).
According to Myers, Koopman intentionally fabricated a false factual basis for an
arrest warrant for Myers. Based on that warrant, Myers was jailed on September 7,
2007, and was released on September 10, 2007. For the purpose of Myers’ Fourth
Amendment claim, in the nature of false imprisonment, Myers’ claim against Koopman

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accrued on the date of Myers’ release, September 10, 2007. Myers’ initial complaint in
this case, first filed in state court, was filed on November 5, 2009, more than two years
after Myers’ Fourth Amendment claim accrued. Myers’ Fourth Amendment claim is time
barred. On Myers’ Fourth Amendment claim, Koopman is entitled to judgment on the
pleadings.
B. Fourteenth Amendment
According to Koopman, the facts alleged in the complaint do not support a
procedural due process claim under the Fourteenth Amendment. Koopman relies
primarily on the definition of such claims as stated by the Tenth Circuit in Becker. The
Becker court considered the limits of a procedural due process claim under the
Fourteenth Amendment, based on the Becker’s allegations that she had been subjected
to unwarranted investigation and criminal prosecution. The court considered this
possible claim in the context of (a) a liberty interest in being free from unwarranted
investigation and prosecution without probable cause; and (b) a property interest in the
integrity of the plaintiff’s medical and billing records, which had been examined by
authorities. The court assumed that “a procedural due process analysis [applied] to
Becker’s case . . . .” Id. at 920. Further, the court acknowledged that “the Fourteenth
Amendment’s protections encompass harms to liberty outside the scope of the Fourth
Amendment’s concern with freedom from restraint, such as harm to reputation resulting
from some tangible injury, from which a plaintiff in Becker’s circumstances may indeed
suffer.” Id.
Even though Becker potentially had a constitutionally protected liberty interest at
stake, the Becker court concluded that Becker did not have a viable procedural due
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process claim under the Fourteenth Amendment. “(E)ven if Becker did suffer such
injuries other than physical restraint, procedural due process only protects against [such
injuries] by providing an adequate post-deprivation hearing in which the injured party
may vindicate these interests.” Id. (citation omitted).
The Supreme Court has held that where pre-deprivation remedies cannot
anticipate and prevent a state actor's wrongful act, post-deprivation state
tort remedies are adequate to satisfy due process requirements. Parratt v.
Taylor, 451 U.S. 527, 535 - 44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)
(holding state could not anticipate employee's negligence); see also
Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393
(1984) (extending Parratt's logic to intentional torts). In his Albright
concurrence, Justice Kennedy argued that in § 1983 malicious
prosecution cases, a “state actor's random and unauthorized deprivation
of [Fourteenth Amendment due process interests] cannot be challenged
under 42 U.S.C. § 1983 so long as the State provides an adequate post
deprivation remedy.” [Albright v. Oliver,] 510 U.S. [266,] at 284, 114
S.Ct. 807 (Kennedy, J., concurring). As he explained, “In the ordinary case
where an injury has been caused ... by a random and unauthorized act
that can be remedied by state law, there is no basis for intervention under
§ 1983, at least in a suit based on ‘the Due Process Clause of the
Fourteenth Amendment.’” Id. at 285, 114 S.Ct. 807 (quoting Parratt, 451
U.S. at 536, 101 S.Ct. 1908); see also Nieves [v. McSweeney], 241 F.3d
[46], at 53 [(1st Cir. 2001)] (rejecting procedural due process claim under §
1983 for malicious prosecution because state provides adequate tort
remedy); Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir.2001)
(holding state tort remedy “knocks out any constitutional tort of malicious
prosecution” based on due process).
Becker v. Kroll, 494 F.3d 904, 921 (10th Cir. 2007).
Koopman’s alleged actions of fabricating facts to create an illusion of probable
cause for the search warrant and the arrest warrant are the type of unauthorized actions
that cannot be anticipated and prevented by pre-deprivation remedies. Rather, as a
practical matter, such actions can be remedied only by post-deprivation remedies, such
as an action for malicious prosecution. Colorado recognizes the tort of malicious
prosecution. See, e.g., Hewitt v. Rice, 154 P.3d 408, 411 (Colo. 2007). The elements

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of this claim under Colorado law are (1) the defendant contributed to bringing a prior
action against the plaintiff; (2) the prior action ended in favor of the plaintiff; (3) no
probable cause; (4) malice; and (5) damages. Id. This state tort remedy is adequate to
satisfy the procedural due process requirements of the Fourteenth Amendment as those
requirements apply to Myers’ allegations against Koopman. Under Becker, the
existence of this post-deprivation state tort remedy precludes Myers from asserting a
malicious prosecution claim against Koopman under the Fourteenth Amendment. Thus,
on Myers’ Fourteenth Amendment malicious prosecution claim, Koopman is entitled to
judgment on the pleadings.
C. Collateral Estoppel & Reconsideration
Previously, I concluded that the allegations in Myers’ amended complaint [#127]
were sufficient to state “a viable procedural due process claim under the Fourteenth
Amendment.” Order Concerning Defendants’ Motion To Dismiss [#140] filed June
17, 2011, p. 10. Addressing the issues raised in the defendants’ motion to dismiss
[#128], I examined the defendants’ argument that Myers had not stated a Fourteenth
Amendment malicious prosecution claim because all charges against Myers were
dismissed before Myers was tried on those charges. In once sentence, the defendants
claim that the existence of an adequate state post-deprivation remedy defeats a
Fourteenth Amendment malicious prosecution claim. Motion to dismiss [#128], p. 5. I
did not address this contention in my order [#140].
The plaintiff argues that collateral estoppel, or issue preclusion, applies to my
previous conclusion that the plaintiff has stated a viable Fourteenth Amendment claim.
However, one element of collateral estoppel is a final adjudication on the merits. Moss
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v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009). My previous order [#140] does not
constitute a final adjudication of the merits of Myers’ Fourteenth Amendment claim.
Thus, collateral estoppel does not bar consideration of the issues raised in the
defendants’ present motion for judgment on the pleadings.
The plaintiff argues also that it is not proper to reconsider my previous order
[#140] concerning the Fourteenth Amendment claim. In that order, I did not consider
whether the existence of an adequate state post-deprivation remedy had an effect on
Myers’ Fourteenth Amendment claim. In that sense, the present order does not
constitute a reconsideration of my previous order [#140]. Second, even if this order
does constitute a reconsideration, it is appropriate.
Grounds warranting a motion to reconsider include (1) an intervening
change in the controlling law, (2) new evidence previously unavailable,
and (3) the need to correct clear error or prevent manifest injustice. Thus,
a motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law. It is
not appropriate to revisit issues already addressed or advance arguments
that could have been raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations
omitted). In my previous order [#140], I did not consider the holdings in Becker,
including the holding concerning the effect of an adequate state post-deprivation
remedy on a Fourteenth Amendment malicious prosecution claim. To that extent, I
misapprehended the controlling law. Thus, reconsideration is appropriate.
V. CONCLUSION & ORDERS
Myers’ initial complaint in this case was filed on November 5, 2009, more than
two years after Myers’ Fourth Amendment claim accrued. Thus, Myers’ Fourth
Amendment claim is time barred. Colorado recognizes a claim of malicious
prosecution. Under Becker, the existence of this post-deprivation state tort remedy

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precludes Myers from asserting a malicious prosecution claim against Koopman under
the Fourteenth Amendment. Therefore, Koopman is entitled to judgment on the
pleadings on Myers’ claims under the Fourth Amendment and the Fourteenth
Amendment.
THEREFORE, IT IS ORDERED as follows:
1. That the Defendants’ Motion For Judgment on the Pleadings [#169] filed
March 8, 2012, is GRANTED;
2. That under FED. R. CIV. P. 12(c), the plaintiff’s claims under the Fourth
Amendment and the Fourteenth Amendment are DISMISSED;
3. That JUDGMENT SHALL ENTER in favor of the defendant Brian Koopman
against the plaintiff Jeremy C. Myers;
4. That the defendant is AWARDED his costs to be taxed by the clerk of the
court under FED. R. CIV. P. 54(d)(1) and D.C.COLO.LCivR 54.1;
5. That the Defendant’s Motion for Summary Judgment [#230] filed
September 24, 2012, and the Defendant’s Motion In Limine [#236] filed October 25,
2012, both are DENIED as moot; and
6. That the Trial preparation Conference set for November 16, 2012, at 3:00
p.m., the final pretrial conference set for November 19, 2012, at 9:30 a.m., and the jury
trial set to begin November 26, 2012, at 8:30 a.m, are VACATED.
Dated November 8, 2012, at Denver, Colorado.
BY THE COURT:

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