Margheim v. Buck et al

Filing 41

ORDER The Recommendation of the United States Magistrate Judge (ECF No. 38) is ADOPTED; Plaintiffs Objection to the Recommendation ECF No. 39 is OVERRULED; The Greeley Defendants Motion to Dismiss ECF No. 17 and the D.A. Defendants Motion to D ismiss ECF No. 19 are GRANTED; Plaintiffs Motion for Judgment on the Pleadings (ECF No. 30) is DENIED; and Plaintiffs Amended Complaint is DISMISSED WITH PREJUDICE in its entirety. The Clerk shall enter judgment in favor of Defendants, and Defendants shall have their costs, by Judge William J. Martinez on 8/12/2013.(ervsl, )

Margheim v. Buck et al

Doc. 41

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-1520-WJM-BNB
TERRY MARGHEIM,
Plaintiff,
v.
KENNETH R. BUCK, Weld County District Attorney;
EMELA BULJKO, DDA;
GREELEY POLICE CHIEF;
JOHN BARBER;
STEPHEN PERKINS; and
ELLIS, Officer,
Defendants.

ORDER ADOPTING JULY 15, 2013 RECOMMENDATION OF MAGISTRATE JUDGE,
GRANTING DEFENDANTS’ MOTIONS TO DISMISS, AND
DENYING PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS

Pro se plaintiff Terry Margheim (“Plaintiff”) brings this case pursuant to 42 U.S.C.
§ 1983 against Defendants Kenneth R. Buck, Emela Buljko, the Greeley Police Chief,
John Barber, Stephen Perkins, and Officer Ellis (collectively “Defendants”), alleging
violations of the Fourth and Fourteenth Amendments. This matter is before the Court
on the July 15, 2013 Recommendation of United States Magistrate Judge Boyd N.
Boland (“Recommendation”) (ECF No. 38) that Defendants’ Motions to Dismiss
(“Motions”) (ECF Nos. 17 & 19) be granted, and that Plaintiff’s Motion for Judgment on
the Pleadings (ECF No. 30) be denied. The Recommendation is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). For the reasons set
forth below, the Recommendation is adopted.

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I. LEGAL STANDARD
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 [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). In the absence of a timely and specific objection,
“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)); see also Fed. R. Civ. P. 72 Advisory
Committee’s Note (“When no timely objection is filed, the court need only satisfy itself
that there is no clear error on the face of the record.”). In conducting its review, “[t]he
district court judge may accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
In addition, Plaintiff is proceeding pro se; thus, the Court must liberally construe
his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United
States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as
advocate for Plaintiff, who must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
II. BACKGROUND
The relevant facts, as pled in the Amended Complaint and taken in the light most
favorable to the Plaintiff, are as follows. On April 21, 2010, Defendant Buljko signed an
affidavit that included false information, upon which a warrant was issued for Plaintiff’s

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arrest. (Am. Compl. (ECF No. 8)1 p. 4.) Pursuant to the warrant, Plaintiff was arrested
on May 7, 2010 by Defendants Barber, Perkins, and Ellis, all Greeley Police Officers.
(Id.) During a search incident to Plaintiff’s arrest, evidence was discovered, which was
used to hold Plaintiff in Weld County jail on criminal charges. (Id. at 2, 4.)
While Plaintiff was in custody, Courtney Graham moved into Plaintiff’s home
without his permission. (Id. at 5.) Plaintiff’s mother, who held power of attorney for him,
attempted to have Ms. Graham removed from Plaintiff’s home by contacting the
Greeley Police Department. (Id.) Plaintiff also sent a letter to the Greeley Police
regarding Ms. Graham. (Id.) The Greeley Police refused to assist Plaintiff or his
mother in removing Ms. Graham from Plaintiff’s house, informing Plaintiff that because
he was in a common law marriage with Ms. Graham, nothing would be done. (Id.)
Plaintiff was not, in fact, in a common law marriage with Ms. Graham. (Id.) Plaintiff
wrote letters regarding Ms. Graham to Defendant Buck, the Weld County District
Attorney, and to Defendant Greeley Police Chief, but received no reply. (Id.) Plaintiff
then hired an attorney to assist him to evict Ms. Graham, but she was gone by the time
the eviction was attempted, and the house had been “looted, vand[a]lized and
repossessed”. (Id. at 2, 5.)
On December 12, 2011, the charges against Plaintiff were dismissed and he was
released from custody. (Id. at 2, 4.)
Plaintiff’s Complaint (ECF No. 1) was filed pro se on June 12, 2012, and was
amended on July 16, 2012 after this Court ordered Plaintiff to do so to comply with

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Plaintiff’s Amended Complaint was filed twice, at ECF Nos. 8 and 10. Only ECF No.
10 includes a certificate of service.

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Federal Rule of Civil Procedure 8 and Local Rule 8.1A. (Am. Compl.; ECF No. 7.) The
Amended Complaint brings two claims under Section 1983, asserting that: (1)
Defendant Buljko’s false affidavit resulted in a false arrest and unlawful search incident
to that arrest, Defendants Barber, Perkins, and Ellis used excessive force in the arrest,
causing injuries, and Plaintiff was falsely imprisoned, all in violation of the Fourth
Amendment; and (2) Plaintiff notified the Greeley Police Department, the District
Attorney’s Office, and “internal affairs” of Ms. Graham’s unlawful presence in his home,
but they discriminatorily refused to do anything in violation of the Fourteenth
Amendment’s Equal Protection Clause. (Am. Compl. pp. 2-5.)
Defendants Barber, Perkins, Ellis, and Greeley Police Chief (collectively “Greeley
Defendants”) filed a Motion to Dismiss on October 16, 2012, arguing that Plaintiff’s
claims are barred by the statute of limitations. (ECF No. 17.) On October 23, 2012,
Defendants Kenneth R. Buck and Emela Buljko (jointly the “D.A. Defendants”) filed a
Motion to Dismiss, also arguing that Plaintiff’s claims are time-barred, and further
arguing that Plaintiff makes no claim alleging personal participation by Defendant Buck.
(See ECF No. 19.) Plaintiff filed Responses to both Motions on November 1, 2012
(ECF Nos. 24 & 25), and Defendants filed their Replies on November 15, 2012 (ECF
Nos. 26 & 27). Without leave of Court, Plaintiff filed a Sur-Reply on November 27,
2012. (ECF No. 28.)
Plaintiff subsequently filed a Motion for Judgment on the Pleadings and Order
Denying Defendants’ Motions to Dismiss on February 6, 2013. (ECF No. 30.) The D.A.
Defendants filed a Response on February 20, 2013 (ECF No. 32), and the Greeley
Defendants responded on March 6, 2013 (ECF No. 33). Plaintiff filed no Reply.
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On July 15, 2013, Magistrate Judge Boland entered a Recommendation that
Defendants’ Motions be granted, and that Plaintiff’s Motion for Judgment on the
Pleadings be denied. (ECF No. 38 at 2.) On July 30, 2013, Plaintiff filed an Objection
to the Recommendation. (ECF No. 39.) The D.A. Defendants filed a Response to the
Objection on August 9, 2013. (ECF No. 40.)
III. ANALYSIS
The Magistrate Judge’s Recommendation contains the following findings and
conclusions: (1) Plaintiff’s Claim One for false arrest, false imprisonment, unlawful
search, and excessive force is barred by the statute of limitations; (2) Plaintiff’s Claim
Two against Defendants Buck and Greeley Police Chief fails to allege personal
participation or supervisory liability by either of them; and (3) any motion for judgment
on the pleadings is premature because the pleadings are not closed. (ECF No. 38 at 612.) As a result, the Magistrate Judge recommends denying Plaintiff’s Motion for
Judgment on the Pleadings, granting Defendants’ Motions, and dismissing all of
Plaintiff’s claims. (Id. at 13.)
With regard to Plaintiff’s Claim One, Plaintiff argues in his Objection that it was
timely filed because his claims did not accrue until the charges against him were
dismissed.2 (ECF No. 39 at 1-3.) With regard to Claim Two, Plaintiff’s Objection states

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Plaintiff also argues that Claim Two is not time barred, because it involved a
“continuing violation.” (ECF No. 39 at 2.) However, in raising this argument, Plaintiff
misunderstands the Recommendation’s findings. The Magistrate Judge did not recommend
dismissal of Claim Two due to the statute of limitations; rather, he recommended dismissal of
Claim Two because it was asserted only against Defendants Buck and Greeley Police Chief,
and Plaintiff had failed to allege any facts sufficient to establish either Defendant’s liability under
Section 1983. (ECF No. 38 at 9-11.) Because Plaintiff’s argument objects to a finding that was
not part of the Recommendation, the Court need not consider it.

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that he “plainly alleges that the actions of the Greeley Police Chief, Kenneth Buck and
other unknown named employees did in fact d[i]scriminate against, violate Equal
Protection and selectively not prosecute Courtne[y] Graham in violation of his
constitutional rights. The complaint does specify which Defendants did what and
when.” (Id. at 2.)
Apart from these two arguments, Plaintiff makes no other specific objection to
the Recommendation. (See id.) Accordingly, the Court will review de novo the two
issues to which Plaintiff objects, and need only review the remainder of the
Recommendation’s findings for clear error on the face of the record. See Summers,
927 F.2d at 1167 (a court may review for clear error where no specific objections are
made to a recommendation). The Court will discuss each of the Recommendation’s
conclusions in turn.
A.

Claim One
The Magistrate Judge found that Plaintiff’s Claim One was barred by the

applicable two-year statute of limitations because his claims for false arrest, false
imprisonment, unlawful search, and excessive force accrued on May 7, 2010—the date
Plaintiff was arrested—and his Complaint was not filed until June 12, 2012. (ECF No.
38 at 7-10.) Plaintiff does not contest that a two-year limitations period applies. Rather,
his Responses to the Motions argue that the limitations period should be tolled due to
excusable neglect, and that his claims did not accrue until the charges were dismissed
on December 12, 2011. (ECF No. 24 at 2-3.) In his Responses, Plaintiff bases this
argument on Wallace v. Kato, 549 U.S. 384 (2007), which held that a claim for false
arrest or false imprisonment accrues when the arrestee is held pursuant to “legal
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process.” (Id.) However, the Magistrate Judge found that Plaintiff had presented no
plausible argument that tolling would apply, that Plaintiff’s claims for illegal search and
excessive force accrued on May 7, 2010, the date they occurred, and that Plaintiff’s
claims for false arrest and false imprisonment likewise accrued on May 7, 2010,
because he was detained pursuant to legal process on that date. (ECF No. 38 at 8-11.)
Accordingly, the Magistrate Judge concluded that Plaintiff’s Claim One was barred by
the statute of limitations. (Id.)
In his Objection, Plaintiff again argues that his claims accrued on December 12,
2011, rather than May 7, 2010. (ECF No. 39 at 1-2.) However, rather than relying on
Wallace, Plaintiff now bases his argument on Beck v. City of Muskogee Police
Department, 195 F.3d 553 (10th Cir. 1999), which in turn interpreted Heck v.
Humphrey, 512 U.S. 477 (1994). (Id.)
In Heck, the Supreme Court held that when a Section 1983 plaintiff brings a
claim for:
allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, . . . the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence: if it would, the complaint
must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated . . . .
512 U.S. at 486-87. As a corollary, and avoiding any concern that the statute of
limitations might run in the meantime, the Heck Court held that “a [Section] 1983 cause
of action for damages attributable to an unconstitutional conviction or sentence does
not accrue until the conviction or sentence has been invalidated.” Id. at 489-90.
In Beck, the Tenth Circuit reasoned that Heck would also preclude a Section
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“1983 claim relating to pending charges when a judgment in favor of the plaintiff would
necessarily imply the invalidity of any conviction or sentence that might result from
prosecution of the pending charges.” 195 F.3d at 557. Plaintiff relies on the Tenth
Circuit’s extension of Heck’s holding beyond an allegedly unconstitutional conviction to
an allegedly unconstitutional pending charge, arguing that because the charges brought
against him were not dismissed until December 12, 2011, Heck requires a finding that
his claims stemming from those charges did not accrue until that date. (ECF No. 39 at
1.)
However, as Beck explicitly recognized, Heck—and its deferred accrual
date—does not apply to an unlawful search or a false arrest claim. Beck, 195 F.3d at
558 (“Heck does not affect the time these claims arose because ultimate success on
them would not necessarily question the validity of a conviction resulting from the
[charges] . . . . ‘Because of doctrines like independent source and inevitable discovery,
and especially harmless error, such a § 1983 action, even if successful, would not
necessarily imply that the plaintiff’s conviction was unlawful.’”) (quoting Heck, 512 U.S.
at 487 n. 7 (emphasis in original)). Accordingly, on their face, neither Heck nor Beck
affects the accrual date for Plaintiff’s claims for false arrest or unlawful search. Further,
nothing in Heck, Beck, or Plaintiff’s Objection requires deferred accrual for an excessive
force claim, because a plaintiff’s success on such a claim would have no relation to or
effect on the validity of any underlying charge or conviction. Therefore, as discussed in
the Recommendation, those claims are barred by the statute of limitations. (ECF No.
38 at 8-10.)
Furthermore, although Beck’s extension of Heck’s deferred accrual date to
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pending charges has not been explicitly overruled, some courts have concluded that it
was abrogated by Wallace’s rejection of its “principle that goes well beyond Heck: that
an action which would impugn an anticipated future conviction cannot be brought until
that conviction occurs and is set aside.” Wallace, 549 U.S. at 393; see Kucharski v.
Leveille, 526 F. Supp. 2d 768, 774 (E.D. Mich. 2007) (citing Beck as one of several
decisions overruled in Wallace); Reed v. City of Fruita, Colo., 2008 WL 2705189 (D.
Colo. July 8, 2008) (finding Wallace “effectively overruled” Beck).
Ultimately, the Court need not decide whether Beck remains good law or
whether Heck applies to Claim One, because the Supreme Court made clear in
Wallace that the statute of limitations for a false arrest or false imprisonment claim
“begins to run at the time the claimant becomes detained pursuant to legal process.”
549 U.S. at 397. The Magistrate Judge found that Plaintiff was detained pursuant to
legal process on the date he was arrested, because there was a judicial determination
of probable cause prior to his arrest. (ECF No. 38 at 9 (citing Young v. Davis, 554 F.3d
1254, 1257 (10th Cir. 2009).) That judicial determination occurred when a warrant was
issued on Defendant Buljko’s allegedly false affidavit. Thus, Plaintiff’s claims against
Defendant Buljko based upon the false affidavit, as well as his claims against
Defendants Barber, Perkins, and Ellis based upon the search, arrest, and resulting
imprisonment, all accrued on May 7, 2010 when he was taken into custody.
Plaintiff’s Objection does not contest the finding in the Recommendation that he
was held pursuant to legal process on May 7, 2010, nor does Plaintiff object to the
Magistrate Judge’s finding that tolling did not apply. The Court has reviewed these
findings and conclusions, and finds no clear error. Thus, after reviewing de novo the
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findings to which Plaintiff objected, the Court finds that Plaintiff’s claims for false arrest,
false imprisonment, unlawful search, and excessive force accrued on May 7, 2010, and
consequently Plaintiff’s Claim One is barred by the statute of limitations. Accordingly,
the Court overrules Plaintiff’s Objection and adopts the Recommendation in this regard,
and grants Defendants’ Motions insofar as they seek the dismissal of Plaintiff’s Claim
One.
B.

Claim Two
The Magistrate Judge found that Plaintiff’s Claim Two, which is brought against

Defendants Buck and Greeley Police Chief,3 does not allege personal participation by
either of these Defendants, nor does it allege any facts establishing supervisory liability.
(ECF No. 38 at 9-11.)
A Plaintiff alleging a deprivation of his constitutional rights under Section 1983
must show either that the defendant “participated or acquiesced” in that constitutional
deprivation, or that he “inadequately trained or supervised” those that did. McKee v.
Heggy, 703 F.2d 479, 483 (10th Cir. 1983). Plaintiff’s Objection claims that his
Amended Complaint “plainly alleges” that Defendants Buck and Greeley Police Chief
discriminated against him in failing to assist him with removing Ms. Graham from his
house. (ECF No. 39 at 2.) Plaintiff thus contends that his Amended Complaint
sufficiently specifies the connection between the named Defendants and the alleged

3

As discussed in the Recommendation, it is unclear against which Defendants Claim
Two is asserted. (See ECF No. 38 at 5.) Of the Defendants, the only one specifically named in
Claim Two is Defendant Greeley Police Chief. (Am. Compl. p. 5.) However, in Plaintiff’s
Response to the D.A. Defendants’ Motion, Plaintiff states that Claim Two is also asserted
against Defendant Buck, as indicated by the Amended Complaint’s reference to sending a letter
to “the D.A.’s office.” (ECF No. 24 at 4.) Accordingly, the Court treats Claim Two as asserted
against both Defendants Buck and Greeley Police Chief.

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constitutional violation. (Id.)
However, even a liberal reading of the Amended Complaint demonstrates
Plaintiff’s failure to allege any Defendant’s personal participation or supervisory liability
for Claim Two, or any facts permitting an inference of such liability. The Amended
Complaint states only that Plaintiff wrote letters to the District Attorney’s Office and the
Chief of Police regarding charging Ms. Graham and got no reply, and that “this is
discrimination against me . . . as well as selective prosecution.” (Am. Compl. p. 5.)
Plaintiff’s Claim Two can be read to suggest that the District Attorney’s Office and
Police Department discriminatorily failed to respond to and assist Plaintiff in removing
Ms. Graham from his home and filing charges against her. However, Plaintiff alleges
no facts permitting an inference that either Defendant Buck or Greeley Police Chief was
personally involved in such alleged discrimination, nor does Plaintiff claim that the
alleged discrimination resulted from a policy, custom, or failure to train that was
established or maintained by either Defendant. (See Am. Compl. at 5.) The
statements in Plaintiff’s Objection raise no argument or factual basis upon which the
Court could find otherwise, and “conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.” Hall, 935 F.2d
at 1110. Therefore, the Court overrules Plaintiff’s Objection regarding Claim Two.
The Court has evaluated this matter de novo, and agrees with the Magistrate
Judge’s finding regardinglack of personal participation. The Court has also reviewed
the remainder of the Magistrate Judge’s findings regarding Claim Two, and finds no
clear error. Therefore, the Court adopts the Recommendation with regard to Claim
Two, and grants Defendants’ Motions insofar as they seek dismissal of that claim.
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C.

Plaintiff’s Motion for Judgment on the Pleadings
The Magistrate Judge found that Plaintiff’s Motion for Judgment on the Pleadings

was premature and should be denied. (ECF No. 38 at 11-12.) Under Federal Rule of
Civil Procedure 12(c), such a motion may be made “[a]fter the pleadings are closed”.
However, as the Magistrate Judge noted, the pleadings are not yet closed; instead,
Defendants properly filed Motions to Dismiss and, pending the resolution of their
Motions, they have not yet filed Answers. (Id. at 12.) Plaintiff did not object to these
findings, and the Court sees no clear error in the Magistrate Judge’s analysis.
Therefore, the Court adopts the Recommendation with regard to Plaintiff’s Motion for
Judgment on the Pleadings, and denies Plaintiff’s Motion.
IV. CONCLUSION
For the reasons set forth above, it is hereby ORDERED that:
1.

The Recommendation of the United States Magistrate Judge (ECF No. 38) is
ADOPTED;

2.

Plaintiff’s Objection to the Recommendation (ECF No. 39) is OVERRULED;

3.

The Greeley Defendants’ Motion to Dismiss (ECF No. 17) and the D.A.
Defendants’ Motion to Dismiss (ECF No. 19) are GRANTED;

4.

Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 30) is DENIED; and

5.

Plaintiff’s Amended Complaint is DISMISSED WITH PREJUDICE in its entirety.
The Clerk shall enter judgment in favor of Defendants, and Defendants shall
have their costs.

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Dated this 13th day of August, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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