Fisher v. Koopman et al

Filing 45

ORDER AFFIRMING 40 Report and Recommendations of Magistrate Judge and OVERRULES 41 Objections; Plaintiffs Motion For Leave to File First Amended Complaint 31 DENIED, by Judge William J. Martinez on 10/28/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0166-WJM-NYW
TAMMY FISHER,
Plaintiff,
v.
BRIAN KOOPMAN, individually and in his official capacity as Detective in the Loveland,
Colorado Police Department, and
LUKE HECKER, individually and in his official capacity as Chief of Loveland Police
Department,
Defendants.

ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO
MAGISTRATE JUDGE’S RECOMMENDATION

Plaintiff Tammy Fisher (“Plaintiff”) initiated this action on January 9, 2015 against
Defendants Brian Koopman and Luke Hecker (“Defendants”), alleging Defendants
violated her Fourteenth Amendment rights under 42 U.S.C. § 1983 by undertaking a
malicious prosecution, and committed several torts under Colorado law. (ECF Nos. 1,
2.) On May 20, 2015, Plaintiff filed a Motion for Leave to File First Amended Complaint
(“Motion”). (ECF No. 31.) On July 7, 2015, Judge Wang issued a Recommendation
(“the Recommendation”) that the Motion should be denied. (ECF No. 40.) Plaintif f filed
a timely objection to the Recommendation on July 17, 2015, and Defendants filed a
Response on July 29, 2015. (ECF Nos. 41, 43.) For the reasons set f orth below,
Plaintiff’s objections are overruled.

I. BACKGROUND
Plaintiff’s malicious prosecution claim stems from Defendant Koopman’s
investigation into Plaintiff’s alleged interference with an ongoing police investigation.
(ECF No. 2.) Plaintiff claims that Defendant Hecker, as Chief of Police for the City of
Loveland, Colorado, is also liable for malicious prosecution, and for his failure to train
and supervise his employees, including Defendant Koopman. (Id. at 11-13.)
Defendants are sued in their official and individual capacities. (Id. at 1.)
The proposed Amended Complaint, submitted as an exhibit to Plaintiff’s Motion,
seeks to add the City of Loveland, Colorado (“Loveland”), as a Defendant to this action.
(ECF No. 31-1 at 1.) The Amended Complaint further modifies Plaintiff’s first claim to
incorporate a Fourth Amendment violation for malicious prosecution against
Defendants and Loveland, and her second claim to incorporate a Fourth Amendment
violation for failure to train and supervise against Defendant Hecker and Loveland. (Id.
at 10-14.) The remaining claims contained in the Amended Complaint also include
Loveland as a Defendant. (Id.)
However, in her Reply brief, Plaintiff states: “It should be of note that Plaintiff’s
previous Motion for Leave to Amend should now include her intent to add an additional
claim for a violation of her Fourth Amendment right to be free from unreasonable
searches.” (ECF No. 36 at 1.) Two weeks after she submitted her Reply brief, Plaintiff
filed a “Supplement/Amendment” to her Motion, which included a new proposed
Amended Complaint. (ECF No. 37.) This version of the Complaint contains a claim for
violation of the Fourth Amendment based on an unreasonable search and seizure. (Id.)

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Judge Wang held a hearing on the Motion on July 2, 2015. (ECF No. 38.) At the
hearing, Judge Wang struck the “Supplement/Amendment” because Plaintiff failed to
seek leave to file a sur-reply, and took the Motion, including the first proposed
Amended Complaint, under advisement. (ECF No. 38.) Plaintiff’s objections to Judge
Wang’s ruling that struck the “Supplement/Amendment” as an improper sur-reply are
overruled. See Stransky v. HealthONE of Denver, Inc., 2012 WL 6548108, at *3 (D.
Colo. Dec. 14, 2012). The remainder of this Order will therefore only address Plaintiff’s
Motion and Amended Complaint. (ECF Nos. 31, 31-1.)
II. 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 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. Here, Plaintiff filed a timely
objection to Magistrate Judge Wang’s Recommendation. See Fed. R. Civ. P. 72(b)(2).
Therefore, this Court reviews the issues before it de novo.1

1

A magistrate judge may issue orders on nondispositive motions only. Ocelot Oil Corp.
v. Sparrow Indus., 847 F.2d 1461, 1462-63 (10th Cir. 1988). Whether motions to amend are
dispositive is an unsettled issue. Chavez v. Hatterman, 2009 WL 82496, at *1 (D. Colo. Jan.
13, 2009) (collecting cases). When an order denying a motion to amend removes or precludes
a defense or claim from the case it may be dispositive. Zinn-Hoshijo v. Comm. for Catholic
Secondary Educ. in Colorado Springs, 2012 WL 1582784, at *1 (D. Colo. May 7, 2012).
Magistrate Judge Wang assumed the Motion to Amend was dispositive and therefore issued a
Recommendation rather than resolving the Motion by Order.

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III. ANALYSIS
Judge Wang held that each of Plaintiff’s proposed amendments would be futile,
and therefore recommended that the Motion be denied in its entirety. (ECF No. 40.)
The Court discusses each aspect of the Recommendation below.
A.

Plaintiff’s Fourth Amendment Claims
Judge Wang held that Plaintiff could not succeed on her proposed Fourth

Amendment claim for malicious prosecution under § 1983 because she was never
seized, i.e., arrested or incarcerated. (Id. at 4-5.) Plaintiff objects and argues that her
Fourth Amendment rights were violated by an unreasonable search, not an
unreasonable seizure. (ECF No. 41 at 2-3.) Plaintiff argues that Defendant Koopman
secured a warrant to search her cellular phone records based on a f alse or misleading
affidavit. (Id. at 3.)
The Tenth Circuit has “repeatedly recognized” that “the relevant constitutional
underpinning for a claim of malicious prosecution under § 1983 must be ‘the Fourth
Amendment’s right to be free from unreasonable seizures.’” Becker v. Kroll, 494 F.3d
904, 914 (10th Cir. 2007) (citation omitted). Thus, a claim for malicious prosecution
must be “based on a seizure by the state—arrest or imprisonment.” Id. On the other
hand, Becker does appear to suggest that a malicious prosecution claim can be
founded on an unreasonable search or seizure of property as well. See id. at 916-17.
Even so, the law is clear that Defendants must have actually “caused [Plaintiff’s]
continued confinement or prosecution.” Novitsky v. City of Aurora, 491 F.3d 1244,
1258 (10th Cir. 2007) (emphasis added). Plaintiff concedes that she was never seized

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within the meaning of the Fourth Amendment. (ECF No. 41 at 2.) Plaintiff further
concedes that at no point was she actually prosecuted, as no criminal charges were
ever filed against her. (ECF No. 36 at 4.) Plaintiff therefore cannot establish a prima
facie Fourth Amendment malicious prosecution claim.2 See Restatement (Second) of
Torts § 661.
As a result, Plaintiff cannot prevail on her claim for failure to train and supervise
without first establishing an underlying constitutional violation. “It is important to
distinguish between the standard for determining when a governmental entity will be
liable under section 1983 for constitutional wrongs committed by its employees and the
degree of fault, if any, which a plaintiff must show to make out an underlying claim of a
constitutional violation.” Ware v. Unified Sch. Dist. No. 492, 902 F.2d 815, 819 (10th
Cir. 1990) (citation omitted); see also Perry, 2008 WL 961559, at *3 (“[I]n the absence
of an underlying constitutional violation, plaintiff cannot make out a claim against the
city or Bennett for failure to adequately train Aurora police officers . . . .”).
B.

Adding Loveland as a Defendant
Plaintiff further objects to Judge Wang’s holding that Loveland is duplicative of

Defendant Hecker in his official capacity, and therefore need not be added as a
2

It seems, however, that this claim could be pled as a violation of the Fourth
Amendment, rather than a malicious prosecution claim. Plaintiff appears to have acknowledged
this deficiency in her Reply brief on the Motion to Amend, stating: “Plaintiff contends that
Defendant Koopman prepared an affidavit for a search warrant of Plaintiff’s cell phone records
which affidavit contained false and misleading information. While these facts were alluded to in
Plaintiff’s proposed amended complaint, they were specifically couched as Fourth Amendment
malicious prosecution claims.” (ECF No. 36 at 1.) Unfortunately, Plaintiff attempted to cure this
defect by filing a “Supplement/Amendment” that added a claim for “Fourth and Fourteenth
Amendment Violation—Unreasonable Search and Seizure,” after her Reply brief was filed.
(ECF No. 37-1.) As described above, the “Supplement/Amendment” has been stricken from
the record, and is therefore not before the Court at this time. (ECF No. 38.)

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Defendant. (ECF No. 41 at 5.) The Supreme Court has held:
As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity. It is not a suit against the official personally, for the
real party in interest is the entity. Thus, while an award of
damages against an official in his personal capacity can be
executed only against the official’s personal assets, a
plaintiff seeking to recover on a damages judgment in an
official-capacity suit must look to the government entity itself.
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (emphasis in original); see also Watson
v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988) (“A suit against a municipality
and a suit against a municipal official acting in his or her official capacity are the
same.”); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, n.55 (1978)
(“[O]fficial-capacity suits generally represent only another way of pleading an action
against an entity of which an officer is an agent.”). The Court thus overrules Plaintiff’s
objections in this regard.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED that:
1.

Plaintiff’s Objections (ECF No. 41) to U.S. Magistrate Judge Wang’s
Recommendation (ECF No. 40) are OVERRULED;

2.

Magistrate Judge Wang’s Recommendation (ECF No. 40) is AFFIRMED and
ADOPTED in its entirety; and

3.

Plaintiff’s Motion For Leave to File First Amended Complaint (ECF No. 31) is
DENIED.

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Dated this 28th day of October, 2015.

BY THE COURT:

William J. Martínez
United States District Judge

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