Opinion
Civil Action 20-cv-01643-PAB-KMT
08-23-2021
BRIAN HALIK, Plaintiff, v. JASON DARBYSHIRE, Former Detective, El Paso County Sheriff's Office, individually and in his official capacity, and CHRIS DONATELL, Deputy, El Paso County Sheriff's Office, individually and in his official capacity, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M. Tafoya, United States Magistrate Judge
Before the court is “Defendants' Motion to Dismiss Complaint (ECF No. 1) Pursuant to Fed.R.Civ.P. 8(a) and 12(b)(5) and (6).” ([“Motion”], Doc. No. 5.) Plaintiff has responded in opposition to the Motion, and Defendants have replied. ([“Response”], Doc. No. 10; [“Reply”], Doc. No. 16.) For the following reasons, it is RECOMMENDED that the Motion be GRANTED, in part, and DENIED, in part.
STATEMENT OF THE CASE
Pro se Plaintiff Brian Halik [“Mr. Halik”] brings this lawsuit, pursuant to 42 U.S.C. § 1983, asserting violations of his constitutional rights by two El Paso County Sheriff's Office [“EPSO”] employees-Detective Jason Darbyshire [“Detective Darbyshire”] and Deputy Chris Donatell [“Deputy Donatell”]. ([“Complaint”], Doc. No. 1 at ¶¶ 3-4, 7-8.)
According to the Complaint, on April 29, 2018, an unnamed individual, who is not a party to this lawsuit, attempted to “elude[] police officers” while driving a motorcycle in Colorado Springs, Colorado. (Id. at ¶ 2.) As a law enforcement pursuit of that individual ensued, “a second motorcyclist, ” later identified as Mr. Halik, reportedly “passed by” the scene without incident. (Id.) Mr. Halik alleges that, following these events, Detective Darbyshire “falsely claim[ed]” that the second motorcyclist “was actually being pursued” by officers for “reckless[]” conduct, so as to “frame” Mr. Halik for a crime that he did not commit. (Id. at ¶¶ 9-10.) Mr. Halik further alleges that Detective Darbyshire, together with other “known and unknown” EPSO deputies, including Deputy Donatell, “engaged in extensive corruption and misconduct” to “violate [his] constitutional rights.” (Id. at ¶¶ 9, 12-15.) Plaintiff complains that, as a direct result of Defendants' actions, he was needlessly subjected to “more than 20 months of continuous prosecution, unlawful arrest, spending time in jail, having to post excessive bond, approximately 30 in-person court appearances, countless meetings with attorneys, and the threat of significant prison time looming over [his] head.” (Id. at ¶ 11.)
On June 7, 2018, Plaintiff was taken into custody and charged with two felonies and four misdemeanors, in connection with the April 29, 2018 vehicular pursuit. (Id. at ¶ 10.) Plaintiff now alleges that Defendants “blatantly l[ied]” on affidavits and police reports, so as to secure those criminal charges against him, as well as to “lessen Plaintiff's credibility in court proceedings and to cover up misconduct by other EPSO Deputies.” (Id. at ¶¶ 9-10, 13.) In addition, Plaintiff alleges that Defendant Darbyshire “used Plaintiff's protected speech against him, ” in an arrest warrant affidavit, which Plaintiff claims “openly and blatantly violated [his] established First Amendment rights.” (Id. at ¶ 23.) Plaintiff further alleges that Defendant Darbyshire, through “corruption and misconduct, ” “arranged” the setting of “an unconstitutionally-excessive bond of $25,000, ” and “tried valiantly to get Plaintiff's probation officer to place a probation hold on Plaintiff so that Plaintiff would not be able to bond out of jail.” (Id. at ¶¶ 22, 24.) Mr. Halik likewise claims that Detective Darbyshire deliberately “concealed exculpatory evidence” in the underlying criminal action, and withheld other evidence from Mr. Halik's attorney. (Id. at ¶¶ 9, 17.)
In this lawsuit, Plaintiff also alleges that, around the time of his arrest, Defendants, as well as “other EPSO Deputies, known and unknown, ” engaged in unlawful searches of his home and property, and then “took cash and other property from [him] without a valid warrant [or] probable cause, ” in an attempt to “keep Plaintiff from being able to post bond, ” as well as to “restrict[] [his] movements.” (Id. at ¶¶ 12, 14, 16, 19, 21.) Plaintiff alleges that, during the course of the contested searches and seizures, Defendants “violated” his “privacy, ” and “caused property damage, ” which he “personally paid for directly and indirectly.” (Id. at ¶¶ 16, 19, 21.) Mr. Halik complains that, even though the criminal case against him has since been “completed, ” the EPSO, to date, “has still refused to return most of the property that was seized, ” including his motorcycle, which has been “subjected to extensive weathering” for “at least two years.” (Id. at ¶¶ 20-21.) Mr. Halik likewise complains that the EPSO has failed to provide him with “any compensation for the missing money, property damage, or property that [it] is still refusing to return.” (Id.)
Finally, Plaintiff alleges that, in the month preceding his arrest, “[n]umerous ESPO Deputies, known and unknown, ” waged “an extensive, relentless campaign of oppression, civil rights violations, and harassment” against him. (Id. at ¶ 15.) Mr. Halik alleges that, on May 3, 2018, while he was “on house arrest with an ankle monitor” for an unrelated offense, an EPSO deputy “went to [his] house in order to accuse him of a separate incident of vehicular eluding on a motorcycle.” (Id.) Plaintiff likewise alleges that, on May 7, 2018, at approximately 12:15 AM, three other EPSO deputies “arrived at [his] house in two marked EPSO patrol vehicles to accuse him of yet another incident of vehicular eluding.” (Id.) Mr. Halik claims that he was forced to seek emergency medical treatment for “severe emotional distress due to the EPSO Deputies continuing to harass him.” (Id.)
Based on these allegations, on June 8, 2020, Plaintiff commenced this lawsuit, pursuant to 42 U.S.C. § 1983, asserting the following causes of action against Defendants, in their individual and official capacities:
Defendants Darbyshire and Donatell violated Plaintiff's right against unreasonable search and seizure, as guaranteed by the Fourth Amendment to the U.S. Constitution.
Defendants Darbyshire and Donatell violated Plaintiff's right to due process as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution.
Defendant Darbyshire showed deliberate indifference to Plaintiff's constitutional rights, among other violations, thereby violating Plaintiff's right against cruel and unusual punishment, as guaranteed by the Eighth Amendment to the U.S. Constitution.
Defendants Darbyshire and Donatell were grossly negligent and demonstrated reckless or callous disregard for Plaintiff's rights, as well as intentional violations of state and federal law.(Id. at ¶¶ 30-33.) The Complaint also alleges a violation of Plaintiff's First Amendment free speech rights, committed by Defendant Darbyshire, specifically. (Id. at ¶ 23.) In his operative pleading, Plaintiff requests an award of monetary damages, attorneys' fees, and costs, as well as unspecified declaratory, injunctive, and mandamus relief. (Id. at 10-11.)
Defendants now move to dismiss the Complaint, in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(5), for inadequate service of process, and pursuant to Federal Rule of Civil Procedure 12(b)(6), for inadequate pleading. (Mot. 1.)
Defendants, in their Motion, also reference qualified immunity. (Mot. 5.) However, aside from reciting the applicable legal framework, Defendants provide no argument for dismissal on that basis. In their Reply, Defendants claim that they are under “no obligation” to provide the court with any “argument” regarding qualified immunity, beyond simply “raising the issue.” (Reply 2-3.) However, Defendants fail to even address whether qualified immunity is applicable to this case. The mere insertion of the words “qualified immunity” into a Rule 12(b)(6) motion, without any attempt to apply that law to the facts of the case, is insufficient to trigger the court's consideration of the issue. As such, the court declines to engage in a qualified immunity analysis here. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider . . . issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.”); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”).
ANALYSIS
I. Legal Standard for Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “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 Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Motion to Dismiss for Inadequate Service of Process
Defendants argue, first, that this case should be dismissed, in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(5), for inadequate service of process. (Mot. 5-6.)
Federal Rule of Civil Procedure 12(b)(5) allows a defendant to defend against a claim on the grounds of insufficiency of service of process. Whitsell v. United States, 198 F.3d 260, 260 (10th Cir. 1999) (citation omitted); see Fed. R. Civ. P. 12(b)(5). A Rule 12(b)(5) motion “challenges the mode or lack of delivery of a summons and complaint.” Gallan v. Bloom Business Jets, LLC, 480 F.Supp.3d 1173, 1178 (D. Colo. 2020) (citation omitted); accord 5B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. 3d § 1353 (2008 Supp.) (“A Rule 12(b)(5) motion is the proper vehicle for challenging the sufficiency of the service of process, i.e., “the mode of delivery or lack of delivery of the summons and complaint.”). Proper service is a jurisdictional prerequisite to litigation. Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of service is a precondition to suit[.]”). Without proper service, the court lacks personal jurisdiction over a defendant. Okla. Radio Assocs. v. FDIC, 969 F.2d 940, 943 (10th Cir. 1992).
In opposing a motion to dismiss under Rule 12(b)(5), the “plaintiff bears the burden of making a prima facie case that he has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant.” J.L. v. Best W. Int'l, Inc., __ F.Supp.3d __, 2021 WL 719853, at *16 (D. Colo. 2021) (quoting Allen v. United Props. & Const., Inc., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D. Colo. Sept. 3, 2008)). In doing so, “the plaintiff must demonstrate that the procedure employed by him to effect service satisfied the requirements of Rule 4 of the Federal Rules of Civil Procedure.” Gallan, 480 F.Supp.3d at 1178 (citation omitted). “The parties may submit affidavits and other documentary evidence for the Court's consideration, and the plaintiff is entitled to the benefit of any factual doubt.” Lopez v. Colorado, No. 19-cv-00684-WJM-MEH, 2020 WL 2309558, at *19 (D. Colo. Jan. 7, 2020) (quoting Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008)). Importantly, “the court retains broad discretion to extend the time for service even when the plaintiff has not shown good cause.” Sarnella v. Kuhns, No. 17-cv-02126-WYD-STV, 2018 WL 1444210, at *1 (D. Colo. Mar. 23, 2018) (citing Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995)); see Fed. R. Civ. P. 4(m).
Here, Defendants argue that a Rule 12(b)(5) dismissal of this case is warranted, because Plaintiff did not effectuate service upon them within the requisite time frame set out in Federal Rule of Civil Procedure 4(m). (Mot. 6.) Rule 4(m) provides that “[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m).
In this case, Mr. Halik filed his Complaint on June 8, 2020, making September 7, 2020 the deadline by which to effectuate service. (Doc. No. 1); see Fed. R. Civ. P. 4(m). As of September 10, 2020, however, the record showed that service had not been completed, nor even attempted, as to either Defendant. (Doc. No. 4.) For that reason, on September 10, 2020, this court ordered Plaintiff to show good cause, in writing, as to why his claims should not be dismissed, pursuant to Rule 4(m), for lack of service. (Id.) Nineteen days later, Defendants filed the instant Motion, indicating to the court that service had, in fact, been completed. (Doc. No. 6; see Doc. No. 9.) Based on Defendants' filing of a responsive pleading, on September 30, 2020, this court discharged the Order to Show Cause. (Doc. No. 6.) Shortly thereafter, on October 20, 2020, Plaintiff filed proofs of service, confirming that service had been made upon both Defendants, on September 8, 2020. (Doc. No. 9.) Thus, service was properly effectuated. Moreover, service was timely. See Gebru v. Sear, Roebuck, & Co., No. 3:07-CV-2076-P, 2009 WL 10704400, at *2 (N.D. Tex. Jan. 14, 2009) (denying a Rule 12(b)(5) motion to dismiss for failure to timely serve process, where the plaintiff had ultimately complied with the court's order to show cause by filing a valid return of service).
Defendants do not appear to challenge the validity or sufficiency of the proofs of service.
On this record, then, Defendants have both been properly served with the summons and Complaint, in accordance with Rule 4. Accordingly, Defendants' Rule 12(b)(5) motion to dismiss for inadequate service of process should be denied.
III. Motion to Dismiss for Failure to State a Claim
A. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “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.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (internal quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a Rule 12(b)(6) motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” i.e., those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, the claim survives the motion to dismiss. Id. at 679.
That being said, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the court typically may not look beyond the pleadings. Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010). “Pleadings, ” for purposes of a Rule 12(b)(6) motion to dismiss, however, include attachments to the complaint, documents incorporated into the complaint by reference, and information subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). Documents attached to a motion to dismiss are considered part of the pleadings, if they are referred to in the complaint, and are central to the plaintiff's claims. GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
Here, Defendants have attached several documents to their motion to dismiss, including Plaintiff's guilty plea in the underlying criminal action, and the arrest warrant affidavit relating to the charges filed against him. (See Mot. Ex. 1-2, Doc. Nos. 5-1 & 5-2.) The plea agreement is a court filing that is subject to judicial notice; as such, the document will be considered in connection with the motion to dismiss. St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979); accord United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); see also United States v. McCranie, 889 F.3d 677, 678 & n.1 (10th Cir. 2018) (taking judicial notice of a litigant's guilty plea in a separate case); Trusdale v. Bell, 85 Fed.Appx. 691, 693 (10th Cir. 2003) (taking judicial notice of court records concerning a § 1983 plaintiff's criminal conviction). The arrest warrant affidavit will also be considered, given that the document is directly referenced in the Complaint, its authenticity is not in dispute, and it forms the basis of certain of Plaintiff's claims against Defendants. (Compl. ¶¶ 9-10, 28); see Kennedy v. Peele, 552 Fed.Appx. 787, 792 (10th Cir. 2014) (finding reversible error, where the district court failed to consider an arrest warrant affidavit in connection with a motion to dismiss, where the document's authenticity was not in dispute, and where the arrest warrant affidavit “was both central to the claim and referenced in the complaint”).
B. The Timeliness of Mr. Halik's Claims
In their motion to dismiss, Defendants argue that the majority of Plaintiff's § 1983 claims, as well as all of Plaintiff's state law claims, are time-barred, based on the applicable statutes of limitations. (Mot. 6-8.) “Although a statute of limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss ‘when the dates given in the complaint make clear that the right sued upon has been extinguished.'” Torrez v. Eley, 378 Fed.Appx. 770, 772 (10th Cir. 2010) (quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980)).
1. The State Law Claims
The Complaint alleges that Defendants, both law enforcement officers, “were grossly negligent and demonstrated reckless or callous disregard for Plaintiff's rights, as well as intentional violations of state . . . law.” (Compl. ¶ 33.) Under Colorado law, which applies here, any civil action against a “law enforcement authority” must be brought “within one year after the cause of action accrues.” Colo. Rev. Stat. § 13-80-103(1)(c). In this case, Plaintiff's allegations relate to events that occurred on or before June 20, 2018. Plaintiff did not file this action until June 8, 2020. Accordingly, to the extent that Plaintiff asserts state law claims against Defendants, those claims should be dismissed, with prejudice, as untimely. See Sanchez v. City of Littleton, 491 F.Supp.3d 904, 912-13 (D. Colo. 2020) (dismissing negligence claims against law enforcement officers, which were filed more than one year after the events at issue, as untimely under Colo. Rev. Stat. 13-80-103(1)(c)); see also McGowan v. Wal-Mart Stores, 757 Fed.Appx. 786, 788 n.3 (10th Cir. 2019) (“A dismissal based on timeliness would ordinarily be with prejudice.”).
2. The Section 1983 Claims
“A hodgepodge of state and federal law governs the timeliness of claims under 42 U.S.C. § 1983.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). Federal law determines “the date on which the claim accrues and the limitations period starts to run.” Id. (citing Wallace v. Kato, 549 U.S. 384, 388 (2007)). But the length of the limitations period “is drawn from the personal-injury statute of the state in which the federal district court sits.” Id. (citation omitted). State law also “governs any tolling of that period, except that federal law might also allow additional equitable tolling in rare circumstances.” Id. (citations omitted).
The applicable statute of limitations for § 1983 claims in Colorado, the forum state here, is two years. See Colo. Rev. Stat. § 13-80-102(1)(g) (“All actions upon liability created by federal statute where no period of limitation is provided in said federal statute” and “regardless of the theory upon which suit is brought . . . shall be commenced within two years.”); Blake v. Dickason, 997 F.2d 749, 750 (10th Cir. 1993) (applying Colo. Rev. Stat. § 13-80-102(1)(g) to § 1983 claims); see also Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (“We have made clear that the statute of limitations for § 1983 actions brought in Colorado is two years from the time the cause of action accrued.”). Under federal law, “claims accrue and the statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (alterations, citation, and internal quotation marks omitted). Because the “injury” in a § 1983 action “is the violation of a constitutional right, ” a § 1983 claim accrues “when the plaintiff knows or should know that his or her constitutional rights have been violated.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) (citations omitted); accord Fogle, 435 F.3d at 1258 (stating that a § 1983 claim “accrues when facts that would support a cause of action are or should be apparent”).
Mr. Halik commenced this action on June 8, 2020. Therefore, under the applicable statute of limitations, any of Mr. Halik's § 1983 claims that accrued before June 8, 2018 are time-barred. Braxton v. Zavaras, 614 F.3d 1156, 1160 (10th Cir. 2010). To determine precisely when each of Mr. Halik's § 1983 claims accrued, the court must first “identify [each] constitutional violation and locate it in time.” Smith, 149 F.3d at 1154. In the Complaint, Mr. Halik alleges that his civil rights were violated at various points between April 29, 2018 and June 20, 2018. The vast majority of Mr. Halik's allegations relate to events that occurred on June 7, 2018-including false statements made by Defendants in an arrest warrant affidavit and a police surveillance report; the warrantless search of Mr. Halik's home; and the seizure of Mr. Halik's motorcycle, cash, keys, and certain other tangible property. (Compl. ¶¶ 9, 12-14, 17-18, 21-24.) In addition, Mr. Halik recounts episodes of “oppression” and “harassment” by EPSO deputies, which occurred on May 3, 2018, and May 7, 2018. (Id. at ¶¶ 15-16.) Mr. Halik likewise recounts purportedly unconstitutional searches of a storage unit and of his “digital media, ” which occurred on May 24, 2018, and on June 20, 2018, respectively. (Id. at ¶¶ 16, 19.)
“Claims arising out of police actions towards a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur.” Johnson v. Johnson Cnty. Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991). Because Mr. Halik's § 1983 claims all arise out of police actions, the statute of limitations began to run on the day the incidents supporting those claims occurred: May 3, 2018, May 7, 2018, May 24, 2018, June 7, 2018, and June 20, 2018. Given that Mr. Halik did not commence this action until June 8, 2020, Colorado's two-year limitations period for personal injury claims clearly precludes his § 1983 claims arising out of the events that occurred on May 3, 2018, May 7, 2018, and May 24, 2018.
Further, there is no justification for tolling the statute of limitations with respect to these claims. Colorado law allows the equitable tolling of a limitations period “when flexibility is required to accomplish the goals of justice, ” such as where a plaintiff did not timely file his claims due to “extraordinary circumstances, ” or where the “defendants' wrongful conduct” prevented the plaintiff from doing so. Fogle, 435 F.3d at 1258 (quoting Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004)); see Hardin v. Straub, 490 U.S. 536, 539 (1989) (state law governs the tolling of the statute of limitations in § 1983 cases). Here, Mr. Halik fails to offer any argument as to why the statute of limitations should be tolled in this case. See Aldrich, 627 F.2d at 1041 n.4 (“While the statute of limitations is an affirmative defense, when the dates given in the complaint make clear that the right sued upon has been extinguished, the plaintiff has the burden of establishing a factual basis for tolling the statute.”).
In his Response, Mr. Halik argues that the continuing violations doctrine “may further extend the statute of limitations.” (Resp. 4 ¶ 5(f).) The continuing violations doctrine, employed in Title VII litigation, allows a plaintiff “to challenge incidents that occurred outside of the statute of limitations if the incidents are sufficiently related and thereby constitute a continuing pattern of wrongful conduct.” Matthews v. Wiley, 744 F.Supp.2d 1159, 1169 (D. Colo. 2010) (citing Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)) (internal quotation marks omitted). However, the Tenth Circuit has indicated that the doctrine does not apply to § 1983 claims. Mercer-Smith v. N.M. Children, Youth, & Families Dep't, 416 Fed.Appx. 704, 712 (10th Cir. 2011) (citing Hunt, 17 F.3d at 1265); see Thomas v. Denny's, Inc., 111 F.3d 1506, 1514 (10th Cir. 1997) (observing that the continuing violations doctrine applies to Title VII claims because “of the need to file administrative charges, ” but does not apply to claims that do “not require [the] filing of such charges before a judicial action may be brought”). Importantly, even assuming it was applicable to § 1983 claims, the continuing violations doctrine is “triggered” only “by continual unlawful acts, not by continual ill effects from the original violation.” Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011) (citation and internal quotation marks omitted). In this case, Mr. Halik's untimely § 1983 claims relate to discrete incidents that occurred no later than May 24, 2018. (Compl. ¶¶ 15-16.) As such, the continuing violations doctrine would not preserve those claims. See Cordova v. Dowling, No. 11-cv-01130-PAB-CBS, 2012 WL 3758639, at *5 (D. Colo. Apr. 17, 2012) (finding the continuing violations doctrine to be inapplicable to § 1983 claims under such circumstances).
As to Mr. Halik's allegations concerning events that occurred on June 7, 2018, the deadline to file § 1983 claims based on those events was June 7, 2020, which fell on a Sunday. Pursuant to Federal Rule of Civil Procedure 6(a), which sets forth the general rules for computing time limitations in federal court, if the last day of the applicable limitations period “is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Fed.R.Civ.P. 6(a)(1)(C). Accordingly, to the extent that Plaintiff alleges § 1983 claims based on events that occurred on June 7, 2018, his Complaint was timely filed on Monday, June 8, 2020. See Lewis v. McKinley Cnty. Bd. of Cnty. Comm'rs, 425 Fed.Appx. 723, 729 (10th Cir. 2011) (holding § 1983 claims to be timely filed, where the applicable deadline “fell on a Sunday, ” and thus, the plaintiff “had until Monday” to file the complaint); Williams v. Aragon, No. 13-cv-02377-REB-KMT, 2014 WL 4854979, at *9 (D. Colo. Sept. 29, 2014) (“Because August 31 and September 1, 2013 fell on a Saturday and Sunday, respectively, and September 2, 2013 was a legal holiday (Labor Day), Plaintiff's Complaint was timely filed on September 3, 2013.”).
On this record, then, Plaintiff's state law claims, as well as his § 1983 claims relating to incidents that occurred prior to June 7, 2018, are time-barred under the applicable statutes of limitations. Accordingly, those claims should be dismissed with prejudice. McGowan, 757 Fed.Appx. at 788 n.3.
C. The Fourth Amendment Claims
Mr. Halik alleges that Detective Darbyshire and Deputy Donatell violated his Fourth Amendment rights, by making false statements in an arrest warrant affidavit and surveillance report, by unlawfully arresting him, by concealing and withholding evidence, by illegally searching and seizing his property, and by engaging in other acts of “corruption and misconduct” during the course of a law enforcement investigation. (Compl. ¶¶ 9-10, 12-14, 17-24.)
The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . shall not be violated.” U.S. Const. amend IV. The Fourth Amendment's protections encompass the rights to be free from unlawful arrest, malicious prosecution, and other acts of police misconduct. See Albright v. Oliver, 510 U.S. 266, 274 (1994) (explaining that the Fourth Amendment addresses “pretrial deprivations of liberty”); Sanchez v. Hartley, 810 F.3d 750, 755 (10th Cir. 2016) (“[A] cause of action exists under § 1983 for malicious prosecution in violation of the Fourth Amendment.”); Buck v. City of Albuquerque, 549 F.3d 1269, 1281 (10th Cir. 2008) (“The Fourth Amendment protects the right of individuals to be free from improper arrest and detention.”); Pierce v. Gilchrist, 359 F.3d 1279, 1293 (10th Cir. 2004) (recognizing Fourth Amendment claims involving falsified evidence and the withholding of exculpatory evidence); Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (“It is a violation of the Fourth Amendment for an arrest warrant affiant to ‘knowingly, or with reckless disregard for the truth,' include false statements in the affidavit.”).
1. The Applicability of Heck
Defendants move to dismiss the Fourth Amendment claims against them, first, on the basis that they are barred by the favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994). (Mot. 8-9.) In Heck, the United States Supreme Court held:
Defendants only address the applicability of Heck with respect to Plaintiff's Fourth Amendment claims.
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination or called into question by a federal court's issuance of a writ of habeas corpus.Heck, 512 U.S. at 486-87; see Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (clarifying that the rule from Heck is not limited to § 1983 claims for damages, but applies regardless of the type of relief sought). “The purpose behind Heck is to prevent litigants from using a § 1983 action, with its more lenient pleading rules, to challenge their conviction or sentence without complying with the more stringent exhaustion requirements for habeas actions.” Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007) (citing Muhammad v. Close, 540 U.S. 749, 751-52 (2004)).
“The starting point for the application of Heck [] is the existence of an underlying conviction or sentence that is tied to the conduct alleged in the § 1983 action.” Id. “In other words, a § 1983 action implicates Heck only as it relates to the conviction that it would be directly invalidating.” Id. The “key inquiry” is whether a § 1983 plaintiff's successful prosecution of his claims would necessarily invalidate his underlying conviction. Strepka v. Jonsgaard, No. 10-cv-00320-PAB-KMT, 2010 WL 4932723, at *4 (D. Colo. Nov. 8, 2010). “To make this determination, the court must consider the elements of the criminal offense of which the § 1983 plaintiff was convicted.” Id. (citing Martinez v. City of Albuquerque, 184 F.3d 1123, 1125 (10th Cir. 1999); Nelson v. Jashurek, 109 F.3d 142, 145 (3d Cir. 1997)).
The record, here, shows that, on June 7, 2018, Mr. Halik was charged with the following offenses arising from the April 29, 2018 vehicular pursuit: (1) vehicular eluding, pursuant to Colo. Rev. Stat. § 18-9-116.5, a class five felony; (2) conspiracy to elude, pursuant to Colo. Rev. Stat. § 18-2-201(1), a class six felony; (3) obstructing a peace officer, pursuant to Colo. Rev. Stat. § 18-8-104(1)(a), a class two misdemeanor; (4) criminal attempt, pursuant to Colo. Rev. Stat. § 18-2-101(1), a class three misdemeanor; (5) reckless driving, pursuant to Colo. Rev. Stat. § 42-4-1401, a misdemeanor traffic offense; and (6) failure to obey traffic signals, pursuant to Colo. Rev. Stat. § 42-4-604, a class A traffic infraction. (Mot. Ex. 2, Doc. No. 5-2, at 1; see Compl. ¶ 10.) The arrest warrant affidavit, attached as an exhibit to Defendants' motion to dismiss, states, among other things, that during the April 29, 2018 vehicular pursuit, Mr. Halik “r[an] a red light, and flip[ped] his middle finger to the police officer.” (Mot. Ex. 2, Doc. No. 5-2, at 4.) Mr. Halik ultimately pled guilty, in Colorado state court, to one count of misdemeanor harassment, pursuant to Colo. Rev. Stat. § 18-9-111(1)(b), in connection with the charges for which he was arrested. (Mot. Ex. 1, Doc. No. 5-1.) “Harassment, ” as defined by Colo. Rev. Stat. § 18-9-111(1)(b), means that the accused person, “[i]n a public place[, ] direct[ed] obscene language or ma[de] an obscene gesture to or at another person, ” “with intent to harass, annoy, or alarm another person.” Mr. Halik does not allege, either in the Complaint or the Response, that he obtained a favorable termination of his criminal conviction.
As stated supra, the court may take judicial notice of Mr. Halik's guilty plea and the underlying arrest warrant affidavit without converting the present Motion into a motion for summary judgment.
In their motion to dismiss, Defendants argue that, should Mr. Halik prevail on any of his Fourth Amendment claims, it would necessarily imply the invalidity of his guilty plea. (Mot. 9.) In his Response, Mr. Halik appears to concede that at least some of his Fourth Amendment claims are, in fact, barred by Heck. (Resp. 5 ¶ 6(d) (“The Fourth Amendment claims detailed in ECF 1 are multi-faceted, not all of which would be barred by the favorable termination rule.”). Mr. Halik, nevertheless, argues that his plea agreement “was clearly based on false pretenses, ” given that “[a] middle finger, when used toward law enforcement, ” constitutes “free speech.” (Id.) Mr. Halik also stresses that his underlying criminal case “is still being litigated in order to expunge the record.” (Id.) Plaintiff states that he “would be amenable to continuing the applicable Fourth Amendment claims until the expungement is resolved.” (Id.)
a. Fourth Amendment Claims Barred by Heck
In the Complaint, Mr. Halik alleges violations of his Fourth Amendment rights, based on police actions that led to his arrest and conviction. (See, e.g., Compl. ¶¶ 9-10, 17.) The court construes these allegations to state claims for malicious prosecution and false arrest.
i. Malicious Prosecution Claims
To state a § 1983 malicious prosecution claim, a plaintiff must allege 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.” Margheim v. Buljko, 855 F.3d 1077, 1085 (10th Cir. 2017) (citing Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)). A required component of a successful malicious prosecution action, therefore, is the termination of the prior criminal proceeding in favor of the accused. Id. at 1085-86 (citing Myers v. Koopman, 738 F.3d 1190, 1195 (10th Cir. 2013)); accord Heck, 512 U.S. at 484.
Here, Mr. Halik alleges that Defendants “engaged in extensive corruption and misconduct in order to frame [him]” for the April 29, 2018 incident; that Detective Darbyshire “blatantly l[ied]” on the arrest warrant affidavit to secure the charges filed against him; that Deputy Donatell made “false[]” statements in a surveillance report “in order to lessen [Mr. Halik]'s credibility in court proceedings;” and that Detective Darbyshire “concealed exculpatory evidence” from Mr. Halik. (Compl. ¶¶ 9-10, 13, 17.) These allegations bear directly on the validity of Mr. Halik's conviction. See Wheeler v. Scarafiotti, 85 Fed.Appx. 696, 700 (10th Cir. 2004) (“[A]n attempt to convince a jury that the [defendant] officers falsified the very reports that led to [plaintiff's] conviction would cast doubt on that conviction[.]”); see also Guinn v. Unknown Lakewood Police Officers, No. 10-cv-00827-WYD-CBS, 2010 WL 4740326, at * 5 (D. Colo. Sept. 30, 2010), report and recommendation adopted by 2010 WL 4740316 (D. Colo. Nov. 16, 2010) (“[I]t is well-settled that a guilty plea is not a termination in favor of the accused for purposes of a malicious prosecution claim.”). Accordingly, because Mr. Halik's underlying criminal conviction has not been rendered invalid, to the extent that he now asserts Fourth Amendment claims for malicious prosecution, those claims are barred by Heck. See Guinn, 2010 WL 4740326, at * 5-6 (dismissing malicious prosecution claims, as barred by Heck, based on the fact that the plaintiff pled guilty to underlying criminal charges).
ii. False Arrest Claims
To maintain a false arrest claim under § 1983, Mr. Halik must show that “the arresting officer acted in the absence of probable cause that the person had committed a crime.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012) (citations omitted). “The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest under § 1983, even if the conviction is a result of a guilty plea to a lesser charge than that for which the plaintiff was arrested.” Guinn, 2010 WL 4740326, at *6 (citations and internal quotation marks omitted); Gouskos v. Griffith, 122 Fed.Appx. 965, 972 (10th Cir. 2005) (“[I]f the false-arrest plaintiff is convicted in the criminal trial for the acts for which he was arrested, probable cause for his arrest is conclusively established and precludes a subsequent civil action for false arrest.”). Accordingly, because Mr. Halik pled guilty to lesser charges in the underlying criminal action here, his false arrest claim is also barred by Heck. See Sexton v. Hickenlooper, No. 13-cv-01008-MSK-KMT, 2014 WL 1091936, at *13 (D. Colo. Mar. 19, 2014) (“Plaintiff's § 1983 false arrest claim fails because his guilty plea establishes probable cause.”); Guinn, 2010 WL 4740326, at *6 (dismissing § 1983 claims for false arrest under such circumstances for failure to satisfy Heck).
b. The Remaining Fourth Amendment Claims
A favorable decision on Mr. Halik's remaining Fourth Amendment claims, however, would not necessarily demonstrate the invalidity of his underlying conviction. See Pearson v. Weischedel, 349 Fed.Appx. 343, 347 (10th Cir. 2009) (“Not every civil judgment will imply the invalidity of the underlying criminal conviction[.]”). Specifically, claims of illegal search and seizure are not barred by Heck, where “ultimate success on [the claims] would not necessarily question the validity of a conviction.” Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558 (10th Cir. 1999); see Heck, 512 U.S. at 487 n.7 (stating in dicta that “a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction, ” because doctrines such as “independent source, ” “inevitable discovery, ” and “harmless error, ” mean that a successful § 1983 action “would not necessarily imply that the plaintiff's conviction was unlawful”); see also Garza v. Burnett, 672 F.3d 1217, 1220 (10th Cir. 2012) (observing that, even though the Tenth Circuit has “eschewed a[] categorical rule” regarding the application of Heck to alleged Fourth Amendment violations, the Tenth Circuit has only applied Heck to Fourth Amendment claims in “rare” circumstances, where “all of the evidence obtained was the result of an illegal search”) (alterations omitted).
Here, the Complaint alleges the following incidents where an allegedly unreasonable search and/or seizure occurred: (1) the June 7, 2018 search of Mr. Halik's home, pursuant to which “at least $3,296 in cash (United States currency), ” “at least three credit cards, ” the keys to Mr. Halik's “vehicle, ” “a pair of jeans, ” and “tens of thousands of dollars[‘] worth of [Mr. Halik]'s digital media” were seized; (2) the June 7, 2018 seizure of Mr. Halik's motorcycle “from a secured garage at [Mr. Halik]'s residence;” and (3) the June 20, 2018 search of Mr. Halik's “digital media dating back at least to August of 2011.” (Compl. ¶¶ 12, 14, 17-19, 21.)
The court will only address those incidents that relate to the timely-filed § 1983 claims.
According to the Complaint, Mr. Halik was arrested and later convicted, based on statements made by Detective Darbyshire in an arrest warrant affidavit. (Id. at ¶ 10.) The arrest warrant affidavit, itself, details evidence reportedly obtained from another individual's “Go-Pro camera, ” on May 3, 2018, pursuant to that individual's arrest. (Mot. Ex. 2, Doc. No. 5-2, at 3-5.) Defendants do not argue, and nor do the pleadings show, that Mr. Halik's conviction was based, at all, on evidence obtained as a result of the allegedly unconstitutional searches and seizures that occurred on June 7, 2018 or June 20, 2018. Because evidence discovered independent of the alleged Fourth Amendment violations at issue would apparently be sufficient to sustain Mr. Halik's conviction, success on those § 1983 claims here would not necessarily invalidate that conviction. Further, there is nothing to suggest that success on Plaintiff's remaining Fourth Amendment claims would “negate an element of the offense of which he has been convicted.” Heck, 512 U.S. at 486 n.6.
Moreover, because Mr. Halik was convicted following a guilty plea, “the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized.” Easterling v. Moeller, 334 Fed.Appx. 22, 24 (7th Cir. 2009) (quoting Haring v. Prosise, 462 U.S. 306, 321 (1983)).
On this record, then, Mr. Halik's Fourth Amendment claims relating to the searches and seizures that occurred on June 7, 2018 and June 20, 2018 do not relate directly to his underlying conviction, let alone imply its invalidity. As such, to the extent that Defendants move to dismiss Plaintiff's remaining Fourth Amendment claims pursuant to Heck, the Motion should be denied. See Pearson, 349 Fed.Appx. at 347-48 (holding that a § 1983 plaintiff's Fourth Amendment claims alleging unreasonable search and seizure were not barred by Heck, because the well-pled allegations plausibly showed that evidence discovered independent of the allegedly unconstitutional searches would have been sufficient to sustain the plaintiff's conviction); Martinez, 184 F.3d at 1126 (holding that a plaintiff's conviction for resisting arrest did not bar his subsequent § 1983 claim against the arresting officers for excessive force, where the criminal conviction was based, in part, on the fact that the plaintiff had initially fled from law enforcement, which was “a question separate and distinct from whether the police officers exercised excessive or unreasonable force in effectuating his arrest”); c.f. Trusdale, 85 Fed.Appx. at 693 (holding that a plaintiff's § 1983 claim alleging an unlawful search was barred by Heck because evidence obtained pursuant to the search led to his conviction).
2. The June 20, 2018 Digital Media Search
Defendants next argue that the Fourth Amendment claim relating to the June 20, 2018 search of Mr. Halik's digital media is inadequately pleaded. (Mot. 11.)
Defendants do not address whether the Fourth Amendment claim relating to the June 7, 2018 search of Plaintiff's home is adequately pled. (See Compl. ¶ 12.) Nor do Defendants address the sufficiency of Plaintiff's Fourth Amendment unreasonable seizure claims. (Id. at ¶¶ 14, 17-18, 21.) Accordingly, those claims should remain viable.
“The Fourth Amendment protects persons from unreasonable government searches of their ‘persons, houses, papers, and effects.'” Doe v. Woodward, 912 F.3d 1278, 1290 (10th Cir. 2019) (quoting U.S. Const. Amend. IV); Maryland v. King, 569 U.S. 435, 446 (2013). The reasonableness of a search depends upon whether, objectively, the challenged action was justified under the circumstances. Ashcroft v. al-Kidd, 563 U.S. 731, 735-36 (2011). “Searches conducted without a warrant are per se unreasonable under the Fourth Amendment - subject only to a few ‘specifically established and well-delineated exceptions.'” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). “A warranted search is unreasonable if it exceeds in scope or intensity the terms of the warrant.” United States v. Penn, 647 F.2d 876, 882 n.7 (9th Cir. 1980) (citing Terry v. Ohio, 392 U.S. 1, 17-19 (1968)); accord Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997) (“[B]ecause the touchstone of constitutionality of an officer's conduct during a search is reasonableness, when executing a search warrant, an officer is limited to conduct that is reasonably necessary to effectuate the warrant's purpose.”).
Here, the Complaint sets forth the following allegations regarding the June 20, 2018 search of Mr. Halik's digital media:
On or about June 20, 2018, at the direction of Defendant Darbyshire, EPSO Deputy Kimble Gingrich . . . extensively combed through all of Plaintiff's digital media. Much of what was accessed severely violated Plaintiff's constitutional rights and his privacy. For example, Deputy Gingrich accessed specific files on the digital media dating back at least to August of 2011, which was far before there was even an allegation or a suspicion of any criminal conduct by the Plaintiff. . . . Deputy Gingrich made copies of the digital media that is still being retained by EPSO to this day. Furthermore, much of the digital media that was copied and saved by EPSO . . . was not illegal in any way, nor was it relevant to the case against Plaintiff.(Compl. ¶ 19.) However, the Complaint is devoid of any allegations from which to discern whether this search of Mr. Halik's digital media was conducted pursuant to a valid search warrant. To the extent that the search was conducted pursuant to a warrant, Plaintiff does not allege that the warrant was defective, or that its execution exceeded the warrant's scope. Without additional allegations, the court is unable to determine whether Mr. Halik's constitutional rights were, in fact, violated. See Rawlings v. City of Fountain, Colo., No. 17-cv-01980-RM-KLM, 2018 WL 3375191, at *3 (D. Colo. July 10, 2018) (recommending the dismissal of Fourth Amendment search and seizure claims, as inadequately pleaded, where the plaintiff “offered only conclusory statements regarding the lack of probable cause and bad faith of [the police officer] in obtaining the warrant”); Gilpin v. Clovis Police Dep't, No. Civ. 11-336 LH/LAM, 2012 WL 13081262, at *10 (D.N.M. Feb. 27, 2012) (dismissing § 1983 claims alleging an illegal search, where the complaint did not allege that the warrant or the manner of its execution was unlawful). Therefore, the Fourth Amendment claim relating to the June 20, 2018 search of Mr. Halik's digital media should be dismissed.
D. The Fifth Amendment Claims
In the Complaint, Mr. Halik alleges due process violations under the Fifth Amendment. (Compl. ¶ 31.) However, it is clear from the court's reading of Plaintiff's response brief that any claims brought pursuant to the Fifth Amendment have been abandoned. (See Resp. 6 ¶ 9.) Regardless, any such claim would be without merit here, as the Fifth Amendment is applicable to the federal government only, not to the individual states. Dusenbery v. United States, 534 U.S. 161, 167 (2002); Ward v. Anderson, 494 F.3d 929, 932 n.3 (10th Cir. 2007) (noting that “only the Fourteenth Amendment imposes a due process requirement on state officials”). In this case, Plaintiff does not allege any facts implicating the federal government. As such, the Fifth Amendment does not apply. See Wilson v. City of Lafayette, No. 07-cv-01844-EWN-KLM, 2008 WL 4197742, at *6 (D. Colo. Sept. 10, 2008) (dismissing Fifth Amendment due process claims, where the plaintiff averred no facts relating to the federal government). Accordingly, Plaintiff's Fifth Amendment claims should be dismissed.
E. The Eighth Amendment Claims
Mr. Halik also alleges that Detective Darbyshire “showed deliberate indifference” towards him, in violation of his Eighth Amendment right “against cruel and unusual punishment.” (Compl. ¶ 32.) The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.” U.S. Const. amend. VIII. However, the Eighth Amendment's proscription against “cruel and unusual punishment” applies only to convicted inmates. Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 809 (10th Cir. 1999) (“The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishments on those convicted of crimes.”); see also Whitley v. Albers, 475 U.S. 312, 318-19 (1986) (“The Cruel and Unusual Punishments Clause was designed to protect those convicted of crimes, and consequently the Clause applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.”); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“[T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt[.]”). Here, Mr. Halik is asserting § 1983 claims based solely upon events that occurred prior to his conviction. Accordingly, Plaintiff has failed to state a cognizable claim for relief under the Eighth Amendment's Cruel and Unusual Punishments Clause.
That being said, Mr. Halik also appears to allege that Detective Darbyshire violated his Eighth Amendment rights, by “arrang[ing] an excessively high bond of $25,000, over eight times the standard bond amount.” (Compl. ¶ 22; see Resp. 6-7 ¶ 10 (“Plaintiff clearly stated in his Complaint that Defendants violated the Eighth Amendment's prohibitions on excessive bail[.]”).) The Eighth Amendment's Excessive Bail Clause, which applies to pretrial detainees, “prevents the imposition of bail conditions that are excessive in light of the valid interests the state seeks to protect by offering bail.” Galen v. Cnty. of Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007) (citing United States v. Salerno, 481 U.S. 739, 754 (1987)); accord Meechaicum v. Foutain, 696 F.2d 790, 791 (10th Cir. 1983) (“The Eighth Amendment's prohibition against excessive bail is the foundation of a bail system which, by conditioning release on the offer of financial security, seeks to reconcile the defendant's interest in, and society's commitment to, pretrial liberty with the need to assure the defendant's presence at trial.”). “Because the practical effect of excessive bail is the denial of bail, logic compels the conclusion that the harm the Eighth Amendment aims to prevent is the unnecessary deprivation of pretrial liberty.” Meechiacum, 696 F.2d at 791 (citations omitted). “Bail is excessive when set at an amount higher than necessary to insure the appearance of the accused at trial.” Id. (citing Stack v. Boyle, 342 U.S. 1, 5 (1951)); accord Salerno, 481 U.S. at 754.
To determine whether the Excessive Bail Clause has been violated, the court must “look to the valid state interests bail is intended to serve for a particular individual and judge whether bail conditions are excessive for the purpose of achieving those interests.” Masad v. Nanney, No. 14-cv-00577-MJW, 2014 WL 4265848, at *6 (D. Colo. Aug. 27, 2014) (quoting Galen, 477 F.3d at 660). Further, “[b]ecause tort principles apply to § 1983 claims, and because judicial officers have long been held to be superseding causes that break the chain of proximate causation, ” an Eighth Amendment excessive bail claim can only succeed where: (1) the § 1983 defendant “deliberately or recklessly misled the judicial officer who set bail;” and where (2) “bail would not have been unconstitutionally excessive but for the [defendant's] misrepresentations.” Id. (quoting Galen, 477 F.3d at 664) (alterations omitted); see, e.g., Olajide v. Arsanis, No. 12-cv-04303-WHO, 2014 WL 985102, at *7 (N.D. Cal. Mar. 7, 2014) (dismissing an excessive bail claim, as inadequately pleaded, where the plaintiff failed to allege either that the bail was set with an improper purpose, or that the defendant “caused the alleged Eighth Amendment violation”).
The Complaint, here, alleges that Detective Darbyshire, through “corruption and misconduct, ” “arranged an excessively high bond of $25,000” in Mr. Halik's criminal case, even though the “standard bond” for the crimes Mr. Halik was charged with “would have . . . been approximately $3,000.” (Compl. ¶ 22.) In their motion to dismiss, Defendants offer no compelling argument for dismissal of this claim. Therefore, Plaintiff's Eighth Amendment excessive bail claim, which is asserted against Defendant Darbyshire, should proceed.
F. The Fourteenth Amendment Due Process Claims
The Complaint alleges violations of Mr. Halik's due process rights under the Fourteenth Amendment. (Compl. ¶ 31.) The Fourteenth Amendment provides: “No State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (1) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (2) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998) (citation omitted). In his Complaint, Plaintiff appears to allege both procedural and substantive due process violations.
1. Substantive Due Process
“Claims for ‘substantive due process' find their basis in the Fourteenth Amendment's protections against arbitrary government power.” Lindsey v. Hyler, 918 F.3d 1109, 1115 (10th Cir. 2019) (citing Browder v. City of Albuquerque, 787 F.3d 1076, 1078-80 (10th Cir. 2015)). A substantive due process violation can be established by either: (1) “legislative acts that infringe on a fundamental right;” or (2) “official conduct that deprives a person of life, liberty, or property in a manner so arbitrary as to shock the judicial conscience.” Id. (citation omitted). “To succeed on such a claim, an individual must demonstrate that the government deprived him of life, liberty, or property without due process of law.” Id. (citing Browder, 787 F.3d at 1078).
The Complaint here challenges the conduct of Defendants, both prior to and after Mr. Halik's arrest. (Compl. ¶¶ 3, 9.) Specifically, Mr. Halik takes issue with Detective Darbyshire's decision to initiate a police investigation against him, as well as both Defendants' actions during the course of that investigation, including “lying on police reports, ” hiding “exculpatory evidence, ” “stealing” cash and other property from Mr. Halik's home, and conspiring to prevent Mr. Halik from posting bond. (Id. at ¶¶ 9-10, 12-14, 17, 24, 27-28.)
In evaluating police action, the court must “consider whether the challenged conduct bears a reasonable justification in the service of a legitimate governmental objective or if instead it might be ‘characterized as arbitrary, or conscience-shocking.” Lindsey, 918 F.3d at 1115-16 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)) (alterations omitted). “Only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Id. at 1116 (quoting Onyx Props., LLC v. Bd. of Cnty. Comm'rs, 838 F.3d 1039, 1048-49 (10th Cir. 2016)). “Challenged actions must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience-shocking.” Id. (quoting Onyx, 838 F.3d at 1049) (alterations omitted). “Indeed, not even ‘intentionally or recklessly causing injury through the abuse or misuse of government power is enough.'” Id. (quoting Onyx, 838 F.3d at 1049) (alterations omitted).
First, to the extent Plaintiff challenges the basis for his arrest, “no §1983 claim will arise from filing criminal charges without probable cause under the substantive due process protections of the Fourteenth Amendment.” Becker v. Kroll, 494 F.3d 904, 918 (10th Cir. 2007). That being said, “state actors may be liable for a Fourteenth Amendment due process violation under § 1983 if they knowingly or recklessly withhold or destroy exculpatory evidence and those actions deny [the] plaintiff a fair trial.” Bledsoe v. Bd. of Cnty. Comm'rs of Cnty. of Jefferson, Kan., 501 F.Supp.3d 1059, 1119-20 (D. Kan. 2020) (citing Tiscareno v. Anderson, 639 F.3d 1016, 1021-23 (10th Cir. 2011), vacated on other grounds by 421 Fed.Appx. 842 (10th Cir. 2011); Pierce, 359 F.3d at 1293; Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)). Importantly, however, in this case, Mr. Halik pled guilty in the underlying criminal proceedings before any trial commenced. As such, to the extent that Mr. Halik alleges that Defendants concealed or withheld evidence in that case, his Fourteenth Amendment substantive due process rights were not implicated. See Becker, 494 F.3d at 924 (rejecting a plaintiff's argument-that the defendants violated his substantive due process rights by suppressing exculpatory evidence- because the underlying criminal prosecution “never proceeded to trial”).
Even more importantly, it is clear that the conduct alleged in the Complaint does not meet the rigorous standard to establish a violation of Mr. Halik's substantive due process rights. While Defendants' investigatory tactics, taken as true, may have been overzealous, their alleged actions do not demonstrate “affronts to personal autonomy, ” sufficient to state a Fourteenth Amendment substantive due process claim. Id. at 922-23; see Klen v. City of Loveland, Colo., 661 F.3d 498, 513 (10th Cir. 2011) (holding allegations-that the defendants “employed fraud and forgery in connection with [the plaintiff's] prosecution, ” “resulting in his guilty plea”-to be insufficient to support a substantive due process claim, where the alleged deprivations amounted only to the “payment of a fine and certain minimal restrictions imposed under the plea agreement”); c.f. Holland v. Harrington, 268 F.3d 1179 (10th Cir. 2001) (finding substantive due process violation when the police held children at gunpoint for an extensive period of time, even after the home had been secured); Estate of Saenz v. Bitterman, No. 20-cv-00848-NRN, 2020 WL 4003647, at *5 (D. Colo. July 15, 2020) (finding a substantive due process violation to be plausibly alleged against a pursuing officer in a high speed chase, where the officer reportedly “ran a stop sign, and did not take avoidance measures”).
For those reasons, it is recommended that the Fourteenth Amendment substantive due process claims be dismissed.
2. Procedural Due Process
“Procedural due process ensures that individuals are entitled to certain procedural safeguards before a state can deprive them of life, liberty or property.” Becker, 494 F.3d at 918 n.8 (citing Albright, 510 U.S. at 275). “To set forth an actionable procedural due process claim, a plaintiff must demonstrate: (1) the deprivation of a liberty or property interest and (2) that no due process of law was afforded.” Ripley v. Wyo. Med. Ctr., Inc., 559 F.3d 1119, 1122 (10th Cir. 2009) (quoting Stears v. Sheridan Cnty. Mem'l Hosp. Bd. of Trs., 491 F.3d 1160, 1162 (10th Cir. 2007)).
In the Complaint, Plaintiff alleges that Defendants illegally seized his motorcycle and then transported it to an EPSO impound lot, where it has since “been exposed to numerous hail storms [sic] and extensive weathering over the course of at least two years.” (Compl. ¶ 21.) Plaintiff alleges that, to date, the EPSO still “refuse[s] to release the property” to him, even though the underlying criminal case has since been “resol[ved], ” and despite “the EPSO being provided with the proper evidence release from the Fourth Judicial District Attorney's Office.” (Id. at ¶¶ 20-21.) Mr. Halik further alleges that Detective Darbyshire seized “at least $3,296 in cash” from his home, all of which was “logged [] into evidence, but only $1,296 of that money was returned” to him. (Id. at ¶ 14.) Plaintiff complains that he has been provided with “no explanation” as to the location or status of his “missing money.” (Id.)
Defendants, in their motion to dismiss, offer no basis for the dismissal of Plaintiff's procedural due process claims Accordingly, those claims should proceed.
G. The Denial of Access Claim
Defendants construe the Complaint as asserting a § 1983 claim for denial of access to the courts. (Mot. 14-15.) In their motion to dismiss, Defendants argue that this claim is inadequately alleged. (Id.)
Denial of access claims provide “the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Lewis v. Casey, 518 U.S. 343, 350-51 (1996) (internal quotation marks and citation omitted); see also Donohue v. Hoey, 109 Fed.Appx. 340, 356 (10th Cir. 2004) (“The right of access to the courts is constitutionally protected. Thus, conduct under color of law which interferes with that right gives rise to a cause of action under section 1983.”). The precise constitutional basis of a denial of access claim, though “unsettled, ” is said to be rooted in the Privileges and Immunities Clause of Article VI, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses. Christopher v. Harbury, 536 U.S. 403, 415 & n.12 (2002). “The elements of a denial of access claim, under any source, appear to be uniform.” Raguindin v. Yates, No. 15-cv-00635-CMA-KLM, 2016 WL 11384333, at *7 (D. Colo. Feb. 29, 2016) (citing Christopher, 536 U.S. at 413-16).
There are two categories of court access claims: “forward looking claims” and “backward looking claims.” Jennings v. City of Stillwater, 383 F.3d 1199, 1208 (10th Cir. 2004) (citing Christopher, 536 U.S. at 413). Forward looking claims involve official action that “frustrates a plaintiff's ability to bring a suit at the present time.” Id. (citing Christopher, 536 U.S. at 413). Backward looking claims, on the other hand, “arise when plaintiffs allege that a specific claim cannot be tried . . . because past official action caused the loss or inadequate settlement of a meritorious case.” Id. (quoting Christopher, 536 U.S. at 413-14) (alterations and internal quotation marks omitted).
Irrespective of whether a court access claim relates to “a litigating opportunity yet to be gained or an opportunity already lost, ” the underlying rationale “is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” Christopher, 536 U.S. at 414-15. As such, to plausibly allege a denial of access claim, be it forward or backward looking, a § 1983 plaintiff must identify a “nonfrivolous, arguable underlying claim.” Id. at 415 (quoting Lewis, 518 U.S. at 353 & n.3) (internal quotation marks omitted). The complaint must describe the underlying claim, “whether anticipated or lost, ” as well as the official action which “frustrat[ed] the litigation.” Id. at 415. With respect to backward looking claims, specifically, the complaint must “identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought.” Id.; see Lynch v. Barrett, 703 F.3d 1153, 1157 (10th Cir. 2013) (“A backwards looking access claim may arise where a plaintiff alleges an underlying action cannot be tried, or be tried with all the evidence, because official conduct caused the loss or inadequate resolution of that claim.”). The required elements of a denial of access claim “must be addressed by allegations in the complaint sufficient to give fair notice to a defendant.” Christopher, 536 U.S. at 416 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-15 (2002)).
Here, the Complaint alleges, relevant to a denial of access claim, that Detective Darbyshire “concealed” certain “exculpatory evidence” from Mr. Halik in the underlying criminal action, and “refused” to turn over other evidence to Mr. Halik's attorney. (Compl. ¶¶ 9, 17.) The Complaint further alleges that Deputy Donatell deliberately made false statements in a police report, so as to “lessen [Mr. Halik]'s credibility in court proceedings and to cover up misconduct by other EPSO Deputies.” (Id. at ¶ 13.) In addition, the Complaint alleges that Detective Darbyshire illegally seized Mr. Halik's cash and credit cards from his home, and then “tried valiantly to get [his] probation officer to place a probation hold on [him], ” so as to “prevent[] [Mr. Halik] from being able to post bond.” (Id. at ¶¶ 14, 24.)
These allegations, even taken as true, fail to establish a viable § 1983 claim for denial of court access. To the extent that Mr. Halik is asserting a forward looking claim, he has failed to allege any existing impediment to his court access. Christopher, 536 U.S. at 413. To the extent that Plaintiff is asserting a backwards looking claim, the Complaint does not identify “a remedy that may be awarded as recompense but would not otherwise be available in a separate suit not yet brought.” Id. at 415. Accordingly, in the absence of such allegations, Plaintiff's § 1983 claims, to the extent asserting a denial of court access, should be dismissed. See Jennings, 383 F.3d at 1209 (affirming the dismissal of a backwards looking denial of access claim, where the plaintiff failed to show that the alleged officer misconduct prevented her from obtaining an available remedy); Boyett v. Cnty. of Wash., No. 2:04-CV-01173-PGC-DON, 2005 WL 8175092, at *4 (D. Utah Oct. 27, 2005) (dismissing denial of access claims, where the operative pleading did not allege a specific remedy that could be awarded that would not otherwise be available in a suit not yet brought).
H. The First Amendment Claim
As a final matter, the Complaint also alleges that Defendant Darbyshire “openly and blatantly violated Plaintiff's established First Amendment rights and used Plaintiff's protected speech against him, ” in connection with statements made in the arrest warrant affidavit. (Compl. ¶ 23.) Defendants, in their motion to dismiss, do not address this claim, at all. The First Amendment claim, therefore, has not been addressed by this court, and should proceed.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that “Defendants' Motion to Dismiss Complaint (ECF No. 1) Pursuant to Fed.R.Civ.P. 8(a) and 12(b)(5) and (6)” (Doc. No. 5) be GRANTED, in part, and DENIED, in part. Specifically, Plaintiff's state law claims, as well as his § 1983 claims arising out of events that occurred prior to June 7, 2018, should be dismissed with prejudice, as time-barred. Plaintiff's Fourth Amendment malicious prosecution and false arrest claims should be dismissed without prejudice, as barred by the favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994). The Fourth Amendment claims relating to the June 20, 2018 search of Plaintiff's digital media, the Fifth Amendment claims, the Eighth Amendment claims alleging violations of the Cruel and Unusual Punishments Clause, the Fourteenth Amendment substantive due process claims, and the denial of court access claims should all be dismissed for failure to state a claim upon which relief may be granted. The Motion should be denied in all other respects. Plaintiff's remaining Fourth Amendment unreasonable search and seizure claims, as well as his Fourteenth Amendment procedural due process claims, against both Defendants, in their individual and official capacities, should proceed. Plaintiff's First Amendment claim against Defendant Darbyshire, in his individual and official capacity, should proceed. The Eighth Amendment excessive bail claim against Defendant Darbyshire, in his individual and official capacity, should also proceed.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).