Lobato-Wright et al v. Manjarres et al

Filing 70

ORDER. ORDERED that the Recommendation of United States Magistrate Judge 53 is ACCEPTED. ORDERED that defendant's Motion to Dismiss Plaintiffs' Amended Complaint and Jury Demand 41 is GRANTED in part and DENIED in part. ORDERED that plaintiffs' Motion for Leave to File Second Amended and Supplemental Complaint 46 is GRANTED in part and DENIED in part. ORDERED that plaintiffs' Motion to Strike Exhibits to Motion to Dismiss 50 is DENIED. ORDERED that plaintiffs shall filed a second amended complaint in conformance with this order on or before April 11, 2016. Signed by Judge Philip A. Brimmer on 03/24/16.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02957-PAB-MJW
STANLEY CREIGHTON LOBATO-WRIGHT and
TODD ANTHONY LOBATO-WRIGHT,
Plaintiffs,
v.
GERRITT KOSER,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) served on June 25, 2015 [Docket No. 53].
The magistrate judge recommends that: (1) defendant Gerritt Koser’s Motion to Dismiss
Plaintiffs’ Amended Complaint and Jury Demand [Docket No. 41] be granted in part and
denied in part; (2) plaintiffs’ Motion for Leave to File Second Amended and
Supplemental Complaint [Docket No. 46] be granted in part and denied in part; and
(3) plaintiffs’ motion to strike exhibits to motion to dismiss [Docket No. 50] be denied.
On July 9, 2015, defendant filed timely objections to the Recommendation.
Docket No. 54. Defendant objects to the Recommendation’s finding that the Second
Amended Complaint adequately pleads a malicious prosecution claim. See Docket No.
54 at 2, ¶ 4; Docket No. 53 at 11. Plaintif fs have not filed a response to defendant’s
objection.

The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Property Known As
2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). To be sufficiently specific, an
objection must “enable[] the district judge to focus attention on those issues—factual
and legal—that are at the heart of the parties’ dispute.” See id. (quoting Thomas v. Arn,
474 U.S. 140, 147 (1985)).
The underlying facts are set forth in the Recommendation and will not be
restated here. Mr. Koser asserts that leave to amend should be denied because (1)
there was probable cause for the prosecution underlying plaintiffs’ malicious
prosecution claim, so their malicious prosecution claim is futile; (2) Mr. Koser should not
be liable for District Attorney Investigator Daniel Chun’s actions under a respondeat
superior theory; (3) Mr. Koser’s testimony at Stanley Lobato-Wright’s trial is afforded
absolute immunity; and (4) Mr. Koser was not acting under the color of state law.
Docket No. 54 at 10-13.
Defendant objects to the magistrate judge’s determination that plaintiffs
adequately plead a malicious prosecution claim in the proposed Second Amended
Complaint. Id. at 2, ¶ 4. The elements of a malicious prosecution claim are: “(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.

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2008) (citing Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007)).
Defendant’s objection appears to only challenge the magistrate judge’s
recommendation as to the third element. See Docket No. 54 at 10, ¶ 29.
The magistrate judge found that “[t]he affidavits supporting [p]laintiffs’ arrest
warrants, on their face, establish probable cause,” but noted that an arrest w arrant’s
probable cause can be “vitiated by showing the omission of relevant facts.” Docket No.
53 at 10 (emphasis in original) (citing Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.
1990). The magistrate judge determined that
the Second Amended Complaint alleges, repeatedly, that [p]laintiffs disclosed
not only their personal relationship to [Denver Housing Authority], but also all of
Stanley’s income. These facts, if included in the arrest affidavits, would have
vitiated probable cause. As a result, the proposed Second Am ended Complaint
plausibly alleges a lack of probable cause.
Docket No. 53 at 10; see also Docket No. 51-1 at 5, 13, ¶¶ 9, 30 (allegations pertaining
to plaintiffs’ disclosures regarding their income and relationship). The Court agrees with
the magistrate judge’s conclusion that plaintiffs have sufficiently alleged a lack of
probable cause for their arrest. See Stewart, 915 F.2d at 582-83 (“[A]t the time
defendant submitted his affidavit and arrested plaintiff, it was a clearly established
violation of plaintiff’s Fourth and Fourteenth Amendment rights to knowingly or
recklessly omit from an arrest affidavit information which, if included, would have
vitiated probable cause.”).
Accordingly, the Court overrules defendant’s objection to the magistrate judge’s
recommendation that plaintiffs’ malicious prosecution claim in the Second Amended
Complaint is futile.

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Defendant’s second argument, that Mr. Koser should not be liable for District
Attorney Investigator Daniel Chun’s actions under a respondeat superior theory , is
misplaced because plaintiffs’ malicious prosecution claim is not premised on a
respondeat superior theory of liability. Rather, plaintiffs’ allegations pertain to
defendant’s role in initiating and continuing their prosecution. See Docket No. 51-1 at
3, 8-13, ¶¶ 5, 23, 28-30.
Defendant’s third argument, that Mr. Koser’s testimony at Stanley LobatoWright’s trial is afforded absolute immunity, does not warrant a dismissal of plaintiffs’
malicious prosecution claim. Plaintiffs’ proposed Second Amended Complaint contains
allegations to support their malicious prosecution claim apart from Mr. Koser’s trial
testimony, see id., and their malicious prosecution claim does not depend solely on
their allegations regarding the testimony Mr. Koser provided at their criminal trial. See
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (“The court’s function
on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient
to state a claim for which relief may be granted.”) (citations and quotation marks
omitted).
Defendant’s fourth argument, that Mr. Koser was not acting under the color of
state law, fails because plaintiffs’ proposed Second Amended Complaint contains
sufficient allegations to establish that his actions in the investigation and prosecution of
plaintiffs were performed in his capacity as an attorney at Denver Housing Authority.
See Docket No. 51-1 at 3, 8-13 ¶¶ 5, 23, 27, 28, 30. Def endant appears to contend
that his actions constitute private conduct, Docket No. 54 at 14; however, it is unclear
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why defendant’s actions as an attorney for the Denver Housing Authority would
constitute private conduct. As noted above, plaintiffs allege that defendant initiated and
continued to participate in the investigation against plaintiffs that ultimately led to their
arrest. Docket No. 51-1 at 11-13, ¶ 28-30.
Accordingly, the Court overrules defendant’s objections to the magistrate judge’s
recommendation.
As for the unobjected-to portions of the Recommendation, in the absence of a
proper objection, the district court may review a magistrate judge’s recommendation
under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167
(10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not
appear that Congress intended to require district court review of a magistrate’s factual
or legal conclusions, under a de novo or any other standard, when neither party objects
to those findings”). In this matter, the Court has reviewed the unobjected to-portions of
the Recommendation to satisfy itself that there is “no clear error on the face of the
record.”1 Fed. R. Civ. P. 72(b), Advisory Committee Notes.
The Court concludes that the Recommendation on Mr. Koser’s motion to
dismiss, plaintiffs’ motion to strike, and plaintiffs’ motion for leave to amend is a correct
application of the facts and the law. Therefore, the Court will grant in part and deny in
part defendant’s Motion to Dismiss Plaintiffs’ Amended Complaint and Jury Demand
[Docket No. 41], grant in part and deny in part plaintiffs’ Motion for Leave to File Second

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This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
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Amended and Supplemental Complaint [Docket No. 46], and deny plaintiffs’ Motion to
Strike Exhibits to Motion to Dismiss [Docket No. 50].
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 53] is ACCEPTED. It is further
ORDERED that defendant’s Motion to Dismiss Plaintiffs’ Amended Complaint
and Jury Demand [Docket No. 41] is GRANTED in part and DENIED in part. It is
granted with respect to plaintiffs’ false imprisonment and unlawful arrest claims. It is
denied with respect to plaintiffs’ malicious prosecution claim. It is further
ORDERED that plaintiffs’ Motion for Leave to File Second Amended and
Supplemental Complaint [Docket No. 46] is GRANTED in part and DENIED in part. It is
granted with respect to plaintiffs’ malicious prosecution claim. It is denied with respect
to plaintiffs’ false imprisonment and unlawful arrest claims. It is further
ORDERED that plaintiffs’ Motion to Strike Exhibits to Motion to Dismiss [Docket
No. 50] is DENIED. It is further
ORDERED that plaintiffs shall filed a second amended complaint in conformance
with this order on or before April 11, 2016.

DATED March 24, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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