Strepka v. Alba et al

Filing 76

ORDER adopting 45 Report and Recommendations.; granting in part and denying in part 21 Motion to Dismiss for Failure to State a Claim by Judge R. Brooke Jackson on 2/17/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 15-cv-01444-RBJ-KLM
MARK ALAN STREPKA,
Plaintiff,
v.
FRANCISCO L. ALBA, (14016), individually and in his official capacity as police officer in and
for the City and County of Denver, Colorado,
Defendant.

ORDER

This matter is before the Court on defendant Francisco Alba’s motion to dismiss for
failure to state a claim, ECF No. 21, and Magistrate Judge Kristen L. Mix’s recommendation on
that motion, ECF No. 45. Judge Mix recommends that this Court grant in part and deny in part
defendant’s motion. ECF No. 45 at 2. Her recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). After a de novo review of the portions of
the recommendation the parties object to, see id., the Court ADOPTS in full Judge Mix’s
recommendation. Accordingly, the Court GRANTS IN PART and DENIES IN PART
defendant’s motion.
I. FACTS
On January 19, 2015 defendant Francisco L. Alba, a Denver police officer, allegedly
began to follow plaintiff Mark Alan Strepka as he was driving a rental car. Amended Complaint,
ECF No. 9 at 3–4. Plaintiff alleges that defendant followed him for over a mile before pulling

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him over. Id. He asserts that defendant has claimed that he pulled plaintiff over for two reasons:
(1) because he could not clearly see plaintiff’s rear license plate; and (2) because he thought the
vehicle plaintiff was driving might be an “un-reported steal” from out of state. See id. at 6.
Plaintiff contends that he was not violating any laws when defendant stopped him. See id.
Upon stopping him, defendant allegedly began to question plaintiff. Id. Defendant
purportedly asked plaintiff where he was coming from and inquired into whether or not plaintiff
was in possession of any drugs or weapons. Id. Defendant then allegedly conducted a search of
plaintiff’s vehicle without a warrant. Id.at 3–5, 7–8. The search turned up two firearms that
were locked inside the trunk of the vehicle, as well as a small blue vial that allegedly contained
methamphetamine. Id. at 8. Although he did not have an arrest warrant, defendant arrested
plaintiff upon discovering these items and took plaintiff to jail. Id. at 9.
On July 8, 2015, plaintiff filed this civil rights action under 42 U.S.C. § 1983, alleging
violations of the First, Fourth, and Fourteenth Amendments to the U.S. Constitution. Complaint,
ECF No. 1. He amended his initial complaint on December 16, 2015. ECF No. 9. The case was
subsequently referred to Magistrate Judge Kristen L. Mix on January 6, 2016. ECF No. 17. On
February 2, 2016 defendant filed a motion to dismiss plaintiff’s amended complaint for failing to
state a claim under Rule 12(b)(6). ECF No. 21. On September 6, 2016 Magistrate Judge Mix
recommended that this Court grant in part and deny in part defendant’s motion. ECF No. 45.
Plaintiff subsequently objected to several portions of that recommendation. ECF No. 56.
II. STANDARD OF REVIEW
A.

Magistrate Judge Recommendation.

When a magistrate judge makes a recommendation on a dispositive motion, the district
court “must determine de novo any part of the magistrate judge’s disposition that has been

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properly objected to.” Fed. R. Civ. P. 72(b)(3). “In the absence of timely 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)).
B.

Rule 12(b)(6).

To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While the Court must accept the well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true. Ashcroft v.
Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual
allegations such that the right to relief is raised above the speculative level, he has met the
threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008).
Importantly, “a well-pleaded complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”
Twombly, 550 U.S. at 556 (internal quotation marks omitted); accord Robbins v. Okla. ex. rel.
Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). “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.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (internal citation omitted).

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C. Pro Se Party.
When a case involves a pro se party, the court will “review his pleadings and other papers
liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v.
U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, “it is [not] the proper function
of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff’s pleadings “does not
relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim
could be based.” Id. Pro se parties must “follow the same rules of procedure that govern other
litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation marks and
citations omitted).
III. ANALYSIS
Plaintiff is the only party that objects to portions of Magistrate Judge Mix’s
recommendation. Specifically, he objects to her recommendation to grant defendant’s motion to
dismiss: (1) plaintiff’s Fourth Amendment unlawful arrest claim; (2) his Fourteenth Amendment
claims; and (3) his claim under C.R.S. § 16-3-310. 1 ECF No. 56 at 2–3. He also objects to
Magistrate Judge’s decision not to address his arguments that collateral estoppel and res judicata
apply to bar defendant from defending this 42 U.S.C. § 1983 action. Id. After de novo review of
these portions of Magistrate Judge Mix’s recommendation, however, I find that Judge Mix
properly recommended that defendant’s motion should be granted with respect to these claims. I

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Judge Mix recommends that only two of plaintiff’s claims survive defendant’s motion to dismiss: (1) his
Fourth Amendment for illegally extending a traffic stop; and (2) his Fourth Amendment claim for an
illegal search of his vehicle. See ECF No. 45. Defendant does not appear to object to that
recommendation. The Court therefore adopts Magistrate Judge Mix’s recommendations to allow those
claims to survive defendant’s motion to dismiss. Furthermore, it appears that plaintiff does not object to
Judge Mix’s recommendation to grant defendant’s motion to dismiss his First Amendment claims without
prejudice and official capacity claims with prejudice. See ECF No. 56 at 2–3; ECF No. 45 at 4, 16.
Accordingly, the Court adopts Judge Mix’s recommendation on those claims and dismisses them.
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likewise find that collateral estoppel and res judicata have no application in this suit. See id.
Accordingly, the Court ADOPTS in full Judge Mix’s recommendation.
A. Plaintiff’s Fourth Amendment Claim for Unlawful Arrest.
In her recommendation, Magistrate Judge Mix found that the evidence of plaintiff’s
possession of illegal drugs and firearms clearly established probable cause precluding a Fourth
Amendment claim for an illegal warrantless arrest. ECF No. 45 at 13 (citing Stonecipher v.
Valles, 759 F.3d 1134, 1141 (10th Cir. 2014), cert. denied, 135 S. Ct. 881 (2014)). In his
objection, plaintiff appears to object to that recommendation on two grounds: (1) he contends
that defendant did not have probable cause to arrest because evidence of the firearms and drugs
should be excluded; and (2) he argues that defendant’s command to “sit on the curb” prior to his
formal arrest of plaintiff (and discovery of firearms and methamphetamine) constituted the
illegal arrest on which liability should be premised. Id. at 4–8. I find that neither argument is
convincing.
First, to the extent plaintiff appears to argue that the “fruit of the poisonous tree” doctrine
(an extension of the “exclusionary rule”) applies to bar introduction of the evidence of the illegal
firearms and alleged drugs constituting the probable cause on which defendant validly arrested
him, I point out that this doctrine and rule do not apply in civil actions such as this. See, e.g.,
Townes v. City of N.Y., 176 F.3d 138, 145 (2d Cir. 1999) (“We find no case in which the doctrine
has been successfully invoked to support a § 1983 claim, and we see no reason why it could
be.”); Dalcour v. Gillespie, No. 08-CV-00747-MSK-KLM, 2013 WL 2903399, at *6 (D. Colo.
June 14, 2013) (holding that the doctrine does not apply in a § 1983 case). Thus, I conclude, as
Judge Mix rightly did, that defendant’s discovery of firearms and allegedly illegal drugs, as
described in plaintiff’s amended complaint, gave defendant probable cause to arrest plaintiff

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without a warrant, and that plaintiff’s illegal arrest claim must therefore be dismissed. See, e.g.,
Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008) (explaining that a warrantless arrest
violates the Fourth Amendment unless supported by probable cause).
Likewise, I find unavailing plaintiff’s attempt to recast his illegal arrest claim as one
premised on defendant’s alleged “sit on the curb” command. As plaintiff admits in his amended
complaint, up until defendant formally arrested him after searching his vehicle, defendant’s
detention of plaintiff constituted an investigatory stop under Terry v. Ohio, 391 U.S. 1 (1968).
See, e.g., ECF No. 9 at 11. As such, defendant’s alleged command to “sit on the curb” did not
constitute an arrest on which an illegal arrest claim could plausibly be based. See Strepka v.
Sailors, 494 F. Supp. 2d 1209, 1223 (D. Colo. 2007) (explaining what constitutes an
investigatory detention” as opposed to an arrest). The Court therefore ADOPTS Magistrate
Judge Mix’s recommendation to dismiss this claim. 2
B. Plaintiff’s Fourteenth Amendment Claims.
Next, plaintiff argues Magistrate Judge Mix erred by recommending that his Fourteenth
Amendment claims be dismissed. The basis of this objection appears to be that the Fourteenth
Amendment should apply to defendant’s pre-arrest conduct. ECF No. 56 at 8–14. However, as
Magistrate Judge Mix correctly pointed out, the Fourth Amendment, not the Fourteenth
Amendment, governs defendant’s conduct prior to plaintiff’s arrest. See Porro v. Barnes, 624
F.3d 1322, 1325–26 (10th Cir. 2010) (explaining that “[t]he choice of amendment matters” in a §
1983 case and that the Fourteenth Amendment applies, rather than the Fourth Amendment,
“when the plaintiff finds himself in the criminal justice system somewhere between the two
stools of an initial seizure and post-conviction punishment”). Furthermore, like Magistrate Judge
Mix I find it “doubtful” that plaintiff intended to assert claims against defendant based on events
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As discussed supra note 1, plaintiff retains a claim which challenges the scope of this Terry stop.
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occurring after plaintiff’s arrest. See ECF No. 45 at 14–15. Accordingly, the right vehicle for
plaintiff’s allegations is the Fourth Amendment. The Court therefore ADOPTS Magistrate Judge
Mix’s recommendation that plaintiff’s Fourteenth Amendment be dismissed.
C. C.R.S. § 16-3-310 Claims.
The Court also finds that Magistrate Judge Mix’s recommendation to dismiss
plaintiff’s claim under C.R.S. § 16-3-310 was correct despite defendant’s objection to the
contrary. C.R.S. § 16-3-310 is a state criminal statute that requires an officer to comply with
certain conditions before conducting a consensual search. As Magistrate Judge Mix correctly
noted, nowhere does the statute provide for a civil remedy. See C.R.S. § 16-3-310.
Accordingly, none should be created from it. See Creech v. Fed. Land Bank of Wichita, 647
F. Supp. 1097, 1099 (D. Colo. 1986) (explaining that “a bare criminal statute, which contains
absolutely no indication that a civil remedy is available, does not provide a basis from which
to infer a private cause of action” because it gives no indication of legislative intent to do
so—the most important factor for implying a cause of action under Cort v. Ash, 422 U.S. 66,
79–80 (1975)). Furthermore, this claim must also be dismissed because plaintiff did not even
raise it in his complaint. Rojo-Alderte v. Fed. Bureau of Prisons, No. 08-CV00045WYDBNB, 2009 WL 598338, at *1 (D. Colo. Mar. 6, 2009) (finding that claims
asserted in a supplemental response, rather than the complaint, should be dismissed). The
Court therefore ADOPTS Magistrate Judge Mix’s recommendation and dismisses this claim.
D. Collateral Estoppel and Res Judicata.
Finally, the Court rejects plaintiff’s attempt to make use of the doctrines of collateral
estoppel and res judicata in this action. Although Magistrate Judge Mix did not address this
argument, plaintiff contends that because in the criminal proceeding based on these events

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the state court ruled that the government’s actions were unconstitutional, that defendant
should be precluded from defending against this § 1983 action in this case based on those
same events. The Tenth Circuit, however, has foreclosed such a tactic, explaining that
collateral estoppel cannot possibly apply under those circumstances because there is no
“privity” (one of the collateral estoppel’s necessary elements) between the prosecution in a
criminal proceeding and the individual officer in a related but separate civil case. See
Novitsky v. City of Aurora, 491 F.3d 1244, 1252 n.2 (10th Cir. 2007) (“[A plaintiff] must
establish anew that the officers violated his constitutional rights in this § 1983 action.”)
(citations omitted).
ORDER
For the reasons above, the Court ADOPTS in full Magistrate Judge Mix’s
recommendation. Accordingly, the Court dismisses without prejudice plaintiff’s First
Amendment claim, and dismisses with prejudice plaintiff’s Fourth Amendment illegal arrest
claim, his Fourteenth Amendment claims, his claim under C.R.S. § 16-3-310, and his official
capacity claims.

DATED this 17th day of February, 2017.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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