Maes et al v. Morris et al

Filing 7

ORDER DIRECTING PLAINTIFF HAYES TO CURE DEFICIENCIES AND DIRECTING PLAINTIFFS TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 8/26/15. The Clerk shall mail Plaintiff a copy of the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 form and of the Prisoner Complaint form (mailed as ordered). (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01753-GPG
CARLOS MAES,
BRITTNEY HAYES,
Plaintiffs,
v.
RYAN MORRIS, Det.,
JULIAN CLARK, Corp.,
LANCE GILBERT, and
BONITA GILBERT,
Defendants.

ORDER DIRECTING PLAINTIFF HAYES TO CURE DEFICIENCIES
AND DIRECTING PLAINTIFFS TO FILE AMENDED COMPLAINT

Plaintiffs, Carlos Maes and Brittney Hayes, are detained at the Boulder County
Jail. The Plaintiffs have filed, pro se, a Prisoner Complaint asserting a deprivation of
his constitutional rights under 42 U.S.C. § 1983. The Prisoner Complaint is not signed
by Ms. Hayes. Plaintiff Maes has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915.
Plaintiff Hayes, may not proceed as a Plaintiff in this action unless she signs the
operative pleading and files a separate Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915, along with the necessary attachments. In lieu
of filing a § 1915 motion and affidavit, Ms. Hayes may pay the $400.00 filing fee.
The Court must construe the Complaint liberally because Mr. Maes is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an

advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Plaintiff will be ordered to file an Amended Complaint if he wishes to pursue his
claims in this action.
I. Complaint
Mr. Maes makes the following allegations in the Complaint:
Illegal incarceration. False reporting. Abuse of public records. On March
22, 2015 Mr. Lance Gilbert knowingly, feloniously, maliciously, with
reckless disregard presented fraudulent court orders to have Mrs. Hayes
and Mr. Maes unlawfully arrested and detained and charged. Det. Morris
and Corporal Clark feloniously, maliciously, knowingly with reckless
disregard excepted fraudulent court orders from Mr. Gilbert, then to
proceed in bad faith and present the fraudulent court orders to the District
Attorney of Boulder County Colorado to charge us with false criminal
actions. § 18-8-114, § 18-8-111.
(ECF No. 1, at 4). Plaintiff asserts claims of unlawful arrest and unreasonable search
and seizure. He requests monetary relief.
II. Sufficiency of Claims
A. Liability of private actor Defendants under § 1983
To state a claim for relief under § 1983, “a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States” by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). “The purpose of this
requirement is to assure that constitutional standards are invoked only when it can be
said that the State is responsible for the specific conduct of which the plaintiff
complains.” Blum v. Yaretsky, 457 U.S. 991 (1982). “The traditional definition of acting
under color of state law requires that the defendant in a § 1983 action have exercised
power possessed by virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.” West, 487 U.S. at 49 (internal quotation marks

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omitted). Private persons may be said to act “‘under color of’ state law” if they are
“jointly engaged with state officials in the challenged action.” Dennis v. Sparks, 449 U.S.
24, 27-28 (1980). See also Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th
Cir.1987).
Plaintiff alleges that the private actor Defendants, Lance and Bonita Gilbert,
“presented fraudulent court orders to have [the Plaintiffs] unlawfully arrested and
detained and charged.” However, this allegation is vague and is insufficient to show an
agreement or joint action between the Gilberts and the Defendants police officers to
violate Plaintiffs’ constitutional rights. “[W]hen a plaintiff attempts to assert the state
action required for a § 1983 action against private actors based on a conspiracy with
government actors, mere conclusory allegations with no supporting factual averments
are insufficient.” Beedle v. Wilson, 422 F.3d 1059, 1073 (10 th Cir. 2005) (internal
quotation marks and citation omitted).
B. Fourth Amendment claims
The Court construes Plaintiffs’ allegations liberally as asserting either a claim of
false arrest and imprisonment (arrest without a warrant), or for malicious prosecution
(arrested pursuant to legal process - i.e, a warrant).
As explained by the Tenth Circuit in Myers v. Koopman, 738 F.3d 1190 (10th Cir.
2013):
Unreasonable seizures imposed without legal process precipitate Fourth
Amendment false imprisonment claims. See Wallace [v. Kato], 549 U.S.
[384,] 389, 127 S.Ct. 1091 [(2007)] (concluding that false imprisonment
was the proper analogy where defendants did not have a warrant for the
plaintiff's arrest and thus detention occurred without legal process).
Unreasonable seizures imposed with legal process precipitate Fourth
Amendment malicious-prosecution claims. See Heck [v. Humphrey], 512
U.S. [477,] 484, 114 S.Ct. 2364 [(1994)] (where detention occurs with
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legal process the “common-law cause of action for malicious prosecution
provides the closest analogy”).
Id. at 1194. See also Wilkins v. DeReyes, 528 F.3d 790, 793-94, 799 (10th Cir. 2008)
(concluding that where police officer obtained an arrest warrant for plaintiff based on
fabricated evidence gathered by using coercive interrogation techniques and plaintiff
challenged his detention after the institution of legal process, the claim that the legal
process itself was wrongful stated a “Fourth Amendment violation sufficient to support a
§ 1983 malicious prosecution cause of action.”); Mondragon v. Thomas, 519 F.3d 1078,
1083 (10th Cir. 2008) (“After the institution of legal process, any remaining
constitutional claim is analogous to a malicious prosecution claim.”).
State tort law provides the starting point for analyzing constitutional claims for
wrongful arrest and detention under § 1983; however, the ultimate inquiry is whether
there has been a deprivation of a constitutional right. Grubbs v. Bailes, 445 F.3d 1275,
1278 (10th Cir. 2006)(internal citations omitted).
Under Colorado law, false arrest arises when an individual is taken into custody
by a police officer who claims but does not have probable cause to believe that an
offense has been committed and that the person who was arrested committed it. See
Enright v. Groves, 560 P.2d 851, 853 (Colo.App.1977) (citing W. Prosser, Torts s 11
(4th ed.)). Plaintiffs do not allege specific facts to show that they were arrested and
detained without probable cause.
Alternatively, to state an arguable claim of malicious prosecution claim brought
under the Fourth Amendment, the Plaintiffs must allege facts to show that “(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
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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). Malice may be inferred if a defendant causes the prosecution without arguable
probable cause. See id. at 800-01 (malice may be inferred from intentional or reckless
behavior). Plaintiffs do not allege that the criminal charges against them have been
dismissed, or that they were adjudicated not guilty.
Because the Complaint is deficient for the reasons discussed above, the
Plaintiffs will be directed to file an Amended Complaint. Plaintiffs are reminded that to
state a claim in federal court, the Amended Complaint “must explain what each
defendant did to him or her; when the defendant did it; how the defendant’s action
harmed him or her; and, what specific legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 th Cir.
2007). Accordingly, it is
ORDERED that Plaintiff, Brittney Hayes, shall file, within 30 days of this Order,
a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(along with the attachments). Alternatively, Plaintiff Hayes may pay the $400.00 filing
fee. It is
FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff Brittney
Hayes, a copy of the court-approved form (and attachments) for filing a Prisoner's
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintif f shall
use the form in curing the deficiencies noted above.
FURTHER ORDERED that, if Plaintiff Brittney Hayes fails to cure the designated
deficiencies within thirty (30) days from the date of this order, she will be dismissed

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as a party to this action without further notice. The dismissal shall be without prejudice.
It is
FURTHER ORDERED that the Plaintiff(s) file, within thirty days from the date
of this Order, an Amended Complaint, on the court-approved Prisoner Complaint form,
that complies with the directives in this Order. It is
FURTHER ORDERED that the Clerk of the Court shall mail to Plaintiff Carlos
Mayes a copy of the court-approved Prisoner Complaint form, along with the applicable
instructions. It is
FURTHER ORDERED that, if Plaintiff(s) fail(s) within the time allowed to file an
Amended Complaint that complies with this Order as directed, the action may be
dismissed without further notice.
DATED August 26, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge

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