Gale v. Jacob

Filing 33

ORDER granting in part and denying in part 15 Motion to Dismiss; adopting Report and Recommendations re 29 Report and Recommendations in it's entirety. Gales claim for harassment is DISMISSED WITH PREJUDICE, and Gales Motion to Dismiss is otherwise DENIED. The Clerk shall amend the caption to reflect that the Defendants name is Jacob Robb, not Robb Jacob. The stay on discovery imposed by Order of the Magistrate Judge 28 is hereby LIFTED. Ordered by Judge William J. Martinez on 03/03/2016.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0347-WJM-KMT
DAMON E. GALE,
Plaintiff,
v.
JACOB ROBB, Denver Police Officer
Defendant.

ORDER ADOPTING FEBRUARY 5, 2016 RECOMMENDATION OF MAGISTRATE
JUDGE AND GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on United States Magistrate Judge Kathleen M.
Tafoya’s Recommendation dated February 5, 2016 (“Recommendation”) (ECF No. 29),
which recommends granting in part and denying in part Defendant’s Motion to Dismiss
(ECF No. 15). The Recommendation is incorporated herein by reference. See
28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Defendant “Robb Jacob,” whose real
name is Jacob Robb (“Robb”), filed a timely Objection to the Recommendation on
February 19, 2016 (“Objection”) (ECF No. 31). For the reasons set f orth below, Robb’s
Objection is overruled, the Recommendation is adopted, the Motion to Dismiss is
granted in part and denied in part .
I. STANDARD OF REVIEW
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.” An objection to a recommendation is properly made if it is both timely and
specific. United States v. One Parcel of Real Prop. Know n as 2121 East 30th St., 73
F.3d 1057, 1059 (10th Cir. 1996). An objection is suf ficiently specific if it “enables the
district judge to focus attention on those issues—factual and legal—that are at the heart
of the parties’ dispute.” Id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). 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.
II. BACKGROUND
Plaintiff Damon Gale (“Gale”) claims that he and some friends were standing
outside, not committing any crime, on January 16, 2014. (ECF No. 1 at 2.) Robb, a
Denver Police Officer, approached them and, according to Gayle’s handwritten
Complaint,
ask[ed] what myself [and] other friends were doing[.]
[Someone] replied, “Just associating.” He then ask[ed] [if]
we ha[d] anything illegal on our persons/possession. (I
replied, “No.”) He went through my pants pocket and found
a rock from the ground. He claimed it looked like (crack).
[Robb] did not conduct a field test for a lawful arrest before
taking me into physical custody (jail) on 1-16-2014. . . .
[Robb] arrested (me) w/o sufficient probable cause . . . .
There were no charges filed; case closed on 1-22-14. This
is how long I stayed in jail . . . .
(Id. at 3–5 (capitalization and punctuation supplied for ease of reading).) Based on this
incident, Gale sues Robb for Fourth Amendment violations (unreasonable search and
seizure) and “illegal harassment.” (Id.)
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III. ANALYSIS
In response to Robb’s Motion to Dismiss (ECF No. 15), the Magistrate Judge
ruled that there was no cause of action for “illegal harassment.” (See ECF No. 29 at 7.)
The Magistrate Judge therefore recommended dismissing that claim. Neither Gale nor
Robb has objected to this recommendation. Because there is no clear error on the f ace
of it, the Court adopts it. See Fed. R. Civ. P. 72(b) 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 order to accept the recommendation.”); see also Summers
v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the
district court may review a magistrate’s report under any standard it deems
appropriate.”).
As for Robb’s challenge to Gale’s Fourth Amendment claims, the Magistrate
Judge ruled that Gale has sufficiently pleaded a cause of action. (ECF No. 29 at 5–7.)
Robb focuses his objection on that ruling. Robb argues that a Fourth Amendment claim
cannot be properly pleaded without allegations negating the potential lawful
justifications for a warrantless search and/or arrest, i.e., consent, a Terry stop-and-frisk
(see Terry v. Ohio, 392 U.S. 1 (1968)), or objective probable cause. (ECF No. 31 at 5
(citing Sanchez v. Bauer, 2015 WL 5026195, at *4 (D. Colo. Aug. 26, 2015)).)
The Court need not resolve whether Robb correctly states the pleading
requirements for a Fourth Amendment claim. Although a close question, the Court
agrees with the Magistrate Judge that lack of a lawful justification to search Gale’s
pockets may be inferred from Gale’s allegations as pleaded. (ECF No. 29 at 6.) And if

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Robb lacked a lawful justification to search Gale’s pockets, then Robb lacked a lawful
justification to arrest Gale based on the results of that search. See Wong Sun v. United
States, 371 U.S. 471, 484 (1963) (“The exclusionary prohibition extends as well to the
indirect as the direct products of [unlawful searches].”). Robb’s objection is therefore
overruled.
IV. POTENTIAL AVAILABILITY OF AN ATTORNEY TO REPRESENT GALE
This Court has instituted a program through which attorneys in the community
have agreed to represent pro se litigants (such as Gale) without expectation of payment
(“Pro Bono Panel”). Before referring any case to the Pro Bono Panel, however, the
Court must consider all of the following:
(i) the nature and complexity of the action;
(ii) the potential merit of the pro se party’s claims;
(iii) the demonstrated inability of the pro se party to retain
counsel by other means; and
(iv) the degree to which the interests of justice, including the
benefit to the Court, will be served by appointment of
counsel.
D.C.COLO.LAttyR 15(f)(1)(B).
Having considered these factors, the Court cannot at this time determine the
appropriateness of appointing an attorney from the Pro Bono Panel to represent Gale.
In particular, Gale’s complaint does not contain enough details to evaluate its potential
merit. However, if Gale wishes the Court to reconsider the appropriateness of such an
appointment, Gale is granted permission under Federal Rule of Civil Procedure 15(a)(2)
to file an amended complaint within the next 30 days. The amended complaint should
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specifically state what happened between the time that Gale denied possessing
anything illegal and the time that Robb searched Gale’s pockets. Did Robb ask any
more questions during that time? Did Robb ask for Gale’s consent to search his
pockets? Did Robb order Gale to submit to a search? Did Robb search anyone else
first? These are the sorts of details the Court needs so that it may evaluate whether
Gale’s claims have enough facial merit to justify referring Gale’s case to the Pro Bono
Panel.
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Recommendation of the United States Magistrate Judge (ECF No. 29) is
ADOPTED in its entirety;

2.

Robb’s Motion to Dismiss (ECF No. 15) is GRANTED IN PART and DENIED IN
PART as follows:
a.
b.

3.

Gale’s claim for harassment is DISMISSED WITH PREJUDICE, and
Gale’s Motion to Dismiss is otherwise DENIED;

The Clerk shall amend the caption to reflect that the Defendant’s name is Jacob
Robb, not “Robb Jacob”;

4.

Should Gale wish to be considered for appointment of an attorney from the Pro
Bono Panel, Gale is granted permission to file an amended complaint no later
than April 4, 2016; 1

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This order is not meant to limit Gale’s ability to file an amended complaint for any other
reason. However, if Gale wishes to be considered for appointment of an attorney from the Pro
Bono Panel anytime before trial, the Court must receive a sufficiently detailed amended
complaint by the deadline stated above.

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5.

The stay on discovery imposed by Order of the Magistrate Judge (ECF No. 28) is
hereby LIFTED.

Dated this 3rd day of March, 2016.

BY THE COURT:

William J. Martínez
United States District Judge

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