Kennedy v. USA

Filing 23

ORDER granting in part and denying in part 10 Motion to Dismiss. The plaintiff's FTCA claim alleging malicious prosecution is DISMISSED to the extent that claim is based on Agent Peele's testimony during pretrial proceedings and at trial. By Judge Robert E. Blackburn on 3/18/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-00967-REB-KMT
(Consolidated with Civil Action No. 11-cv-03270-REB-KMT)
TIMOTHY JOHN KENNEDY,
Plaintiff,
v.
MARK A. FINLEY,
ERNEST ROGER PEELE,
SHERIFF JOHN WESLEY ANDERSON, and
EL PASO COUNTY SHERIFF’S OFFICE,
Defendants.

ORDER DENYING MOTION TO DISMISS
(This order concerns Civil Case No.11-cv-03270-REB-KMT)
Blackburn, J.
This matter is before me on the United States of America’s Motion To Dismiss
[#10]1 filed March 5, 2012. The plaintiff filed a response [#11], and the defendant filed a
reply [#13]. I deny the motion in part and grant it in part.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
§ 1346(b)(1) (Federal Tort Claims Act).
II. ANALYSIS
The complaint in Civil Action No. 11-cv-03270, the complaint at issue in the

1

“[#10]” 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.

present motion, concerns the plaintiff’s claim against the United States of America
under the Federal Tort Claims Act (FTCA). “The Federal Tort Claims Act is a limited
waiver of sovereign immunity, making the Federal Government liable to the same extent
as a private party for certain torts of federal employees acting within the scope of their
employment.” U. S. v. Orleans, 425 U.S. 807, 813 (1976). The plaintiff’s claim against
the United States is based on the alleged actions of a now retired agent of the Federal
Bureau of Investigation (FBI), Agent Ernest Peele. Agent Peele performed an analysis
of certain bullets as part of an investigation by the El Paso County Sheriff’s Office.
Based on the investigation of the El Paso County Sheriff’s Office, which included Agent
Peele’s analysis, the plaintiff, Timothy Kennedy, was charged with two counts of first
degree murder. Mr. Kennedy was convicted on both counts. Many years later, Mr.
Kennedy was granted a new trial on the murder charges. In his complaint in 11-cv03270, Mr. Kennedy alleges that Agent Peele’s analysis of bullets involved in the
investigation was inaccurate and that Agent Peele knowingly presented inaccurate
information to the El Paso County Sheriff’s Office and to the state court in which the
murder charges were prosecuted.
In Civil Action No. 11-cv-00967 (Kennedy v. Finley), Mr. Kennedy filed a
complaint alleging wrongful actions by certain law enforcement officials in the
investigation of Mr. Kennedy concerning the murders. In this earlier case, Mr. Kennedy
sued certain officials of the El Paso County Sheriff’s Office as well as Agent Peele and
the United States of America. On July 2, 2012, I entered an order [#78] in Kennedy v.
Finley granting the motion to dismiss filed by the United States. I dismissed Mr.
Kennedy’s FTCA claim against the United States because Mr. Kennedy had not
exhausted his administrative remedies as to that claim, as required by 28 U.S.C. §
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2675(a). After exhausting his administrative remedies, Mr. Kennedy re-asserted his
FTCA claim by filing his complaint in 11-cv-003270.
The allegations concerning the alleged actions of Agent Peele in the complaints
in Civil Action Nos. 11-cv-00967 and 11-cv-03270 essentially are identical. In Kennedy
v. Finley, the earlier filed case, Mr. Kennedy asserts a claim in the nature of malicious
prosecution against Agent Peele. This claim appears to be brought under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
In my order [#78] in Kennedy v. Finley, I granted in part and denied in part Agent
Peele’s motion to dismiss. I concluded that Agent Peele is entitled to absolute immunity
from Mr. Kennedy’s claim to the extent his claim is based on “Agent Peele’s testimony
during pretrial proceedings and at trial . . . .” Order [#78] (11-cv-00967), p. 7. On the
other hand, I concluded that Mr. Kennedy’s allegations against Agent Peele were
sufficient to state a Bivens claim for malicious prosecution. As noted in that order, the
elements of a Bivens claim for malicious prosecution and a Colorado tort claim for
malicious prosecution are, for the most part, identical. They key difference between the
two claims is that a Bivens claim also includes a requirement that the plaintiff
demonstrate a violation of his or her federal constitutional or statutory rights.
In its present motion to dismiss, the United States raises essentially the same
arguments raised by Agent Peele in his motion to dismiss the malicious prosecution
claim in Kennedy v. Finley. First, the United States argues that Agent Peele, and
therefore the United States, is shielded from Mr. Kennedy’s claims by the absolute
immunity which protects testifying witnesses. As to this argument, I reach the same
conclusion I reached in Kennedy v. Finley. Agent Peele, and the United States, are
entitled to absolute immunity from Mr. Kennedy’s malicious prosecution claim to the
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extent this claim is based on Agent Peele’s testimony during pretrial proceedings and at
trial. To the extent Mr. Kennedy’s FTCA claim in 11-cv-03270 is based on such
testimony, his claim must be dismissed.
Second, the Untied States argues that the allegations in the complaint are not
sufficient to state a claim for malicious prosecution under Colorado law. To prove a
claim for relief for malicious prosecution under Colorado law, a plaintiff must
demonstrate: “(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.” Hewitt v. Rice, 154 P.3d 408, 411 (Colo. 2007). In Agent
Peele’s motion to dismiss in Kennedy v. Finley and in the United State’s present
motion to dismiss, the defendants argue that the allegations in the complaint are not
sufficient to plead the first, third, and fourth of these elements. Again, the allegations
concerning the actions of Agent Peele in Kennedy v. Finley and in 11-cf-03270
essentially are identical. For the same reasons stated in my order [#78] in Kennedy v.
Finley, I conclude that the allegations in the complaint in 11-cv-03270 are sufficient to
plead the first, third, and fourth elements of a malicious prosecution claim and are
sufficient to state a claim for malicious prosecution under the FTCA. Therefore, the
United States’ motion to dismiss [#10] otherwise is denied.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the United States of America’s Motion To Dismiss [#10] filed March 5,
2012, is GRANTED in part;
2. That under FED. R. CIV. P. 12(b)(1), the plaintiff’s FTCA claim alleging
malicious prosecution is DISMISSED to the extent that claim is based on Agent Peele’s
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testimony during pretrial proceedings and at trial; and
3. That otherwise, the United States of America’s Motion To Dismiss [#10]
filed March 5, 2012, is DENIED.
Dated March 18, 2013, at Denver, Colorado.
BY THE COURT:

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