HomeMy WebLinkAbout2018CV217 - MONTGOMERY V. CHERNAK, HOWARD & BROUGH - 047 - OBJECTION TO MAGISTRATE JUDGE'S RECOMMENDATIONS1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00217-REB-KLM
WILLIAM MONTGOMERY,
Plaintiff,
v.
MATTHEW CHERNAK,
MIKE HOWARD,
MATTHEW BROUGH.
Defendants.
______________________________________________________________________________
OBJECTION TO THE MAGISTRATE JUDGE’S RECOMMENDATION
______________________________________________________________________________
Plaintiff William Montgomery, through undersigned counsel, submits the following
objections to the Recommendation of United States Magistrate Judge (Doc. 43)1 (hereinafter
“Recommendation” or “Rec.”):
I. Introduction
This case involves claims related to the wrongful arrest and prosecution of Plaintiff.
Plaintiff was arrested and prosecuted based on an accusation by Defendant officers that
Plaintiff trespassed on a well-known public plaza. (AC2, ¶¶ 14, 19-21, 39-40). These
accusations followed interactions in which Plaintiff had questioned and criticized police
tactics. (AC, ¶¶ 33-37). Prior to his arrest, however, Plaintiff had provided explanations and
corroborating materials to show that his presence in the public plaza was authorized despite
the existence of an illegal fence. (AC, ¶¶ 41-49). These explanations aligned with obvious
1 In this Objection, citations to documents filed in the electronic docket are cited as “Doc. [docket number]”.
2 “AC” refers to the Plaintiff’s Amended Complaint, Doc. 15.
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indicia that the plaza was a longstanding public space. (AC, ¶¶ 15-16). Ignoring the
explanations and evidence, and in spite of internal discussions and focus on that particular
plaza by local police, Defendant officers proceeded to arrest Plaintiff in retaliation for his
earlier questions and criticism, without considering clear indicia of a lack of probable cause
and without completing a basic, constitutionally sufficient investigation. (AC, ¶¶ 19-21, 40,
42, 47-48, 50-53).
Defendants have moved under Fed. R. Civ. P. 12(b)(6) for dismissal of all claims
brought in Plaintiff’s Amended Complaint, for either failure to state a claim or based on
qualified immunity. (See generally Doc. 17). Plaintiff now objects to the recommendation of
dismissal with prejudice for each of his claims based on the Recommendation’s use of an
erroneous legal framework for assessing questions of probable cause that is central to each
of the Recommendation’s conclusions, and errors related to the qualified immunity
assessment for Plaintiff’s First Amendment retaliation and Fourth Amendment malicious
prosecution claims.
II. Standard of Review
This Court reviews de novo a magistrate judge’s findings and recommendations
relating to dispositive issues. Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991);
28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(3).
“[A] complaint must contain enough allegations of fact to state a claim to relief that
is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). To
assess whether a claim should be dismissed under Fed. R. Civ. P. 12(b)(6), this court
analyzes “not whether the claimant will ultimately prevail, but whether the claimant is
entitled to offer evidence to support the claims.” Collins v. Wal-Mart, Inc., 245 F.R.D. 503,
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508 (D. Kan. 2007). Claims that are facially plausible, those that “give rise to a reasonable
inference that the defendant is liable”, are not subject to dismissal. Big Cats of Serenity
Springs, Inc. v. Rhodes, 843 F.3d 853, 858 (10th Cir. 2016). The court accepts “all well-
pleaded allegations of the complaint as true and consider[s] them in the light most favorable
to the nonmoving party.” Id. (internal quotations removed). “[E]xpressly rejected” is any
“heightened fact pleading” requirement. Robbins, 519 F.3d at 1247 (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). The non-moving party, here the Plaintiff, is entitled
to “all reasonable inferences from the pleadings”. Wasatch Equality v. Alta Ski Lifts Co., 820
F.3d 381, 386 (10th Cir. 2016). Only “complaints that are no more than labels and
conclusions or a formulaic recitation of the elements of a cause of action” are insufficient.
Robbins, 519 F.3d at 1247 (internal quotation omitted). A court may reject a party’s “legal
conclusions” but accepts all facts pleaded as true, without a heightened requirement that
underlying details be alleged to support the claimed facts. Wasatch, 820 F.3d at 386; see also
Robbins, 519 F.3d at 1247.
Additionally, “[i]n the context of qualified immunity, [a court] may not dismiss a
complaint for failure to state a claim unless it appears beyond doubt that plaintiffs cannot
prove a set of facts that would entitle them to relief.” Rhodes, 843 F.3d at 858, citing Mayfield
v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). Qualified immunity should only protect
an officer if the existing law could not be said to have put an official on fair notice that their
conduct would be unconstitutional. See Games v. Wood, 451 F.3d 1122, 1134 (10th Cir.
2006). Generally, this means that there must be a Supreme Court or Tenth Circuit decision
on point, or the clearly established weight of authority from other courts must have found
the law to be as the plaintiff maintains." Maresca v. Bernalillo County, 804 F.3d 1301, 1308
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(10th Cir. 2015). But “[a] general constitutional rule already identified in the decisional law
may apply with obvious clarity to the specific conduct in question, even though the very
action in question has not previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 741
(2002) (internal quotations omitted).
III. The legal framework for assessing questions of probable cause used in the
Recommendation is erroneous, leading to a faulty determination that probable cause
supported Plaintiff’s arrest, a finding central to each of the Recommendation’s
conclusions.
The Recommendation’s main finding is that probable cause supported Plaintiff’s
warrantless arrest and subsequent prosecution. (Rec. 26). Based on this finding, the First
Amendment retaliation, wrongful arrest and malicious prosecution claims are each
recommended dismissed for either failure to state a claim or on qualified immunity grounds.
(Rec. 13, 26, 28). However, a mistaken analysis of the legal standards governing probable
cause questions in civil rights suits guided this finding.
First, the Tenth Circuit has “long recognized that it is a jury question in a civil rights
suit whether an officer had probable cause to arrest”; the Recommendation erroneously
analyzes this issue as a question of law for the court, without any analysis of whether
Plaintiff alleged facts sufficient to raise reasonableness questions that must be left to a jury.
DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir. 1990); (compare Rec. 21-26). “The underlying
issue in deciding whether the police had probable cause to do what they did is
reasonableness . . . —a classic jury issue.” DeLoach, 922 F.2d at 623, quoting Llaguno v.
Mingey, 763 F.2d 1560, 1565 (7th Cir.1985). Where “there is room for a difference of
opinion” the question of probable cause is not decided by a judge as a matter of law, but
given to a jury. Id. Yet, the Recommendation first states that “the Court must consider the facts
and circumstances” related to probable cause and then erroneously draws conclusions
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without considering whether the pleaded facts provide plausible grounds for a jury to
question the reasonableness of the Defendants’ actions. (Rec. 20) (emphasis added); (also
Rec. 21-26). As outlined infra in Section IV, the Amended Complaint sufficiently raises
reasonable room for differences of opinion regarding probable cause.
Second, the Recommendation’s error is doubled by omitting analysis related to
exculpatory evidence known and readily accessible to officers prior to Plaintiff’s arrest. (Rec.
20, 24). Citing out-of-circuit authority, the Recommendation states that officers with probable
cause are “not required to conduct further investigation for exculpatory evidence or to
pursue the possibility that the suspect offender is innocent” before conducting a warrantless
arrest. (Rec. 20). This analysis omits clearly established and longstanding Tenth Circuit
precedent that “the probable cause standard of the Fourth Amendment requires officers to
reasonably interview witnesses readily available at the scene, investigate basic evidence, or
otherwise inquire if a crime has been committed at all before invoking the power of
warrantless arrest and detention.” Cortez v. McCauley, 478 F.3d 1108, 1117 (10th Cir. 2007)
citing Romero v. Fay, 45 F.3d 1472, 1476-77 (10th Cir. 1995).
A full analysis of probable cause in this circuit requires that “probable cause is
measured at the moment the arrest occurs” and takes into account the “known progress of
the[ ] investigation, including the steps that had not been taken” prior to arrest. Cortez, 478
F.3d at 1121. “Probable cause exists only if, in the totality of the circumstances, the facts
available to the officers at the moment of the arrest would warrant a person of reasonable
caution in the belief that an offense has been committed.” Maresca, 804 F.3d at 1310
(internal quotations removed). “[I]n determining whether probable cause to arrest existed,
we look not only to the facts supporting probable cause, but also to those that militate
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against it” and do not permit “piling hunch upon hunch”. United States v. Valenzuela, 365
F.3d 892, 897 (10th Cir. 2004). Any facts relied upon must be “reasonably trustworthy”.
Cortez, 478 F.3d at 1116. In determining if information is reasonably trustworthy, officers
must conduct a sufficient investigation, such as by questioning the suspect at the scene and
investigating basic evidence. Maresca, 804 F.3d at 1311. “[O]fficers are charged with
knowledge of any ‘readily available exculpatory evidence’ that they unreasonably fail to
ascertain.” Id. at 1310 quoting Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1259 (10th Cir.
1998). “A police officer may not close her or his eyes to facts that would help clarify the
circumstances of an arrest. Reasonable avenues of investigation must be pursued especially
when . . . it is unclear whether a crime had even taken place.” Cortez, 478 F.3d at 1117
quoting BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.1986).
Using a faulty legal framework that overlooks the importance of conducting a basic
investigation, the Recommendation offers minimal consideration of the evidence that would
warrant a person of reasonable caution to question whether a crime had been committed.
(See Rec. 24). As outlined infra in Section IV, the Amended Complaint alleges numerous facts
that raise questions about the reasonable trustworthiness of information relied on by
Defendants, which should be resolved by a jury.
IV. Plaintiff has sufficiently alleged a lack of probable cause for his arrest and objects to
the recommendation that his Fourth Amendment claim be dismissed.
A Fourth Amendment violation occurs where an officer arrests or detains a person
without possessing probable cause that the person committed a crime. Cortez, 478 F.3d at
1116-17. Plaintiff has sufficiently alleged this claim, including by demonstrating the lack of
probable cause to arrest for any of the offenses cited by Defendant officers.
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a. Second Degree Trespass
The Recommendation focuses mainly on probable cause for an arrest under Colorado’s
second degree criminal trespass statute, which includes three main elements: that a person
(1) “unlawfully” enters or remains, (2) in or upon the premises “of another” (3) which
premises are “enclosed” and/or “fenced.” C.R.S. § 18-4-503; see also Colo. Crim. Jury Instr. 4-
5:04; (Rec. 21-24). The facts alleged regarding the totality of the information known or
readily available to officers at the moment of Plaintiff’s arrest establish a plausible claim that
officers acted objectively unreasonably and without conducting a basic investigation. (See
AC, ¶¶ 40-53).
Defendant officers arrested Plaintiff for hopping a fence and remaining in an
enclosed area; however, there is no dispute that the area was actually a public space on
which the public could not trespass. (AC, ¶¶ 27-31, 41, 52, 68). The plaza had been a public
space for over 20 years and had clear indicia of a public park/plaza, including public seating
and walkways. (AC, ¶¶ 14-16). The plaza had come under particular police focus around
2016, as officers were regularly (3-4 times per day) dispatched to the plaza to address
complaints that homeless individuals were gathering there. (AC, ¶¶ 18-20). The Amended
Complaint alleges that Defendant officers were among those officers who were regularly
dispatched to the area and were informed of the issues regarding the public plaza through
internal meetings.3 (AC, ¶¶ 21-22). An unauthorized fence had been erected by a private
company, Loveland Commercial, at some point in 2016, however that company had been
3 This is a factual allegation made on information and belief; no further pleading of underlying details is
required to establish this factual claim. Wasatch, 820 F.3d at 386 (a court may reject “legal conclusions” but
accepts all facts pleaded as true). These pleaded facts are accepted for present purposes as true. Cf. id.; (compare
Rec. 21-23).
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ordered to remove the fence as it illegally obstructed the public’s access to the plaza. (AC, ¶¶
23-28).
On the night of Plaintiff’s arrest, Defendants observed Plaintiff hop the illegal fence
and told him that he could not remain as he was trespassing. (AC, ¶¶ 39-41). Plaintiff was
not arrested at this moment. (AC, ¶¶ 49-54). Instead, Plaintiff explained that he could not be
trespassing because the space was a public plaza and the city had ordered that the illegal
fence be removed. (AC, ¶¶ 42, 44-45). Given the clear indicia of a public park/plaza and the
particular police focus on this plaza, it is a plausible inference that the context and
circumstances known to Defendant officers were not limited to merely observing a fenced-in
area. Instead, indicia and knowledge of the public nature of the plaza raised some question
that Plaintiff may have been correctly indicating that he had permission to be in the plaza,
rather than being there unlawfully. Compare Maresca, 804 F.3d at 1311 (officers must
consider context and circumstances). Additionally, officers are required, at a minimum, to
question the suspect at the scene to determine if a crime had been committed; here,
Plaintiff’s freely offered statements indicated that no crime was being committed. Id.; (AC,
¶¶ 42, 44-45). Defendants, however, did not ask any basic questions to determine if
Plaintiff’s statements were wild claims or based in verifiable facts. (AC, ¶¶ 42-45).
Plaintiff then asked his brother, who was seated nearby, to bring a printed copy of
official emails sent by city officials notifying Loveland Commercial that the fence was an
illegal obstruction; these emails included the names and telephone numbers of various city
officials involved in the discussions. (AC, ¶¶ 47-49). It is a reasonable inference that neither
Plaintiff nor his brother would have had the opportunity to fabricate detailed emails
including names and emails of city officials within moments of Plaintiff’s contact with
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Defendant officers. Thus, with this corroborating information, Defendants were no longer
required to rely on the Plaintiff’s statement alone. (Compare Rec. 24 citing Romero, 45 F.3d at
1478); but see Romero, 45 F.3d at 1477-78 (while officers are not required to take a suspect’s
explanation on its face, they are required to conduct a basic investigation of information and
witnesses available at the scene). They had several pieces of additional information on the
scene to investigate, which may have been done by attempting to contact any of the city
officials via the telephone numbers listed in the printed emails, to verify via the city’s
website that the names and email addresses were of actual city officials, to double check the
information with the police department or police dispatch, to call Loveland Commercial to
whom the emails were directed, or to question Plaintiff’s brother for further details about the
emails or his knowledge about the plaza. See Maresca, 804 F.3d at 1311 (it was unreasonable
not to double check information by calling police dispatch when there was no exigency due
to safety concerns); Cortez, 478 F.3d at 1117 (officers are required to interview witnesses on
the scene). “An unreasonable mistake of fact cannot furnish probable cause.” Maresca, 804
F.3d at 1310; see also Baptiste, 147 F.3d at 1259. “[O]fficers are charged with knowledge of
any readily available exculpatory evidence that they unreasonably fail to ascertain” Maresca,
804 F.3d at 1310, and cannot close their eyes to information that can clarify the
circumstances before an arrest. Cortez, 478 F.3d at 1117. By the moment of Plaintiff’s arrest,
Defendants could reasonably have taken any of the previously described investigative steps
to determine that the plaza was open, public property, but failed to do so. (See AC, ¶¶ 49-52,
55) (officers had to wait to receive bolt cutters before Plaintiff was arrested). It is a plausible
claim that the Defendant officers acted unreasonably in closing their eyes to evidence that
would have clarified the circumstances.
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The Amended Complaint alleges numerous facts that outline the progress of events
and steps that had not been taken by the moment of Plaintiff’s arrest. Compare Cortez, 478
F.3d at 1121. The totality of the circumstances, from the obvious public nature of the plaza
to Plaintiff’s explanation to the corroborating information that was left uninvestigated,
present a plausible question for a jury of whether officers acted unreasonably in arresting
Plaintiff. See DeLoach, 922 F.2d at 623 (reasonable differences of opinion regarding probable
cause are left to a jury).
b. Additional crimes alleged
The Recommendation states that probable cause to arrest Plaintiff alternatively existed
“for obstructing a police officer, resisting arrest, and disorderly conduct” without any
analysis of those potential crimes. (Rec. 25; see also Rec. 25-26). Yet, probable cause is
determined in reference to the elements of concrete offenses with which a suspect may have
been charged, and requires that officers have information supporting the elements of those
offenses. Fogarty v. Gallegos, 523 F.3d 1147, 1156-57 (10th Cir. 2008) (analyzing the elements
of and required proof for potential offenses); Morris v. Noe, 672 F.3d 1185, 1193 (10th Cir.
2012) (same); Buck v. City of Albuquerque, 549 F.3d 1269, 1282-86 (10th Cir. 2008) (same).
Where the facts do not establish conduct that supports the elements of any chargeable
offense, probable cause is not established. Fogarty, 523 F.3d at 1156-57. Further, “[a]lthough
an officer's reasonable mistake of fact, as distinguished from a mistake of law, may support
[a finding of] probable cause . . . an officer's failure to understand the plain and
unambiguous law he is charged with enforcing is not objectively reasonable.” United States v.
Cornejo, No. 16-2937-MCA, 2017 WL 3225470 at *1 (D. N. Mex. May 9, 2017).
As outlined in Plaintiff’s Response to Defendant’s Motion to Dismiss, each of the
Colorado offenses for obstructing a police officer, resisting arrest, and disorderly conduct
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were inapplicable. (Doc. 24, 6-8, 14-15). In short, probable cause did not exist to charge
Plaintiff with obstructing a police officer because he used no physical force, interference or
obstacle to hinder police. (Doc. 24, 6-8); see C.R.S. § 18-8-102. Plaintiff did not use or
threaten to use physical force or violence to resist arrest. (Doc. 24, 14); see C.R.S. § 18-8-103.
Disorderly conduct is also inapplicable because Plaintiff did not create any “unreasonable
noise” that was not intended as communication but merely a guise to disturb persons. (Doc.
24, 14-15); see C.R.S. § 18-9-106. Accordingly, Plaintiff has plausibly alleged that no
probable cause supported his arrest, and his claim should not be dismissed.
V. Qualified immunity does not protect Defendants from Plaintiff’s First Amendment
retaliation claim.
The Recommendation finds that at the time of Plaintiff’s arrest, officers may have
reasonably interpreted the law to permit an arrest whenever probable cause existed for some
offense, even if the such arrest was made in retaliation for use of protected speech, and per
the finding that probable cause existed for Plaintiff’s arrest, Defendants are entitled to
qualified immunity. (Rec. 13, 17-18). Two distinct legal errors underlie this
recommendation.
First, the Recommendation’s faulty legal framework resulted in an erroneous finding of
probable cause. Sect. III-IV supra. These errors are more egregious in the context of qualified
immunity, because at a motion to dismiss stage a claim is dismissed on qualified immunity
grounds only when it is beyond doubt that the plaintiff has no plausible claim. Rhodes, 843
F.3d at 858. Plaintiff’s allegations raise a variety of issues that plausibly call into question
the adequacy of the pre-arrest investigation and the reasonableness of Defendants’ actions.
Sect. IV supra. It cannot be said that it is beyond doubt that Plaintiff cannot develop evidence
to support his claim that no probable cause existed for his arrest. A purely retaliatory arrest,
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unsupported by probable cause, is clearly unlawful and therefore cannot be protected under
qualified immunity. Hartman v. Moore, 547 U.S. 250, 256 (2006) (“when nonretaliatory
grounds are in fact insufficient to provoke the adverse consequences, we have held that
retaliation is subject to recovery as the but-for cause of official action offending the
Constitution”).
Second, the Recommendation errs in holding that Howards v. McLaughlin did not
clearly establish in the Tenth Circuit that a First Amendment retaliation claim may proceed
even where probable cause for an arrest otherwise exists. 634 F.3d 1131, 1145-1146 (10th
Cir. 2011) (overruled on qualified immunity grounds by Reichle v. Howards, 566 U.S. 658 (2012));
(Rec. 15-18). In Howards, the court made two rulings: 1) that a First Amendment retaliation
claim is not nullified by the existence of a probable cause for an arrest and 2) that the law
was clearly established on the issue. 634 F.3d at 1143-51. The Howards decision was
reversed by the Supreme Court only for its second finding; the Court held that a 2006 ruling
by the Court had resulted in some uncertainty on the issue, and so officers at the time of
Howards’ 2011 ruling did not have clear notice of the unlawfulness of their actions. Reichle,
566 U.S. at 666. On remand, the Howards court did not revisit the first part of its ruling. 478
Fed. Appx. 528 (10th Cir. 2012). There is no suggestion that any ruling in the circuit has
undermined Howards’ First Amendment analysis since that time. Thus, Howards’ ruling that
probable cause does not nullify First Amendment claims has continued to hold as the law in
this circuit, and provides clear notice to all post-2011 activity. Furthermore, although there
have been rulings from other circuits that do not accord with Howards, this does not
undermine that the Howards analysis controls in this circuit. See e.g., United States v.
Spedalieri, 910 F.2d 707, 709 n. 2 (10th Cir. 1990) (courts within a circuit are bound by
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precedential circuit decisions, regardless of circuit splits). Accordingly, Defendants were
under clear direction at the time of Plaintiff’s 2016 arrest that the existence of probable cause
did not authorize them to retaliate against Plaintiff for exercising his First Amendment
rights, and are not entitled to qualified immunity on this claim even if probable cause
existed.
VI. Plaintiff’s malicious prosecution claim is sufficiently alleged, including allegations
of a lack of probable cause. Further, Defendants cannot be granted qualified
immunity for prosecution of all charges even in the event that some charges are
supported by probable cause.
The Recommendation first concludes that Plaintiff’s malicious prosecution claim
should be dismissed based on the finding that probable cause supported his arrest and
continued prosecution. (Rec. 28). Again, this finding was made in error and Plaintiff has
alleged facts sufficient to raise plausible questions for a jury relating to probable cause in
relation to each of the charged offenses. Sect. III-IV supra.
Next, the Recommendation concludes that Defendant officers are entitled to qualified
immunity from all malicious prosecution claims if any of the charged offenses was
supported by probable cause. (Rec. 29). This conclusion rests on the reasoning that “there is
currently no clearly established law in the Tenth Circuit” establishing that malicious
prosecution claims should be determined on a charge-by-charge basis. (Rec. 29) (internal
quotations omitted). However, “the clearly established weight of authority from other
courts” outside of the circuit will also determine that the law is settled for purposes of giving
officers notice of the illegality of their actions. Maresca, 804 F.3d at 1308. The
Recommendation’s failure to consider the depth of authority from courts outside the circuit
was in error.
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Opinions from within this circuit, from other federal circuit and district courts, and
from state courts clearly establish that a malicious prosecution claim may sustain on a single
charged offense, even in the event that other charged offenses are supported by probable
cause. See Miller v. Spiers, 339 Fed. Appx. 862, 867-68 (10th Cir. 2009) (probable cause to
pursue one charge does not prevent a claim for malicious prosecution based on
simultaneous pursuit of a separate charge); Holmes v. Vill. of Hoffman Estates, 511 F.3d 673,
682 (7th Cir. 2007); Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Johnson v. Knorr, 477
F.3d 75, 85 (3d Cir. 2007); Uboh v. Reno, 141 F.3d 1000, 1005 (11th Cir. 1998); Donahoe v.
Arpaio, 986 F. Supp. 2d 1091, 1104 (D. Ariz. 2013); Elbrader v. Blevins, 757 F. Supp. 1174,
1180 (D. Kans. 1991) (probable cause involving disorderly conduct charge does not prevent
the pursuit of malicious prosecution claim for factually separate offenses charged without
probable cause, including obstruction and resisting arrest); Garvais v. United States, No. CV–
03–0290, 2010 WL 610282 at *14-15 (E. D. Wa. February 17, 2010); Brown v. Willoughby, 5
Colo. 1, 5 (Colo. 1879) (“If groundless charges are maliciously and without probable cause,
coupled with others which are well founded, they are not on that account less injurious, and
therefore constitute a valid cause of action.”); Bertero v. National General Corp., 13 Cal.3d 43,
55–57 (Cal. 1974).
Only one authority has been cited to question this proposition. (See Rec. 29). In Van
de Weigh v. Chambers, a panel of the Tenth Circuit noted that the plaintiff had not carried the
burden of showing that the law on this matter was clearly established. 569 Fed. Appx. 617,
620 (10th Cir. 2014) (unreported). The panel went on to note a possible question among the
circuits regarding this issue, citing Kossler v. Crisanti, 564 F.3d 181, 193–94 & n. 8 (3d Cir.
2009). Van de Weigh, 569 Fed. Appx. at 620. Yet, the Kossler opinion explicitly does not
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undermine the Third Circuit’s earlier ruling in Johnson v. Knorr, supra, that “the finding of
probable cause on one charge” would not prevent “the claim for malicious prosecution with
respect to the other charges”. Kossler, 564 F.3d at 192. The Kossler case dealt with an entirely
separate issue regarding when a favorable termination is determined for malicious
prosecution claims. Id. The Kossler court detailed the distinction and made clear that the
Johnson decision’s “charge-by-charge” approach to the probable cause element of malicious
prosecution claims remains the law of the circuit. Id. at 193. The panel’s decision, therefore,
does not correctly point to any lack of uniformity of out-of-circuit authority.
Unlike the plaintiff in Van de Weigh, Plaintiff in this case has provided a strong
weight of authority from within and outside this circuit to carry the burden of showing that
the law has been settled on this issue. Accordingly, in the event that the Court finds no
plausible issue for a jury regarding probable cause on a single charged offense, this does not
provide qualified immunity from the malicious prosecution claim on other charged offenses.
VII. Conclusion
WHEREFORE, the Plaintiff respectfully objects to the conclusions in the
Recommendation and requests that this Court deny the Defendants’ requests under Fed. R.
Civ. P. 12(b)(6) to dismiss Plaintiff’s claims.
Dated: March 18, 2019
Respectfully submitted,
/s Viniyanka Prasad
Viniyanka Prasad
Civil Rights Litigation Group, PLLC
1543 Champa St. Ste. 400
Denver, CO 80202
P: 720-644-0891
viniyanka@rightslitigation.com
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CERTIFICATE OF SERVICE
I hereby certify that on this 18th day of March, 2019 I electronically filed the
foregoing OBJECTION TO MAGISTRATE JUDGE’S RECOMMENDATION with the
Clerk of the Court using the CM/ECF systems which is expected to send notification of
such filing to the following e-mail addresses:
Thomas J. Lyons, Esq.
Christina S. Gunn, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300,
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
lyonst@hallevans.com
gunnc@hallevans.com
/s Viniyanka Prasad________
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