Glaser v. City and County of Denver

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 29, 2014
Elisabeth A. Shumaker
Clerk of Court
DOUGLAS A. GLASER,
Plaintiff–Appellant,
v. No. 13-1165
(D.C. No. 1:12-CV-00828-RBJ-KLM)
THE CITY AND COUNTY OF (D. Colo.)
DENVER, COLORADO; MITCH
MORRISSEY, in his official and
individual capacities; JOE MORALES,
Denver Deputy District Attorney, in his
official and individual capacities;
KENNETH LAFF, Denver Assistant
District Attorney, in his official and
individual capacities; DAVID KARPEL,
Denver Assistant District Attorney, in his
official and individual capacities;
PHILLIP GEIGLE, Denver Assistant
District Attorney, in his official and
individual capacities; RHEA BABCOCK,
Colorado Division of Securities
Investigator, in her official and individual
capacities; JOE JOYCE, Social Security
Administration Agent, in his official and
individual capacities; RICK FLORES,
Secret Service Agent, in his official and
individual capacities; ALFREDO
YBARRA, Denver Police Officer, in his
official and individual capacities;
ROBERT ROCK, Denver Police Officer,
in his official and individual capacities;
MARK DALVIT, Denver Police Officer,
in his official and individual capacities;
ROBERT FREUND, Denver Police
Officer, in his official and individual
capacities; KELLY OHU, Denver Police
Officer, in her official and individual
capacities; SHARON HUGHES, Denver
Police Officer, in her official and
individual capacities; BRIAN CRAME,
Denver Police Officer, in his official and
individual capacities; MIKE
SCHWARTZ, Denver Police Officer, in
his official and individual capacities;
MARK BEVERIDGE, Denver Police
Officer, in his official and individual
capacities; JOSHUA VALERIO, Denver
Police Officer, in his official and
individual capacities; TROY
EDWARDS, Denver Police Officer, in
his official and individual capacities;
CARRIE MAESTAS, Denver Police
Officer, in her official and individual
capacities; RUBEN ROJAS, Denver
Police Officer, in his official and
individual capacities; DAVID IVERSON,
Denver Police Officer, in his official
and individual capacities; ERIK
REIDMULLER, Denver Police Officer,
in his official and individual capacities;
MATTHEW GRIMSLEY, Denver Police
Officer, in his official and individual
capacities; MARK SCHONK, Denver
Police Officer, in his official and
individual capacities; MATTHEW
CHURCH, Denver Police Officer, in his
official and individual capacities;
DAVID SMITH, Denver Police Officer,
in his official and individual capacities;
KEVIN FRAZER, Denver Police Officer,
in his official and individual capacities;
BRIAN GORDON, Denver Police
Officer, in his official and individual
capacities; ANNE MANSFIELD, Denver
District Judge, in her official and
individual capacities; ANDY
SHOPNECK, Denver District Attorney,
in his official and individual capacities,
Defendants–Appellees,
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and
MATT McQUEEN, Secret Service
Agent, in his official and individual
capacities; RAY WILLIS MANNON,
as agent of Accredited Insurance,
d/b/a Jostee Bail Bonds; DOUGLAS
PRITCHARD, Department of Homeland
Security Agent, in his official and
individual capacities,
Defendants.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.
Douglas Glaser appeals from the district court’s dismissal of his pro se civil
rights complaint under Fed. R. Civ. P. 12(b)(6). Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I
Glaser’s ninety-seven page complaint, filed on March 30, 2012, named
numerous defendants and asserted nineteen different claims for relief. He alleged
claims under 42 U.S.C. § 1983 for violations of his First, Fourth, Fifth, Sixth, Eighth,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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and Fourteenth Amendment rights, as well as claims for malicious prosecution,
conspiracy, vindictive prosecution, abuse of process, false arrest, false imprisonment,
defamation, slander, libel, harassment, and intentional infliction of emotional
distress. Glaser sought damages, injunctive relief, and a formal investigation into his
allegations. The defendants named in his complaint fell into four groups: (1) the
City and County of Denver and twenty-one Denver police officers; (2) the Denver
District Attorney and five deputy district attorneys (“Denver DA Defendants”); (3) a
Denver District Court judge and an investigator with the Colorado Division of
Securities (“CDS”); and (4) federal agents with the Social Security Administration,
the Secret Service, and the Department of Homeland Security (“Federal
Defendants”).1
Because this appeal concerns the district court’s disposition of a motion to
dismiss, we take the following facts from the complaint. See Wilson v. Montano,
715 F.3d 847, 852 (10th Cir. 2013). In 2005, Glaser was running a mergers and
acquisitions firm when he learned that CDS was investigating fraud related to a
public company in which he was the largest shareholder. On February 20, 2005,
Glaser was the victim of a hit and run automobile accident. The police told him they
would tow his damaged car to a dealership, but instead impounded it. Denver police
officers came to his home that night with a warrant to search for a passport in the
1
The complaint also named a bail bondsman, Ray Willis Mannon, who was
not served with the summons and complaint. Additionally, Glaser failed to serve
Federal Defendants Matt McQueen and Douglas Pritchard. These defendants are not
before the court in this appeal.
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name of Michael Douglas Glaser. The officers claimed that Glaser had used this
false passport as his identification at the scene of the auto accident, along with proof
of insurance and a vehicle registration in his own name. The officers seized items
from his home that were beyond the scope of the search warrant. They arrested him
and he was released on bond the following day. Four days later, government agents
raided Glaser’s office with a search warrant seeking the same alleged false passport
and other items including financial records, computers, copiers, and fax machines.
The agents were from the Denver Police Department, CDS, the Internal Revenue
Service, the Secret Service, and the Social Security Administration.
A federal grand jury was convened in March 2005, but it failed to indict
Glaser. Throughout that summer, defendants held state grand jury proceedings and
subpoenaed information about Glaser’s financial accounts and taxes. During this
period, the defendants kept his car impounded. They told brokers, business
associates, financial institutions, and the employees of businesses Glaser frequented
that he was committing fraud. They also threatened Glaser’s business associates with
prosecution if they continued to do business with him. Defendants made false
statements about him to his girlfriend and ex-wife and threatened his personal
assistant and his girlfriend with prosecution if they refused to assist in the case
against Glaser. They encouraged his landlord to evict him from his office building
and dissuaded a prospective employee from working with him. Defendants also
monitored his email account and took trash from his residence. Glaser alleges that
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defendants took these actions without factual evidence or probable cause to support
their allegations.
On August 31, 2005, a Denver grand jury returned a forty-three count
indictment against Glaser, alleging violations of the Colorado Organized Crime
Control Act (“COCCA”), Colo. Rev. Stat. §§ 18-17-101 to 18-17-109, conspiracy to
commit securities fraud, fraud, theft, and criminal impersonation. Glaser was
arrested and bond was set at $750,000. He posted bond and was released, but he was
remanded back into custody on September 29, 2005, because he had not satisfied the
condition of his bond requiring surrender of the passport in the name of Michael
Douglas Glaser. Glaser claimed the U.S. Passport Agency had confirmed that the
alleged passport was never issued, and he therefore refused to accept the court’s offer
to remove this bond condition if he would admit that the passport had existed but was
lost or destroyed.
While in jail, Glaser’s funds diminished quickly. He informed the Denver
District Court that he was trying to sell his home so he could continue to pay his
private defense attorney. He alleged that defendants had filed a spurious lien against
his home, blocking its sale and forcing him into foreclosure. Years later, after Glaser
filed numerous motions regarding the lien, the court ruled that the lien should not
have been filed. Because he was unable to sell his home, Glaser could no longer pay
his private counsel. That counsel withdrew in April 2006, and the court appointed an
attorney. The same month, the Denver District Court dismissed four of the
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forty-three counts. At some point, the court also decided to split Glaser’s criminal
case into three separate trials.
Glaser received documents in discovery showing that defendants had
committed perjury in the grand jury proceedings. He sought information from the
Colorado Bureau of Investigation regarding records related to the February 2005 auto
accident, and his investigation showed that the police officer made no query at that
time regarding the name Michael Douglas Glaser, contradicting the officer’s grand
jury testimony. Glaser’s appointed counsel told him this information could result in
dismissal of the charges, but the court denied all of his motions.
When Glaser appeared for trial on August 21, 2006, the prosecution indicated
it was appealing the dismissal of the four counts, and the case was stayed awaiting
the outcome of that appeal. Glaser’s counsel filed a motion to dismiss the charges,
alleging a speedy trial violation. The Denver District Court granted that motion on
February 9, 2007, and dismissed the entire case, but Glaser remained in jail pending a
ruling on the prosecution’s motion for reconsideration, which the court ultimately
granted. Glaser alleges that the court did not reverse its determination regarding the
speedy trial violation, but it nonetheless reinstated the case on February 13, 2007.
Trial on count forty-three proceeded the next day, resulting in a hung jury and a
mistrial.
Glaser learned that his appointed attorney was being investigated in
connection with a federal drug indictment. When his attorney committed suicide, the
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Denver District Court held there had been a waiver of his speedy trial rights and
moved his retrial date to July 2007. Meanwhile, Glaser was pursuing pro se claims
for habeas relief in the Colorado Supreme Court and in federal district court, alleging
illegal search and seizure, illegal bond condition, grand jury perjury, violation of his
speedy trial rights, double jeopardy, and malicious and vindictive prosecution.
On July 18, 2007, Glaser learned that his second appointed counsel was unable
to proceed with trial due to mental illness. His trial date was moved to August 20,
2007, and trial proceeded on counts one through nineteen. During the trial, Glaser’s
counsel had a mental breakdown. The court denied Glaser’s request to finish the trial
pro se and instead ordered a mistrial. Trial was rescheduled for December 17, 2007,
and the state appointed a third attorney.
In September 2007, the court held that the bond condition requiring Glaser to
surrender the alleged fictitious passport was unconstitutional. The court removed
that condition and lowered his bond to $100,000. But Glaser was unable to post
bond, having lost all of his assets, including his home, as a result of the defendants’
actions.
On December 17, 2007, the court continued the trial until May 2008, due to
the unavailability of a prosecution witness. But the court also set a hearing for
January 2008, to address Glaser’s claim of a speedy trial violation. The court ruled
in his favor, dismissed the charges with prejudice, and ordered Glaser’s release. The
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prosecution’s emergency appeal was unsuccessful, and Glaser was released on March
4, 2008.
After his release, Glaser was continuously followed by Denver and federal
agents, and they blocked his attempts to obtain any form of identification. While
driving on April 19, 2008, Glaser was stopped by federal agents who allegedly said,
“We have him now, he will never get out of jail this time.” He had not been
drinking, but was arrested for driving under the influence (“DUI”) although no breath
or blood analysis was conducted. When Glaser filed his complaint in this action, a
DUI case remained pending against him in Denver District Court. The federal agents
denied that they were following him, but a Denver district attorney later told the
court he had directed the federal agents to follow Glaser after the securities fraud
case was dismissed.
Glaser attempted to rebuild his business, but defendants continued their
harassment. The Denver District Attorney’s Office published false information about
him online and told his business associates not to work with him. Defendants told
potential business associates that Glaser had a lengthy history of fraud and would be
going to prison. His business deals fell through. Glaser filed complaints with
defendants’ agencies, but none of the defendants were reprimanded. Glaser spoke
with several attorneys about filing a lawsuit, and he filed a pro se civil rights suit
against defendants in 2008. Due to defendants’ continued harassment, Glaser moved
out of state.
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The prosecution appealed the dismissal of the criminal securities fraud charges
and the Colorado Court of Appeals reinstated the case against Glaser. He was
re-arrested on April 2, 2011, and incarcerated in the Denver County Jail. On January
3, 2012, his trial proceeded in Denver District Court on counts one through nineteen.
The Denver District Attorney had dismissed four counts prior to trial—the same four
counts that the court had dismissed in 2007. Glaser’s motions alleging double
jeopardy and a speedy trial violation were summarily denied. The jury found Glaser
guilty on eight of the nineteen counts, including securities fraud and a COCCA
violation. Glaser alleges that the defendants’ investigation demonstrated that he did
not commit securities fraud, yet defendants obtained his conviction by withholding
exculpatory evidence, offering perjured testimony, and fabricating evidence. At the
time he filed the instant complaint, trial on the remaining counts was scheduled for
May 2012.
In response to Glaser’s complaint, defendants filed motions to dismiss under
Rule 12(b)(6). A magistrate judge issued a report and recommendation (“R&R”),
recommending dismissal of all nineteen claims. Glaser filed timely objections to the
R&R addressing some, but not all, of his claims. The district court adopted the
magistrate judge’s recommendations in part, and concluded that there were additional
bases for dismissal. The court dismissed all claims, some with and some without
prejudice, and entered judgment in favor of defendants.
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II
A
We review de novo a district court’s dismissal of a complaint for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Casanova v. Ulibarri, 595 F.3d 1120,
1124 (10th Cir. 2010). “Courts must evaluate whether the complaint contains enough
facts to state a claim to relief that is plausible on its face. We accept as true all
well-pleaded factual allegations . . . and view these allegations in the light most
favorable to the plaintiff.” Id. (quotations omitted). “A pro se litigant’s pleadings
are to be construed liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). “At the same time, we do not believe it is the proper function of the [courts]
to assume the role of advocate for the pro se litigant.” Id. And “[t]his court has
repeatedly insisted that pro se parties follow the same rules of procedure that govern
other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (quotation omitted).
B
The magistrate judge recommended that fourteen of Glaser’s claims be
dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994), and the district
court agreed as to Claims 1, 3, 5-12, and 14. We review de novo a district court’s
determination that a claim is premature under Heck. See Beck v. City of Muskogee
Police Dep’t, 195 F.3d 553, 556 (10th Cir. 1999).
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In Heck, the Supreme Court affirmed that “habeas corpus is the exclusive
remedy for a state prisoner who challenges the fact or duration of his confinement
and seeks immediate or speedier release, even though such a claim may come within
the literal terms of § 1983.” 512 U.S. at 481. Thus, the Court held:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it
would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.
Heck, 512 U.S. at 487. Under the Heck rule, the accrual of a cause of action is
deferred until the conviction or sentence has been invalidated. See Wallace v. Kato,
549 U.S. 384, 392-93 (2007). And when Heck applies, the claim is barred as
“premature.” Beck, 195 F.3d at 556.
1
Glaser waived his right to appellate review of the district court’s determination
that claims 5-7 and 9-12 are barred by Heck because he failed to object to the
magistrate judge’s recommendation as to those claims. “This circuit has adopted a
firm waiver rule when a party fails to object to the findings and recommendations of
the magistrate [judge].” Casanova, 595 F.3d at 1123 (quotation omitted). Under this
rule, “the failure to make timely objection waives . . . appellate review of both factual
and legal questions.” Id. (quotation omitted). Moreover, “a party’s objections to the
magistrate judge’s report and recommendation must be . . . specific to preserve an
issue for . . . appellate review.” United States v. One Parcel of Real Property,
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73 F.3d 1057, 1060 (10th Cir. 1996). Although Glaser objected to the magistrate
judge’s recommendation that Claim 14 was barred by Heck, he seeks to raise an
entirely different claim of error on appeal. See Soliz v. Chater, 82 F.3d 373, 375-76
(10th Cir. 1996) (specific appellate arguments not raised in objections to R&R are
waived).
“There are two exceptions when the firm waiver rule does not apply,” neither
of which is demonstrated in this case. Duffield v. Jackson, 545 F.3d 1234, 1237
(10th Cir. 2008). First, as a pro se litigant, Glaser was properly “informed of the
time period for objecting and the consequences of failing to object.” Id. Second, he
has not shown that “the interests of justice require review.” Id. (quotation omitted).
“Among the factors this court has considered in determining whether to invoke the
[interests-of-justice] exception are [1] a pro se litigant’s effort to comply, [2] the
force and plausibility of the explanation for his failure to comply, and [3] the
importance of the issues raised.” Casanova, 595 F.3d at 1123 (quotations omitted).
These factors do not weigh in Glaser’s favor because he filed objections to the
magistrate judge’s Heck recommendations regarding several of his other claims but
has provided no explanation why he did not object at all regarding Claims 5-7 and
9-12, or why he did not make his current claim of error regarding Claim 14. Nor has
he shown that the issues he raises are “of considerable import.” Id. at 1124
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(quotation omitted).2 We therefore affirm the district court’s dismissal of these
claims as premature under Heck.
2
Glaser argues that the district court erred in dismissing Claim 1 as barred by
Heck. In this claim, he alleges that the search of his residence and office and the
seizure of his property in February 2005 were based on a warrant for which there was
no probable cause, in violation of his Fourth and Fourteenth Amendment rights. He
argues that judgment in his favor on this claim would not necessarily imply the
invalidity of his conviction or sentence because little to none of the evidence seized
was used in his 2012 trial. We agree that the district court erred in ruling this claim
was barred by Heck. But the district court correctly ruled that the claim is untimely
under the applicable statute of limitations.
“State statutes of limitations applicable to general personal injury claims
supply the limitations periods for § 1983 claims, but federal law governs the time of
accrual of § 1983 claims.” Beck, 195 F.3d at 557 (citations omitted). “[T]he statute
of limitations for § 1983 actions brought in Colorado is two years from the time the
cause of action accrued.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006);
see also Colo. Rev. Stat. § 13-80-102(1)(a), (g). “Claims arising out of police actions
toward a criminal suspect, such as arrest, interrogation, or search and seizure, are
2
We also decline to address Glaser’s claim in his reply brief that the
conviction at issue in Claim 12 has been overturned on appeal. See Stump v. Gates,
211 F.3d 527, 533 (10th Cir. 2000) (declining to review issues raised for the first
time in a reply brief).
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presumed to have accrued when the actions actually occur[red].” Beck, 195 F.3d at
558 (quotation omitted). “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.” Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir.
1980). Therefore, a statute of limitations question may be appropriately resolved on
a motion to dismiss. Id. “We review de novo the dismissal of an action under Rule
12(b)(6) based on the statute of limitations.” Braxton v. Zavaras, 614 F.3d 1156,
1159 (10th Cir. 2010).
Glaser’s Claim 1 arose at the time of the search and seizure that, according to
the complaint, occurred in February 2005, more than two years before he filed this
action in 2012. Nor was the accrual of the statute of limitations deferred under Heck
because “the Heck bar and its concomitant principle of deferred accrual do not apply
to anticipated future convictions.” Garza v. Burnett, 672 F.3d 1217, 1220 (10th Cir.
2012). Glaser had not yet been convicted at the time of the February 2005 search and
seizure. Thus, “Heck posed no bar to his claim before he was convicted, and without
deferred accrual, his limitations period began to run on the date of the
unconstitutional search, rendering his complaint untimely.” Id. at 1221.
Glaser contends that he filed previous civil rights lawsuits within the statute of
limitations, which tolled the time period for filing his claim. The district court took
judicial notice of three actions that Glaser had filed before the present case, two of
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which asserted claims related to the February 2005 search and seizure. But Glaser’s
earliest complaint was not filed until December 28, 2007, already more than two
years after his claim accrued. The previous actions were therefore also untimely
under the Colorado statute of limitations, and could not toll the limitations period.
In any event, even if Glaser’s December 2007 civil rights action had been
timely as to the allegations he now asserts in Claim 1, he fails to show that tolling
applies under Colorado law. See Fogle, 435 F.3d at 1258 (state tolling rules apply in
§ 1983 suits). The district court took judicial notice that Glaser’s December 2007
action was dismissed without prejudice when he failed to pay the partial filing fee.
Generally, [under Colorado law,] when a statute does not
specifically allow for the tolling of a statute of limitations during the
pendency of a prior action, a party cannot deduct from the period of the
statute of limitations applicable to his case the time consumed by the
pendency of an action in which he sought to have the matter
adjudicated, but which was dismissed without prejudice as to him.
King v. W.R. Hall Transp. & Storage Co., 641 P.2d 916, 920 (Colo. 1982). The
applicable Colorado statute, Colo. Rev. Stat. § 13-80-102, does not specifically allow
for tolling during the pendency of a prior action. And Glaser does not identify any
other Colorado statute that provides for tolling under these circumstances. Thus, the
district court did not err in dismissing Claim 1 as untimely.3
3
We do not address Glaser’s equitable tolling argument, raised for the first
time in his reply brief. See Stump, 211 F.3d at 533.
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3
Glaser argues that the district court erred in dismissing Claim 2 as untimely.
In this claim he alleges that his pre-trial detention beginning on September 29, 2005,
violated his Fourth, Fifth, Eighth, and Fourteenth Amendment rights because the
bond condition requiring him to surrender the fictitious passport in the name of
Michael Douglas Glaser was unconstitutional. Claim 2 is barred by the statute of
limitations under the same analysis applied to Claim 1.
4
Glaser challenges the district court’s dismissal of Claim 3 under Heck. He
alleges in Claim 3 that he pled guilty to possession of a forged driver’s license in
Douglas County, Colorado, in March 2002. He further claims that all other charges
were dropped and prosecutors agreed they would not be refiled against him pursuant
to a plea agreement in that case. According to Glaser, the Douglas County
investigation had all the evidence regarding the charges that constitute twenty-three
counts of his 2005 indictment in Denver. And he claims that the same evidence was
used in the Denver case. He asserts that the filing of these twenty-three counts in
Denver subjected him to double jeopardy in violation of the Fifth Amendment and
also violated his Fourteenth Amendment right to procedural due process.
Glaser contends that Claim 3 is not barred by Heck because it has nothing to
do with any of his convictions. But it is unclear from his complaint which of the
forty-three counts in the August 31, 2005, indictment are the twenty-three counts that
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he alleges were based on evidence obtained in the 2002 Douglas County case. On
appeal, he maintains that all of the twenty-three counts have been dismissed, but in
his objections to the R&R he says he was convicted on four of the twenty-three
counts and the rest were dismissed.
If Glaser is alleging that his 2012 conviction on four of these counts violates
the Fifth and Fourteenth Amendments, that claim is barred by Heck because a
judgment in his favor would “necessarily imply the invalidity of his conviction.”
512 U.S. at 487. But to the extent he asserts that his 2005 indictment on these claims
was itself a constitutional violation, that claim accrued more than two years before he
filed his complaint in this action.4 And, again, Glaser’s December 2007 civil rights
action did not toll the statute of limitations. As construed, we agree with the district
court that Claim 3 is barred in part by Heck and is otherwise untimely.
5
Glaser argues that the district court erred in dismissing Claim 4 as barred by
the two-year statute of limitations. In this claim, he alleges a violation of his Fifth
and Fourteenth Amendment rights as a result of a spurious lien against his residence,
which blocked the sale of his home and forced it into foreclosure. He claims that
defendants placed the lien against his home on October 14, 2005. The district court
noted it was unclear when Glaser became aware of the lien, but that he knew about it
4
Glaser argues that Claim 3 encompasses the defendants’ refiling of the same
charges multiple times, but the allegations in Claim 3 refer only to the August 31,
2005, indictment in Denver.
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no later than April 18, 2006, when the court allowed his private counsel to withdraw
because Glaser was unable to pay him.
Glaser argues, once again, that he filed a previous civil rights action that tolled
the statute of limitations on this claim. But although Glaser’s December 2007 action
asserting a spurious lien was timely, that action was dismissed without prejudice. As
we have held, under Colorado law a statute of limitations is not tolled during the
pendency of an action dismissed without prejudice. See King, 641 P.2d at 920.
Glaser therefore fails to show error in the district court’s dismissal of Claim 4 as
untimely.
6
Glaser’s Claim 5 alleges malicious prosecution in violation of § 1983. He
asserts that he was indicted on August 31, 2005, based on perjured testimony to the
grand jury. He also claims that defendants fabricated evidence, withheld exculpatory
evidence, violated his right to a speedy trial, and presented perjured testimony in
connection with his prosecution. As explained above, Glaser waived his right to
appeal the district court’s determination that this claim is barred by Heck because he
failed to object to the magistrate judge’s recommendation. But to the extent that
Claim 5 alleges a constitutional violation based on the searches and seizures at his
home and office in February 2005, we also affirm the district court’s determination
that this claim is barred, in relevant part, by the statute of limitations, on the same
grounds we articulated regarding Claim 1.
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7
In Claim 8, Glaser alleges that defendants violated his constitutional rights in
various ways before he was indicted in 2005, during his prosecution, and after the
charges were dismissed. He does not specify the date of the dismissal in Claim 8, but
elsewhere in his complaint he alleges that, as of March 4, 2008, all charges had been
dismissed and he was released from custody.
We agree, in part, with the district court’s holding that Claim 8 is barred under
Heck. To the extent Glaser alleges that defendants deprived him of his right to a
speedy and fair trial, committed perjury, and withheld exculpatory evidence in
connection with his prosecution, a judgment in his favor on these allegations would
necessarily imply the invalidity of his conviction. But Glaser’s complaint also
alleges that, before he was indicted in 2005, defendants defamed him, destroyed his
assets and business, blocked him from obtaining government identification, contacted
banks to have him denied credit, and intimidated his friends and business associates.
A judgment in Glaser’s favor on these allegations would not necessarily imply the
invalidity of his conviction. And when this alleged conduct occurred, he had not yet
been convicted. Therefore, accrual of these claims was not deferred and they are
barred by the two-year statute of limitations. See Garza, 672 F.3d at 1221.
Glaser further alleges that, after the charges were dismissed in 2008, he was
followed, harassed, arrested without probable cause, defamed, subject to tortious
interference with his business, and blocked from obtaining identification. According
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to his allegations, some of this alleged conduct occurred more than two years before
he filed this action. Although Glaser does not indicate when or if the conduct ceased,
he claims he was arrested again in April 2011. Therefore, it is not clear that all of the
defendants’ alleged activities fell outside of the statute of limitations. Because these
allegations are similar to those Glaser included in Claim 15, we will address this
portion of Claim 8 along with our analysis of Claim 15, below.
8
In Claim 13, Glaser alleges that defendants arrested him for drunk driving
without probable cause in retaliation for filing a civil rights lawsuit against them.
The district court construed this claim as referring to his December 2007 civil rights
actions because he alleges that the DUI arrest occurred on April 19, 2008. The court
concluded that the statute of limitations ran on this retaliation claim two years after
Glaser’s DUI arrest and the claim was therefore untimely.
Glaser argues that the statute of limitations was tolled by his filing of a
previous civil rights action. We assume he is referring to the action he filed on
October 20, 2008, in which a final judgment was entered on May 24, 2010. But even
if the statute of limitations was tolled while that case was pending, Glaser still waited
too long to file Claim 13. After deducting the time between the complaint and the
judgment in his October 2008 action, a total of 860 days passed between his
retaliatory arrest on April 19, 2008, and the filing of his complaint in this action on
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March 30, 2012. We affirm the district court’s dismissal of Claim 13 as barred by
the two-year statute of limitations.
C
1
In Claim 15, Glaser alleges that defendants tried to destroy his business and
defame his name and reputation by informing numerous people and entities that he
was committing fraud. He alleges that defendants’ false statements caused others to
stop doing business with him. Glaser claims that defendants’ defamation, libel,
slander, and harassment violated his right to procedural due process under the
Fourteenth Amendment.
The district court found that Glaser had raised this claim in a civil rights action
filed in October 2008. Therefore, the court held that the claim was barred, in part, by
the statute of limitations. We agree with that conclusion.
As to the allegations in this claim that may fall within the two-year statute of
limitations, the district court held that Glaser’s contentions were insufficient to
satisfy the requirement that “the complaint contain[] enough facts to state a claim to
relief that is plausible on its face.” Casanova, 595 F.3d at 1124 (quotation omitted).
The court noted that Glaser failed to allege any particulars as to who said or did what,
to whom, and when.
“The elements necessary to establish a § 1983 . . . violation will vary with the
constitutional provision at issue.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir.
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2013) (quotation omitted). Moreover, liability must be predicated on an individual
defendant’s personal involvement in the constitutional violation. See id.
Because § 1983 . . . [is a] vehicle[] for imposing personal liability
on government officials, we have stressed the need for careful attention
to particulars, especially in lawsuits involving multiple defendants. It is
particularly important that plaintiffs make clear exactly who is alleged
to have done what to whom, . . . as distinguished from collective
allegations. When various officials have taken different actions with
respect to a plaintiff, the plaintiff’s facile, passive-voice showing that
his rights “were violated” will not suffice. Likewise insufficient is a
plaintiff’s more active-voice yet undifferentiated contention that
“defendants” infringed his rights.
Id. at 1225-26 (citation, quotation, and alteration omitted). In the context of § 1983
claims, which “typically include complex claims against multiple defendants,” it is
particularly important that a complaint provide sufficient notice to individual
government actors to allow them to prepare a defense. Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (quotation omitted).
In Claim 15, Glaser makes undifferentiated contentions that “defendants”
infringed his rights, without specifying what each of the eleven individual defendants
named in this claim specifically did or said. And his allegations that the City and
County of Denver implemented an unconstitutional policy to defame his reputation
and failed to properly train employees are conclusory.
Glaser does not dispute that the collective allegations in his complaint fail to
make clear exactly who is alleged to have done what to whom. But he argues that he
needs discovery in order to properly present his claims. We have acknowledged that
“[o]ne of the chief concerns of critics [of the plausibility standard] is that plaintiffs
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will need discovery before they can satisfy plausibility requirements when there is
asymmetry of information, with the defendants having all the evidence.” Gee v.
Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010). But Glaser admits that he has
spoken with his business associates regarding his allegations in Claim 15 and that he
has emails regarding some of the allegedly defamatory statements made by some of
the defendants. Yet he did not provide specific allegations even with respect to what
he admits that he knows. And the district court’s dismissal was without prejudice to
the extent that Glaser’s allegations were timely. See id. at 1186 (dismissal of pro se
claim for failure to state a claim is ordinarily without prejudice).
We agree with the district court that Glaser’s allegations in Claim 15, to the
extent they address conduct within the two-year limitations period, fail to state a
claim on which relief can be granted. This conclusion applies as well to allegations
in Claim 8 that are not barred by the statute of limitations.
2
In Claim 16, Glaser alleges a state law tort claim for intentional infliction of
emotional distress. The magistrate judge recommended dismissal of this claim with
prejudice because Glaser failed to allege that he had complied with the requirements
of the Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat.
§§ 24-10-101 to 24-10-120, specifically the statute’s notice provisions. See Aspen
Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 839
(10th Cir. 2003) (failure to timely file notice of claim against a state entity forever
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bars such claim). Glaser argues on appeal that the CGIA does not apply to federal
court actions, and that he nonetheless complied with the statutory requirements. But
he did not mention Claim 16 in his objections to the magistrate judge’s R&R. We
therefore hold that he waived appellate review of the district court’s ruling on this
claim.
3
In Claim 17, Glaser alleges that seven named defendants were liable as
supervisors for unspecified constitutional violations. He claims the supervisors were
made aware of these violations no later than February 2008, but did nothing to
discipline their subordinates, stop Glaser’s prosecution, or otherwise intervene. He
alleges that the supervisors furthered or implicitly condoned the illegal activities.
Glaser provides no specifics about what any supervisor did (or did not do) that
violated his constitutional rights. He also alleges that the City and County of Denver
implemented a policy to allow its employees to destroy citizens’ lives and to condone
its employees’ abuse of power, and failed to train and supervise its employees.
Based on Glaser’s assertion that the named supervisors had knowledge of the
constitutional violations by February 2008, we agree with the district court that some
of the alleged conduct falls outside of the statute of limitations. Moreover, “[t]he
same particularized approach” described above requiring a plaintiff to make clear
who did what to whom, “applies with full force when a plaintiff proceeds under a
theory of supervisory liability.” Pahls, 718 F.3d at 1226. Claim 17 includes even
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fewer specifics about each supervisor’s personal involvement in the unspecified
constitutional violations than does Claim 15. And Glaser’s allegations regarding the
City and County of Denver’s unconstitutional policy and failure to train and
supervise are equally conclusory. Claim 17 therefore also fails to state a claim on
which relief can be granted. On that basis, we hold this claim is subject to dismissal
without prejudice to the extent that Glaser alleges conduct falling within the
limitations period.
4
Glaser seeks injunctive relief in Claim 18 against six named defendants. On
appeal, he addresses only the district court’s dismissal with prejudice of this claim
against Judge Mansfield based on absolute judicial immunity. We review de novo a
district court’s determination regarding judicial immunity. See Crowe & Dunlevy,
P.C. v. Stidham, 640 F.3d 1140, 1153 (10th Cir. 2011).
We infer from Glaser’s allegations that Judge Mansfield was the Denver
District Court judge who presided in his criminal securities fraud case. Glaser
maintains that he is seeking only injunctive relief against Judge Mansfield, rather
than monetary damages, and therefore judicial immunity does not apply.5 “Judicial
immunity applies only to personal capacity claims,” id. at 1156, but Glaser sued
Judge Mansfield in her official capacity as well. And he cites Pulliam v. Allen,
5
Glaser does not challenge the district court’s dismissal of Claim 14, in which
he sought damages against Judge Mansfield, because she is absolutely immune from
claims seeking monetary damages.
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466 U.S. 522, 541-42 (1984), for the proposition that “judicial immunity is not a bar
to prospective injunctive relief against a judicial officer acting in her judicial
capacity.” Glaser’s contention, however, ignores the text of § 1983. “Although we
have previously said that a plaintiff may obtain an injunction against a state judge
under 42 U.S.C. § 1983, those statements were abrogated by the Federal Courts
Improvement Act of 1996, which provides that ‘injunctive relief [against a judicial
officer] shall not be granted unless a declaratory decree was violated or declaratory
relief was unavailable.’” Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir. 2011)
(quoting § 1983) (citations omitted). Because Glaser does not allege that either of
these statutory conditions is satisfied, we affirm the district court’s dismissal of
Claim 18.
5
In Claim 19, Glaser seeks a formal investigation into the alleged criminal acts
committed against him. The magistrate judge recommended dismissal of this claim
with prejudice because the statutes Glaser cites do not provide for a private right of
action. The district court adopted that recommendation. Because Glaser did not
object to the magistrate judge’s recommendation regarding dismissal of this claim,
we hold that he waived his right to appellate review. In any event, he also fails to
raise any claim of error regarding Claim 19 in his opening appellate brief. See
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
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declined to consider arguments that are not raised, or are inadequately presented, in
an appellant’s opening brief.”).
III
A
Glaser contends that the district court erred in holding that prosecutorial
immunity was an independent basis to dismiss with prejudice claims 2-14 and 16-17
against the Denver DA Defendants. We review de novo a district court’s holding that
a defendant is entitled to prosecutorial immunity for his actions. See Arnold v.
McClain, 926 F.2d 963, 967 (10th Cir. 1991). To determine whether a state
prosecutor’s actions are shielded from liability under § 1983 by absolute immunity,
courts apply “a functional approach, which looks to the nature of the function
performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons,
509 U.S. 259, 269 (1993) (citation and quotations omitted). Thus, a prosecutor has
absolute immunity for his conduct that is “intimately associated with the judicial
phase of the criminal process,” but he is protected only by qualified immunity for
“acts of investigation or administration.” Id. at 270 (quotations omitted). “The
official seeking absolute immunity bears the burden of showing that such immunity is
justified for the function in question.” Id. at 269 (quotation and alteration omitted).
Under the functional approach, a prosecutor’s activities related to initiating
and pursuing a criminal prosecution and presenting the state’s case at trial are
absolutely immune from liability. See id. A prosecutor’s participation in a probable
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cause hearing and his presentation of evidence in support of a search warrant are
therefore subject to absolute immunity. See id. at 270-71. A prosecutor’s statements
in the courtroom and in pleadings that are relevant to the subject matter of the
proceeding are likewise absolutely immune. See Imbler v. Pachtman, 424 U.S. 409,
426 n.23 (1976). Moreover, an allegation of malice is insufficient to overcome a
claim of absolute immunity. See id. at 421-22. Thus, a prosecutor is shielded by
absolute immunity from claims that he knowingly used false testimony and
suppressed material evidence in a trial. See id. at 413, 431. But when a prosecutor
conducts investigative work normally performed by the police, he is not performing a
prosecutorial function. See Buckley, 509 U.S. at 273-74. Accordingly, prosecutors
in Buckley were not protected by absolute immunity on a claim that they worked
alongside police to fabricate evidence against a suspect before there was probable
cause to arrest him. See id. at 274-75.
We agree with the district court that some of Glaser’s claims are subject to
dismissal based on absolute prosecutorial immunity because the Denver DA
Defendants’ alleged conduct falls within the prosecutorial function of initiating and
pursuing a criminal prosecution. This conclusion applies to Claims 3 and 10
(prosecutions in violation of double jeopardy); Claims 5 and 11 (malicious
prosecution); Claim 7 (vindictive prosecution); Claim 9 (speedy trial violation); and
Claim 14 (constitutional violations at trial). Claims 2, 6, 8, 12-13, and 16, however,
include allegations of conduct outside of the prosecutorial function, such as the
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fabrication of evidence for the purpose of establishing probable cause, and
defamatory statements and harassment outside of the courtroom setting. The Denver
DA Defendants have not met their burden to show that this alleged conduct is
shielded by absolute immunity. Nor have they met that burden as to Claim 4, which
alleges that defendants placed a spurious lien against Glaser’s home.6 Finally, the
allegations in Claim 17 are too vague to determine whether the constitutional wrongs
alleged by Glaser are all related to the function of initiating and pursuing a criminal
prosecution, such that prosecutorial immunity would apply.
B
The district court dismissed with prejudice all claims against all of the
individual defendants sued in their “official capacities.” It reasoned that “[o]fficial
capacity means nothing more than that the claims are asserted against the United
States or the State of Colorado, as the case may be, and there has been no showing
of a waiver of sovereign immunity by either the United States or the State.” “Our
review of a dismissal based on sovereign immunity is de novo.” Peterson v.
Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). Glaser argues that the district court
erred in extending Eleventh Amendment immunity to all of the defendants who are
not Federal Defendants.
“[S]tate sovereign immunity applies to any action brought against a state in
federal court, including suits initiated by a state’s own citizens.” Steadfast Ins. Co. v.
6
Claims 2, 4, 13, and 16 are nonetheless dismissed with prejudice on other
grounds.
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Agric. Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007). “[B]ecause an
official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity, the Eleventh Amendment provides immunity when state officials are sued
for damages in their official capacity.” Peterson, 707 F.3d at 1205 (quotation and
alteration omitted). Glaser contends, however, that state sovereign immunity extends
only “to states and state entities but not to counties, municipalities, or other local
government entities.” Steadfast Ins. Co., 507 F.3d at 1253. Of the non-federal
defendants, only defendant Rhea Babcock, who is identified in the complaint as a
Colorado Division of Securities Investigator, asserts that she is an official of the
State of Colorado. Therefore, we affirm the district court’s sovereign immunity
ruling only as to Babcock and the Federal Defendants.
C
The district court held that Glaser’s allegations asserted under § 1983 failed to
state a claim against the Federal Defendants, because he did not allege that the
federal employees took action “under color of state law.” Wittner v. Banner Health,
720 F.3d 770, 773 (10th Cir. 2013). Glaser, however, argues that he also asserted
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), as a basis for the Federal Defendants’ liability on these claims. Therefore,
Glaser’s claims are not subject to dismissal for failure to allege that the Federal
Defendants were state actors.
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IV
We AFFIRM the district court’s dismissal of all claims against all appellants.
Claims 1-2, 4, 13, 16, and 19 should be dismissed with prejudice against all
appellants. Claims 14 and 18 against Judge Mansfield and Claims 3, 5, 7, 9-11, and
14 against the Denver DA Defendants should also be dismissed with prejudice. And
we affirm the district court’s dismissal with prejudice of all official capacity claims
against Babcock and the appellants who are Federal Defendants. With these noted
exceptions, Claims 3, 5, 8, 15, and 17-18 should be dismissed in part with prejudice
and in part without prejudice, and Claims 6-7, 9-12, and 14 should be dismissed
without prejudice.
We REMAND to the district court for entry of an amended judgment
dismissing all claims consistent with this order and judgment. Glaser’s motion to
proceed on appeal without prepayment of costs and fees is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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