FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. No. 1:12-CV-01520-WJM-NYW)
Malcolm S. Mead (Thomas J. Lyons and Mark J. Ratner, with him
on the briefs), Hall & Evans, L.L.C., Denver, Colorado,
appearing for Appellant.
C. Wennogle (Reid A. Page, with him on the brief), Stinson
Leonard Street, LLP, Greenwood Village, Colorado, appearing
MATHESON, McKAY, and MORITZ, Circuit Judges.
MATHESON, Circuit Judge.
Margheim sued Emela Buljko, a deputy district attorney in
Colorado, under 42 U.S.C. § 1983 for malicious
prosecution in violation of his Fourth Amendment rights. In
this interlocutory appeal, Ms. Buljko asks us to reverse the
district court's summary judgment order denying her
absolute and qualified immunity.
Ms. Buljko raised the qualified immunity defense in district
court, Mr. Margheim had the burden to show a violation of
clearly established federal law. He failed to show an
essential element of his malicious prosecution claim to
establish a constitutional violation. For this reason, we
reverse and remand with instructions to grant qualified
immunity to Ms. Buljko.
case arose from Mr. Margheim's involvement in three state
criminal matters-two domestic violence cases and a later drug
case. His malicious prosecution claim is based
on his prosecution in the drug case, but the three cases are
tied together. Because the timing of events is central to Mr.
Margheim's claim, the facts are best expressed
January 2010, police arrested Mr. Margheim in his Greeley,
Colorado home on suspicion of domestic violence against his
girlfriend. Weld County prosecutors then initiated a criminal
prosecution-the First D.V. Case. To remain free while that
case was pending, Mr. Margheim posted a $3, 000 bond. As a
standard condition of his release, he had to comply with a
protection order and avoid contacting his
March 2010, Mr. Margheim failed to attend a pre-trial
conference. The Weld County court issued a warrant for his
arrest, ordered the $3, 000 bond forfeited, and ruled Mr.
Margheim would have to post a new $6, 000 bond if he wanted
to remain free pending resolution of the First D.V. Case.
April 10, 2010, police arrested Mr. Margheim. The record
reveals little about the circumstances of this arrest, but
Weld County prosecutors filed new charges-the Second D.V.
Case-based on suspicion Mr. Margheim had violated the
protection order. At this point, Mr. Margheim's original
bond in the First D.V. Case had been forfeited, and although
the Weld County court had announced the new bond would be set
at $6, 000, Mr. Margheim had yet to post the new bond.
April 12, 2010-two days after his arrest-Mr. Margheim posted
the new $6, 000 bond in the First D.V. Case and was again
April 22, 2010, Ms. Buljko filed a motion in the First D.V.
Case requesting the Weld County court (1) revoke the $6, 000
bond and (2) issue a warrant for Mr. Margheim's arrest so
he could be brought before the court to address the
state's motion to revoke bond.
basis for her motion, Ms. Buljko said in a sworn statement
that Mr. Margheim had "failed to comply with the
protection order" and therefore had a "new
offense." Aplt. App. at 53. Mr. Margheim's failure
to comply with the protection order before his April 10
arrest had led to the charges in the Second D.V. Case. But
Mr. Margheim had no "new" offense since posting the
$6, 000 bond on April 12. Ms. Buljko's April 22 motion to
revoke was thus based on conduct that occurred before Mr.
Margheim's April 10 arrest, conduct that could not be
"new" relative to the $6, 000 bond posted April 12.
As Ms. Buljko's counsel said at oral argument, "the
timing was wrong"; Ms. Buljko's statement to the
Weld County court was "incorrect." Oral Arg. at
4:01-27; see also Aplt. Br. at 5 (conceding there
was no "new offense" relative to the $6, 000 bond).
April 23, the Weld County court issued the arrest warrant
based on Ms. Buljko's inaccurate statement.
7, police arrested Mr. Margheim pursuant to the warrant.
Incident to that arrest, police searched Mr. Margheim and
found drugs. This discovery led Weld County prosecutors to
institute a third prosecution-the Drug Case. According to his
complaint here, Mr. Margheim was held in pre-trial detention
in the Drug Case for approximately six months.
the Drug Case went to trial, Mr. Margheim moved to suppress
the drug evidence. The Weld County court granted that motion
after concluding the arrest warrant on which Mr. Margheim had
been arrested lacked probable cause due to Ms. Buljko's
inaccurate statement. Soon after the court granted Mr.
Margheim's motion to suppress, the Weld County District
Attorney's Office dismissed the Drug Case.
2012, Mr. Margheim filed this lawsuit in federal court. His
operative complaint asserted a single claim for malicious
prosecution against Ms. Buljko in both her individual and
official capacities. Mr. Margheim alleged Ms. Buljko's
false statement in the arrest warrant application led to the
issuance of the warrant, his arrest, the discovery of the
drugs, the drug charge, and his prolonged pre-trial
Buljko moved for summary judgment. She argued: (1) Mr.
Margheim's claim failed as a matter of law; (2) her
actions as a prosecutor entitled her to absolute immunity;
(3) she was entitled to qualified immunity; and (4) the
Eleventh Amendment barred the claim against her in her
district court granted summary judgment to Ms. Buljko on the
official capacity claim, and that issue is not before us. The
court otherwise denied Ms. Buljko's motion. This
interlocutory appeal concerns the district court's order
denying her absolute and qualified immunity on the individual
district court looked to our decision in Wilkins v.
DeReyes, 528 F.3d 790 (10th Cir. 2008), for the elements
a § 1983 plaintiff must show to establish a malicious
(1) the defendant caused the plaintiff's continued
confinement or prosecution;
(2) the original action terminated in favor of the plaintiff;
(3) no probable cause supported the original arrest,
continued confinement, or prosecution;
(4) the defendant acted with malice; and (5)the plaintiff
Id. at 799.
Buljko argued Mr. Margheim's claim failed on the second
element- favorable termination-because he pled guilty in the
First D.V. Case. The district court rejected this argument.
The relevant case, the court ruled, was not the First D.V.
Case but rather the Drug Case because Mr. Margheim's
theory of liability was that Ms. Buljko's application for
the arrest warrant led to his pre-trial detention in the Drug
Case. The district court then ruled the Drug Case ended
favorably for Mr. Margheim because the charges were
dismissed. It concluded Ms. Buljko was "not
presently entitled" to summary judgment. Aplt. App. at
district court expressed concern, however, about advancing
the case to a jury based on Mr. Margheim's meager
evidence on the malice element. His theory, the court
observed, seemed to be that Ms. Buljko had not carefully
reviewed his file to check on the timing of events before she
filed the motion to revoke and accompanying arrest warrant
application. In the court's view, this was a negligence
theory and would be insufficient as a matter of law.
district court invited Ms. Buljko to file a supplemental
summary judgment motion "focused specifically on the
malice element." Id. at 170. It included this
invitation as part of its order denying summary judgment on
March 11, ...