Margheim v. Buck et al

Filing 57

ORDER Plaintiffs Motion for Relief from Judgment or Order Pursuant to Rule 60 (b) ECF No. 45 is GRANTED as to Defendant Emela Buljko and DENIED as to the remaining Defendants; The Final Judgment is VACATED, the Clerk shall reopen this case as aga inst Defendant Emela Buljko, and this action shall proceed only as to Plaintiffs Fourth Amendment claim for malicious prosecution against Defendant Buljko; When Final Judgment is entered, it shall be in favor of Defendants Kenneth R. Buck, Greeley Police Chief, John Barber, Stephen Perkins, and Officer Ellis, and against the Plaintiff, and those Defendants shall have their costs; and Plaintiffs Motion for Leave to Amend the Complaint ECF No. 46 is DENIED WITHOUT PREJUDICE to refiling on or before June 30, 2014. by Judge William J. Martinez on 5/27/2014.(evana, )

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 GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
RELIEF FROM JUDGMENT PURSUANT TO RULE 60(b)

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, Colo. Police
Chief, John Barber, Stephen Perkins, and Officer Ellis (collectively “Defendants”),
alleging violations of the Fourth and Fourteenth Amendments to the U.S. Constitution.
This matter is before the Court on Plaintiff’s Motion for Relief from Judgment or Order
Pursuant to Rule 60(b) (“Motion”). (ECF No. 45.) For the reasons set forth below, the
Motion is granted as to Defendant Buljko, and denied as to the remaining Defendants.
I. BACKGROUND
The relevant facts, as pled in the Amended Complaint, 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 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 is currently incarcerated on apparently
unrelated charges. (See ECF No. 53 at 1.)

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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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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
Federal Rule of Civil Procedure 8 and Local Rule 8.1A. (Am. Compl.; ECF No. 7.) The
Amended Complaint brings two claims under § 1983, asserting: (1) a Fourth
Amendment claim based on a false affidavit sworn by Defendant Buljko, which resulted
in a false arrest, unlawful imprisonment and prosecution, and unlawful search incident
to that arrest, as well as Defendants Barber, Perkins, and Ellis’ use of excessive force
during the arrest; and (2) a Fourteenth Amendment claim based on Plaintiff’s complaint
to the Greeley Police Department, the District Attorney’s Office, and “internal affairs” of
Ms. Graham’s unlawful presence in his home, and their discriminatory refusal to do
anything. (Am. Compl. pp. 2-5.)
Defendants Barber, Perkins, Ellis, and Greeley Police Chief (collectively the
“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.)
On July 15, 2013, U.S. Magistrate Judge Boyd N. Boland entered a
Recommendation that Defendants’ Motions be granted. (ECF No. 38 at 2.) Plaintiff
filed an Objection to the Recommendation on July 30, 2013, arguing that his Fourth
Amendment claim was not time-barred because it did not accrue until December 13,
2011, and that he had sufficiently alleged facts implicating Defendants Buck and
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Greeley Police Chief. (ECF No. 39.) The Court adopted the Recommendation in its
entirety on August 12, 2013, and granted the Motions to Dismiss (“Dismissal Order”).
(ECF No. 41.) In the Dismissal Order, the Court found that Plaintiff’s Fourth
Amendment claims for false arrest, false imprisonment, unlawful search, and excessive
force accrued on May 7, 2010, and were therefore time-barred. (Id. at 10.) The Court
also found that Plaintiff’s Fourteenth Amendment claim failed to allege personal
participation by Defendants Buck and the Greeley Police Chief. (Id. at 11.)
Accordingly, the Court overruled Plaintiff’s Objections and dismissed Plaintiff’s claims.
(Id. at 12.)
On August 21, 2013, Plaintiff filed a Motion for Reconsideration of the Dismissal
Order. (ECF No. 43.) Finding that Plaintiff’s Motion for Reconsideration merely
reargued issues that were already raised in Plaintiff’s Objection, the Court declined to
reconsider the Dismissal Order. (ECF No. 44.)
On December 13, 2013, Plaintiff filed the instant Motion for relief under Federal
Rule of Civil Procedure 60(b), or for an order extending his time to file an appeal under
Federal Rule of Appellate Procedure 4(a)(6). (ECF No. 45.) In Plaintiff’s Memorandum
Brief in support of the Motion, Plaintiff included a request for leave to amend his
complaint (ECF No. 46), and attached a proposed Second Amended Complaint (ECF
No. 47). On December 20, 2013, the U.S. Court of Appeals for the Tenth Circuit
decided Myers v. Koopman, 738 F.3d 1190 (10th Cir. 2013). The Court ordered
Defendants to consider the effect of Myers in responding to Plaintiff’s Motion. (ECF No.
49.) The Greeley Defendants’ Response (ECF No. 51) and the D.A. Defendants’

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Response (ECF No. 52) were filed on January 6, 2014. No Reply was permitted.2
II. ANALYSIS
Plaintiff’s Motion and supporting brief contains three separate requests: (a) a
Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b); (b) a
Motion to Reopen Time to File an Appeal under Federal Rule of Appellate Procedure
4(a)(6); and (c) a Motion for Leave to Amend the Complaint. (ECF Nos. 45, 46, 47.)
The Court will discuss each request in turn.
A.

Motion for Relief from Judgment under Rule 60(b)
Plaintiff first moves for relief from the Final Judgment and the Court’s order

denying reconsideration (ECF Nos. 42 & 44) under Rule 60(b). (ECF No. 45.) Rule
60(b) permits a Court to relieve a party from a final judgment or order for reasons such
as excusable neglect, newly discovered evidence, fraud, or “any other reason that
justifies relief.” Fed. R. Civ. P. 60(b)(6). This rule “reflects and confirms the courts’ own
inherent and discretionary power, ‘firmly established in English practice long before the
foundation of our Republic,’ to set aside a judgment whose enforcement would work
inequity.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 233-34 (1995) (quoting HazelAtlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944)).
In Plaintiff’s brief in support of the Motion, Plaintiff explains that he is challenging
the Court’s failure to construe his Amended Complaint as stating a claim for malicious
prosecution. (ECF No. 46 at 1.) Plaintiff does not challenge any other part of the
Court’s Order dismissing his claims for false arrest, false imprisonment, unlawful
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Plaintiff filed a Reply to Defendants’ Responses on January 14, 2014. (ECF No. 53.)
However, because the Court’s Order specifically stated that “[n]o Reply will be permitted” (ECF
No. 48), the Court has not considered Plaintiff’s Reply in evaluating the Rule 60(b) Motion.

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search, and excessive force as time-barred, and all claims against Defendants Buck
and Greeley Police Chief for failure to allege personal participation.
While Plaintiff’s Motion was pending, the Tenth Circuit decided Myers v.
Koopman. In Myers, a pro se plaintiff brought an action under § 1983 asserting that a
law enforcement officer obtained an arrest warrant with fabricated information. 738
F.3d at 1192. The plaintiff asserted a claim for malicious prosecution, but the district
court construed the claim as one for false imprisonment and dismissed the claim as
time-barred, without considering whether the imprisonment occurred before or after the
institution of legal process. Id. The Tenth Circuit reversed, clarifying that because the
plaintiff “was arrested pursuant to a validly issued—if not validly supported—arrest
warrant . . . . [his] suit, then, challenges the probable-cause determination that
generated the legal process.” Id. at 1195. Accordingly, the plaintiff had asserted a
timely claim for malicious prosecution that did not accrue until the proceedings
terminated in his favor, and the Court erred in construing his claim as only a false
imprisonment claim. Id.
As in Myers, Plaintiff here challenges the probable cause determination based
upon an allegedly false affidavit, and his claim was held to be time-barred because it
was construed by the Court as one for false imprisonment instead of malicious
prosecution. (Am. Compl. p. 4.) Unlike Myers, however, Plaintiff’s Amended Complaint
did not initially style his claim as one for malicious prosecution; rather, he alleged facts
supporting his claims under the general heading “4th Amendment”. (Id.) Nevertheless,
the Court must construe Plaintiff’s Amended Complaint as pleading a claim for
malicious prosecution if he pleads facts that could support each element of such a
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claim. Mondragon v. Thompson, 519 F.3d 1078, 1084 n.7 (10th Cir. 2008).
Accordingly, the question before the Court is whether Plaintiff’s Amended Complaint
should have been construed as pleading a claim for malicious prosecution.
A malicious prosecution claim under § 1983 includes the following elements:
(1) the defendant caused the plaintiff’s continued confinement or
prosecution; (2) the original action terminated in favor of the plaintiff; (3)
no probable cause supported the original arrest, continued confinement,
or prosecution; (4) the defendant acted with malice; and (5) the plaintiff
sustained damages.
Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008). Here, Plaintiff alleges that
Defendant Buljko’s false affidavit resulted in his confinement and prosecution, that the
charges were dismissed on December 12, 2011, that no probable cause supported his
arrest because the information in the affidavit was false; that Defendant Buljko swore
the false affidavit knowing that the information was false and with “reckless disregard
for the truth”, and that Plaintiff sustained damages. (Am. Compl. p. 4.) These
assertions suffice to plead a claim for malicious prosecution. Accordingly, pursuant to
the Tenth Circuit’s clarifying decision in Myers, the Court should have construed
Plaintiff’s Amended Complaint as pleading a claim for malicious prosecution, which
claim did not accrue until December 12, 2011. As this case was filed within two years
of that accrual date, the Court erred in dismissing Plaintiff’s Amended Complaint in its
entirety.
The D.A. Defendants argue in their Response that even if Plaintiff has alleged a
timely claim for malicious prosecution under Myers, the D.A. Defendants are entitled to
absolute prosecutorial immunity against such a claim. (ECF No. 52 at 9.) The D.A.
Defendants cite Kalina v. Fletcher, 522 U.S. 118, 125-26 (1997), which held that a
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prosecutor is protected by absolute immunity “when serving as an advocate in judicial
proceedings.” (ECF No. 52 at 10.) In Kalina, the U.S. Supreme Court stated that a
prosecutor’s “activities in connection with the preparation and filing of two of the three
charging documents—the information and the motion for an arrest warrant—are
protected by absolute immunity”, and that her preparation and filing of a certification in
support of the warrant was also protected, “except for her act in personally attesting to
the truth of the averments in the certification . . . . The critical question, however, is
whether she was acting as a complaining witness rather than a lawyer when she
executed the certification ‘[u]nder penalty of perjury.’” Kalina, 522 U.S. at 129.
Ultimately, the Kalina Court held that the prosecutor was not immune for her actions in
certifying the truth of the statement on which a finding of probable cause was based,
because in executing the certification, she was acting as a witness, not as a prosecutor.
Id. at 131 (“Even when the person who makes the constitutionally required ‘Oath or
affirmation’ is a lawyer, the only function that she performs in giving sworn testimony is
that of a witness.”).
The Court finds that under Kalina, Defendant Buljko’s swearing to an affidavit
containing allegedly false information is not protected by absolute immunity, because
she was acting as a witness, not as a prosecutor, in doing so. The D.A. Defendants
state that Defendant Buljko did not in fact swear out an affidavit, but rather filed a
motion to revoke Plaintiff’s bond based on new violation of law. (ECF No. 52 at n.3.) If
the Court were to accept this assertion as fact, that fact could alter its analysis as to
whether Defendant Buljko was serving a prosecutorial function subject to absolute
immunity when she took the challenged action. However, at this stage of the case, the
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Court must accept all of Plaintiff’s well-pleaded factual allegations as true. See Ridge
at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Because the
Amended Complaint alleges that Defendant Buljko swore a false affidavit on which
Plaintiff was arrested, the Court must accept that allegation as true for the purposes of
the instant Motion, and therefore Defendant Buljko is not protected by absolute
immunity.
Notably, the Amended Complaint does not plead any facts supporting a
malicious prosecution claim against any other Defendant: as the Greeley Defendants
were acting pursuant to a validly issued warrant, none of them caused Plaintiff’s
incarceration or prosecution, and the Amended Complaint still does not allege personal
participation or supervisory liability by Defendant Buck. (See Am. Compl. p. 4.) As the
malicious prosecution claim is the only claim on which Plaintiff’s Motion is based,
Plaintiff’s claims for false arrest, false imprisonment, unlawful search, and excessive
force remain time-barred, and Plaintiff’s claims against Defendants Buck and Greeley
Police Chief remain dismissed for lack of any allegation of personal participation or
supervisory liability, for the same reasons stated in the Court’s prior Order. (See ECF
No. 41 at 6-11.) The only claim revived by the instant order is Plaintiff’s claim for
malicious prosecution against Defendant Buljko.
Therefore, the Court grants Plaintiff’s Motion as to Plaintiff’s Fourth Amendment
claim for malicious prosecution as against Defendant Buljko, but denies the Motion as
to all other Defendants and claims.
B.

Motion to Reopen Time to File an Appeal under Rule 4(a)(6)
In the alternative to the requested relief under Rule 60(b), Plaintiff Motion asks
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the Court reopen the time to file an appeal under Federal Rule of Appellate Procedure
4(a)(6). (ECF No. 45 at 2). Because the Court has granted the Motion under Rule
60(b) as to Defendant Buljko, the request to reopen time for appeal is moot as to her.
However, as to the remaining Defendants, Plaintiff argues that he merits relief because
he did not receive notice of the Court’s denial of his motion to reconsider. (ECF No. 53
at 1.) Plaintiff does not indicate the date on which he received notice, but states that
once he realized that the motion to reconsider had been denied, he attempted to
address his claim by filing a new action, Case No. 13-cv-2876, which was later
withdrawn. (Id.) Plaintiff then filed the instant Motion. (Id.)
Rule 4(a)(6) permits the Court to reopen the time to file an appeal where the
movant did not receive notice of the order sought to be appealed, as long as no party
would be prejudiced, and the motion is filed within 180 days of the appealed order or 14
days after receiving notice of the order, whichever is earlier. Fed. R. App. P. 4(a)(6).
Here, Plaintiff’s recitation of events reveals that his Motion under Rule 4(a)(6) was filed
more than 14 days after receiving notice of the Court’s Order denying the Motion to
Reconsider. Plaintiff states that after he received such notice, he filed a new action,
Case No. 13-cv-2876, which was filed on October 22, 2013. (ECF No. 53 at 1.)
Plaintiff’s Motion requesting relief under Rule 4(a)(6) was not filed until December 13,
2013. (ECF No. 45.) Even if Plaintiff’s new complaint was filed the same day he
received notice of the Court’s Order, he waited 52 days before moving to reopen the
time to file an appeal.
Because Rule 4(a)(6)(B) requires the motion to be filed within 14 days of
receiving notice, the Court cannot reopen the time for Plaintiff to appeal the Court’s
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dismissal of his claims as to the remaining Defendants. See Fed. R. App. P. 4(a)(6)
(permitting the district court to reopen the time for appeal “only if all the following
conditions are satisfied”); Fed. R. Civ. P. 77(d)(2) (“Lack of notice of the entry [of an
order] does not affect the time for appeal or relieve—or authorize the court to relieve—a
party for failing to appeal within the time allowed, except as allowed by Federal Rule of
Appellate Procedure 4(a).”). Accordingly, Plaintiff’s request to reopen time to file an
appeal must be denied.
C.

Motion for Leave to Amend the Complaint
Plaintiff’s Memorandum Brief in support of the Motion also requests leave to

amend the complaint, and attaches a proposed Second Amended Complaint. (ECF
No. 47.) This request violates both this Court’s Revised Practice Standard III.B., which
requires that “[a]ll requests for the Court to take any action . . . must be contained in a
separate, written motion”, as well as this District’s Local Rule 7.1(c), which states that
such a motion “shall be made in a separate paper.” Accordingly, Plaintiff’s request for
leave to amend is denied without prejudice to refiling as a separate motion.
IV. CONCLUSION
For the reasons set forth above, it is hereby ORDERED that:
1.

Plaintiff’s Motion for Relief from Judgment or Order Pursuant to Rule 60(b) (ECF
No. 45) is GRANTED as to Defendant Emela Buljko and DENIED as to the
remaining Defendants;

2.

The Final Judgment is VACATED, the Clerk shall reopen this case as against
Defendant Emela Buljko, and this action shall proceed only as to Plaintiff’s
Fourth Amendment claim for malicious prosecution against Defendant Buljko;
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3.

When Final Judgment is entered, it shall be in favor of Defendants Kenneth R.
Buck, Greeley Police Chief, John Barber, Stephen Perkins, and Officer Ellis, and
against the Plaintiff, and those Defendants shall have their costs; and

4.

Plaintiff’s Motion for Leave to Amend the Complaint (ECF No. 46) is DENIED
WITHOUT PREJUDICE to refiling on or before June 30, 2014.
Dated this 27th day of May, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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