Pollack et al v. Boulder County et al

Filing 69

ORDER Adopting 66 February 13, 2019 Recommendation of United Sates Magistrate Judge. Defendants' Motion to Dismiss (Doc. # 24 ) is GRANTED, and all claims asserted in Plaintiff's Amended Complaint (Doc. # 15 ) are DISMISSED WITH PREJU DICE. Plaintiff's Motion for Leave to Amend the Complaint (Doc. # 59 ) is GRANTED IN PART AND DENIED IN PART. The Motion is DENIED with respect to Plaintiff's proposed "failure to adopt a policy" claim and the Motion is G RANTED with respect to Plaintiff's proposed malicious prosecution and judicial deception claims. Plaintiff shall have up to and including 4/21/2019, to file an Amended Complaint. By Judge Christine M. Arguello on 03/21/2019. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello

Civil Action No. 17-cv-02444-CMA-NRN
REID POLLACK,
Plaintiff,
v.
BOULDER COUNTY,
POLLY MILLER, personally and in her individual capacity as a Boulder County Sheriff
Detective #545, and
STEVE KELLISON, personally and in his individual capacity as a Boulder County
Sheriff Deputy #565,
Defendants.

ORDER ADOPTING FEBRUARY 13, 2019 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before the Court upon the February 13, 2019 Recommendation
(Doc. # 66) by United States Magistrate Judge N. Reid Neureiter that this Court grant
Defendants Boulder County, Polly Miller, and Steve Kellison’s Motion to Dismiss
(Doc. # 24) and grant in part and deny in part Plaintiff’s Motion for Leave to Amend the
Complaint (Doc. # 59). Defendant Polly Miller (“Defendant Miller” or “Defendant”) filed
an Objection (Doc. # 67) to the Recommendation on February 27, 2019, and Plaintiff
filed a Response (Doc. # 68) on March 13, 2019. For the reasons that follow, the Court
affirms and adopts the Recommendation, granting Defendants’ Motion to Dismiss and
granting in part and denying in part Plaintiff’s Motion to Amend.

I.

BACKGROUND

The Magistrate Judge’s Recommendation provides a recitation of the factual and
procedural background of this dispute and is incorporated herein by reference. See 28
U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Accordingly, this Order will reiterate only
what is necessary to address Defendant’s objections.
On July 25, 2014, Defendants Miller and Kellison arrested Plaintiff without a
warrant on a domestic violence charge. (Doc. # 66 at 2.) According to the Arrest
Affidavit submitted by Defendant Miller, Plaintiff allegedly injured his partner, Karen
Rusnik, on June 30, 2014, and she contacted police on July 5, 2014, to report the
incident. After being arrested, Plaintiff was released on a bond that included a nocontact order. On August 2, 2014, Plaintiff was arrested for violating that order.
In October 2015, the domestic violence charge was dismissed. (Id.) According to
a motion filed by the Boulder County District Attorney, the charge was dismissed
because Ms. Rusnik could not be located. In April 2016, however, a jury found Plaintiff
guilty of violating the no-contact order, and his appeal of that conviction was denied.
Plaintiff’s arrests and criminal charges gave rise to the instant civil action. In his
proposed amended complaint, Plaintiff alleges that, contrary to the District Attorney’s
assertions, Ms. Rusnik “was ready and willing to testify but not for the prosecution.”
(Doc. # 59-1 ¶ 76.) Plaintiff further alleges that probable cause did not exist to arrest
him on July 25, 2014, and that Defendant Miller’s Arrest Affidavit included false
statements. Additionally, Plaintiff asserts that his wrongful arrest in July 2014 resulted in

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the wrongful issuance of the no-contact order, and he was unfairly prosecuted for
violating that order.
In his Amended Complaint (Doc. # 15), Plaintiff asserts six claims for relief:
(1) seizure lacking probable cause; (2) violation of double jeopardy; (3) unreasonable
seizure; (4) exploitation of an illegal arrest and malicious prosecution; (5) failure to train
officers; and (6) violation of his right to a speedy trial.
On March 5, 2018, Defendants filed a Motion to Dismiss. (Doc. # 24.) Plaintiff
filed a Response (Doc. # 35) on April 16, 2018, and a Motion for Leave to Amend the
Complaint (Doc. # 59) on January 2, 2019. In his proposed amended complaint (Doc. #
59-1), Plaintiff withdrew his claims against Defendant Kellison, his double jeopardy
claim, and his speedy trial claim. Additionally, Plaintiff included a claim for “judicial
deception,” and a claim “for declaratory and injunctive relief from Boulder County for its
deliberate indifferent failure to adopt a policy necessary to prevent constitutional
violations.” (Doc. # 59 at 2.) Finally, Plaintiff asserts a malicious prosecution claim in
relation to his July 25, 2014 arrest. (Doc. # 59-1 ¶¶ 71–93.)
This Court referred both Motions to Magistrate Judge Neureiter. (Doc. ## 25, 56,
60.) Accordingly, the magistrate judge held a hearing on both Motions on February 7,
2019, and issued a Recommendation (Doc. # 66) on February 13, 2019.
II.
A.

LEGAL STANDARDS

REVIEWING AN OBJECTION TO A MAGISTRATE JUDGE’S
RECOMMENDATION
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
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novo any part of the magistrate judge’s [recommended] disposition that has been
properly objected to.” An objection is properly made if it is both timely and specific.
United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d
1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
B.

PRO SE STATUS
When a party proceeds pro se, as Plaintiff does here, the court “review[s] his

pleadings and other papers liberally and hold[s] them to a less stringent standard than
those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
However, 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 pro se litigant is still bound by the rules of federal and appellate procedure.
Abdelsamed v. United States, 13 F. App’x 883, 884 (10th Cir. 2001).
III.

DISCUSSION

Magistrate Judge Neureiter recommended that Defendants’ Motion to Dismiss
(Doc. # 24) should be granted. The magistrate judge further recommended that
Plaintiff’s Motion for Leave to Amend the Complaint (Doc. # 59) should be granted in
part and denied in part. The Court will analyze each Motion in turn.

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A.

DEFENDANTS’ MOTION TO DISMISS
Magistrate Judge Neureiter concluded that Defendants’ Motion to Dismiss (Doc.

# 24) should be granted and that all the claims Plaintiff asserts in his amended
complaint (Doc. # 15) should be dismissed with prejudice. (Doc. # 66 at 21.) Neither
party objected to the Recommendation in this regard.
“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) (stating
that “[i]t does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”)).
The Court has reviewed all relevant pleadings concerning the underlying claims
and the Recommendation. Based on this review, the Court concludes that Magistrate
Judge Neureiter’s thorough and comprehensive analyses and recommendations are
correct and that “there is no clear error on the face of the record.” Fed. R. Civ. P. 72
Advisory Committee’s Note. Therefore, the Court adopts the Recommendation of
Magistrate Judge Neureiter as the findings and conclusions of this Court with respect to
Defendants’ Motion to Dismiss (Doc. # 24).
B.

PLAINTIFF’S MOTION TO AMEND
Magistrate Judge Neureiter concluded that Plaintiff’s Motion for Leave to Amend

the Complaint (Doc. # 59) should be granted to allow Plaintiff to assert claims for judicial
deception and malicious prosecution in relation to his July 2014 arrest and denied in all

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other respects.1 (Doc. # 66 at 29.) Defendant Miller objects to the Recommendation,
arguing that Plaintiff’s Motion should be denied in its entirety because Plaintiff has not
provided adequate explanation for the delay in amending his complaint and because
any amendment would be futile. Accordingly, the Court will proceed with a de novo
review of whether Plaintiff should be granted leave to assert claims for judicial deception
and malicious prosecution.
1.

Legal Standards Applicable to a Motion to Amend

Rule 15(a)(2) directs a trial court to “freely give leave [to amend a complaint]
when justice so requires.” It is a rule intended “to provide litigants the maximum
opportunity for each claim to be decided on its merits rather than on procedural
niceties.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting
Hardin v. Mintowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
With respect to pro se plaintiffs in particular, “if the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so
despite the plaintiff's failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “In addition, pro

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Neither party objected to Magistrate Judge Neureiter’s determination that Plaintiff’s Motion
should be denied in so far as it seeks to add a “failure to adopt a policy” claim because such
claim would be futile. (Doc. # 66 at 21–22.) Therefore, the Court concludes that the magistrate
judge’s analysis and recommendation is correct and that “there is no clear error on the face of
the record.” Fed. R. Civ. P. 72 Advisory Committee’s Note; Summers, 927 F.2d at 1167 (“In the
absence of timely objection, the district court may review a magistrate[] [judge’s] report under
any standard it deems appropriate.”).
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se litigants are to be given reasonable opportunity to remedy the defects in their
pleadings.” Id. at 1110 n.3.
However, if there is “any apparent or declared reason—such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, futility of the amendment, etc.—the leave
sought” need not be granted. Minter, 451 F.3d at 1204 (quoting Foman v. Davis, 371
U.S. 178, 182 (1962) (“The grant or denial of an opportunity to amend is within the
discretion” of the trial court)). A proposed amendment is futile “if the complaint, as
amended, would be subject to dismissal.” Anderson v. Merrill Lynch Pierce Fenner &
Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008) (quoting Anderson v. Suiters, 499
F.3d 1228, 1238 (10th Cir. 2007)).
2.

Undue Delay

Defendant Miller argues that Plaintiff’s Motion to Amend should be denied
because “Plaintiff has not provided an adequate reason for his delay in filing the latest
amended complaint.” (Doc. # 67 at 3.)
Delay is “undue” only if it will place an unwarranted burden on the Court or
become prejudicial to the opposing party. Minter, 451 F.3d at 1205. “The important
inquiry is not simply whether Plaintiff has delayed, but whether such delay is undue.” Id.
The Tenth Circuit “focuses primarily on the reason for the delay.” Id. at 1206. A motion
to amend is untimely if, among other reasons, the moving party has made the complaint
a “moving target,” is trying to “salvage a lost case by untimely suggesting new theories

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of recovery,” is trying to present more theories to avoid dismissal or is knowingly waiting
until the eve of trial to assert new claims. Id. (citations omitted). Courts will also find a
delay to be undue when a movant lacks adequate explanation for the delay or when a
movant knows or should have known of the facts in the proposed amendment but did
not include them in the original complaint or any prior attempts to amend. Id. (citations
omitted).
In the instant case, there no indication that Plaintiff is attempting to salvage a lost
case by untimely suggesting new theories of recovery; nor is there evidence that his
complaint has become a “moving target.” More importantly, Defendant has not
demonstrated that she will suffer any prejudice by the proposed amendment. “[A]t most,
[Defendant] would be mildly inconvenienced. Such inconvenience does not amount to
‘undue prejudice.’” Sullivan v. Equifax Info. Servs. LLC, No. 14-cv-02377-CMA-KLM,
2015 WL 4480899, at *4 (D. Colo. July 23, 2015) (citing W. Capital Partners LLC v. First
Am. Title Ins. Co., No. 14-cv-00454-WJM-KLM, 2014 WL 7251631, at *2 (D. Colo. Dec.
19, 2014)).
Additionally, Plaintiff has provided an explanation for filing an amended complaint
at the present time. Plaintiff indicated that his status as a pro se litigant has caused him
to work at a slower pace than an attorney. (Doc. # 68 at 2.) Although this argument will
not justify a delayed amendment in all circumstances, it is an adequate explanation for
purposes of the instant Motion because Defendant does not face any significant
prejudice. See Hall, 935 F.2d at 1110 n.3 (“pro se litigants are to be given reasonable
opportunity to remedy the defects in their pleadings.”).

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3.

Futility

Defendant argues that Plaintiff’s Motion to Amend would be futile. “An
amendment is futile only if it would not survive a motion to dismiss.” Bituminous Cas.
Corp. v. Hartford Cas. Ins. Co., No. 12-cv-00043-WYD-KLM, 2013 WL 6676157, at *2
(D. Colo. Dec. 18, 2013) (citing Bradley v. Val–Mejias, 379 F.3d 892, 901 (10th Cir.
2004)).
In the instant case, Defendant’s arguments in support of futility raise significant
issues that have not been properly briefed. For example, with regard to the statute of
limitations applicable to a judicial deception claim, Defendant Miller asserts that “[a]
claim for judicial deception accrues once all of the elements are met,” which, Defendant
Miller suggests, is when she allegedly incorporated known falsehoods in her warrant
affidavit. (Doc. # 67 at 5.) That is incorrect.2
The Court finds that these issues would be better and more efficiently addressed
after Plaintiff’s amended complaint is in place and Defendant has had an opportunity to
revise her motion to dismiss to address the revised allegations, if she chooses to file
such a motion. Stender v. Cardwell, No. 07-cv-02503-WJM-MJW, 2011 WL 1235414, at
*3 (D. Colo. Apr. 1, 2011); see also Gen. Steel Domestic Sales, LLC v. Steelwise, LLC,

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Defendant Miller cites a single case, Myers v. Morris, 810 F.2d 1437, 1457 (8th Cir. 1987), in
support of her argument. However, a cursory review of Myers shows that the Eighth Circuit did
not even consider the issue of when a judicial deception claim accrues. For the proper legal
standard, the Court directs the parties to Klein v. City of Beverly Hills, 865 F.3d 1276, 1279 (9th
Cir. 2017) (holding discovery rule applies to judicial deception claims and concluding judicial
deception claim began accruing when the underlying affidavit became “reasonably available”).
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No. 07-cv-01145-DME-KMT, 2008 WL 2520423, at *4 (D. Colo. June 20, 2008) (noting
that defendant’s futility argument “seems to place the cart before the horse”).
Accordingly, the Court—preserving its scarce resources—will not at this
time consider the question whether the amendments should be denied on
grounds of futility because they fail to state plausible claims for relief. The
Court will consider that question if and when Defendant[ ] file[s] a motion to
dismiss on those grounds.
Stender, 2016 WL 1235414, at *3; see, e.g., Faircloth v. Hickenlooper, No. 18-cv01249-RM-STV, 2019 WL 1002935, at *3 (D. Colo. Mar. 1, 2019) (“To the extent the
Opposing Defendants believe the allegations against them remain deficient, the Court
finds that such arguments would be better and more efficiently addressed through
motion(s) to dismiss the Proposed Third Amended Complaint.”); Four Winds Interactive
LLC v. 22 Miles, Inc., No. 16-cv-00704-MSK-STV, 2016 WL 9735783, at *2 (D. Colo.
Oct. 31, 2016) (same); Estate of Dixon v. Bd. of Cty. Comm’rs of Crowley Cty., No. 15cv-02727-NYW, 2016 WL 931274, at *3 (D. Colo. Mar. 11, 2016) (granting motion to
amend and denying as moot motions to dismiss).
The Court’s conclusion is bolstered by an analysis of prejudice. Prejudice is the
most important factor in considering whether a plaintiff should be permitted to amend a
complaint. See Minter, 451 F.3d at 1207. “Courts typically find prejudice when the
amendment unfairly affects the defendants ‘in terms of preparing their defense to the
amendment.’” Id. at 1208 (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)).
“Most often, this occurs when the amended claims arise out of a subject matter different
from what was set forth in the complaint and raise significant new factual issues.” Id. In
the instant case, the proposed Amended Complaint does not contain claims that arise

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out of different subject matter, and Defendant has failed to show any prejudice that
would result from allowing the amendment. Stender, 2011 WL 1235414, at *3 (opposing
party’s failure to “argue [that it] face[s] any—let alone undue—prejudice” if the Court
grants leave to amend the complaint “grievously weaken[s]” its opposition to
amendment).
IV.

CONCLUSION

For the foregoing reasons, the Court ORDERS that Magistrate Judge Neureiter’s
Recommendation (Doc. # 66) is AFFIRMED and ADOPTED as an Order of this Court. It
is
FURTHER ORDERED that Defendants’ Motion to Dismiss (Doc. # 24) is
GRANTED, and all claims asserted in Plaintiff’s Amended Complaint (Doc. # 15) are
DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that Plaintiff’s Motion for Leave to Amend the Complaint
(Doc. # 59) is GRANTED IN PART AND DENIED IN PART. The Motion is DENIED with
respect to Plaintiff’s proposed “failure to adopt a policy” claim and the Motion is
GRANTED with respect to Plaintiff’s proposed malicious prosecution and judicial
deception claims. It is

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FURTHER ORDERED that Plaintiff shall have up to and including April
21, 2019, to file an Amended Complaint.
DATED: March 21, 2019
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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