Jones v. Schiffelbein

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 12/8/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02635-GPG
ANDRE JONES,
Plaintiff,
v.
JERRY SCHIFFELBEIN, Detective, Colorado Springs Police Department,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Andre Jones, is an inmate in the custody of the Colorado Department of
Corrections currently incarcerated at the Sterling Correctional Facility. Plaintiff has
filed, pro se, a Prisoner Complaint asserting a deprivation of his constitutional rights
under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Plaintiff 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
In the Nature of the Case section of the Complaint, Plaintiff alleges the following:
On September 9, 2013 in El Paso County, State of Colorado,

Detective Jerry Schiffelbein knowingly and maliciously arrested [Plaintiff]
for an allege crime of violence. Detective Schiffelbein fabricated his
narrative report to use the “Good Faith Rule” for probable cause in order
to be issued arrest, search, seizure warrants. On December 10, 2013,
Judge Barney Iuppa swore Detective Schiffelbein in to be a material
witness in court where he knowingly and wantonly committed perjury to
bound over for trial. Due to his position as a Peace Officer, Detective
Schiffelbein has the ability to influence and deceive the CSPD, District
Attorney, Magistrate and the Judge in order to get a conviction. Detective
Schiffelbein’s action has cause [Plaintiff] to lose his kids, house, job, and
his liberties. [Plaintiff] is currently waiting on his appeal, this suit is being
brought to hold Detective Jerry Schiffelbein accountable for his actions.”
(ECF No. 1, at 3). Plaintiff asserts one claim entitled “18 USCS § 1001(a)(3) False
swearing.” (Id., at 4). Within this claim, Plaintiff also cites to Colo. Rev. Stat. § 18-8111(1)© for false reporting, 18 U.S.C. § 1623(a) for false testimony, Color. Rev. Stat. §
18-8-502(1) for perjury, and 42 U.S.C. § 1983 for false statements in connection with
establishing probable cause for an arrest. (Id., at 4-6). Plaintiff further contends that
Defendant violated the “5th and 14 th amendment that guarantees the right as to life,
liberty, and property so fundamentally important as to require compliance with the due
process standards of fairness and justice.” (Id., at 6). As relief, Plaintiff requests
declaratory and injunctive relief. (Id., at 8).
II. Sufficiency of Claims
A. Fourth Amendment claims
The Court construes Plaintiff’s allegations liberally as asserting a § 1983 claim
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
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.”).
To state an arguable claim of malicious prosecution claim brought under the
Fourth Amendment, Plaintiff 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 arrest, continued
confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff
sustained damages.” Wilkins, 528 F.3d at 799. 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). In the Complaint, Plaintiff does
not allege that the criminal charges against him have been dismissed, or that he was
adjudicated not guilty.
B. Application of Heck v. Humphrey

In addition, Plaintiff appears to be challenging the validity of his state court
conviction by claiming that he was convicted of a criminal charge arising from an
unlawful arrest and prosecution. Under Heck v. Humphrey, the United States Supreme
Court held that a prisoner may not challenge his state criminal conviction in a § 1983
action until the criminal conviction is over-turned. 512 U.S. 477 (1994). Moreover, a
civil rights action filed by a state prisoner "is barred (absent prior invalidation) – no
matter the relief sought (damages or equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if
success in that action would necessarily demonstrate the invalidity of confinement or its
duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Here, Plaintiff does not allege any facts to show that his criminal conviction was
dismissed, reversed on direct appeal, or otherwise vacated. See Heck, 512 U.S. at
486-87. Consequently, a § 1983 malicious prosecution claim appears to be barred by
Heck. See Callen v. Wyoming Dept. of Corrections, No. 14-8057, 608 F. Appx 562,
563 (10th Cir. March 30, 2015) (unpublished) (agreeing with the district court that the §
1983 malicious prosecution claim was barred by Heck, where there was no indication
that plaintiff’s conviction had been over-turned). Plaintiff is reminded that if he wishes
to challenge the legality of his state law conviction, he may do so in a new proceeding
under 28 U.S.C. § 2254, after exhausting available state court remedies.
C. Due Process claims
Finally, the Court liberally construes Plaintiff’s allegations that Defendant
Schiffelbein violated Plaintiff’s right to life, liberty, and property as a due process claim.
“The Due Process clause of the Fourteenth Amendment does not prohibit the

government from depriving an individual of “life, liberty, or property”; it protects against
governmental deprivations of life, liberty, or property “without due process of law.@
Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994) (quoting U.S.
Const. amend. XIV, ' 1).
To the extent, Plaintiff asserts that Defendant Schiffelbein’s conduct deprived
him of “his liberties,” in violation of his due process rights, the factual allegations in the
Complaint fall short of stating an arguable constitutional violation. The “ultimate”
standard
for determining whether there has been a substantive due process violation is “whether
the challenged government action shocks the conscience of federal judges.” Ruiz v.
McDonnell, 299 F.3d 1173, 1183 (10th Cir. 2002) (quotations and citations omitted). It
is well settled that negligence is not sufficient to shock the conscience. Id. at 1184. In
addition, “a plaintiff must do more than show that the government actor intentionally or
recklessly caused injury to the plaintiff by abusing or misusing government power.”
Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 528 (10th Cir.1998) (quoting Uhlrig
v. Harder, 64 F.3d 567, 574 (10th Cir.1995)). The complained of misconduct by
Defendant Schiffelbein is nothing more than conclusory allegations that Defendant
Schiffelbein “intentionally or recklessly caused injury to [Plaintiff] by abusing or misusing
government power.” Id.
Because the Complaint is deficient for the reasons discussed above, Plaintiff will
be directed to file an amended prisoner complaint. Plaintiff is 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 (10th Cir. 2007). Accordingly, it is
ORDERED that Plaintiff, Andre Jones, shall 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, if Plaintiff fails, 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 December 8, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge