Glaser v. City and County of Denver

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 4, 2019
• Docket: 18-1049
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 4, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court DOUGLAS A. GLASER,

Plaintiff - Appellant,

v. No. 18-1049 (D.C. No. 1:16-CV-00233-RM-MLC) CITY AND COUNTY OF DENVER, (D. Colo.) COLORADO; SECOND JUDICIAL DISTRICT; MITCH MORRISSEY; JOE MORALES; ANDY SHOPNECK; DOUGLAS PRITCHARD; DENVER POLICE OFFICER YOUNG,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, McKAY, and MORITZ, Circuit Judges. _________________________________

Douglas A. Glaser, a pro se Colorado inmate, appeals the dismissal of his

action alleging claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). On initial screening the

district court dismissed most of the claims as frivolous under 28 U.S.C. § 1915A, and

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. later dismissed the remaining claims under Fed. R. Civ. P. 12(b)(6). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I

This litigation is an offshoot of a prosecution of Mr. Glaser for securities

violations and later civil-rights litigation. See Glaser v. City & Cty. of Denver,

557 F. App’x 689, 694-96 (10th Cir. 2014) (unpublished). For purposes of this

appeal, we assume as true the well-pleaded factual allegations in Mr. Glaser’s

amended complaint (the Complaint). See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). According to the Complaint, the prosecution on the securities violations was

dismissed in February 2007, reinstated, and then dismissed once again in February

2008. After the second dismissal Mr. Glaser filed a federal lawsuit claiming

constitutional violations by certain government officials. The Complaint alleges that

those officials then began to follow and harass him. In particular, on April 19, 2008,

he was stopped by federal agents, including Agent Douglas Pritchard of the

Department of Homeland Security, on suspicion of driving under the influence

(DUI). He alleges that the agents laughed at him and said, “We have him now, he

will never get out of jail this time.” R. at 40 (internal quotation marks omitted).

Denver police officer Theodore Young arrived on scene and arrested Mr. Glaser

without administering a blood-alcohol test or a breath test. Mr. Glaser posted bond

and was released.

Two years later, on April 10, 2010, Agent Pritchard testified at Mr. Glaser’s

probable-cause hearing on the DUI charge. He said that he alone stopped Mr. Glaser

2 and that no other federal agents were present. He also said that Mr. Glaser was

speeding, driving erratically, and not stopping at red lights. Based on this testimony,

the court determined the arrest was supported by probable cause. But at Mr. Glaser’s

trial in county court in March 2012, Agent Pritchard changed his testimony and

asserted that multiple agents from the Department of Homeland Security had

surrounded and stopped Mr. Glaser’s vehicle. Additionally, Officer Young testified

that Mr. Glaser’s eyes were “red and watery.” R. at 46. Mr. Glaser was convicted

and served 730 days in jail, but his conviction was reversed by the district court on

appeal because the trial court abused its discretion in denying Mr. Glaser’s challenge

to a juror for cause. The case was remanded; but rather than retry Mr. Glaser, the

prosecution dismissed the case on January 27, 2014.

On January 26, 2016, Mr. Glaser initiated this action. The Complaint asserted

claims alleging 1) malicious prosecution; 2) “Retaliation-Vindictive Prosecution”;

3) slander, defamation of character, and harassment; 4) conspiracy to violate

constitutional rights; and 5) “Supervisory Failure/Unconstitutional Law, Policy, or

Custom.” Id. at 46, 60. The district court screened the Complaint under 28 U.S.C.

§ 1915(A) and dismissed as legally frivolous all but the claims alleging malicious

prosecution against Agent Pritchard and Officer Young. The court determined that it

was obvious from the face of the Complaint that the rest of the claims were barred by

the governing 2-year statute of limitations and that they were largely repetitive of

claims that were previously dismissed as untimely in a prior action.

3 Agent Pritchard and Officer Young each later moved to dismiss the remaining

claims under Fed. R. Civ. P. 12(b)(6). A magistrate judge recommended that the

motions be granted, and, over Mr. Glaser’s objections, the district court accepted the

recommendation and dismissed the remaining claims. The court concluded that

Mr. Glaser’s allegations were more aptly construed as claims of false imprisonment,

which were time-barred; that defendants were entitled to absolute immunity for their

testimony; and that to the extent Mr. Glaser alleged malicious prosecution, he failed

to state a claim. Mr. Glaser now challenges both the district court’s initial order of

dismissal under § 1915(A)(b) and its later order dismissing his claims against Agent

Pritchard and Officer Young under Rule 12(b)(6).1

II

We first address the initial dismissal order.2 Mr. Glaser contends the district

court erred in dismissing as time-barred all but the claims alleging malicious

prosecution against Agent Pritchard and Officer Young. He asserts that the rest of

his claims were previously raised and dismissed in an earlier lawsuit under Heck v.

Humphrey, 512 U.S. 477 (1994), and thus the statute of limitations ought to be tolled

1 Although Mr. Glaser challenges the dismissal of all his claims against all defendants, only Agent Pritchard and Officer Young have filed briefs on appeal. 2 “[T]his court has not yet determined whether a dismissal pursuant to § 1915A on the ground that the complaint is legally frivolous is reviewed de novo or for abuse of discretion.” Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000); see also Flute v. United States, 723 F. App’x 604, 605 (10th Cir.) (unpublished) (same), cert. dismissed, 139 S. Ct. 188 (2018). The issue is inconsequential here because Mr. Glaser cannot prevail under either standard.

4 until January 27, 2014, when the prosecution dismissed the DUI charges. But even

though Heck previously prevented consideration of the claims while Mr. Glaser’s

conviction was in force, Heck did not guarantee that once the court could consider

the claims (after the conviction was set aside) the claims must be deemed timely. As

it turns out, the claims accrued more than two years before Mr. Glaser’s conviction,

so they were barred by the statute of limitations even before Heck had any

application.

Moreover, Mr. Glaser offers no rebuttal to the district court’s equally

dispositive conclusion that his claims are frivolous because they are repetitive of

claims he brought in his earlier lawsuit. See Childs v. Miller, 713 F.3d 1262, 1265

(10th Cir. 2013) (“Repetitious litigation of virtually identical causes of action may be

dismissed . . . as frivolous or malicious.” (brackets and internal quotation marks

omitted)); see also Murrell v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir. 1994)

(failure to challenge equally dispositive alternative ruling forecloses appellate relief).

In fact, his argument implicitly, if not explicitly, concedes that these claims were

repetitive. Under these circumstances, we affirm the district court’s dismissal.

As for the surviving claims against Agent Pritchard and Officer Young, we

review de novo the district court’s dismissal under Rule 12(b)(6), affording

Mr. Glaser’s pro se materials a liberal construction. See Childs, 713 F.3d at 1264.

Dismissal based on the statute of limitations is appropriate under Rule 12(b)(6)

“when the dates given in the complaint make clear that the right sued upon has been

5 extinguished.” Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir.

1980).

The statute of limitations for a § 1983 action is set by state law, although

federal law prescribes when the action accrued. See Wallace v. Kato, 549 U.S. 384,

387-88 (2007). We look to the forum state’s statute of limitations for personal-injury

claims. See id. at 387. In Colorado the relevant statute of limitations applicable to a

§ 1983 action is two years. See Braxton v. Zavaras, 614 F.3d 1156, 1160 (10th Cir.

2010). A § 1983 action “accrues when the facts that would support a cause of action

are or should be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995)

(internal quotation marks omitted).3

Here, the accrual of Mr. Glaser’s claims turns on a proper interpretation of his

allegations. He alleged that he was arrested on April 19, 2008, without probable

cause. He averred that Agent Pritchard and Officer Young denied him a

blood-alcohol or breath test, he experienced numerous hardships before trial, and he

served 730 days in jail without any proof he was driving under the influence. He

further alleged that Agent Pritchard offered perjured testimony, presumably at the

April 2010 probable-cause hearing, and then changed his testimony at trial, and that

both Agent Pritchard and Officer Young perjured themselves during the trial to

obtain his conviction.

3 Mr. Glaser’s Bivens claim is subject to the same statute of limitations as his § 1983 claim. See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). 6 These allegations are properly construed as raising claims of both malicious

prosecution and false imprisonment. “Our case law distinguishes between seizures

based on whether they are imposed with or without legal process.” Sanchez v.

Hartley, 810 F.3d 750, 757 (10th Cir. 2016). “[S]eizures imposed pursuant to legal

process generally trigger claims for malicious prosecution, while seizures imposed

without legal process generally trigger claims for false imprisonment.” Id. A

warrantless arrest is a detention without legal process. See Wallace, 549 U.S. at 389.

“A claim of false imprisonment accrues when the alleged false imprisonment ends,”

Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013), and “a false imprisonment

ends once the victim becomes held pursuant to [legal] process,” Wallace, 549 U.S. at

389 (emphasis omitted). But “when . . . [the arrestee] is bound over by a magistrate

or arraigned on charges,” he may have a new claim for malicious prosecution

resulting from the “wrongful institution of legal process.” Id. at 389-90 (emphasis

omitted). “A claim of malicious prosecution does not accrue until the criminal

proceedings have terminated in the plaintiff’s favor.” Myers, 738 F.3d at 1194.

Mr. Glaser disavows a false-imprisonment claim so he can take advantage of

the later accrual date of a malicious-prosecution claim. But he does not disavow his

allegations of illegal arrest and pretrial hardship before the institution of legal

process, which assert claims of false imprisonment. Because a false-imprisonment

claim accrues upon a judicial determination of probable cause, see Young v. Davis,

554 F.3d 1254, 1257 (10th Cir. 2009), Mr. Glaser’s claims accrued no later than the

time of his probable-cause hearing on April 10, 2010. Mr. Glaser did not initiate this

7 action until January 26, 2016, well after the 2-year statute of limitations had expired.

He asserts no basis for tolling, and thus, to the extent he claimed false imprisonment,

the claims were time-barred.

Of course, Mr. Glaser also alleged that after the institution of legal process,

which was allegedly based on an illegal finding of probable cause, he was compelled

to appear in court, forced to stand trial, wrongly convicted, and imprisoned for 730

days. These post-legal-process allegations are properly construed as claiming

malicious prosecution. Mr. Glaser’s Complaint alleged that the criminal DUI

proceedings at issue here had been terminated on January 27, 2014, which, to the

extent he alleged malicious prosecution, would mark the accrual date for his claims.

See Heck, 512 U.S. at 489. Mr. Glaser initiated this action on January 26, 2016, so

his malicious-prosecution claims were timely.

But there is a defect in those claims. Mr. Glaser alleged that his convictions

on the DUI charges were vacated and the prosecution dismissed the case on January

27, 2014. The decision vacating the convictions indicates that they were reversed

because the trial court abused its discretion in denying Mr. Glaser’s challenge to a

juror for cause. On remand the prosecution elected to dismiss the case rather than

retry Mr. Glaser after he had already served his sentence.4 Under these

circumstances, Mr. Glaser cannot state a claim of malicious prosecution.

4 We may consider both the state court’s decision and evidence of the prosecution’s dismissal, which are central to Mr. Glaser’s claims, because he references them in his Complaint, see R. at 42, and does not dispute their authenticity. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002). 8 One element of a malicious-prosecution claim is that “the original action

terminated in the plaintiff’s favor.” Cordova v. City of Albuquerque, 816 F.3d 645,

650 (10th Cir. 2016). We have held that a prosecutor’s abandonment of criminal

“proceedings is ordinarily insufficient to constitute a favorable termination if the

prosecution is abandoned pursuant to an agreement of compromise with the accused;

because of misconduct on the part of the accused; or out of mercy requested or

accepted by the accused.” Wilkins v. DeReyes, 528 F.3d 790, 802-03 (10th Cir. 2008)

(brackets, ellipses, and internal quotation marks omitted). “These reasons for

withdrawal of a charge do not necessarily constitute favorable terminations because

they do not indicate the innocence of the accused or are at least consistent with

guilt.” Id. at 803 (internal quotation marks omitted). Consequently, we “look to the

stated reasons for the dismissal as well as to the circumstances surrounding it to

determine if the dismissal indicates the accused’s innocence.” Margheim v. Buljko,

855 F.3d 1077, 1086 (10th Cir. 2017) (internal quotation marks omitted).

Mr. Glaser insists his DUI proceedings terminated in his favor because his

convictions were overturned and none of the foregoing reasons caused the

prosecution to dismiss his case. That may be, but he offers nothing to suggest that

the dismissal of the charges on remand was indicative of his innocence. Rather, the

record reflects that the DUI proceedings were dismissed on grounds unrelated to the

merits of the case. See Cordova, 816 F.3d at 651 (dismissal for speedy-trial violation

was “on technical, procedural grounds which had nothing to do with the merits of

case” and was not indicative of innocence). The prosecutor simply elected not to

9 retry the case after Mr. Glaser had already served his entire sentence. This in no way

indicates that Mr. Glaser was innocent. Accordingly, he failed to state a claim for

malicious prosecution, and the district court correctly dismissed his claims under

Rule 12(b)(6).5

III

The judgment of the district court is affirmed. Mr. Glaser’s motion to proceed

on appeal in forma pauperis is granted. The relevant statute, 28 U.S.C. § 1915(a)(1),

does not permit litigants to avoid payment of filing and docketing fees, only

prepayment of those fees. Though we have disposed of this matter on the merits,

Mr. Glaser remains obligated to pay all filing and docketing fees, and he must

continue making partial payments until the entire fee is paid in full.

Entered for the Court

Harris L Hartz Circuit Judge

5 In light of this conclusion, we need not consider the district court’s alternate rulings concerning absolute immunity. 10