Opinion
Civil Action 22-cv-02129-RMR-STV
12-22-2023
STEFFEN TALLMAN, Plaintiff, v. MIKE WOLFE, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendant's Motion to Dismiss Amended Complaint (the “Motion”). [#39] The Motion has been referred to this Court. [#40] This Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion [#39] be GRANTED.
I. BACKGROUND
The facts in this subsection are drawn from the allegations in Plaintiff's Amended Complaint [#37], which must be taken as true when considering the Motion to Dismiss. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
This civil action arises out of an encounter between Plaintiff Steffan Tallman and Defendant Deputy Mike Wolfe of the Douglas County Sheriff's Office on January 11, 2021. [See generally #37] In the months prior, Plaintiff and his ex-wife exchanged many text messages about their young son, as their custody agreement required regular communication regarding their son. [Id. at ¶¶ 15, 45] At some point during this exchange, Plaintiff's ex-wife threatened to have Plaintiff charged with harassment. [Id. at ¶ 16]
On January 9, 2021, Plaintiff texted his ex-wife asking in which police department or county court she intended to seek harassment charges, stating that he wanted to know so that he could advise his investigator. [Id. at ¶ 17] Plaintiff's ex-wife did not respond to his question. [Id. at ¶ 18] The next day, Plaintiff again texted his ex-wife, informing her that he was going to the courthouse the following day to file a temporary custody arrangement. [Id. at ¶ 19]
The Amended Complaint does not allege whether Plaintiff specified which courthouse he intended to go to.
The next morning, January 11, 2021, Plaintiff went to the Douglas County Justice Center to get assistance with domesticating the out-of-state custody order. [Id. at ¶ 20] Plaintiff texted his ex-wife that morning at 7:58 a.m., asking for a response to his text from January 9, 2021, and informing her that he was “already at the court house.” [Id. at ¶ 22] ¶ 11:18 a.m., Plaintiff again texted his ex-wife, asking if she planned to get a protection order against him, as he needed to notify his employer if she does. [Id. at ¶ 23] Approximately one hour later, Plaintiff texted his ex-wife again, inquiring about visitation with their son and stating that he was at the “Douglas County [Courthouse] right now.” [Id. at ¶ 24]
The Douglas County Justice Center (the “Justice Center”) is a large complex that includes the Douglas County Sheriff's Office and the Douglas County Courthouse. [#37 at 21]
At some point after receiving notice that Plaintiff was at the courthouse, Plaintiff's ex-wife arrived at the Douglas Country Justice Center and met with Defendant regarding a domestic violence report. [Id. at ¶¶ 26-27] During this meeting, Plaintiff's ex-wife explained that she and Plaintiff had moved from New Mexico and that they had an out-of-state custody arrangement. [Id. at ¶ 28] Plaintiff's ex-wife further explained that Plaintiff had repeatedly asked to file documents with the court regarding the custody and child support arrangements related to their son, and that Plaintiff was at the courthouse and should not be. [Id.]
Defendant asked to see the text messages between Plaintiff and Plaintiff's ex-wife. [Id. at 29] Defendant reviewed all text messages between Plaintiff and Plaintiff's ex-wife from the previous weeks, including the most recent messages concerning Plaintiff's location and intentions for being at the courthouse. [Id. at ¶ 30] There was no restraining order, protection order, or other limitation that would have restricted Plaintiff from communicating with his ex-wife or otherwise being at the courthouse. [Id. at ¶ 31]
Defendant stated that it appeared to be a coincidence that Plaintiff's ex-wife was at the courthouse at the same time as Plaintiff, but that he did not believe in coincidences. [Id. at ¶ 33] While talking to Plaintiff's ex-wife, but before contacting Plaintiff, Defendant reviewed the elements for Harassment and Felony Stalking. [Id. at ¶ 34] While Defendant was talking to Plaintiff's ex-wife and Plaintiff's ex-wife's mother, the mother received a text message from Plaintiff stating that he could not get in touch with his ex-wife and asking her to tell his ex-wife to meet Plaintiff at the Justice Center. [Id. at ¶ 35] When the mother asked the reason for the meeting, Plaintiff responded that he was attempting to domesticate the custody agreement and did not want anything to be a surprise to his exwife. [Id. at ¶ 36] Defendant reviewed this text exchange. [Id. at ¶¶ 35-36]
It is unclear from the allegations in the Amended Complaint when Plaintiff's ex-wife's mother appeared at the Justice Center or why she arrived.
Defendant then left the Sheriff's Office and approached Plaintiff while he was waiting inside the Douglas County Courthouse records lobby. [Id. at ¶¶ 37-38] Plaintiff was sitting in a chair, not walking around or actively looking for another person. [Id. at ¶ 39] Defendant asked Plaintiff why he was there. [Id. at ¶ 38] Plaintiff explained that he was at the courthouse to seek assistance with his custody order and to obtain copies of reports that his ex-wife told him she would be filing with the courts. [Id. at ¶ 40] When Defendant asked Plaintiff why he and his ex-wife were at the courthouse at the same time, Plaintiff “responded with communications that made it apparent to [Defendant] that [Plaintiff] thought it sounded like a coincidence.” [Id. at ¶ 41] Despite Plaintiff's explanation indicating that he was there for legitimate reasons unrelated to stalking and harassment, and despite Defendant having personally reviewed messages in which Plaintiff had told his ex-wife that he would be at the courthouse, Defendant arrested Plaintiff, asserting domestic violence charges against Plaintiff for felony stalking and misdemeanor harassment. [Id. at ¶ 42]
Under Colorado Law, “Domestic Violence” includes “any . . . crime against a person . . . when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.” Colo. Rev. Stat. § 18-6-800.3(1). “When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence . . . has been committed, the officer shall, without undue delay, arrest the person suspected of its commission . . . and charge the person with the appropriate crime or offense.” Colo. Rev. Stat. § 18-6-803.6(1).
B. The Warrantless Arrest Affidavit
The facts in this subsection are drawn from Defendant's warrantless arrest affidavit, which has been filed on the docket. [#7] The propriety of considering that affidavit is discussed in more detail below.
Defendant submitted a warrantless arrest affidavit (the “Affidavit”) to the criminal court, initiating Plaintiff's prosecution and causing his continued confinement. [Id. at ¶¶ 44-45, 72] The Affidavit accused Plaintiff of felony stalking and misdemeanor harassment. [Id. at ¶ 72] According to the Affidavit, Defendant made contact with Plaintiff's ex-wife and her mother at approximately 9:00 a.m. in the Douglas County Sheriff's Office. [#7 at 1] Plaintiff's ex-wife was in the office to report possible domestic violence/harassment by Plaintiff. [Id.] Plaintiff's ex-wife showed Defendant the divorce decree and custody agreement, signed and filed in New Mexico but not yet domesticated in Colorado. [Id.] Plaintiff's ex-wife reported that she had come to the Douglas County Justice Center to file a petition seeking domestication of the child custody agreement, and seeking a protection order against Plaintiff. [Id.] Plaintiff's ex-wife reported her belief that Plaintiff was hired, or in the hiring process, for the Jefferson County Sheriff's Office. [Id. at 2] She also reported her belief that Plaintiff “may be working armed security somewhere as well” because Plaintiff “showed up at the family Thanksgiving dinner wearing a uniform and a gun in a thigh holster.” [Id.]
The Affidavit does not explicitly clarify the relationship between Plaintiff's ex-wife and the other individual who accompanied her to the Justice Center. Based, however, on the allegations in the Amended Complaint, and because it ultimately has no substantive bearing on this Recommendation, the Court will refer to this individual as Plaintiff's exwife's mother for clarity.
The pages on the Affidavit submitted to the Docket appear to be out of order. For consistency and clarity, the Court refers to the actual page number of the .pdf document uploaded to the Electronic Court Filing system, rather than to the numbering printed on each page or the paragraph numbering.
The Affidavit reports that “[s]ince then,” Plaintiff had been “repeatedly asking” his ex-wife if she would agree to seek to amend the child custody agreement and change the amount of child support owed by Plaintiff. [Id.] Plaintiff's ex-wife told Defendant that she would agree, but had concerns about her and Plaintiff's child's (the “Child's”) safety. [Id.] This concern was because Plaintiff had “claimed he attempted suicide,” mentioned wanting to take the Child out-of-state to visit family, and had been “erratic” in his text and phone messages. [Id.]
The Affidavit next describes text communications between Plaintiff and his ex-wife, beginning on January 8, 2021. [Id.] The messages begin with discussions concerning custody arrangements. [Id.] Plaintiff then asks about his ex-wife's relationship with another individual. [Id.] According to the Affidavit, Plaintiff began to “rant in a text about how he does not want to be excluded from [the Child's] life and that another person would get all the benefits of being involved where he can't be.” [Id.] Plaintiff then “threatened to get a protection order against [the individual] so he couldn't be with [the Child], or come in contact with [Plaintiff].” [Id.] In the same text string, on January 9, 2021, Plaintiff “threaten[ed] to report illegal drug use to [Plaintiff's ex-wife's] employer, USDA Forest Service[,] in a stated attempt to get [Plaintiff's ex-wife] to agree to a change in the custody order.” [Id.] Plaintiff's ex-wife reported her suspicion that Plaintiff's threats “to falsely report drug abuse to her employer” were a way “to get back at her for the divorce.” [Id. at 4] Defendant states as follows in the Affidavit:
According to the Affidavit, Plaintiff became aware of this individual through social media. [#7 at 2] The Affidavit states that “[i]n an effort to placate [Plaintiff], [Plaintiff's ex-wife] blocked [the individual] from her social media, but recently refriended him.” [Id.] “Since then, [Plaintiff] has been asking about [the individual] repeatedly.” [Id.]
I observed a pattern of “speech” in the text string where [Plaintiff] would demand and accuse and ask for things he had to [sic] right to. [Plaintiff's ex-wife] would stop responding. Then [Plaintiff] would apologize and [Plaintiff's ex-wife] would resume their text messaging until [Plaintiff] became threatening and accusatory again.
[Id. at 2]
The Affidavit also describes a text exchange “[o]n 12/23/21 [sic]” in which Plaintiff texted his ex-wife “that he had attempted suicide and had not been successful.” [Id.] Plaintiff “apologized but again wanted to see [the Child].” [Id.] According to the Affidavit, Plaintiff “stated in his texts, in effect that he was suicidal because [Plaintiff's ex-wife] was being unreasonable about the custody issue and that the burden the child support payments place on him he cannot afford to live.” [Id.] The Affidavit further states that Plaintiff's ex-wife “stated a belief” that the suicide attempt “was more of an attempt to coerce her into giving more custody time with [the Child].” [Id. at 4]
Plaintiff's ex-wife explained to Defendant that Plaintiff tracked her social media while they were married and would become jealous if she friended someone Plaintiff did not know. [Id. at 2] Plaintiff also tracked his ex-wife's phone logs when they were married and would question her about calls. [Id.] Plaintiff's ex-wife suspected that Plaintiff was still tracking her social media after their divorce, because she would get logged out. [Id.] Plaintiff's ex-wife changed her passwords and blocked Plaintiff from her social media, but Plaintiff still saw information about her on social media. [Id. at 2, 4] Plaintiff's ex-wife recounted an incident around December 21, 2020, where Plaintiff viewed a picture of his ex-wife on someone else's social media account and immediately texted his ex-wife asking if the Child was there and if so could she send Plaintiff a picture. [Id. at 2] Plaintiff's ex-wife did so, “to keep [Plaintiff] calm.” [Id.]
According to the Affidavit, Plaintiff's ex-wife “expressed a fear that [Plaintiff] may kill her for reporting” her concerns. [Id. at 4] Plaintiff's ex-wife “wasn't sure whether she was being followed,” but did know that Plaintiff has been “following” her on social media. [Id.]
During Defendant's discussion with Plaintiff's ex-wife, Plaintiff's ex-wife's mother began to receive texts from Plaintiff asking if Plaintiff's ex-wife was at the Douglas County Courthouse. [Id. at 4] Plaintiff stated that he had seen the mother's Jeep in the parking lot. [Id.] Defendant returned to his patrol car to work on the report, and Plaintiff's ex-wife and her mother completed paperwork with the clerk of court. [Id.] While working on the report, Defendant received information that Plaintiff was texting his ex-wife, stating that he was at the Justice Center and wanted to know “what the case number was she had filed on him” so that Plaintiff could get a copy for his background investigator with Jefferson County. [Id.] Plaintiff stated that he knew she was there because he had seen her mother's Jeep in the parking lot. [Id.] The Affidavit states that Plaintiff's ex-wife and her mother “were now very scared and alarmed they had been possibly followed to [the Sheriff's Office], and that [Plaintiff] may be in the building looking for them.” [Id.]
Defendant located Plaintiff in the Justice Center. [Id.] Defendant asked Plaintiff why he was there. [Id.] Plaintiff responded that he was there for copies of a report filed by Plaintiff's ex-wife so he could provide those to the Jefferson County background investigator. [Id.] Defendant asked Plaintiff how he knew that his ex-wife was at the office and how he knew to ask for copies of a report that had not yet been filed. [Id.] Plaintiff responded that he had seen his ex-wife's mother's Jeep in the parking lot after he had come to file a petition to amend his child support and custody. [Id.] Defendant again asked Plaintiff how he knew that his ex-wife was at the Justice Center when they had not told him that she would be there. [Id.] Plaintiff “continued to play it off as coincidence.” [Id.]
Defendant then asked Plaintiff about the suicide attempt, and Plaintiff “admitted he made the attempt up to try and get some sympathy and consideration from [his ex-wife] with regards to seeing [the Child].” [Id.] Defendant also asked about “the threats to report drug abuse by [his ex-wife] to her employer” and Plaintiff “admitted trying to get [his exwife] in trouble” and “claimed [his ex-wife] may have used marijuana edibles while pregnant.” [Id.]
The Affidavit concludes by noting that Plaintiff has prior military experience, is currently in the hiring process for the Jefferson County Sheriff's Office, has immediate access to at least one handgun, and has no criminal history. [Id.] It further notes that: “There are no other reported/unreported incidents of domestic violence.” [Id.]
In the Complaint, Plaintiff alleges that the Affidavit contained numerous false statements, including that:
• Plaintiff's texts were “threatening and accusatory;”
• Plaintiff threatened to falsely report his ex-wife's drug use to her employer, despite Plaintiff's representation to Defendant that drug use occurred;
• Plaintiff was cyberstalking his ex-wife, despite Plaintiff's ex-wife report that she had no information to substantiate this belief;
• Plaintiff's ex-wife blocked a potential romantic partner on social media in order to “placate” Plaintiff, despite the fact that Plaintiff's ex-wife never said this;
• Plaintiff's ex-wife expressed a reasonable fear that Plaintiff might kill her, despite Plaintiff's ex-wife's reports that Plaintiff had never been physical with her or threatened physical violence;
• Plaintiff threatened to report his ex-wife's drug use “in a stated attempt to get [his ex-wife] to agree to a change in the custody order” and “because she did
the same thing to [him] during the divorce making things up about [him],” despite the fact that Plaintiff never made these statements.
[#37 at ¶ 44, 75] Plaintiff also alleges that the Affidavit made the following material omissions of exculpatory information:
• Defendant reviewed text messages showing that Plaintiff told his ex-wife of his plans to go to the courthouse without any information that she, too, would be going to the same location;
• Plaintiff told his ex-wife that he was at the courthouse in order to domesticate the out-of-state custody agreement;
• Plaintiff's ex-wife arrived at the Justice Center after Plaintiff informed her he was already there;
• Defendant learned that Plaintiff's ex-wife believed that Plaintiff had been looking up her public social media profiles, which Defendant explained was not a violation of Colorado law;
• Plaintiff and his ex-wife's custody agreement required regular communication about the Child; and
• Plaintiff's ex-wife continued to respond to Plaintiff and did not tell him to stop communicating with her.
[Id. at ¶ 45, 76]
C. Plaintiff's Arrest
As a result of the Affidavit, which was “rubber-stamped” by a state court, Plaintiff spent three days in jail. [Id. at ¶¶ 77-78] After investigating the case and reviewing the same text messages as Deputy Wolfe, a Douglas County Sheriff's Office detective concluded that there was no probable cause to arrest Plaintiff for stalking and harassment. [Id. at ¶¶ 46-48] No charges were filed against Plaintiff, the criminal case was dismissed, and Plaintiff's records were sealed. [Id. at ¶¶ 50-52] Because of the arrest, Plaintiff spent three days in jail, paid bond to get out of jail, wore and paid for an ankle monitor, and spent time and money on his criminal defense. [Id. at ¶ 82]
D. This Lawsuit
Plaintiff initiated this action on August 19, 2022. [#1] The Amended Complaint alleges two claims for relief, both brought pursuant to 42 U.S.C. § 1983: (1) unlawful arrest [#37 at ¶¶ 53-70], and (2) malicious prosecution [id. at ¶¶ 71-83], both in violation of the Fourth Amendment and the Colorado Constitution. On July 5, 2023, Defendant filed the Motion seeking to dismiss both claims. [#39] Plaintiff has responded to the Motion [#44] and Defendant has replied [#45]. After receiving leave of the Court [#48], Plaintiff filed a surreply [#49].
II. CONSIDERATION OF MATERIALS OUTSIDE OF THE COMPLAINT
In the Motion, Defendant asks the Court to consider the allegations contained within the Affidavit. [##13 at 2 n.1; 39 at 2 n.1] “As a general rule, the only facts [a court] consider[s] in assessing the sufficiency of a complaint are those alleged in the complaint itself.” Emps.' Ret. Sys. v. Williams Cos., Inc., 889 F.3d 1153, 1158 (10th Cir. 2018) (citing Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)). But, when ruling on a motion to dismiss, “courts must consider the complaint in its entirety, as well as . . . documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). In addition, “if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.” GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997); see also Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253-54 (10th Cir.2005) (“[A] document central to the plaintiff's claim and referred to in the complaint may be considered in resolving a motion to dismiss, at least where the document's authenticity is not in dispute.”).
The Amended Complaint (like the original Complaint) repeatedly refers to Deputy Wolfe's “warrantless arrest affidavit”-alleging that the Affidavit is the reason that Plaintiff spent three days in jail, and that the Affidavit contained false statements and improperly omitted exculpatory information. [See #37 at ¶¶ 44-45, 72, 74-80; see also #1 at ¶¶ 59, 61-66] Plaintiff does not dispute the authenticity of the Affidavit. Thus, the Court agrees that consideration of the Affidavit is appropriate on this motion to dismiss. Larson v. Agos, 449 Fed.Appx. 725, 729 (10th Cir. 2011) (affirming the consideration of facts contained in a warrantless arrest affidavit on a motion to dismiss a plaintiff's unlawful arrest and malicious prosecution claims when the complaint referred to the affidavit three times and alleged that it contained false statements and did not support probable cause, stating that the affidavit was “clearly central to [the plaintiff's] claim that the police lacked probable cause to arrest him”); Hinman v. Joyce, 201 F.Supp.3d 1283, 1286-87 (D. Colo. 2016) (considering, on a motion to dismiss, an officer's allegedly false probable cause statement that led to the plaintiff's continuing detention).
Moreover, “factual allegations that contradict . . . a properly considered document are not well-pleaded facts that the court must accept as true.” GFF Corp., 130 F.3d at 1385. For example, when Plaintiff alleges that the Affidavit “includes . . . no evidence of [Plaintiff] intending to harass or annoy his ex-wife” [#39 at 74], the Court may properly consider the contents of the Affidavit to consider if this allegation is well-pleaded. See Kennedy v. Peele, 552 Fed.Appx. 787, 792 (10th Cir. 2014) (considering the contents of an arrest affidavit to discount the plaintiff's allegations as to the affidavit's contents). On the other hand, when Plaintiff alleges that certain statements in the Affidavit are false, the Court accepts the truth of Plaintiff's allegations over those contained in the Affidavit. On a motion to dismiss, a court cannot simply accept facts alleged in an affidavit as true when the basis for the complaint is that the officer fabricated those same facts.
This is consistent with the method for evaluating a Fourth Amendment claim that is, as here, based on allegations that an individual was detained as a result of an officer's false statements or material omissions in an affidavit. In such cases, courts: “(1) remov[e] any false information from the affidavit, (2) include[e] any omitted material information, and then (3) inquir[e] whether the modified affidavit establishes probable cause for the warrant.” Puller v. Baca, 781 F.3d 1190, 1197 (10th Cir. 2015). Accordingly, in measuring whether Deputy Wolfe had probable cause to arrest Plaintiff-as relevant to both a false arrest and malicious prosecution claim-the Court must consider the Affidavit and “ask whether probable cause would still exist based on the undisputed facts.” Allen v. Monico, 27 F.4th 1372, 1376 (8th Cir. 2022).
This standard arose in the context of measuring affidavits in support of search or arrest warrants. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978); Stewart v. Donges, 915 F.2d 572, 581-82 (10th Cir. 1990). Courts apply the same analysis in assessing a claim alleging that a probable cause determination following a warrantless arrest was based on an allegedly faulty warrantless arrest affidavit. Allen v. Monico, 27 F.4th 1372, 1376 (8th Cir. 2022); Stockley v. Joyce, 963 F.3d 809, 821 (8th Cir. 2020); cf. Larson, 449 Fed.Appx. at 728-29 (affirming a district court's reliance on statements in a warrantless arrest affidavit that were not apparently challenged by the plaintiff in order to dismiss a plaintiff's unlawful arrest and malicious prosecution claims).
III. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
B. Qualified Immunity
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory of constitutional rights of which a reasonable person would have known.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). When a defendant asserts qualified immunity, the plaintiff must show that the defendant: (1) violated a statutory or constitutional right and (2) the right was “clearly established” at the time of the defendant's challenged conduct. Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (quotation omitted). The Court may address either prong first. Panagoulakos v. Yazzie, 741 F.3d 1126, 1129 (10th Cir. 2013).
With regard to the second prong of the qualified immunity analysis, the plaintiff must demonstrate that the constitutional right was clearly established at the time of the misconduct. Thomas, 607 F.3d at 662. As the Tenth Circuit explained:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established.... Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). “In the Fourth Amendment context, ‘the result depends very much on the facts of each case,' and the precedents must ‘squarely govern' the present case.” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015)).
IV. ANALYSIS
The Amended Complaint alleges two claims for relief, both brought pursuant to 42 U.S.C. § 1983 and the Colorado Constitution:(1) unlawful arrest [#37 at ¶¶ 53-70], and (2) malicious prosecution [id. at ¶¶ 71-83]. Defendant asserts that he is entitled to qualified immunity on each claim. [#39 at 5-15] The Court addresses each claim below.
The parties' briefs do not separately analyze Plaintiff's claims under the Colorado Constitution. [##39, 44, 45] Because the Court is recommending dismissal of Plaintiff's federal claims, the Court further RECOMMENDS that the Court decline supplemental jurisdiction over Plaintiff's claims to the extent they rely upon the Colorado Constitution. Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
“Section 1983 provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). Courts “use[ ] the common law of torts as a ‘starting point' for determining the contours of claims of constitutional violations under § 1983.” Id. at 1286. However, “[a]lthough the common law tort serves as an important guidepost for defining the constitutional cause of action, the ultimate question is always whether the plaintiff has alleged a constitutional violation.” Id. at 1289.
“If [a Section 1983 plaintiff] has been imprisoned without legal process he has a claim under the Fourth Amendment analogous to a tort claim for false arrest or false imprisonment.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). Colorado common law prescribes only three elements for a claim of false arrest: “(1) The defendant intended to restrict the plaintiff's freedom of movement; (2) The defendant, directly or indirectly, restricted the plaintiff's freedom of movement for a period of time, no matter how short; and (3) The plaintiff was aware that [his] freedom of movement was restricted.” Colo. Jury Instr.-Civ. (“CJI-Civ.”) § 21:1 (2018). Even if these three elements are met, Defendants can defeat a false arrest claim if there was probable cause for the arrest.
Under Colorado common law, lack of probable cause is not an element of the false arrest claim but instead is considered in connection with the affirmative defense of privilege. See Carani v. Meisner, No. 08-cv-02626-MSK-CBS, 2010 WL 3023805, at *5 (citing CJI-Civ. § 21:11 (“Privilege of Peace Officer to Arrest without a Warrant”)). The Court acknowledges, however, that the common law serves only as “a guidepost for defining the constitutional cause of action,” Pierce, 359 F.3d at 1289, and the Tenth Circuit has often defined a claim for false arrest under Section 1983 simply as an arrest made without probable cause. See, e.g., Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012) (“In the context of a false arrest claim, an arrestee's constitutional rights were violated if the arresting officer acted in the absence of probable cause that the person had committed a crime”); Cottrell v. Kaysville City, 994 F.2d 730, 733 (10th Cir. 1993) (“A plaintiff may recover damages under § 1983 for wrongful arrest if she shows she was arrested without probable cause.”); cf. Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985) (“The burden of going forward with evidence establishing the existence of probable cause is on the defendant in a 1983 action.”); Martin v. Duffie, 463 F.2d 464, 468 (10th Cir. 1972) (holding that defenses of good faith and privilege available at common law are available in Section 1983 cases, but “must be put forward by the officers as defenses”). Moreover an officer is entitled to qualified immunity on a claim of unlawful arrest when “there was arguable probable cause for the challenged conduct.” Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (quotation omitted). Here, because the Court's recommendation is grounded on Defendant's entitlement to qualified immunity, the Court need not resolve whether probable cause is an essential element of the claim on which Plaintiff bears the burden of proof or whether it is an affirmative defense on which Defendant bears the burden of proof.
“Where an arrest is predicated on multiple charges, the sufficiency of probable cause with regard to any of the charges defeats any claim arising from the fact that other charges may not have been supported by probable cause.” Martinez v. Lochbuie Police Dep't, No. 04-CV-00020-MSK-BNB, 2006 WL 295391, at *3 (D. Colo. Feb. 6, 2006); see also Morales v. Herrera, No. 2:15-cv-00662-MCA/LAM, 2017 WL 4251683, at *4 (D.N.M. Sept. 25, 2017), aff'd, 778 Fed.Appx. 600 (10th Cir. 2019) (“When a suspect is arrested for multiple charges, an officer is immune if there is probable cause to arrest for a single charge.”). “This is so because ‘[a]n arrested individual is no more seized when he is arrested on three grounds rather than one; and so long as there is a reasonable basis for the arrest, the seizure is justified on that basis even if any other ground cited for the arrest was flawed.'” Morales, 2017 WL 4251683, at *4 (quoting Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007)) (emphasis in original).
“[A] false imprisonment ends once the victim becomes held pursuant to [legal] process.” Wallace v. Kato, 549 U.S. at 384, 389 (2007) (emphasis omitted). “If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more.” Id. at 390 (quotation omitted). “From that point on, any damages recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial process rather than detention itself.” Id. (quotation omitted).
A Section 1983 malicious prosecution claim consists of the following elements: “(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.” Mglej v. Gardner, 974 F.3d 1151, 1170 (10th Cir. 2020) (quoting Montoya v. Vigil, 898 F.3d 1056, 1066 (10th Cir. 2018)). The Supreme Court has clarified that for claims asserting improper detention in the absence of probable cause, such as “when . . . a judge's probable cause determination is predicated solely on a police officer's false statements,” “the right allegedly infringed lies in the Fourth Amendment.” Manuel v. City of Joliet, 580 U.S. 357, 367 (2017).
Defendant argues that he is entitled to qualified immunity on both claims, asserting that arguable probable cause existed to arrest Plaintiff and is not vitiated by adjusting the Affidavit to reflect the alleged falsities and omissions. [#39 at 5-15] “In the context of a qualified immunity defense on an unlawful . . . arrest claim, [the Court] ascertain[s] whether a defendant violated clearly established law by asking whether there was arguable probable cause for the challenged conduct.” Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (quotation omitted). Similarly, an officer is entitled to qualified immunity on a claim of malicious prosecution when, after accounting for the falsified information and the omitted exculpatory information, arguable probable cause nevertheless existed for the original arrest and continued confinement. Bledsoe v. Carreno, 53 F.4th 589, 615 (10th Cir. 2022); see also Sanchez v. Hartley, 299 F.Supp.3d 1166, 1195 (D. Colo. 2017) (“Because probable cause is an objective standard, it may exist despite [an officer's] false statements or material omissions.”). “Arguable probable cause is another way of saying that the officers' conclusions rest on an objectively reasonable, even if mistaken, belief that probable cause exists.” Stonecipher, 759 F.3d at 1141 (quotation omitted) (citing Cortez, 478 F.3d at 1120). In other words, a defendant is entitled to qualified immunity if he “could have reasonably believed that probable cause existed in light of well-established law.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 879 (10th Cir. 2014) (emphasis in original) (quotation omitted).
In an unpublished 2019 decision, the Tenth Circuit noted some uncertainty over whether the arguable probable cause standard applied when evaluating an officer's entitlement to qualified immunity in the malicious prosecution context, or whether actual probable cause was required. Bailey v. Twomey, 791 Fed.Appx. 724, 734 (10th Cir. 2019) (comparing Wilkins v. DeReyes, 528 F.3d 790, 801-02 (10th Cir. 2008) (applying actual probable cause), with Stonecipher, 759 F.3d at 1146-47 (applying arguable probable cause)). While the court in Bledsoe v. Carreno (a published decision from 2022) did not explicitly address this tension, it did plainly apply the arguable probable cause standard in the context of a malicious prosecution claim, relying on Stonecipher. Bledsoe v. Carreno, 53 F.4th 589, 614-15 (10th Cir. 2022). Plaintiff does not appear to contest the application of this standard to this case. [#44 at 23-27]
In determining whether arguable probable cause existed under clearly established law, this Court must look to interpretation of the Colorado criminal statutes under which Plaintiff was arrested. Kaufman v. Higgs, 697 F.3d 1297, 1300-01 (10th Cir. 2012) (“The basic federal constitutional right of freedom from arrest without probable cause is undoubtedly clearly established by federal cases. But the precise scope of that right uniquely depends on the contours of a state's substantive criminal law in this case because the Defendant[] claim[s] to have had probable cause based on a state criminal statute.” (citation omitted)). Defendant argues that arguable probable cause existed to arrest Plaintiff for harassment, stalking, criminal extortion, false reporting, and attempt to influence a public servant. [#39 at 6-12; #45 at 5-10] The Affidavit asserted that probable cause existed to arrest Plaintiff for stalking and harassment. [#7 at 3] Because the Court determines that arguable probable cause existed to arrest and prosecute Plaintiff for harassment, the Court does not consider Defendant's alternative grounds.
The Court notes confusion across the Circuits regarding whether, in analyzing a malicious prosecution claim, probable cause must exist for: (1) every charge in the affidavit, or (2) any charge in the affidavit. Williams v. Aguirre, 965 F.3d 1147, 1159-62 (11th Cir. 2020) (surveying the split and concluding that courts must examine “the charges that justified a defendant's seizure”); Howse v. Hodous, 953 F.3d 402, 409 & n.3 (6th Cir. 2020) (concluding that, because “a person is no more seized when he's detained to await prosecution for several charges than if he were seized for just one valid charge[,] . . . there's no principled reason for treating a Fourth Amendment malicious-prosecution claim differently than a Fourth Amendment false-arrest claim”). The Tenth Circuit does not appear to have directly decided this issue, but has affirmed the dismissal of a malicious prosecution claim when probable cause existed for one-but perhaps not all-of the identified charges. See Spalsbury v. Sisson, 250 Fed.Appx. 238, 241, 246 (10th Cir. 2007) (affirming dismissal of a plaintiff's malicious prosecution claim when he was charged with “harassment, child abuse, and domestic violence,” and probable cause existed to arrest plaintiff for harassment); see also Montoya v. City & Cnty. of Denver, No. 21-1107, 2022 WL 1837828, at *5 (10th Cir. June 3, 2022) (apparently endorsing a district court's refusal to consider “whether probable cause existed for some other crime not specified in the affidavit,” but failing to provide guidance as to whether probable cause must support every crime specified in the affidavit (emphasis added)). This also comports with the Tenth Circuit's opinion in Pierce, which explained that there is a “heavy burden” on plaintiffs in a case such as this to show that “without the falsified inculpatory evidence, or with the withheld exculpatory evidence, there would have been no probable cause for his continued confinement or prosecution.” 359 F.3d at 1295. A plaintiff, of course, could not bear this “heavy burden” if his “continued confinement or prosecution” were supported by another charge. Plaintiff here does not allege that the length of his confinement or details of prosecution would have been any different had harassment been the only charge against him. And to the extent that an officer must have probable cause for every charge in a warrantless arrest affidavit, such a rule was not clearly established at the time of Plaintiff's arrest.
At the time of Plaintiff's arrest, Colorado law provided:
A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she . . . [d]irectly or indirectly initiates communication with a person . . by . . . text message . . . in a manner intended to harass.
Colo. Rev. Stat. § 18-9-111(1)(e) (2017).
According to the Affidavit, Plaintiff had texted his ex-wife that he unsuccessfully attempted suicide, and that he was suicidal because she was being unreasonable with child custody issues and that he could not afford to live with the burden of his child support payments. [#7 at 2] Plaintiff's ex-wife reported to Defendant a belief that this was “more of an attempt to coerce her into giving [Plaintiff] more custody time [with the Child].” [Id. at 4] When Deputy Wolfe asked Plaintiff about this suicide attempt, Plaintiff “admitted he made the attempt up to try and get some sympathy and consideration from [his ex-wife] with regards to seeing [the Child].” [Id.] Plaintiff does not allege that any of this information was false, or that any exculpatory information relevant to this portion of the Affidavit was omitted. [See #37]; see also Pierce, 359 F.3d at 1295 (explaining that a plaintiff bears a “heavy burden” of showing that “without the falsified inculpatory evidence, or with the withheld exculpatory evidence, there would have been no probable cause for his continued confinement or prosecution”).
Plaintiff does allege that the Affidavit “includes . . . no evidence of [Plaintiff] intending to harass or annoy his ex-wife.” [#37 at ¶ 74] As discussed above, however, the Court may reject allegations regarding the Affidavit's contents that are contradicted by the Affidavit's actual contents themselves. See supra Section (II). Plaintiff also alleges that none of his text messages “could reasonably be viewed as threatening, harassing, or otherwise criminal” [#37 at ¶ 32], but this conclusory allegation need not be considered as a well-pleaded allegation.
The Court agrees with Defendant that this interaction gave rise to probable cause-and certainly arguable probable cause-to arrest Plaintiff for harassment under Colo. Rev. Stat. § 18-9-111(1)(e). According to the information available to Deputy Wolfe at the time of the arrest, Plaintiff had admittedly fabricated a suicide attempt over text in an explicit attempt to get “sympathy” and “consideration” from his ex-wife with regards to their ongoing custody dispute. These communications were accordingly understood by Plaintiff's ex-wife as an attempt to coerce her into altering the custody agreement. This type of emotional manipulation directed towards a former spouse and made for the purpose of causing alarm in order to alter a custody agreement falls neatly (let alone “arguably”) into the category of communications purportedly criminalized by Colo. Rev. Stat. § 18-9-111(1)(e). See also Colo. Rev. Stat. § 18-6-800.3(1) (defining “Domestic Violence” to include “any . . . crime against a person . . . when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship”); id. at § 18-6-803.6(1) (“When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence . . . has been committed, the officer shall, without undue delay, arrest the person suspected of its commission . . . and charge the person with the appropriate crime or offense.”).
Plaintiff does not appear to disagree. Instead, Plaintiff argues that, notwithstanding Colo. Rev. Stat. § 18-9-111(1)(e), a reasonably competent officer should have known at the time of Plaintiff's arrest that arresting an individual for text communications made “in a manner intended to harass” was unconstitutional. [#44 at 17-20] Plaintiff's argument faces significant headwinds. “[T]he validity of the statute is hardly relevant to the probable cause determination because officers generally may presume that statutes are constitutional until declared otherwise.” Mocek v. City of Albuquerque, 813 F.3d 912, 927-28 (10th Cir. 2015). The United States Supreme Court has explained that: “Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality-with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.” Michigan v. DeFillippo, 443 U.S. 31, 38 (1979); see also Lawrence v. Reed, 406 F.3d 1224, 1232 (10th Cir. 2005) (“[W]here a statute authorizes conduct that is patently violative of fundamental constitutional principles, reliance on the statute does not immunize the officer's conduct.” (quotation omitted)).
Plaintiff does argue that his communications regarding this suicide attempt could not be reasonably understood as a threat, but does not address their harassing nature in light of his later admission that the attempt was fabricated. [#44 at 14-15]
Plaintiff argues that Defendant's conduct was declared unconstitutional by the Colorado Supreme Court in Bolles v. People, 541 P.2d 80, 84 (Colo. 1975), decided 45 years prior to Plaintiff's arrest. [#44 at 17-20] In Bolles, the Court confronted an earlier version of Colo. Rev. Stat. § 18-9-111(1)(e), which provided:
A person commits harassment if, with intent to harass, annoy, or alarm another person, he . . . [c]ommunicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of communication, in a manner likely to harass or cause alarm.
Colo. Rev. Stat. § 18-9-111(1)(e) (1973). The Bolles Court held that this provision was unconstitutionally overbroad, holding that it was not “narrowly drawn to implement legitimate and constitutional legislative purposes.” 541 P.2d at 82.
Thirteen years later, however, the Colorado Supreme Court considered yet another version of Colo. Rev. Stat. § 18-9-111(1)(e) in People v. McBurney, 750 P.2d 916, 917 (Colo. 1988) (considering Colo. Rev. Stat. § 18-9-111(1)(e) (1986)). The 1986 provision provided:
A person commits harassment if, with intent to harass, annoy, or alarm another person, he . . . [i]nitiates communication with a person, anonymously or otherwise by telephone, in a manner intended to harass or threaten bodily injury or property damage.
Colo. Rev. Stat. § 18-9-111(1)(e) (1986) (emphasis added). The McBurney Court explained that this 1986 provision did not suffer the same constitutional defect as the 1973 provision considered in Bolles, because it did not apply to “all forms of communication” but “contain[ed] particularized standards to limit the scope of the offense.” 750 P.2d at 918-20. Thus, contrary to Plaintiff's argument, Bolles in no way clearly established that “arresting a person for communicating ‘in a manner intended to harass' is unlawful” [#44 at 18]-as shown by the Colorado Supreme Court upholding a statute containing this precise language fifteen years after deciding Bolles.
To be sure, the provision that Plaintiff was arrested under was held to be unconstitutionally overbroad in violation of the First Amendment by the Colorado Supreme Court in People v. Moreno, decided over a year after Plaintiff's arrest. 506 P.3d 849, 856-57 (Colo. 2022). Between McBurney and Moreno, Section 18-9-111(1)(e) had gradually grown in scope, encompassing more forms of communication. See Colo. Rev. Stat. § 18-9-111(1)(e) (2000) (adding communication by “computer, computer network, [and] computer system”); Colo. Rev. Stat. § 18-9-111(1)(e) (2009) (adding communication by “telephone network, data network, text message, [and] instant message”); Colo. Rev. Stat. § 18-9-111(1)(e) (2015) (adding communication by “other interactive electronic medium”). At the same time, as the Colorado Supreme Court explained, “[c]yberspace [became] the modern public square” and “‘the most important place[] . . . for the exchange of views'”-meaning that Subsection (1)(e) encompassed “a substantial amount of protected speech.” Moreno, 506 P.3d at 855 (quoting Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017)). Thus, the Court explained that “[t]he 1973 version of subsection (1)(e) and the current iteration are similarly expansive” and similarly chilled free expression, thereby making the provision that Plaintiff was arrested under unconstitutionally overbroad. Moreno, 506 P.3d at 856-57.
The Colorado Supreme Court did not invalidate the entirety of Subsection (1)(e), but held only that the phrase “intended to harass” in Subsection (1)(e) was unconstitutionally overbroad and severed that phrase. People v. Moreno, 506 P.3d 849, 856 & n.5 (Colo. 2022).
In light of this history, the Court cannot conclude that “it would be clear to a reasonable officer that his conduct was unlawful in the situation [that Defendant] confronted.” Mocek, 813 F.3d at 922 (quotation omitted). While “a reasonably competent public official should know the law governing his conduct,” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982), this principle does not require officers to identify the tipping point in legislative history and societal norms in communication such that a standard previously upheld by the state supreme court becomes constitutionally untenable.
Indeed, this Court has issued a recommendation, adopted in its entirety by the presiding District Judge, granting qualified immunity on claims of false arrest and malicious prosecution to officers who arrested an individual under the very same provision at issue here and held unconstitutional in Moreno. Kim v. Treasure et al., 20-cv-02453-WJM-STV, ECF No. 76 at 12 (D. Colo. Nov. 30, 2021) (finding that the defendant “had probable cause to believe that Plaintiff had violated Section 18-9-111, which prohibits ‘[d]irect[] or indirect[] . . . communication with a person . . by . . . interactive electronic medium in a manner intended to harass.'” (alterations in original)), report and recommendation adopted, No. 20-cv-02453-WJM-STV, ECF No. 77 (D. Colo. Dec. 16, 2021). In considering Plaintiff's First Amendment argument, this Court explained that “[c]ourts have repeatedly upheld statutes criminalizing electronic communications that were intended to harass private victims.” Id. at 13-14 (citing United States v. Bandy, No. 17-CR-3402 MV, 2021 WL 876980, at *5 (D.N.M. Mar. 9, 2021) and United States v. Moreland, 207 F.Supp.3d 1222, 1227 (N.D. Okla. 2016)). The Court further noted that the Colorado Supreme Court had previously upheld the constitutionality of the statute at issue, and found no cases that would have clearly established that “the particular post at issue [in Kim], directed at private individuals, was protected speech that could not form the basis for a cyberstalking arrest.” Id. at 14.
The same reasoning applies here. The Court therefore concludes that Defendant is entitled to qualified immunity because Plaintiff has failed to adequately allege facts sufficient to show that Defendant lacked probable cause to arrest and prosecute Plaintiff under Colo. Rev. Stat. § 18-9-111(e)(1), and the unlawfulness of effectuating an arrest under this provision was not clearly established at the time of the conduct. Accordingly, the Court concludes that Plaintiff has failed to plausibly plead either a false arrest or malicious prosecution claim sufficient to overcome qualified immunity. Accordingly, the Court respectfully RECOMMENDS that Plaintiff's Section 1983 claims be DISMISSED.
Here, Plaintiff makes no clear argument that his speech at issue was protected, only that the statute was plainly overbroad at the time of the arrest in light of Bolles. [#44 at 17-20] Plaintiff has also failed to “identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment,” White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam), such that the unlawfulness of Defendant's conduct was “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). While this is Plaintiff's burden to demonstrate, see Bledsoe, 53 F.4th at 607, the Tenth Circuit has recently instructed that a court “use its full knowledge of its own [and other relevant] precedents” in engaging in a qualified immunity analysis. Jordan v. Jenkins, 73 F.4th 1162, 1174 n.10 (10th Cir. 2023) (quotation omitted). This Court has done so, and has found no case particularized to the facts of the case that clearly established Plaintiff's right to communicate via text message a fabricated suicide attempt in an attempt to gain leverage or “consideration” in a custody dispute at the time of his arrest.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant's Motion to Dismiss Plaintiff's Amended Complaint [#39] be GRANTED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, 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); Griego v. Padilla (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. 2121 East 30th Street, 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 of fact, legal conclusions, 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 of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).