Found Deceased CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 *Case dismissed w/o prejudice* #106

[Seattle1]

In BM's Civil action, he alleges twelve thirteen separate claims of civil rights violations by the following defendants:

Chaffee County, Colorado,
Board of County Commissioners of Chaffee County, Colorado,
Chaffee County Sheriff’s Department,
District Attorney Linda Stanley, in her individual and official capacity,
Chaffee County Sheriff John Spezze, in his individual and official capacity,
Chaffee County Undersheriff Andrew Rohrich,
Eleventh Judicial District Attorney’s Office Investigator Alex Walker,
Deputy District Attorney Jeffrey Lindsey,
Deputy District Attorney Mark Hurlbert,
Chaffee County Sheriff’s Detective Robin Burgess,
Chaffee County Sheriff’s Deputy Randy Carricato,
Chaffee County Sheriff’s Deputy Scott Himschoot,
Chaffee County Sheriff’s Sergeant Claudette Hysjulien.
Chaffee County Sheriff’s Sergeant William Plackner,
Colorado Bureau of Investigation Director John Camper,
Colorado Bureau of Investigation Agent Joseph Cahill,
Colorado Bureau of Investigation Agent Megan Duge,
Colorado Bureau of Investigation Agent Caitlin Rogers,
Colorado Bureau of Investigation Agent Derek Graham,
Colorado Bureau of Investigation Agent Kevin Koback,
Colorado Bureau of Investigation Agent Kirby Lewis,
Colorado Bureau of Investigations Deputy Director of Investigations Chris
Schaefer,
Federal Bureau of Investigation Agent Jonathan Grusing,
Federal Bureau of Investigation Agent Kenneth Harris,
John/Jane Does 1-10,
and other unknown employees of the Eleventh Judicial District Attorney,
and other unknown officers of the Chaffee County Sheriff's Department.
___________________________

Let's review each claim separately-- beginning with Claim-1.
(Pg 143/185 - Case 1:23-cv-01108 Document 1 Filed 05/02/23 USDC Colorado).

CLAIM ONE: 42 U.S.C. § 1983 and Bivens16
Malicious Prosecution and unlawful detention
Defendant Officers, Defendant Prosecutors, Defendant FBI Agents, and
Defendants Cahill, Duge, Rogers, Graham, Koback, and Lewis

First, the main difference between a Bivens lawsuit and a claim under 42 U.S.C. § 1983 is that a Bivens claim covers the federal government and its agents. Section 1983 claims, by contrast, cover local or state officials or agencies.

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding.

Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983.

There is no constitutional right to be free from malicious prosecution. The better lens through which to analyze these claims, as the Court acknowledged in both Albright and Manuel,** is the Fourth Amendment.

By trying to force the malicious prosecution tort into the Constitution, the courts have remained faithful to neither tort principles nor constitutional principles.

While Justice Alito correctly noted in his Manuel dissent that there is a “severe mismatch” between the Fourth Amendment and the elements of malicious prosecution, the real failing of Manuel was not, as Justice Alito suggested, that it refused to answer the “malicious prosecution” question.

Rather, the problem with Manuel was the Court’s failure to specify the elements of the type of § 1983 claim it recognized in Manuel—namely, unlawful detention after the start of legal process in violation of the Fourth Amendment. (**Also see later, Thompson v Clark (4 April 2022)).

PROVE IT:

To prove malicious prosecution, the plaintiff must prove 3 things:

1) The defendant acted without probable cause and with malice toward the plaintiff.

2) But for the defendant's actions, the prosecution would not have proceeded.

3) The plaintiff did not engage in the alleged misconduct.*
(i.e., * The prosecution must not have ended in conviction).

IMO, BM cannot prove the defendants acted without probable cause-- rendering proof of 2 and 3 moot, and no basis for a jury to decide CLAIM ONE in his suit.

Example: Winfrey v. Rogers , 901 F.3d 483 (5th Cir. 2018)

Richard Winfrey (“Junior”) was arrested and charged with murder after a botched investigation and various alleged violations of Junior’s Fourth Amendment rights.

The State tried him on murder charges. The jury acquitted in 29 minutes. By that time, he had served 16 months in prison.

JUNIOR FILES A SECTION 1983 CLAIM:

Ever since the United States Supreme Court’s 1978 decision in Franks v. Delaware, “it has been clearly established that a defendant’s Fourth Amendment rights are violated if (1) the affiant, in support of the warrant, includes a false statement knowingly and intentionally, or with reckless disregard for the truth and (2) the allegedly false statement is necessary to the finding of probable cause.”

Yet, negligence alone will not defeat qualified immunity. A proven misstatement can vitiate an affidavit only if it is established that the misstatement was the product of deliberate falsehood or of reckless disregard for the truth. Recklessness requires proof that the defendant in fact entertained serious doubts as to the truth of the statement.

At the outset, the Court had to decide which constitutional provision was at issue.

The Court noted that although there is no “freestanding constitutional right to be free from malicious prosecution,” the initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protection – – the Fourth Amendment if the accused is seized and arrested, for example.

Because Junior alleged that Johnson signed an objectively unreasonable arrest warrant affidavit, the Court analyzed the case as a Fourth Amendment malicious prosecution claim.

Junior’s claim meets the first element of Franks​

The Court concluded that Junior alleged a clearly established constitutional violation. Under the first prong of Franks, Junior must present evidence that Johnson, through material omissions or otherwise, made “a false statement knowingly and intentionally, or with reckless disregard for the truth.”

Junior provided much evidence that Johnson made false statements in his affidavit. Those are outlined in the Court’s opinion. The Court concluded that the question of whether Johnson gave false information knowingly or in reckless disregard of the truth was for a jury to decide.

​

Junior was not out of the woods yet.​

Junior still had to meet the second prong of Franks – whether the allegedly false statement was necessary to the finding of probable cause by the judge who issued the arrest and search warrants.

Put another way, if the evidence presented to the judge would have established probable cause in the absence of Johnson’s false affidavit, Junior has a problem.

The Fifth Circuit explained: “To determine whether the false statement was necessary for this finding, Franks requires us to consider the faulty affidavit as if those errors and omissions were removed. We then must examine the ‘corrected affidavit’ and determine whether probable cause for the issuance of the warrant survives the deleted false statements and material omissions.

After examining the “totality of the circumstances,” the Court held that the “corrected affidavit” did not contain sufficient information to satisfy the probable cause requirement.

Put another way, had the state court judge been given a truthful affidavit, he would not have issued a warrant for Junior’s arrest.

IMO, BM cannot meet the first or second prong of Franks, and there is nothing false/questionable in BM's affidavit that if omitted, would cancel probable for BM's arrest or probable cause that bound the defendant's case over for trial as determined by Chafee County District Court Judge Murphy.

Latest Opinion: **THOMPSON v CLARK, Fourth Amendment Opinion of the Court -- April 2022.

 

[Seattle1]

Case 1:23-cv-01108 Document 1 Filed 05/02/23 USDC Colorado:

CLAIM ONE: 42 U.S.C. § 1983 and Bivens16 (pg 143/185).
Malicious Prosecution and unlawful detention
Defendant Officers, Defendant Prosecutors, Defendant FBI Agents, and
Defendants Cahill, Duge, Rogers, Graham, Koback, and Lewis

CLAIM TWO: 42 U.S.C. § 1983 Due Process and Bivens (pg 146/185).
– Fabrication of Evidence –
Defendants Walker, Cahill, Graham, Rohrich
Defendant Prosecutors, Defendant FBI Agents

CLAIM THREE: 42 U.S.C. § 1983 Due Process and Bivens (pg 149/185).
– Franks Claim -
Defendants who authored the Arrest Affidavit
Defendant Walker, Defendant Prosecutors Stanley and Lindsey,
Defendant CBI Agent Cahill, Defendant Officers Rohrich, Spezze, and
Graham, Defendant FBI Agents Grusing and Harris

CLAIM FOUR: 42 U.S.C. § 1983 and Bivens (pg 151/185).
– Conspiracy –
All Defendants

CLAIM FIVE: 42 U.S.C. § 1983 (pg 153/185).
– Due Process – Unlawful retention of property
Defendants Spezze, Stanley, Hurlbert, and the CCSD

CLAIM SIX: 42 U.S.C. § 1983 and Bivens (pg 155/185).
– Failure to Intervene –
All Defendants

CLAIM SEVEN: 42 U.S.C. § 1983 and Bivens (pg 157/185).
– Reckless Investigation –
Defendants CCSD, Defendant Officers, Defendant CBI Agents Cahill,
Duge, Rogers, Graham, Koback, Defendant FBI Agents, and Defendant
Prosecutors

CLAIM EIGHT: 42 U.S.C. § 1983 – Monell (pg 159/185).
- Final Policymakers, Ratification, Unconstitutional Official Policy and
Failure to Supervise and Train
Against Chaffee County, Board of County Commissioners of Chaffee
County, CCSD, Defendant Stanley acting in her official capacity, and
Defendant Spezze acting in his official capacity

STATE LAW CLAIMS

CLAIM NINE: Malicious Prosecution (state law) (pg 164/185).
Colo. Rev. Stat. § 13-21-131 – Violation of Colo. Const. Art. II,
Section 7 (Unlawful Seizure), Section 25 (due process), Section 3
(inalienable rights)
Defendant Officers, Defendant Prosecutors, and Defendants Cahill, Duge,
Rogers, Graham, Koback, and Lewis

CLAIM TEN: Fabrication of Evidence (pg 168/185).
Colo. Rev. Stat. § 13-21-131 – Violation of Colo. Const. Art. II,
Section 7 (Unlawful Seizure), Section 25 (due process), Section 3
(inalienable rights)
Defendants Officers, CBI Agents and
Defendant Prosecutors

CLAIM ELEVEN: False and Misleading Information in an Arrest
Warrant Affidavit and Omission and Concealment of Exculpatory
Information (state law) (pg 172/185).
Colo. Rev. Stat. § 13-21-131 – Violation of Colo. Const. Art. II,
Section 7 (Unlawful Seizure), Section 25 (due process), Section 3
(inalienable rights)
Defendant Walker, Defendant Prosecutors Stanley and Lindsey,
Defendant CBI Agent Cahill, Defendant Officers Rohrich, Spezze, and
Graham

CLAIM TWELVE: Conspiracy (state law) (pg 176/185).
Colo. Rev. Stat. § 13-21-131 – Violation of Colo. Const. Art. II,
Section 7 (Unlawful Seizure), Section 25 (due process), Section 3
(inalienable rights)
Defendants CCSD, Defendant Officers, Defendant CBI Agents, Defendant
Prosecutors

CLAIM THIRTEEN: Unlawful deprivation of property (state law) (pg 180/185).
Colo. Rev. Stat. § 13-21-131 – Violation of Colo. Const. Art. II,
Section 7 (Unlawful Seizure), Section 25 (due process), Section 3
(inalienable rights)
Defendants Spezze, Stanley, Hurlbert, and the CCSD

https://s3.documentcloud.org/documents/23795992/barry-morphew-lawsuit.pdf

 

[steeltowngirl]

^Thanks for that @Seattle1
So I guess he can try to sue the FBI agents.

What ever happened to his charge for attempting to influence public servants? Will the evidence supporting this allegation be allowed to be introduced by the defendants if BM is able to get his lawsuit to trial?

COUNT 5: ATTEMPT TO INFLUENCE A PUBLIC SERVANT, C.R.S. 18-8-306

https://twitter.com/x/status/1394762505956651011

 

[Seattle1]

Civil Rights attorneys are banking serious plata $$ in US District of Colorado civil awards!

Sharing a US District Court for the District of Colorado, pared down Plaintiff's malicious prosecution claim against Defendant Coleman pursuant to 42 U.S.C. Section 1983.

There's a reason why I dislike Civil litigation and it's all right here!

JUAN VALENZUELA v. KARL COLEMAN

Case 1:18-cv-00329-CMA-STV Document 183 Filed 07/07/22 USDC Colorado

________________

This case arises from an incident on February 15, 2017, when Plaintiff Juan Valenzuela attempted to board a flight at Denver International Airport. When asked to show identification at a screening checkpoint, Plaintiff produced an authentic, expired California ID card that was perceptibly damaged. TSA agents and Denver Police Department officials who examined the ID card believed the card might have been altered in some way. Eventually, Plaintiff was booked and detained.

Defendant Karl Coleman, a Denver police officer, drafted a probable cause statement (“PC Statement”) that stated:

The probable cause of the arrest of the above-named individual is as follows: [That on 02-15-2017 at approximately 5:55 am the aforementioned defendant—Juan Daniel Valenzuela—did knowingly and willfully violate CRS 18-5-102(e) Forgery of a Government Document in that; he did attempt to access A Concourse through TSA A Screening checkpoint at DIA at 8500 Pena Blvd Denver, CO 80249 to catch a Spirit Airlines flight using a forged CA ID . . . as his government identification].

The above statement is true and believable based upon the personal knowledge and observations of TSA officer Rebecca Peterson and the investigations of Ofc Craven and Cpl Wilkerson.

Plaintiff was transported to the Denver Detention Center and appeared before a judge the next day, after which the district attorney charged Plaintiff with felony forgery. As a result, Plaintiff lost his job as a correctional officer.

Three months later, the district attorney determined that Plaintiff’s ID card was not forged and moved to dismiss the charges.

The Court held a jury trial from February 28, 2022, to March 3, 2022.

Plaintiff provided evidence at summary judgment showing that (1) at a hearing on February 16, 2017, the state court judge found that probable cause existed for forgery at the time of the arrest, and (2) the booking and Sheriff’s Department records, including the Bond Case Review documents, include only Defendant’s PC Statement as a basis for this finding of probable cause.

On March 3, 2022, the jury returned a verdict in favor of Plaintiff, awarding Plaintiff $200,000 in compensatory damages and $300,000 in punitive damages.

The Court entered final judgment in favor of Plaintiff and against Defendant on March 8, 2022, and on April 13, 2022, the Clerk of Court taxed costs in the amount of $12,000 against Defendant pursuant to the parties’ stipulation. (See pg 26).

DEFENDANT’S RENEWED MOTION UNDER FED. R. CIV. P. 50(b) OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL OR ALTERATION OR AMENDMENT OF THE JUDGMENT UNDER FED. R. CIV. P. 59

Defendant argues that he is entitled to judgment as a matter of law under Fed. R. Civ. P. 50(b) because the evidence at trial was insufficient to demonstrate that Defendant (1) acted with malice in submitting the probable cause statement or (2) had the requisite mens rea for an award of punitive damages.

How did the court determine the defendant acted with malice when submitting the one-paragraph probable cause statement? (See pg 6).

Why did Plaintiff prevail on probable cause? (See pg 15-20).

Why did the jury assess punitive damages? (See pg 9).

How did the Defendant violate Plaintiff’s Fourth Amendment rights?
(See pg 13).

Reasonable Attorneys rates/fees? (See pg 38).

PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS (pgs 31-40)

Plaintiff requests the Court award $580,792.50 for approximately 1,357 hours of attorney time (Doc. # 149 at 9), plus a supplemental amount of $21,476.50 for approximately 48.5 hours spent on the post-trial motions addressed in this Order (Doc. # 182 at 2), for a total of $602,269 in attorney fees.

https://www.govinfo.gov/content/pkg/USCOURTS-cod-1_18-cv-00329/pdf/USCOURTS-cod-1_18-cv-00329-3.pdf

 

[Seattle1]

Colorado Reasonable Civil Rights Attorneys Fees per hour for work performed in a § 1983 action. [July 7, 2022].

A. APPLICABLE LAW

In a civil rights action under 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b).

Because the purpose of § 1988 is to ensure “effective access to the judicial process,” a prevailing plaintiff in a § 1983 case “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citations omitted).

If no question that Plaintiff is the prevailing party, the only inquiry is whether Plaintiff has established that the fee request is “reasonable.” Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th Cir. 1998).

When evaluating a motion for attorney fees, the Court follows the three-step process set forth in Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), overruled on other grounds by Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711 (1987).

The first step in determining a fee award is to determine the number of hours reasonably spent by counsel for the prevailing party. Malloy v. Monahan, 73 F.3d 1012, 1017 (10th Cir. 1996); Ramos, 713 F.2d at 553.

Time spent by counsel that is “excessive, redundant, or otherwise unnecessary” is not compensable. Hensley, 461 U.S. at 434. “The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” Id. at 433.

Next, the Court must determine a reasonable hourly rate of compensation. Ramos, 713 F.2d at 555. “A reasonable rate is the prevailing market rate in the relevant community.” Malloy, 73 F.3d at 1018. The party seeking the award has the burden of persuading the Court that the hours expended, and the hourly rate, are reasonable. Id.

Finally, at step three, the Court must multiply the reasonable hourly rate by the number of hours reasonably expended to determine the lodestar amount. Id

B. ANALYSIS

1. Reasonableness of the Hours Expended

In determining the reasonableness of the hours expended, the Court considers several factors, including:

(1) whether the amount of time spent on a particular task appears reasonable in light of the complexity of the case, the strategies pursued, and the responses necessitated by an opponent’s maneuvering;

(2) whether the amount of time spent is reasonable in relation to counsel's experience; and

(3) whether the billing entries are sufficiently detailed, showing how much time was allotted to specific task. See Shaw v. AAA Engineering & Drafting, Inc., 213 F.3d 538, 542 (10th Cir. 2000); Ramos, 713 F.2d at 553–55.

Counsel has the burden of proving hours to the district court by “submitting meticulous, contemporaneous time records.” Case v. Unified Sch. Dist. No. 233, Johnson Cnty., 157 F.3d 1243, 1250 (10th Cir. 1998).

Once the Court “has adequate time records before it, it must then ensure that the winning attorneys have exercised ‘billing judgment.’” Id. (quoting Ramos, 713 F.2d at 553). “Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended.”

a. Block Billing

“‘Block-billing’ refers to the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks.” Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1554 n.15 (10th Cir. 1996).

The Tenth Circuit does not have a per se rule against block billing; however, the Court “may discount requested attorney hours if the attorney fails to keep ‘meticulous, contemporaneous records’ that reveal ‘all hours for which compensation is requested and how those hours were allotted to specific tasks.’” Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000) (quoting Ramos, 713 F.2d at 553) (emphasis omitted).

After carefully considering the parties’ arguments, Plaintiff’s exhibits, and the applicable case law, the Court concludes that Plaintiff’s requested hourly billing rates are reasonable for civil rights attorneys of comparable skill and experience in the local market. See, e.g., Valdez, 2022 WL 1092182, at *3 (approving hourly rates of $575 to $595 per hour for work performed by shareholders and special counsel and $375 per hour for work performed by associates in a § 1983 action).

As such, the Court will apply the hourly billable rates requested by Plaintiff in determining the appropriate fee award.

Reference: [7 July 2022 -- Case 1:18-cv-00329-CMA-STV -- USDC Colorado]

 

[mrjitty]

Why? Could he not say i saw it was expired so I threw it in my truck to toss with some other stuff.

Sure but this is disastrous for a few reasons

1. He surely was not planning to testify in his own defence given the huge problems in his pre-trial interviews

2. Any testimony he gives at trial or depo will be admissible in any future criminal trial

3. he can be cross examined in the civil case.

The big problem in his civil case is he needs to contradict his pre-trial statements - e.g about running around the house and turning left where he was 'cruelly tricked". But that will be a huge problem at any criminal trial because then the prosecution have yet more problematic versions to play the jury

So in your example, if he says that in the civil case it will be a big problem in the criminal case because he never said that to investigators and is obviously coming up with a better lie later on.

 

[mrjitty]

In BM's Civil action, he alleges twelve thirteen separate claims of civil rights violations by the following defendants:

Chaffee County, Colorado,
Board of County Commissioners of Chaffee County, Colorado,
Chaffee County Sheriff’s Department,
District Attorney Linda Stanley, in her individual and official capacity,
Chaffee County Sheriff John Spezze, in his individual and official capacity,
Chaffee County Undersheriff Andrew Rohrich,
Eleventh Judicial District Attorney’s Office Investigator Alex Walker,
Deputy District Attorney Jeffrey Lindsey,
Deputy District Attorney Mark Hurlbert,
Chaffee County Sheriff’s Detective Robin Burgess,
Chaffee County Sheriff’s Deputy Randy Carricato,
Chaffee County Sheriff’s Deputy Scott Himschoot,
Chaffee County Sheriff’s Sergeant Claudette Hysjulien.
Chaffee County Sheriff’s Sergeant William Plackner,
Colorado Bureau of Investigation Director John Camper,
Colorado Bureau of Investigation Agent Joseph Cahill,
Colorado Bureau of Investigation Agent Megan Duge,
Colorado Bureau of Investigation Agent Caitlin Rogers,
Colorado Bureau of Investigation Agent Derek Graham,
Colorado Bureau of Investigation Agent Kevin Koback,
Colorado Bureau of Investigation Agent Kirby Lewis,
Colorado Bureau of Investigations Deputy Director of Investigations Chris
Schaefer,
Federal Bureau of Investigation Agent Jonathan Grusing,
Federal Bureau of Investigation Agent Kenneth Harris,
John/Jane Does 1-10,
and other unknown employees of the Eleventh Judicial District Attorney,
and other unknown officers of the Chaffee County Sheriff's Department.
___________________________

Let's review each claim separately-- beginning with Claim-1.
(Pg 143/185 - Case 1:23-cv-01108 Document 1 Filed 05/02/23 USDC Colorado).

CLAIM ONE: 42 U.S.C. § 1983 and Bivens16
Malicious Prosecution and unlawful detention
Defendant Officers, Defendant Prosecutors, Defendant FBI Agents, and
Defendants Cahill, Duge, Rogers, Graham, Koback, and Lewis

First, the main difference between a Bivens lawsuit and a claim under 42 U.S.C. § 1983 is that a Bivens claim covers the federal government and its agents. Section 1983 claims, by contrast, cover local or state officials or agencies.

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding.

Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983.

There is no constitutional right to be free from malicious prosecution. The better lens through which to analyze these claims, as the Court acknowledged in both Albright and Manuel,** is the Fourth Amendment.

By trying to force the malicious prosecution tort into the Constitution, the courts have remained faithful to neither tort principles nor constitutional principles.

While Justice Alito correctly noted in his Manuel dissent that there is a “severe mismatch” between the Fourth Amendment and the elements of malicious prosecution, the real failing of Manuel was not, as Justice Alito suggested, that it refused to answer the “malicious prosecution” question.

Rather, the problem with Manuel was the Court’s failure to specify the elements of the type of § 1983 claim it recognized in Manuel—namely, unlawful detention after the start of legal process in violation of the Fourth Amendment. (**Also see later, Thompson v Clark (4 April 2022)).

PROVE IT:

To prove malicious prosecution, the plaintiff must prove 3 things:

1) The defendant acted without probable cause and with malice toward the plaintiff.

2) But for the defendant's actions, the prosecution would not have proceeded.

3) The plaintiff did not engage in the alleged misconduct.*
(i.e., * The prosecution must not have ended in conviction).

IMO, BM cannot prove the defendants acted without probable cause-- rendering proof of 2 and 3 moot, and no basis for a jury to decide CLAIM ONE in his suit.

Example: Winfrey v. Rogers , 901 F.3d 483 (5th Cir. 2018)

Richard Winfrey (“Junior”) was arrested and charged with murder after a botched investigation and various alleged violations of Junior’s Fourth Amendment rights.

The State tried him on murder charges. The jury acquitted in 29 minutes. By that time, he had served 16 months in prison.

JUNIOR FILES A SECTION 1983 CLAIM:

Ever since the United States Supreme Court’s 1978 decision in Franks v. Delaware, “it has been clearly established that a defendant’s Fourth Amendment rights are violated if (1) the affiant, in support of the warrant, includes a false statement knowingly and intentionally, or with reckless disregard for the truth and (2) the allegedly false statement is necessary to the finding of probable cause.”

Yet, negligence alone will not defeat qualified immunity. A proven misstatement can vitiate an affidavit only if it is established that the misstatement was the product of deliberate falsehood or of reckless disregard for the truth. Recklessness requires proof that the defendant in fact entertained serious doubts as to the truth of the statement.

At the outset, the Court had to decide which constitutional provision was at issue.

The Court noted that although there is no “freestanding constitutional right to be free from malicious prosecution,” the initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protection – – the Fourth Amendment if the accused is seized and arrested, for example.

Because Junior alleged that Johnson signed an objectively unreasonable arrest warrant affidavit, the Court analyzed the case as a Fourth Amendment malicious prosecution claim.

Junior’s claim meets the first element of Franks​

The Court concluded that Junior alleged a clearly established constitutional violation. Under the first prong of Franks, Junior must present evidence that Johnson, through material omissions or otherwise, made “a false statement knowingly and intentionally, or with reckless disregard for the truth.”

Junior provided much evidence that Johnson made false statements in his affidavit. Those are outlined in the Court’s opinion. The Court concluded that the question of whether Johnson gave false information knowingly or in reckless disregard of the truth was for a jury to decide.

​

Junior was not out of the woods yet.​

Junior still had to meet the second prong of Franks – whether the allegedly false statement was necessary to the finding of probable cause by the judge who issued the arrest and search warrants.

Put another way, if the evidence presented to the judge would have established probable cause in the absence of Johnson’s false affidavit, Junior has a problem.

The Fifth Circuit explained: “To determine whether the false statement was necessary for this finding, Franks requires us to consider the faulty affidavit as if those errors and omissions were removed. We then must examine the ‘corrected affidavit’ and determine whether probable cause for the issuance of the warrant survives the deleted false statements and material omissions.

After examining the “totality of the circumstances,” the Court held that the “corrected affidavit” did not contain sufficient information to satisfy the probable cause requirement.

Put another way, had the state court judge been given a truthful affidavit, he would not have issued a warrant for Junior’s arrest.

IMO, BM cannot meet the first or second prong of Franks, and there is nothing false/questionable in BM's affidavit that if omitted, would cancel probable for BM's arrest or probable cause that bound the defendant's case over for trial as determined by Chafee County District Court Judge Murphy.

Latest Opinion: **THOMPSON v CLARK, Fourth Amendment Opinion of the Court -- April 2022.

Thanks @Seattle1 - even before you detailed analysis, it seemed a nonsense because the Judge found probable cause. So short of proving the prosecution simply manufactured evidence - BM has no case?

After all, this was all argued out at the prelim and the judge found more than probable cause for arrest! He sent it to trial!

If this conspiracy really existed, how come IEs arguments were all rejected at the prelim?

She seems to be trying to rerun the prelim in a civil court

 

[I am not Sherlock H.]

Thanks @Seattle1 - even before you detailed analysis, it seemed a nonsense because the Judge found probable cause. So short of proving the prosecution simply manufactured evidence - BM has no case?

After all, this was all argued out at the prelim and the judge found more than probable cause for arrest! He sent it to trial!

If this conspiracy really existed, how come IEs arguments were all rejected at the prelim?

She seems to be trying to rerun the prelim in a civil court

One also has to wonder if this might be related to intimidation perhaps. As others posted above, are there means to attempt this action towards public or state authorities in civil court? Or do other more recent court cases complicate or prevent it?

And if much of the evidence the state and prosecutors might use to refute this civil proceeding might still be confidential and not released (based on desire to later prosecute) - might it be an attempt to ’see the prosecution’s hand’?

If the state prosecutors (or federal if it might ultimately wind up there) cannot or do not respond in open court, could that render a default judgment or other effect?

I am not an attorney, so who knows how this plays out. But it seems to be a high wire act perhaps?

Isn‘t there an old legal adage used….. if the facts are on your side, argue the facts; if legal instruments are on your side argue them; if neither, pound the table?
MOO

 

[Niner]

Not much activity on the federal docket since BM's complaint was filed on May 2, 2023, except he added another attorney of record, Cahill now has an attorney, and a scheduling conference on the calendar for August.

I believe Federal employees have 60 days to answer but I'm not sure about the others. (Generally, it's 21 days to file an answer).

CO - Suzanne Morphew, 49, Chaffee County, 10 May 2020 , MEDIA,MAPS,TIMELINE *NO DISCUSSION*

https://abcnews.go.com/US/suzanne-morphew-husband-daughters-lawsuit/story?id=99247022 5/15/23 It's been just over three years since Suzanne Morphew vanished on Mother's Day. Now, her husband and their two daughters are speaking out for the first time since filing a $15 million lawsuit claiming...

www.websleuths.com

I guess I shall keep notes on this civil case. And you mentioned a scheduling hearing in August for Cahill - is there an actual date & is this ONLY for Cahill or others also?

TIA!

 

[Seattle1]

I guess I shall keep notes on this civil case. And you mentioned a scheduling hearing in August for Cahill - is there an actual date & is this ONLY for Cahill or others also?

TIA!

Thanks for starting notes for the Civil Case! However, take note that the scheduling conference is not for Cahill alone, it applies to all the defendants and plaintiffs.

See the MEDIA ONLY thread for the full docket.

Docket Update at 5/25/23

Date Filed # Docket Text

05/05/2023 #5
MINUTE ORDER. Pursuant to D.C.COLO.LCivR 40.1(c)(4), the deadline to file the Consent/Non−Consent to United States Magistrate Judge Jurisdiction form [#4] is August 15, 2023. by Magistrate Judge Kristen L. Mix on 5/5/2023. Text Only Entry (klmlc2, ) (Entered: 05/05/2023)

05/05/2023 #6
ORDER SETTING SCHEDULING/PLANNING CONFERENCE by Magistrate Judge Kristen L. Mix on May 5, 2023. Proposed Scheduling Order due 8/22/2023 Scheduling Conference set for 8/29/2023 11:00 AM in Courtroom A 401 before Magistrate Judge Kristen L. Mix. (Attachments: # 1 Instructions for Preparation of Scheduling Order, # 2 Proposed Order (PDF Only)) (csarr, ) (Entered: 05/05/2023)

05/11/2023 #7
NOTICE of Entry of Appearance by Scott Aaron Neckers on behalf of Joseph CahillAttorney Scott Aaron Neckers added to party Joseph Cahill(pty:dft) (Neckers, Scott) (Entered: 05/11/2023)

05/17/2023 #8
NOTICE of Entry of Appearance by Hollis Ann Whitson on behalf of All Plaintiffs Attorney Hollis Ann Whitson added to party Barry Morphew(ptyla) (Whitson, Hollis) (Entered: 05/17/2023)

CM/ECF - U.S. District Court:cod

ecf.cod.uscourts.gov

 

[Niner]

Thanks for starting notes for the Civil Case! However, take note that the scheduling conference is not for Cahill alone, it applies to all the defendants and plaintiffs.

See the MEDIA ONLY thread for the full docket.

Thanks! I did see your post in the Media thread & updated my notes. I shall keep track of the hearings.

 

[Momofthreeboys]

^Thanks for that @Seattle1
So I guess he can try to sue the FBI agents.

What ever happened to his charge for attempting to influence public servants? Will the evidence supporting this allegation be allowed to be introduced by the defendants if BM is able to get his lawsuit to trial?

COUNT 5: ATTEMPT TO INFLUENCE A PUBLIC SERVANT, C.R.S. 18-8-306

https://twitter.com/x/status/1394762505956651011

I am assuming if he ever is recharged criminally it is possible the charges could change that it may not be an exact re-do of the dismissed trial.

 

[Seattle1]

Thanks @Seattle1 - even before you detailed analysis, it seemed a nonsense because the Judge found probable cause. So short of proving the prosecution simply manufactured evidence - BM has no case?

After all, this was all argued out at the prelim and the judge found more than probable cause for arrest! He sent it to trial!

If this conspiracy really existed, how come IEs arguments were all rejected at the prelim?

She seems to be trying to rerun the prelim in a civil court

Because this is a Civil Case (and the length of the plaintiff's argument against probable cause), I'm concerned that the Court will rule that probable cause is for the jury to decide!

In the 2022 Colorado Case cited below, the jury not only decided against the district court judge who found probable cause for arrest, and the prosecutor filing the charges, but also decided there was malice by the arresting police officer/defendant. (Court instructed the jury on malice inference). “Malice may be inferred if a defendant causes the prosecution without arguable probable cause.” And malice opened the defendant to punitive damages.

The defendant argued negligence at best but not malice.

In other words, seems if the jury believes the arrest warrant violates the plaintiff's Fourth Amendment, it's reason to vitiate probable cause by the judge.

I dunno -- placing probable cause in the hands of jurors makes me very nervous -- especially if it's being explained by a spinning hurricane a la IE!

How did the court determine the defendant acted with malice when submitting the one-paragraph probable cause statement? (See pg 6).

Why did Plaintiff prevail on probable cause? (See pg 15-20).

Why did the jury assess punitive damages? (See pg 9).

How did the Defendant violate Plaintiff’s Fourth Amendment rights?
(See pg 13).

 

[steeltowngirl]

I am assuming if he ever is recharged criminally it is possible the charges could change that it may not be an exact re-do of the dismissed trial.

Not a Morphew criminal trial redo. I was considering whether Barry’s alleged past attempt to influence public servants will be brought up by the FBI, CBI, etc. at a civil trial - if BM’s suit ever gets that far.

 

[waldojabba]

Sure but this is disastrous for a few reasons

1. He surely was not planning to testify in his own defence given the huge problems in his pre-trial interviews

2. Any testimony he gives at trial or depo will be admissible in any future criminal trial

3. he can be cross examined in the civil case.

The big problem in his civil case is he needs to contradict his pre-trial statements - e.g about running around the house and turning left where he was 'cruelly tricked". But that will be a huge problem at any criminal trial because then the prosecution have yet more problematic versions to play the jury

So in your example, if he says that in the civil case it will be a big problem in the criminal case because he never said that to investigators and is obviously coming up with a better lie later on.

@mrjitty I might add to your logical reasons described above, that any testimoney from BM has the potential to be disasterous, also in my opinion, bc he does not like ot be questioned or held accountable. We all know how questioning him and holding him accountable worked out for Suzanne IMO. He likes to be in control. And his acting skills are so transparent JMO

 

[Seattle1]

From A Guide to Civil Lawsuits in the United States District Court for the District of Colorado [Jan 1, 2020]:

http://www.cod.uscourts.gov/Portals/0/Documents/Forms/CivilForms/Civil_Lawsuit_Guide.pdf

 

[Seattle1]

Docket Update at 5/25/23

Date Filed # Docket Text

05/05/2023 #5
MINUTE ORDER. Pursuant to D.C.COLO.LCivR 40.1(c)(4), the deadline to file the Consent/Non−Consent to United States Magistrate Judge Jurisdiction form [#4] is August 15, 2023. by Magistrate Judge Kristen L. Mix on 5/5/2023. Text Only Entry (klmlc2, ) (Entered: 05/05/2023)

The Magistrate currently assigned to this case (Kristen Mix) may/may not hear the case-- pending consent by the parties (due 8/15/23). Generally, the US Magistrate Judge handles pretrial motions and hearings and enters scheduling orders. If the parties do not consent to Judge Mix presiding over the case, it will be turned over to a US District Judge for trial.

Judge Mix presents as a stickler for Attorneys hashing out discovery between themselves but also provides the parties with a strict, 4-page Discovery Dispute Hearing Procedure, including the requirement of a "Written Discovery Dispute Chart" (requests for production, interrogatories, etc.) where the moving party must send the chart, the disputed discovery requests and the disputed responses to opposing counsel and to the Court where a hearing will be set to hear the dispute within 3 days. (See Magistrate Judge Kristen L. Mix's Practice Standards & Chart linked below).

From recall, having to document written disputed discovery to both opposing counsel and the court in advance of a hearing request was problematic for IE -- who repeatedly ignored the Court's request to specify in writing exactly what defense alleged outstanding -- but instead preferred to argue her version without advance notice. Of course, no paper trail here worked to the defense's advantage when they had the initial district court judge replaced. MOO

Magistrate Judge Kristen L. Mix​

Alfred A. Arraj United States Courthouse A441 / Courtroom A401

(303) 335-2770

Requirements of Practice	(PDF)​	​	​
Written Discovery Dispute Chart	(PDF)​	(WPD)​	(DOC)​
Rule 502(d) Stipulated Order	(PDF)​	​	​
Patent Scheduling Order	(PDF)​	​	​
Exhibit List	(PDF)​	(WPD)​	​
Witness List	(PDF)​	(WPD)​	​
Civil Trial Practice Standards	(PDF)​	(WPD)​	​
Civil Jury Instructions	(PDF)​	(WPD)​

US District Court - District of Colorado

 

[Momofthreeboys]

Because this is a Civil Case (and the length of the plaintiff's argument against probable cause), I'm concerned that the Court will rule that probable cause is for the jury to decide!

In the 2022 Colorado Case cited below, the jury not only decided against the district court judge who found probable cause for arrest, and the prosecutor filing the charges, but also decided there was malice by the arresting police officer/defendant. (Court instructed the jury on malice inference). “Malice may be inferred if a defendant causes the prosecution without arguable probable cause.” And malice opened the defendant to punitive damages.

The defendant argued negligence at best but not malice.

In other words, seems if the jury believes the arrest warrant violates the plaintiff's Fourth Amendment, it's reason to vitiate probable cause by the judge.

I dunno -- placing probable cause in the hands of jurors makes me very nervous -- especially if it's being explained by a spinning hurricane a la IE!

I'm comfortable with juries. I think they get things right more often than wrong and a civil case is even easier since decisions are weighted for both sides.

The Magistrate currently assigned to this case (Kristen Mix) may/may not hear the case-- pending consent by the parties (due 8/15/23). Generally, the US Magistrate Judge handles pretrial motions and hearings and enters scheduling orders. If the parties do not consent to Judge Mix presiding over the case, it will be turned over to a US District Judge for trial.

Judge Mix presents as a stickler for Attorneys hashing out discovery between themselves but also provides the parties with a strict, 4-page Discovery Dispute Hearing Procedure, including the requirement of a "Written Discovery Dispute Chart" (requests for production, interrogatories, etc.) where the moving party must send the chart, the disputed discovery requests and the disputed responses to opposing counsel and to the Court where a hearing will be set to hear the dispute within 3 days. (See Magistrate Judge Kristen L. Mix's Practice Standards & Chart linked below).

From recall, having to document written disputed discovery to both opposing counsel and the court in advance of a hearing request was problematic for IE -- who repeatedly ignored the Court's request to specify in writing exactly what defense alleged outstanding -- but instead preferred to argue her version without advance notice. Of course, no paper trail here worked to the defense's advantage when they had the initial district court judge replaced. MOO

Magistrate Judge Kristen L. Mix​

Alfred A. Arraj United States Courthouse A441 / Courtroom A401

(303) 335-2770

Requirements of Practice	(PDF)​	​	​
Written Discovery Dispute Chart	(PDF)​	(WPD)​	(DOC)​
Rule 502(d) Stipulated Order	(PDF)​	​	​
Patent Scheduling Order	(PDF)​	​	​
Exhibit List	(PDF)​	(WPD)​	​
Witness List	(PDF)​	(WPD)​	​
Civil Trial Practice Standards	(PDF)​	(WPD)​	​
Civil Jury Instructions	(PDF)​	(WPD)​

US District Court - District of Colorado

I would assume since Iris is not lead on this civil trial the responsibility will be on the civil attorneys who should be well versed on procedures in civil court.

 

[Seattle1]

Seriously @Momofthreeboys -- nobody here believes Eytan a civil rights litigator! I recall when she was admitted to the U.S. District Court for the District of CA but I can't say for certain she's admitted in the District of Colorado.

To be crystal clear, it's IE's erroneous allegations that are cited in the 13 Civil Claims against the defendants. Since you couldn't keep current with the criminal case, you really owe it to yourself to read the civil complaint together with Title 42 U.S.C. Section 1983 (and Bivens 16) since 8/13 claims are charged under this Title.

And please explain how a civil case is even easier and exactly which decisions are weighted for both sides. What does this even mean in the context of a right guaranteed by the U.S. Constitution?

 

[Momofthreeboys]

Not a Morphew criminal trial redo. I was considering whether Barry’s alleged past attempt to influence public servants will be brought up by the FBI, CBI, etc. at a civil trial - if BM’s suit ever gets that far.

Ah who knows unless it comes up under malicious prosecution or one of the similar of the 13 claims. That one always left me scratching my head at the original trial.