Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-M-289-BNB ROCKIE LEE ZIMMERMAN, Plaintiff, v. JOHN L. CHADBOURNE, II RUDY FANNIN, JOSH BENNER, MR. LAWRENCE, MR. DAZEY, MR. STECKLER, Defendants.

PLAINTIFF'S RESPONSE BRIEF TO DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT

Plaintiff, through his counsel of record, hereby submits this Response Brief to Defendants' Renewed Motion for Summary Judgment. As explained in detail below, Plaintiff respectfully requests the Court to DENY Plaintiff's Renewed Motion for Summary Judgment (hereinafter "Renewed Motion"). I. INTRODUCTION.

Defendants violated Mr. Zimmerman's constitutional rights when they entered his motel room on January 4, 2001 and wrongfully arrested him and searched the premises. Four days later, Defendant Chadbourne executed a search warrant at another motel where Mr. Zimmerman was staying. The warrant was based on numerous false statements. Pursuant to the faulty warrant, Officer Chadbourne seized Mr. Zimmerman's property, including his pawn slips, which

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were never returned. Years ago, Defendants moved for summary judgment in this case. Magistrate Judge Boland initially recommended that Defendants' motion be denied in part granted in part. The Court later rejected Magistrate Boland's recommendations except with respect to Mr. Zimmerman's civil conspiracy claims, which the Court dismissed. The Court vacated its Order of Reference and appointed Mr. Zimmerman volunteer counsel. Defendants now have renewed their earlier summary judgment motion. The Defendants have raised similar arguments Defendants raised in the past, in addition to new arguments. For the reasons explained in detail below, Defendants' Renewed Motion for Summary Judgment should be DENIED. II. A. The Parties. The Plaintiff is Rockie Lee Zimmerman ("Mr. Zimmerman"). Initially pro se, Mr. STATEMENT OF THE CASE.

Zimmerman brought this civil rights suit under 42 U.S.C. § 1983 against Colorado Springs Police Department Officers John Chadbourne II, Rudy Fannin, Josh Benner, Jason Lawrence, Robert Dazey, and Jerry Steckler. Collectively these Defendants are referred to as "Defendants." Mr. Zimmerman claims that Defendants violated his rights when they illegally entered his motel rooms on two separate dates without probable cause. Plaintiff also alleges that property, including pawn slips, were taken and not returned. Mr. Zimmerman also alleges that he was unlawfully arrested and seized in front of his children, causing him emotional distress. B. Mr. Zimmerman's Claims. Mr. Zimmerman has asserted both federal law and state law claims. Mr. Zimmerman's

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federal civil rights claims are the following six claims: Civil Rights Claim 1 ­ false arrest and unlawful seizure: Plaintiff alleges he was unlawfully seized in violation of the Fourth Amendment when Defendants entered his room and handcuffed him without a warrant on January 4, 2001. Civil Rights Claim 2 ­ illegal search and seizure: Plaintiff alleges that Defendants illegally entered his motel room on January 4, searched his room without freely given consent, and seized his personal property. Civil Rights Claim 3 ­ illegal entry, illegal search, and illegal seizure: Plaintiff alleges his room was illegally entered without a valid warrant and without probable cause by the Defendants on January 8, 2001. He further alleges that the Defendants illegally searched his room, and falsely arrested him. Civil Rights Claim 4 ­ illegal search and seizure: Plaintiff alleges that Defendants illegally entered his motel room on January 8, searched his room without freely given consent, and seized his personal property that he never recovered. Civil Rights Claim 9 ­ falsifying information in affidavit for search warrant: Plaintiff alleges that Officer Chadbourne falsified information in his affidavit to the magistrate to obtain a search warrant. Civil Rights Claim 10 ­ falsifying information in affidavit for arrest warrant and bond: Plaintiff alleges that Officer Chadbourne falsified information in his affidavit to the magistrate to obtain an arrest warrant and for increased bond. Mr. Zimmerman also has asserted the following state law claims that remain: (1) false imprisonment; (2) trespass on January 4, 2001; (3) trespass on January 8, 2001; (4) fraud and misrepresentation in the averments in Officer Chadbourne's affidavit; (5) invasion of privacy; (6) malicious prosecution; and (7) abuse of process. previously were dismissed by the Court. C. The Facts. 1. The January 4, 2001 Search and Seizure at the Rodeway Motel. Mr. Zimmerman's claims for conspiracy

On January 4, 2001, Mr. Zimmerman was staying in Room 225 of the Rodeway Motel in Colorado Springs, Colorado. Zimmerman Aff., ¶ 1 (attached hereto as Exh. 1). Mr. Zimmerman

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was staying there because a former co-worker of his told him that he had rented a couple of rooms at the Rodeway Motel and that the rooms were not being used. Id. Mr. Zimmerman was staying in Room 225 with his girlfriend, Teresa Light, and his two young children. Id., ¶ 2. Room 225 was a motel room that had an interior access door that allowed entry into Room 226, assuming that the access door was not locked. Id.; see also Dep. of Zimmerman, Defs' Exh. B, at 4-5. In the evening of January 4, 2001, some officers showed up to the Rodeway Inn and knocked loudly on the door to Room 225. Exh. 1, ¶ 3. Mr. Zimmerman's girlfriend and

children were asleep at the time. Id. They were all sleeping in Room 225. Id. Mr. Zimmerman heard the knock on the door to his room, Room # 225. Id., ¶ 4. After hearing the knocking on the door, Mr. Zimmerman was concerned that his girlfriend and children would wake up, which he did not want them to do. Id. Mr. Zimmerman checked the interior door between Room 225 and Room 226 to see if it was unlocked. Id. He wanted to walk through the interior door to open the door to Room 226 so that his girlfriend and kids would not wake up. Id. The interior access door between Room 225 and Room 226 was unlocked. Mr.

Zimmerman therefore walked through the interior access door between Room 225 and Room 226 to go open the door to Room 226 to see who was knocking. Exh. 1, ¶ 5. Mr. Zimmerman opened the door to Room 226. Id. After he opened the door, he saw a police officer walking toward the Rodeway Inn parking lot. Id., ¶ 6. Mr. Zimmerman was concerned because his girlfriend's father was having health problems and he thought the police officers may be attempting to locate him and his girlfriend because his girlfriend's father's health had

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deteriorated or something had happened to him that required his attention. Id. After Mr. Zimmerman opened the door, he began walking down to the parking lot to meet the officer. Mr. Zimmerman asked the officer if he needed something. Exh. 1, at ¶ 7. M Mr. Zimmerman recalls that the officer said that he was at the Rodeway Inn investigating possible credit card fraud. Id. Mr. Zimmerman never had anything to do with credit card fraud. Id., ¶ 8. He asked the officer if the officer believed that the suspected credit card fraud had anything to do with him. Id. The officer responded: "I don't know. Are you in room 225?" Defs' Exh. B, at 4-6. Mr. Zimmerman told the officer that he was staying in Room 225. Exh. 1, ¶ 8. The officer said that his investigation might involve Mr. Zimmerman. Id. Mr. Zimmerman knew that he had not been involved in credit card fraud. Nevertheless, the officer asked Mr. Zimmerman to wait there in the parking lot of the Rodeway Inn until another officer arrived. Id., ¶ 8. Mr. Zimmerman asked the officer at that point whether he needed an attorney. Def. Exh. B, at 5. The officer baited Mr. Zimmerman. He told Mr. Zimmerman that he did not need an attorney if he did not commit any kind of crime. Exh. 1, ¶ 9. The officer said this even though the officer apparently viewed Mr. Zimmerman as a suspect all along. The officer assured Mr. Zimmerman that he did not need an attorney and that they were just going to do an investigation into credit card fraud. Id. Mr. Zimmerman knew that he did not have anything to do with credit card fraud so he was not concerned. Id. Soon thereafter, another police officer arrived. Exh. 1, ¶ 10. The arriving officer was Officer Lucero. Id. Officer Lucero asked Mr. Zimmerman a few questions and then asked if he could come up to his room; Room 225. Id. The door to Room 225 was locked, but the door to

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Room 226 was open. Id. Mr. Zimmerman told Officer Lucero that he could enter and look around Room 226, even though Mr. Zimmerman was not staying in Room 226 and had not rented the room. Id. Officer Lucero moved into Room 226 and also looked around that room. Id., ¶ 11. Throughout the entire time, Officer Lucero represented that he was looking only for evidence of credit card fraud. Officer Lucero entered Room 225 and looked around. Id. Mr. Zimmerman's girlfriend, Teresa Light, was awake in Room 225 and Officer Lucero asked Ms. Light a few questions. Id. Officer Lucero asked Mr. Zimmerman and Ms. Light whether they knew

anything about credit card fraud. Id. They told him no. Id. Mr. Zimmerman also told Officer Lucero that somebody else had been staying in Rooms 225 and 226 the night before. Id. Officer Lucero told Mr. Zimmerman that he did not see any evidence of credit card fraud in the motel rooms and that he was about done with his investigation. Id., ¶ 12. Shortly after Officer Lucero said this, Officer Chadbourne arrived. Exh. 1, ¶ 13. Officer Chadbourne spoke with another officer who was standing outside the door, Officer Benner, and then immediately entered Room 226. Id. Officer Chadbourne did not ask Mr. Zimmerman whether Mr. Zimmerman consented to him searching Room 226. Id. Officer Chadbourne did not ask Mr. Zimmerman whether he had permission to come into Room 226. Id. Officer Chadbourne just came in the room and began searching. Id. Officer Chadbourne, however, was investigating a different suspected crime than Officer Lucero. After Officer Chadbourne arrived on the scene, Officer Lucero sat Mr. Zimmerman down on the bed in Room 226. Exh. 1, ¶ 14. Officer Lucero told Mr. Zimmerman that he needed to handcuff him. Id. Mr. Zimmerman responded to Officer Lucero by saying, "We'll, if that's

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what you need to do." Defs' Exh. B, at 24:2-25. Officer Lucero and Officer Chadbourne then began interrogating Mr. Zimmerman. Exh. 1, ¶¶ 14, 16. They asked Mr. Zimmerman repeatedly whether Mr. Zimmerman knew anything about credit card fraud. Defs' Exh. B, at 24-45. Mr. Zimmerman told the officers that he had no knowledge of credit card fraud. Id., at 4-8. Mr. Zimmerman then became subjected to harassment by Officer Chadbourne. Exh. 1, ¶¶ 14, 16. Officer Chadbourne told Mr. Zimmerman that he ran his name through his search and learned that he was on a personal recognizance Bond. Id. Officer Chadbourne threatened to have Mr. Zimmerman's Bond revoked and send him to jail if Mr. Zimmerman did not start talking about his involvement in credit card fraud. Id., ¶ 14. All of this activity occurred within the sight or earshot of Mr. Zimmerman's children. After Officer Chadbourne's interrogation, one of the other officers stepped into the other room--Room 225--and spoke with Ms. Light. Exh. 1, ¶ 15. After speaking with Ms. Light, Officer Chadbourne asked Mr. Zimmerman if he would consent to a search. Zimmerman explained what happened next in his deposition: So one of the officers stepped into the other room and was talking to Theresa for a while and then came back in and asked me if I would consent to a search. And I said, "Well, what do you mean a search?" "Well, I want to look around." He said that Officer Lucero told him that he had looked around room 225 and he didn't see any evidence of any criminal activity in 225, but that they hadn't really searched 226. So Officer Chadbourne asked me if he could search room 226. And I told him that it's not my room. 225 is the room that I signed for; it's the room I'm staying in. He said, "Well, you're sitting in room 226." And I said, "I just came through here to answer the door." I said, "That's the only reason I'm in here. In room 226, the beds were made, the room was clean, and it was not my room. And all my possessions and all my belongings were in room 225. Id. Mr.

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And I explained that to him and I told him that someone else had rented the room. All I had done was signed for 225 and was staying over there. John Chadbourne then flashed a consent form or waiver in front of me to search room 226. And I asked him, I said, "well, what does it do?" He said, "It gives me permission to search room 226." And I said, "only room 226?" And he said, "Yes, sir." And I said, "Well, it's not my room but I'll sign the consent." So I signed the consent. Defs' Exh. B, at 7-9; see also Exh. 1, ¶¶ 16-17. Mr. Zimmerman did not give his consent to search Room 225. Id. Officer Chadbourne confirmed that he understood that the consent form only gave him permission to search Room 226, not Room 225. Exh. 1, ¶ 17. Mr. Zimmerman told Officer Chadbourne that Room 226 was not his room but that he would sign the consent form anyway. Id. On January 4, 2001, the officers left the Rodeway Inn without seizing any evidence or taking anything. Exh. 1, ¶ 23. The officers did not arrest Mr. Zimmerman. Id. The officers did not say that Mr. Zimmerman was under suspicion of any crime. Id. 2. Officer Chadbourne's False Statements Concerning the So-Called Evidence from Room 226.

In support of a search warrant that was ultimately served on January 8, 2001, Officer Chadbourne averred an Affidavit dated January 8, 2001. Aff. of Chadbourne & Search Warrant (attached as Exh. 2). In his Affidavit, Officer Chadbourne stated that he had found a handwritten note that "related information of another victim, Jeffrey Wells, unknown date of birth, authorizing Zimmerman to use Wells' credit card number to purchase two rooms at the Rodeway Inn for nine days, totaling $705, which was charged to Jeffrey Wells' credit card." Id. Officer Chadbourne also averred that Mr. Zimmerman told him that the note was Mr. Zimmerman's handwriting. Id.

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The note is attached as Exhibit 3. Officer Chadbourne's claims about the note are false. Exh. 1, ¶ 19. Mr. Zimmerman never told Officer Chadbourne that the handwriting was his. Id. Further, the note did not authorize Mr. Zimmerman to use the credit card number; it does not refer to Mr. Zimmerman at all. Id. Officer Chadbourne's averment that the note authorized Zimmerman to use Wells' credit card is false. Id. Officer Chadbourne also averred in his Affidavit that he found in Mr. Zimmerman's possession a notepad that contained phone numbers, addresses and credit card numbers of several "victims." Exh. 2, at 2. That averment also is false. The notepad Officer Chadbourne found was not in Mr. Zimmerman's possession. Exh. 1, ¶¶ 20-21. The notepad was not Mr. Zimmerman's. Id. It was not found in Mr. Zimmerman's room. Id. Rather, the notepad was found in Room 226. Id. Room 226 was rented by Tim Stafford. Id., ¶ 21. 3. The January 8, 2001 Arrest and Search at the Motel 6.

On January 7, 2001, Mr. Zimmerman had a disagreement with Teresa Light, his thengirlfriend. Exh. 1, ¶ 24. As a result, Mr. Zimmerman checked into a motel room at the Motel 6 at 3228 North Chestnut Street, Room # 128. Id. Mr. Zimmerman did not tell Teresa Light where he had gone. Id. Hence, Ms. Light did not know that Mr. Zimmerman had checked into the Motel 6 at 3228 North Chestnut Street. Id. The next day, on January 8, 2001, after he finished his shift at work, Mr. Zimmerman went to his room at the Motel 6 at 3228 North Chestnut Street, Room # 128. Id., ¶ 25. He then spoke with Ms. Light and went to pick her up, along with Mr. Zimmerman's kids, to get dinner. Id. Mr. Zimmerman picked Ms. Light and his kids up from his permanent address and drove them to Burger King to get dinner. Id. After dinner, Mr. Zimmerman took Ms. Light and the

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kids to the Motel 6 to watch movies. Id. Later that night, Mr. Zimmerman heard a knock on the door of Room 128. Exh. 1, ¶ 26. Mr. Zimmerman told the person knocking to wait a moment. Id. Without waiting for an answer, Officer Chadbourne entered the room by using a card key he obtained from the motel clerk and served the search warrant. See Continuation/Supplemental Report, Case No. 01-01325, dated 110-01, at 3 (attached hereto as Exh. 4). The warrant was directed at evidence of credit card fraud. It allowed Officer Chadbourne to search for the items listed in "Attachment B." Exh. 2, at 1, 5. Attachment B allowed Officer Chadbourne to search for the following items: 1. Any credit cards, receipts, or notes with names other than the occupants of the room Items of indicia of occupancy for Motel 6 at 3228 North Chestnut Street, Room #128 Merchandise that was purchased via fraudulent means that is referenced by credit cards, receipts, or notes with names other than the occupants of the room Owner/Operator manuals of merchandise that was purchased through fraudulent means Any documents that the suspect used to information from unknowing victims (scam)

2.

3.

4.

5.

Id., at 5. There is no authorization to search for drugs or drug paraphernalia. Id. Further, there is no authorization to arrest Mr. Zimmerman. Id. Nevertheless, after Officer Chadbourne let himself in the Motel 6 door, he immediately arrested Mr. Zimmerman and took Mr. Zimmerman to his police cruiser. Exh. 1, ¶ 26. Officer Chadbourne told Mr. Zimmerman that he was under arrest for suspicion of Unauthorized Use of a Financial Transaction Device. Id. Officer Chadbourne placed Mr. Zimmerman in the back of

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a police cruiser, handcuffed. Id. Mr. Zimmerman remained in the police cruiser for hours while Officer Chadbourne and others searched Room 128 of the Motel 6. Id. Officer Chadbourne, Sgt. Steckler and Officer Lawrence recovered the following items from their search of Room 128: Item #1-- 21 pawn slips for items pawned at Acme Pawn Shop, Inc., 231 1 E. Platte Ave., Colorado Springs, Colorado. The owner / sellers name is Rockie Zimmerman.... Item #2-- Two pawn slips for items pawned at EZ Pawn at 1995 B Street, Colorado Springs, Colorado. The owner / sellers name is Rockie Zimmerman; ltem #3-- One item of Indicia for occupancy at the Motel 6, Room #128, receipt number 47590250; made out to Rockie Zimmerman; Item #4-- Six Target gift cards recovered from the nightstand; ltem #5-- One small blue pipe used for smoking marijuana containing residue of marijuana; ltem #6-- One black bag containing three small Ziploc baggies containing suspected methamphetamines; ltem #7 - One syringe, 1 cc, recovered from the above listed black bag. The item was covered with suspected methamphetamine and containing a mixture of blood and methamphetamines; Exh. 4, at 3. After a few hours sitting in the patrol car, Mr. Zimmerman was taken to the Sand Creek Substation of the Colorado Springs Police Department. Exh. 1, ¶ 27. Mr. Zimmerman was booked and put in jail. Id. He was then interrogated by Officer Chadbourne. Id. Further, Officer Chadbourne requested a bond increase for Mr. Zimmerman. Exh. 4, at 4. Officer Chadbourne requested the bond increase for the following alleged reasons: "A. Zimmerman is currently unemployed and has not had a steady job; B. Police Department files

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shows [sic] that Zimmerman has had several different addresses in the past 12 months and Zimmerman currently claims resident at a hotel; ... [and] Zimmerman is currently a nonextraditable fugitive from Oregon on a Robbery charge." Exh. 4, at 4. All of the three reasons that Officer Chadbourne averred in his request for a bond increase were false. Exh. 1, ¶ 31. After Mr. Zimmerman was arrested, he went to his first appearance in his criminal case. Exh. 1, ¶ 32. On that date, the judge, Judge Kennedy, told the prosecution that there were no charges and the prosecution was forced to drop the original charge of Unauthorized Use of a Financial Transaction Device ("UUFTD"). Id. The prosecution later opted to file new charges which were unrelated to the original charge, including a charge of Possession of a controlled substance. Id. Additionally, Officer Lucero prepared a police report dated 1-09-01 concerning his investigation. Exh. 1, ¶ 33 and Exh. 2. In Officer Lucero's police report, dated the day of Mr. Zimmerman's arrest, Officer Lucero confirmed that he spoke with Officer Chadbourne. Id. Officer Lucero said that Officer Chadbourne told him that the only charge that he had probable cause to arrest and charge Mr. Zimmerman on was unauthorized use of a financial device, which allegedly occurred at the Rodeway Inn. Id. Officer Chadbourne did not believe that he had probable cause or a basis to charge Mr. Zimmerman on any other suspected crimes, including possession of a controlled substance. Id. Long after Mr. Zimmerman was arrested, he was provided with the Affidavit executed by Officer Chadbourne. In that Affidavit, Officer Chadbourne avers that he spoke with Teresa Light, Mr. Zimmerman's then-girlfriend, on January 7, 2001. Exh. 2, at 3. Officer Chadbourne falsely claimed in his Affidavit that Teresa Light told him that Mr. Zimmerman obtained credit

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card information from dumpsters of businesses and used the credit card information improperly and that Mr. Zimmerman was staying at the Motel 6 in Room 128. Id. However, Ms. Light never spoke with Officer Chadbourne. Exh. 1, ¶ 28; see also Exh. 5, Transcribed Interview with Ms. Light. Ms. Light said that she never told Officer Chadbourne any of the information that Officer Chadbourne claims she told him. Id. 4. The Preliminary Hearings and Guilty Plea.

Mr. Zimmerman attended several preliminary hearings in his criminal case. Def. Exh. A. In those preliminary hearings, Mr. Zimmerman represented himself with advisory counsel. Id., at 1, 41, 170. After the preliminary hearings, the judge reached the following conclusions: THE COURT: Thanks. I have had a chance to consider the issue that's before the Court. I have considered the evidence that's been presented over the course of several bifurcated hearings. I have considered the Information and I enter the following orders and findings: First with regard to the preliminary hearing itself, I acknowledge Mr. Zimmerman's argument here and he has very methodically presented arguments to all of the counts at issue. However, I think the arguments that he has presented are arguments as to the persuasiveness of the testimony or of the evidence and not as to the standard - - not directed to the standard that the Court must use at this stage in the proceedings. I'll initially find that none of the witnesses called by the People are not credible as a matter of law. And having made that initial finding the Court is then required to view the evidence in the light most favorable to the prosecution and to draw all inferences in favor of the prosecution. And using that standard in this preliminary hearing the Court finds that the People have established probable cause to believe that Rockie Lee Zimmerman committed the crimes of Theft as alleged in Count One, Criminal Attempt to Commit Theft as alleged in Count Two, Conspiracy to Commit Theft as alleged in Count Three, Criminal Possession of Four or More Financial Transaction Devices as alleged in Count Four, Criminal Impersonation as alleged in Count Five and Unlawful Possession of a Schedule II Controlled Substance as alleged in Count Six.

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Defs' Exh. A, at 242-43. After the underlying judge allowed the charges of methamphetamine possession to go forward, Mr. Zimmerman pled guilty to that charge. Exh. 1, ¶ 32. Mr. Zimmerman did not plead guilty to any charges of Unauthorized Use of a Financial Transaction Device, nor were those charges pursued to trial. Id. No charges concerning any of the bases for the search warrant issued on January 8, 2001 were ultimately pursued. Id. They were dropped. Id. II. A. LEGAL ARGUMENT.

Standards Applicable to Summary Judgment. Fed. R. Civ. P. 56 provides that summary judgment is permissible only "if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying this standard, the Court must "view all facts and any reasonable inferences that might be drawn from them in light most favorable to the nonmoving party and determine whether there exists a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law." Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994) (citing Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990)). An issue of material fact exists if it is disputed and genuine. Id. A genuine issue of material fact is a fact that would be sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment should not enter if, viewing the

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evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Id., at 252. B. Genuine Issues of Material Fact Remain With Respect to Mr. Zimmerman's Federal Civil Rights Claims, Entitling Mr. Zimmerman to Trial on Those Claims. Mr. Zimmerman has asserted federal claims under 42 U.S.C. § 1983, as well as claims under state common law. Mr. Zimmerman's federal claims under 42 U.S.C. § 1983 are

sufficient to survive summary judgment under the above standards. 1. Plaintiff's Guilty Plea to the Methamphetamine Charge Does Not Invalidate his Section 1983 Claims for Invalid Search and Seizure.

Defendants first argue in their Motion that Mr. Zimmerman's Section 1983 claims fail under Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994) because Mr. Zimmerman's allegations would question the validity of the state court criminal conviction. Defendants' reliance on Heck v. Humphrey is misplaced here. In Heck, the Supreme Court addressed the question of when a prisoner may bring a 42 U.S.C. § 1983 claim for money damages relating to his conviction or sentence. See Heck, at 486-87, 114 S.Ct. at 2372. As Defendants' recognized, the Court held that

when a state prisoner seeks damages in a Section 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. Id. If it would, then the prisoner's complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. Id.

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In footnote seven of Heck, the Supreme Court explained: ...a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff's conviction was unlawful. Id., at 487 n.7, 114 S.Ct. 2364 (citation omitted). The Tenth Circuit interprets Heck's footnote seven as creating a general exception for 42 U.S.C. § 1983 claims based on the theory that the state officers engaged in an unreasonable search and seizure. See Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558 (10th Cir. 1999). The Beck court reasoned that a claim for an unreasonable search would not necessarily imply the unlawfulness of the conviction; rather, in a case where the plaintiff is convicted, Heck simply should be construed to limit the plaintiff's ability to recover damages. Id. The Court explained that it read Heck as "only limiting the damages a plaintiff may recover in such a case-the damages cannot include those for being convicted and imprisoned, at least not until the conviction has been overturned." Id., at 558 n. 3 (citing Gonzalez v. Entress, 133 F.3d 551, 55354 (7th Cir. 1998)). Mr. Zimmerman is not seeking those damages here. See Defs' Exh. C, § 4. Further, the Tenth Circuit explained that it generally disagrees with the line of cases that have held that "whether a plaintiff's illegal arrest claim is affected by Heck depends on whether evidence obtained as a product of the arrest is used at trial." Id., at 559 n. 4 (citing Covington v. City of New York, 171 F.3d 117, 123 (2d Cir. 1999) and Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995)). The Tenth Circuit explained that it generally disagrees "with the holdings in these cases because they run counter to Heck's explanation that use of illegally obtained evidence does not, for a variety of reasons, necessarily imply an unlawful conviction." Id.

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Here, summary judgment is inappropriate under Heck because Mr. Zimmerman pled guilty to the possession of methamphetamine charge. Defs' Exh. C, § 3(8). Mr. Zimmerman did not plead guilty to the credit card fraud charges, nor the theft charges. An award of damages for unreasonable search and seizure to investigate the alleged credit card fraud does not imply the invalidity of the conviction for methamphetamine possession. Further, the search conducted at the Motel 6 on January 8, 2001 was conducted pursuant to a search warrant that authorized the Defendants to search for evidence of credit card fraud only. Exh. 2, at 1, 5. Evidence of methamphetamine possession is unrelated to the search warrant for the credit card fraud. Mr. Zimmerman's Section 1983 claims for unreasonable search and seizure do not challenge the legality of Mr. Zimmerman's conviction on the methamphetamine possession charge. Rather, Mr. Zimmerman challenges the validity of the searches and seizures on January 4, 2001 and, later, on January 8, 2001 related to the claims of credit card fraud. Further, Mr. Zimmerman is seeking damages for the failure to return to him the value of the property seized as part of the execution of the search warrant looking for evidence of credit card fraud. See Defs' Exh. C, § 4. The Defendants never returned to Mr. Zimmerman the pawn slips reflecting the property that Mr. Zimmerman had pawned. That property was worth

approximately $5,000. Exh. 1, ¶ 30. Mr. Zimmerman sustained those losses as a result of the Defendants' invalid search and seizure on January 8, 2001. Any recovery of those damages would not call into question Mr. Zimmerman's guilty plea for the methamphetamine charges. Hence, the Heck rule is inapposite and does not require summary judgment here. See Beck, 195 F.3d at 559; see also Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998) (interpreting

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Heck 's footnote seven to "mean that Fourth Amendment claims for unlawful searches or arrests do not necessarily imply a conviction is invalid, so in all cases these claims can go forward"); Simmons v. O'Brien, 77 F.3d 1093, 1095 (8th Cir. 1996) (holding that "[b]ecause harmless error analysis is applicable to the admission at trial of coerced confessions, judgment in favor of Simmons on this § 1983 action challenging his confession will not necessarily demonstrate the invalidity of his conviction"); Datz v. Kilgore, 51 F.3d 252, 253 n. 1 (11th Cir. 1995) (holding that Heck did not bar Datz's § 1983 unlawful search claim "because, even if the pertinent search did violate the Federal Constitution, Datz' conviction might still be valid considering such doctrines as inevitable discovery, independent source, and harmless error"). 2. Issue Preclusion Does Not Bar Plaintiff's Section 1983 Claims.

Defendants also seek summary judgment on the basis that the doctrine of issue preclusion--or collateral estoppel--bars Mr. Zimmerman from alleging claims based on a lack of probable cause supporting the Defendants' actions. Defendants' arguments miss the mark. Defendants are correct that federal courts must give full faith and credit to state court judgments. See 28 U.S.C. § 1738 (2004); Pittsburgh County v. City of McAlester, 346 F.3d 1260, 1276 (10th Cir. 2003). Whether a state court determination is preclusive in a federal Section 1983 action is a question of state law. See Wilkinson v. Pitkin County Bd. Of County Comm'rs, 143 F.3d 1319, 1322 (10th Cir. 1998). Under Colorado law, issue preclusion bars re-litigation of an issue determined in a prior proceeding if: (1) the issue precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party in the prior proceeding; (3) there is a final judgment on the merits in the prior

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proceeding; and (4) the party against whom the doctrine is asserted has had a full and fair opportunity to litigate the issue in the prior proceeding. See Guaranty Nat'l Ins. Co. v. Williams, 982 P.2d 306, 308 (Colo. 1999); see also Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001) (noting the same elements). Defendants argue that all of the requirements for issue preclusion have been met here. Defendants err. The issue of probable cause here is not identical to the issue of probable cause in the underlying preliminary hearings. Defendants' Exhibit A shows that the underlying trial judge applied a different standard, affording the police officers credibility and drawing all inferences in favor of the prosecution and against Mr. Zimmerman. Defs' Exh. A, at 242-43. Further, in the underlying preliminary hearings, the issue of probable cause was determined by the court as a matter of law, while here, the issue of probable cause is determined by the fact-finder as a matter of fact. DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir. 1990). Additionally, the issue before the state court in the underlying preliminary hearings was whether there was probable cause to go forward with the charges after all of the evidence from the January 4, 2001 search and the January 8, 2001 search had been considered. That issue is not identical to the issue Mr. Zimmerman has placed at issue in this case. Rather, Mr. Zimmerman challenges the Defendants' claimed probable cause supporting the search warrant issued. Exh. 3. Evidence obtained after the search warrant was executed cannot be used to justify the search warrant itself. See People v. Padgett, 932 P.2d 810, 816 (Colo. 1997). Finally, after Mr. Zimmerman was arrested, he went to his first appearance in his criminal case. Exh. 1, ¶ 32. On that date, the judge, Judge Kennedy, told the prosecution that there were no charges and the prosecution was forced to drop the original charge of

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Unauthorized Use of a Financial Transaction Device ("UUFTD"). Id. In dropping the UUFTD charges initially, the judge indicated a lack of probable cause supporting those charges. 3. Mr. Zimmerman Suffered a Violation of His Constitutional Rights.

Third, Defendants argue that they are entitled to summary judgment because they argue that Mr. Zimmerman did not suffer a violation of his Fourth Amendment rights. Motion, at 14. Defendants' argument is misguided for several reasons. It is undisputed that Section 1983 imposes liability upon state actors for conduct carried out under the color of state law which deprives a plaintiff of "rights, privileges, or immunities secured by the Constitution and laws ..." 42 U.S.C. § 1983. To prevail on a claim for damages for a constitutional violation pursuant to section 1983, Mr. Zimmerman must establish that the Defendants acted under color of state law and caused or contributed to the alleged violation. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). It is undisputed that the Defendants were acting under the color of state law. Liability exists if the Defendants deprived Mr. Zimmerman of "rights, privileges, or immunities secured by the Constitution and laws ..." 42 U.S.C. § 1983. As explained below, Mr. Zimmerman suffered a violation of his federal and constitutional rights with respect to his arrest on January 8, 2001 at the Motel 6, and with respect to his seizure and detention on January 4, 2001 at the Rodeway Motel. Each is addressed in turn. a. The January 8, 2001 Arrest at the Motel 6 Was Unlawful.

Defendants do not appear to address their arguments to the January 8, 2001 arrest of Mr. Zimmerman at the Motel 6. Defendants' arrest of Mr. Zimmerman on January 8, 2001 was unlawful because Officer Chadbourne did not have probable cause to arrest Mr. Zimmerman based only on the search warrant allowing him to search for evidence of credit card fraud, Exh. 4,

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which itself was based on false statements. See Exh. 1, ¶¶ 19-22; ¶ 28. The Tenth Circuit has explained that "'[p]robable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.'" Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (quoting Romero, 45 F.3d at 1476). Probable cause does not demand that there be knowledge of facts sufficient for a finding of guilt, but it requires "more than mere suspicion." United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998) (citing United States v. Hansen, 652 F.2d 1374, 1388 (10th Cir. 1981)). "[W]here the issue [of probable cause] arises in a damage suit, it is ... a proper issue for the jury if there is room for a difference of opinion." DeLoach, 922 F.2d at 623 (quoting Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir. 1985) (en banc) (citations omitted) (probable cause to search)); see Hall v. Burke, 12 Fed. Appx. 856, 861 (10th Cir. 2001) (citation omitted) ("[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."). Here, there are fact questions that remain as to whether the Defendants had probable cause to arrest Mr. Zimmerman at the Motel 6 on January 8, 2001, and these fact questions are properly decided by the fact-finder in Mr. Zimmerman's civil rights suit. See DeLoach, 922 F.2d at 623. Specifically, the fact that the initial judge told the prosecution that there were no charges and the prosecution was forced to drop the original UUFTD charge demonstrates that a fact question remains. Exh. 1, ¶ 32. Further, Officer Chadbourne's statements to Officer Lucero also create a fact question as to whether Officer Chadbourne believed that he had probable cause to

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charge Mr. Zimmerman on a possession of a controlled substance charge. Exh. 1, ¶ 33 & Exh. 2. Summary judgment is improper. b. The January 8, 2001 Search at the Motel 6 Was Improper Because It Was Based on Misrepresentations in the Affidavit Averred to Obtain the Search Warrant.

More importantly, there are fact questions about whether the search warrant Officer Chadbourne obtained on January 8, 2001 was legitimate in the first place. The search warrant was obtained based on material, false statements by Officer Chadbourne. The United States Supreme Court has explained the applicable law: [W]hen the Fourth Amendment demands a factual showing sufficient to comprise `probable cause,' the obvious assumption is that there will be a truthful showing" (emphasis in original). This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true. It is established law, ... that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. If an informant's tip is the source of information, the affidavit must recite "some of the underlying circumstances from which the informant concluded" that relevant evidence might be discovered, and "some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, · · · was `credible' or his information `reliable.' " .... Because it is the magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless false statement, were to stand beyond impeachment. Franks v. Delaware, 438 U.S. 154, 164-65 (1978) (citations omitted). The Tenth Circuit has explained that under Franks, when "a [criminal] defendant makes a substantial preliminary showing that intentionally or recklessly false statements are included in an affidavit supporting a search warrant and that the affidavit without the false statements is

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insufficient to support a finding of probable cause, the [criminal] defendant is entitled to a hearing on the matter." U.S. v. Corral-Corral, 899 F.2d 927, 933 (10th Cir. 1990) (citing Franks, 438 U.S. at 171, 98 S. Ct. at 2684). In Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996), the Tenth Circuit employed the following analysis: It is a violation of the Fourth Amendment for an arrest warrant affiant to "knowingly, or with reckless disregard for the truth," include false statements in the affidavit, Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), or to knowingly or recklessly omit from the affidavit information which, if included, would have vitiated probable cause, Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir.1990). Where false statements have been included in an arrest warrant affidavit, the existence of probable cause is determined by setting aside the false information and reviewing the remaining contents of the affidavit. Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77. In a case involving information omitted from an affidavit, the existence of probable cause is determined "by examining the affidavit as if the omitted information had been included and inquiring if the affidavit would still have given rise to probable cause for the warrant." Stewart, 915 F.2d at 582, n. 13. Id. Here, the false statements that Mr. Zimmerman claims were contained in Officer Chadbourne's affidavit were: (1) Teresa Light's purported conversation with Chadbourne where she allegedly implicated Mr. Zimmerman; (2) that the items found in room 226, including the notepad and the credit card information, were Mr. Zimmerman's; (3) that Mr. Zimmerman did not have a permanent address when Officer Chadbourne knew that he did; and (4) that Mr. Zimmerman was not employed. Exh. 1, ¶¶ 19-22; ¶¶ 28-29; ¶¶ 32-33. Officer Chadbourne knew that the information was false. Exh. 1, ¶¶ 19-22, ¶¶ 28-29; Exh. 5. Given these averments, there is a genuine issue of material fact remaining for trial. Further, without these pieces of evidence put in Officer Chadbourne's affidavit to support the search warrant, probable cause for a search of his premises would not have existed.

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Additionally, Officer Lucero prepared a police report dated 1-09-01 concerning his investigation. Exh. 1, ¶ 33 and Exh. 2. In Officer Lucero's police report, dated the day of Mr. Zimmerman's arrest, Officer Lucero confirmed that he spoke with Officer Chadbourne. Id. Officer Lucero said that Officer Chadbourne told him that the only charge that he had probable cause to arrest and charge Mr. Zimmerman on was unauthorized use of a financial device, which allegedly occurred at the Rodeway Inn. Id. Officer Chadbourne's statements to Officer Lucero also show that Officer Chadbourne did not believe that he had probable cause to charge Mr. Zimmerman on a possession of a controlled substance charge. Id. In their Renewed Motion, the Defendants quote a statement made by Mr. Zimmerman in his Response Brief In Opposition to the City Defendants' Motion for Summary Judgment, filed on September 25, 2003. In that Response Brief, Mr. Zimmerman noted that "there MAY have been enough true and believable information within that affidavit for that Magistrate to find probable cause enough to issue that warrant...." Response Brief, at 27 (emphasis in original). Mr. Zimmerman's response, made without the benefit of discovery and counsel, was only that there "MAY" be enough additional evidence to justify the warrant. Whether there was actually enough evidence is a fact question to be decided at trial. Summary judgment is inappropriate. c. The Defendants' January 4, 2001 Search and Detention of Mr. Zimmerman at the Rodeway Inn Was Unlawful.

Moreover, the search and seizure of Mr. Zimmerman on January 4, 2001 was unlawful. It was a warrantless search. Mr. Zimmerman consented to a search of Room 226, but not Room 225. Without consent, Officer Chadbourne's search of Room 226 was improper because Officer Chadbourne did not have consent or probable cause to believe that Mr. Zimmerman was

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committing a criminal offense. 1 Additionally, by placing Mr. Zimmerman in handcuffs, the officers clearly detained and arrested Mr. Zimmerman for the duration of the search on January 4, 2001. An arrest is only permissible when the officer has probable cause to believe that the arrestee committed a crime. See Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995). The Tenth Circuit has explained that "'[p]robable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offence.'" Id. (quoting Jones v. City & County of Denver, Colo., 854 F.2d 1206, 1210 (10th Cir. 1988)). Here, when the Defendants placed Mr. Zimmerman in handcuffs on January 4, 2001, the Defendants did not have probable cause to believe that Mr. Zimmerman was committing or had committed a crime. They also did not have any reasonable suspicion to believe that Mr.

Zimmerman was armed or a threat to the officers. Accordingly, the arrest or detention of Mr. Zimmerman on January 4, 2001 was invalid and unconstitutional because it was not supported by probable case. See Romero, 45 F.3d at 1476. C. Genuine Issues of Material Fact Remain With Respect to Mr. Zimmerman's State Law Claims. As explained above, Mr. Zimmerman also has asserted the following state law claims, each of which remain: (1) false imprisonment; (2) trespass on January 4, 2001; (3) trespass on January 8, 2001; (4) fraud and misrepresentation in the averments in Officer Chadbourne's affidavit; (5)

Mr. Zimmerman contends that he provided consent to Officer Chadbourne to search only Room 226, not room 225. Exh. 1, ¶ 12. Mr. Zimmerman did provide consent to Officer Lucero to search both Rooms 225 and 226.

1

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invasion of privacy; (6) malicious prosecution; and (7) abuse of process. For reasons discussed below, Mr. Zimmerman is withdrawing his claims for malicious prosecution and abuse of process. Defendants seek summary judgment on Mr. Zimmerman's state law claims for three reasons. First, Defendants argue that Mr. Zimmerman's claims are time barred under Colorado's statute of limitation, C.R.S. § 13-80-108(1) (2000). Second, Defendants argue that they are immune from suit under the doctrine of sovereign immunity. Third, Defendants argue that Mr. Zimmerman's state law claims are not "cognizable." Each argument is addressed in turn. 1. Mr. Zimmerman's Claims Are Not Time Barred Because Fact Questions Remain on the Issue of Accrual.

Defendants' first argument is that Mr. Zimmerman's state law claims are time barred under C.R.S. § 13-80-103(1)(c). Under that statute of limitation, all actions against a sheriff or police officer must be commenced within one year after the cause of action accrues. Id.; see also Terry v. Sullivan, 58 P.3d 1098, 1100 (Colo. App. 2002). Statutes of limitation begin to run at the time the plaintiff discovers, or through the use of reasonable diligence should discover, that he is injured and the cause of his injury. See Jacobson v. Shine, 859 P.2d 911, 913 (Colo. App. 1993) (citing Morris v. Geer, 720 P.2d 994 (Colo. App. 1996)); Palisades Nat'l Bank v. Williams, 816 P.2d 961, 963 (Colo. App. 1991). "Whether the statute of limitations bars a particular claim is normally a question of fact for the jury." Terry v. Sullivan, 58 P.3d at 1101 (citing J.A. Balistreri Greenhouses v. Roper Corp., 767 P.2d 736 (Colo. App. 1988)). Here, the question of when Mr. Zimmerman discovered his injuries and that they were caused by the Defendants is a question of fact for the fact-finder. The fact-finder will need to determine whether Mr. Zimmerman knew or should have known that his pawn slips would not be returned and he would lose the property pawned. That was within a year of filing suit.

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Summary judgment therefore is improper. See Terry v. Sullivan, 58 P.3d at 1101. 2. Defendants Are Not Immune Under Sovereign Immunity Because Their Actions Were Willful and Wanton.

Defendants also argue that summary judgment is appropriate on Mr. Zimmerman's state law claims under the principle of sovereign immunity. To begin with, it is important to note that Colorado state sovereign immunity does not immunize wrongful conduct of police officers acting under the color of state law. See Mucci v. Falcon Sch. Dist. No. 49, 655 P.2d 422, 424 (Colo. App. 1982). Hence, Mr. Zimmerman's federal claims survive regardless of the

Defendants' alleged immunity. Additionally, C.R.S. § 24-10-105 provides: It is the intent of this article to cover all actions which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant. No public entity shall be liable for such actions except as provided in this article, and no public employee shall be liable for injuries arising out of an act or omission occurring during the performance of his duties and within the scope of his employment, unless such act or omission was willful and wanton, except as provided in this article. Nothing in this section shall be construed to allow any action which lies in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by a claimant to be brought against a public employee except in compliance with the requirements of this article. Id. (emphasis added). A public employee--such as a police officer--is not immune from a suit in tort if his actions were willful and wanton. As the court explained in King v. U.S., 53 F. Supp. 2d 1056, 1072 (D. Colo. 1999), rev'd on other grounds, 301 F.3d 1270 (10th Cir. 2002), the "language concerning waiver of immunity for willful and wanton acts or omissions follows the second clause of the statute referring to a public employee's liability." Thus, C.R.S. § 24-10-105 "operates as a waiver of a public employee's immunity but does not operate as a waiver of a public entity's immunity." Id. (emphasis in original). Here, only the individual Defendants are

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named as public employees. Hence, their immunity is waived for willful and wanton acts. Id. Unfortunately, the phrase "willful and wanton" is not defined in the Colorado Governmental Immunity Act ("CGIA"). Colorado courts have applied the definition of willful and wanton contained in Colorado's exemplary damages statute, C.R.S. § 13-21-102(1)(b) (2004). See King, 53 F. Supp. 2d at 1072. Under that statute, willful and wanton conduct is "conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to the consequences, or the rights and safety of others, particularly the plaintiff." C.R.S. § 13-21-102(1)(b); Zerr v. Johnson, 894 F. Supp. 372, 376 (D. Colo. 1995); Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994) (citing Pettingell v. Moede, 129 Colo. 484, 491, 271 P.2d 1038, 1042 (1954)). Here, Mr. Zimmerman has claimed that Officer Chadbourne averred false statements in his affidavit to obtain a search warrant. It is hard to imagine a more willful and wanton act than making false statements under oath in order to obtain a search warrant. Fact questions remain on this issue. Exh. 1, ¶¶ 19-22; 28. Summary judgment therefore is improper. 3. Mr. Zimmerman's State Law Claims Are Cognizable.

Finally, Defendants argue that that Mr. Zimmerman's state law claims are not "cognizable." However, Defendants focus only on Mr. Zimmerman's state law claims for

malicious prosecution and abuse of process. To prevail on his malicious prosecution claim, Mr. Zimmerman must establish the following elements: "(1) the defendant[s] contributed to bringing a civil or criminal proceeding against the plaintiff; (2) the proceeding was resolved in favor of the plaintiff; (3) there was no probable cause for the proceeding; (4) the defendant[s] acted with malice; and (5) the plaintiff

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incurred damages." Hewitt v. Rice, 119 P.2d 541, 544 (Colo. App. 2004) (citing Thompson v. Maryland Cas. Co., 84 P.3d 496, 503 (Colo. 2004)). The Colorado Court of Appeals recently concluded that to "be terminated in favor of the malicious prosecution plaintiff, the prior proceedings must be dismissed on the merits." Id. Under these standards, Mr. Zimmerman concedes that he cannot establish that the underlying criminal case was resolved on the merits in his favor. For these reasons, Mr. Zimmerman withdraws his malicious prosecution claim. Similarly, under Colorado law, a claim for abuse of process includes at least the following three elements: (1) an ulterior purpose for the use of a judicial proceeding; (2) willful action in the use of that process which is not proper in the regular course of the proceedings; and (3) resulting damages. See Technical Computer Servs., Inc. v. Buckley, 844 P.2d 1249, 1252 (Colo. App. 1992) (citing Aztec Sound Corp. v. Western States Leasing Co., 32 Colo. App. 248, 510 P.2d 897 (1973)). Further, evidence that a legal proceeding was used in an improper manner is an essential element of an abuse of process claim under Colorado law. See James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994) (citing Institute for Professional Dev. v. Regis College, 536 F. Supp. 632 (D. Colo. 1982)). Under these

standards, Mr. Zimmerman concedes that his abuse of process claim fails. Mr. Zimmerman therefore withdraws his abuse of process claim. Mr. Zimmerman notes that Defendants did not seek summary judgment on Mr. Zimmerman's other state law claims on the elements, but only on immunity and the statute of limitations, which were addressed above. Summary judgment should not be granted in favor of the Defendants on those claims.

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IV.

CONCLUSION.

Wherefore, for the foregoing reasons, and based on the foregoing authority, Mr. Zimmerman respectfully requests the Court to DENY Defendants' Renewed Motion for Summary Judgment. Dated this 16th day of March, 2006. Respectfully submitted,

s/ Troy R. Rackham_________ Troy R. Rackham McConnell Siderius Fleischner Houghtaling & Craigmile, LLC 4700 South Syracuse, Suite 200 Denver, CO 80237 Telephone: (303) 480-0400 Fax: (303) 458-9520 Email: [email protected]

/s/ David M. Tenner, Esq. David M. Tenner, Esq. Bond & Morris, P.C. 303 East 17th Avenue, Suite 888 Denver, Colorado 80203 Email: [email protected] Attorneys for Plaintiff Rockie Lee Zimmerman

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CERTIFICATE OF SERVICE I hereby certify that on PLAINTIFF'S RESPONSE BRIEF TO DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to email addresses: David M. Tenner, Esq. Bond & Morris, P.C. 303 East 17th Avenue, Suite 888 Denver, Colorado 80203 [email protected] Shane White, Esq. Senior Attorney Office of the City Attorney P.O. Box 1575 30 South Nevada Avenue Colorado Springs, Colorado 80901 [email protected] Rockie Zimmerman 1625 N. Murray Blvd., #103 Colorado Springs, CO 80915

/s/ Troy R. Rackham

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