PUBLISH

UNITED STATES CO URT OF APPEALS

TENTH CIRCUIT

JEREMY C. MYERS,Plaintiff – Appellant/ CrossAppellee, v. BRIAN KOOPMAN, Detective in the Loveland, Colorado Police Department, in his individual capacity,Defendant – Appellee/ CrossAppellant. Nos. 12-1482, 12-1487

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:09-CV-02802-REB-MEH)

Joseph Paul Fonfara of Fonfar a Law Offices, Fort Collins, Colorado, (Randall Meyers of Law Office of Randall R. Meyers, Fort Co llins, Colorado, with him on the briefs) for Plaintiff – Appellant/Cross-Appellee. Kent N. Campbell of Wick & Trautwein, LLC, Fort Collins, Colorado, for Defendant – Appellee/Cross-Appellant.

Before BRISCOE , Chief Circuit Judge, O'BRIEN and PHILLIPS , Circuit Judges.

PHILLIPS , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### December 20, 2013

Elisabeth A. Shumaker Clerk of Court- 2 - Jeremy Myers challenges the district c ourt’s dismissal of his § 1983 maliciousprosecution claim alleging viola tions of his Fourth and Four teenth Amendment rights. In his complaint, he asserted that Detective Brian Koopman obtained an arrest warrant by fabricating facts to create the illusion of pr obable cause. As a resu lt, Myers spent three days in custody. Exercising jurisdiction under 28 U.S.C. § 12 91, we conclude that the district court rightly dismissed Myers’ Fourteenth Amendm ent claim because an adequate state remedy existed, but we conclude that the district court improperly dismissed Myers’ Fourth Amendment malicious prosecution claim as un timely after recasting it as a claim for false imprisonment. In fact, Myers correctly styl ed his Fourth Amendment claim as one for malicious prosecution because he was seized after the institution of legal process. The malicious prosecution claim is timely. Accord ingly, we reverse the dismissal of that

claim.

BACKGROUND Because the district court entered judg ment on the pleadi ngs for Koopman, we accept Myers’ allegations as true. See Estes v. Wyo. Dep't of Transp. , 302 F.3d 1200, 1203 (10th Cir. 2002). Treated as true, Myers’ allegations paint a compelling picture of overzealous police work: Detective Koopman fals ified an affidavit to obtain a search warrant for Myers’ property. Acting under authority of the warrant, law enforcement officers searched his property and a near by sugar-beet laboratory. Investigators discovered a jar containing a white substan ce. Field tests incorrectly identified the- 3 - substance as methamphetamine. The police haile d the seizure as “a lot of dope,” and the media portrayed Myers as a meth manuf acturer. App. vol. 1, at 56–57, 64. According to Myers’ allegations, Koopman th en fabricated facts in an affidavit to obtain an arrest warrant. A judicial officer granted the warrant, a nd Myers surrendered on Friday, September 7, 2007, intending to po st bond under an agreement between his attorney and Koopman. Myers claims that when he arri ved at the police station, Koopman told the officer on du ty to detain Myers because Koopman intended to file additional charges. Myers remained in custody until he bond ed out on Monday, September 10. The district attorney then filed criminal charges, and Myers appeared for all hearings. Ultimately, further testing of the sa mples recovered from the raid revealed that they were not controlled substances. On N ovember 15, 2007, the district attorney dropped all charges. Myers filed his complaint on November 5, 2009. 1 In 2012, the district court granted Koopman’s motion for judgment on the pleadings, dismissing Myers’ Fourteenth Amendment claim because an adequate state remedy existed, and further dismissing hisFourth Amendment claim as untimely. Myers now appeals those rulings. Koopman crossappeals, arguing that he is entitled to qualified and absolute immunity.

1 Myers originally filed in state court. Koopman removed the case to federal court on December 1, 2009.- 4 - DISCUSSION

We review the district court’s decision to enter judgment on the pleadings for Koopman under the same standard applicable to a Rule 12(b)(6) motion to dismiss. See Aspenwood Inv. Co. v. Martinez , 355 F.3d 1256, 1259 (10t h Cir. 2004). Under that standard, we apply de novo review and will uphold the dismi ssal only if Myers’ allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007).

I. The Fourteenth Amendment Claim The district court rightly rejected My ers’ Fourteenth Amendment maliciousprosecution claim under 42 U.S.C. § 1983 be cause Colorado law provides an adequate remedy. The Fourteenth Amendment protects i ndividuals against deprivations of liberty without due process of law. U.S. Const. am end. XIV, § 1. If a state actor’s harmful

conduct is unauthorized and thus could not be anticipated pre-deprivation, then an adequate post-deprivation remedy—such as a state tort claim—will satisfy due process requirements. Becker v. Kroll , 494 F.3d 904, 921 (10th Cir. 2007) (citing Parratt v. Taylor , 451 U.S. 527, 535–44, (1981), overruled on other grounds by Daniels v.

Williams , 474 U.S. 327 (1986)). Here, Myers alleges that Koopman conjur ed up facts to create the illusion of probable cause for an arrest warrant and subs equent prosecution. Such lawlessness could not have been anticipated or prevented pre- deprivation, but a post- deprivation maliciousprosecution claim serves as an effective an tidote. Colorado law provides that remedy.- 5 - See, e.g. , Hewitt v. Rice , 154 P.3d 408, 411 (Colo. 2007) (outlining the elements of a malicious-prosecution claim under Colorado la w). The existence of the state remedy flattens the Fourteenth Amendment peg on which Myers now tries to hang his § 1983 malicious-prosecution claim. Myers pitches two replies: First, he ar gues that his Fourteenth Amendment claim is cognizable, despite the state remedy, because the claim also rests on a violation of the Fourth Amendment. For this po sition he offers no affirmativ e argument—legal or logical. Instead, Myers tries to distinguish Becker v. Kroll , on which the district court relied. But

Becker itself relied on Supreme Court preceden t, which has clearly held that postdeprivation state tort remedies satisfy due process requirements. See 494 F.3d at 921 (citing Parratt , 451 U.S. at 544). Myers offers no au thority suggesting th at the existence of an underlying Fourth Amendment viola tion alters the analysis. Second, Myers contends that in his case the state tort remedy is inadequate because it is now time-barred. We reject that argument as we ll. The Fourteenth Amendment guarantees the provision of an adequate remedy, but that remedy need not run in perpetuity. Myers had an adequate remedy. He let it wither. Due proc ess has been duly satisfied.

II. The Fourth Amendment Claim The district court wrongl y dismissed as untimely My ers’ Fourth Amendment claim under § 1983. Section 1983 creates a “spe cies of tort liability” that provides relief to persons deprived of rights se cured to them by the Constitution. Carey v. Piphus , 435 U.S. 247, 253 (1978) (quotations omitted). The first step “is to identify the specific- 6 - constitutional right allegedly infringed.” Albright v. Oliver , 510 U.S. 266, 271 (1994).

Courts then look to common-law torts as an alogies to determine the contours—including the accrual date—of § 1983 claims. See Pierce v. Gilchrist , 359 F.3d 1279, 1286 (10th Cir. 2004). Here, the district court fixed fa lse imprisonment as the proper analogy for Myers’ § 1983 claim—even thou gh his complaint asserted malic ious prosecution. In fact, Myers correctly styled his claim as one for malicious prosecution because he was seized after the institution of legal process. The applicable statute of limitations is two years for both false imprisonment and malicious prosecution, 2 but the two claims do not accrue simultaneously. A claim of false imprisonment accrues when the a lleged false imprisonment ends. Wallace v. Kato , 549 U.S. 384, 389 (2007). A claim of malicious pr osecution does not accrue until the criminal proceedings have terminated in the plaintiff’s favor. See Heck v. Humphrey , 512 U.S. 477, 489 (1994); Robinson v. Maruffi , 895 F.2d 649, 654–55 (1 0th Cir. 1990). Myers filed his complaint on November 5, 2009—with in two years of the malicious prosecution accrual date, but not within two years of the false imprisonment accrual date. What separates the two claims?—the ins titution of legal process. Unreasonable seizures imposed without legal proce ss precipitate Fourth Amendment false

2 Claims under § 1983 are governed by the forum state’s statute of limitations. Wallace v. Kato , 549 U.S. 384, 387 (2007). The foru m state in this case, Colorado, provides a two-year statute of limitations fo r personal injury claims. Colo. Rev. Stat. § 13-80-102(1)(a). Federal law determines th e date on which the claim accrues and, therefore, when the limitati ons period starts to run. Wallace , 549 U.S. at 388.- 7 - imprisonment claims. See Wallace , 549 U.S. at 389 (concluding that false imprisonment was the proper analogy where de fendants did not have a warrant for the plaintiff’s arrest

and thus detention occurred wi thout legal process). Unreasonable seizures imposed with legal process precipitate Fourth Am endment malicious-prosecution claims. 3 See Heck , 512 U.S. at 484 (where detention occurs with legal process the “common-law cause of action for malicious prosecution provides the closest analogy”). Like rain and snow, the

claims emanate from the same source , but under different conditions.

In Wilkins v. DeReyes , we employed the legal-proce ss distinction. 528 F.3d 790 (10th Cir. 2008). DeReyes allegedly obtained an arrest warrant for Wilkins based on fabricated evidence gather ed by using coercive interrogation techniques. Id. at 793–94.

This Court said that where detention occurs after the in stitution of legal process, a plaintiff can claim that the legal process its elf was wrongful, and thereby state a “Fourth Amendment violation sufficient to support a § 1983 malicious prosecution cause of

action.” Id. at 799. 4

3 Unreasonable seizures that occur after the institution of legal process can also form the basis for Fourteenth Amendmen t malicious-prosecution claims where an adequate state remedy does not exist. See Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008).

4 See also Nieves v. McSweeney , 241 F.3d 46, 54 (1st Cir. 2001) (concluding that a § 1983 Fourth Amendment claim involving an arrest pursuant to a warrant is akin to a claim for malicious prosecution based upon the common-law distinctions between the torts of false imprisonment and malicious prosecution); Singer v. Fulton Cnty. Sheriff , 63 F.3d 110, 117 (2d Cir. 1995) (same); Whiting v. Traylor , 85 F.3d 581, 583–86 & n.8 (Continued . . .)- 8 - Here, the district court did not consid er whether Myers had been imprisoned before or after the institution of legal process. Instead, apparently overlooking Wilkins , it simply assumed that because Myers premised the claim on a violation of the Fourth

Amendment it was “in the nature of false imprisonment” and accrued on the date of his release. App. vol. 1, at 32–33. In fact, here, as in Wilkins , detention occurred after the institution of legal process. Myers was arrested pursuant to a validly issued—if not validly supported—arrest warrant. “[T]he issuance of an arrest warra nt represents a classic example of the institution of legal process.” 5 Wilkins , 528 F.3d at 799. Myers’ suit, then, challenges the probable-cause determination that genera ted the legal process. As we said in Wilkins , “This link supplies the necessary connection be tween the malicious prosecution cause of

action and Plaintiffs’ Fourth Amendment allegations.” Id. Koopman attempts to repurpose Wilkins . He contends that even if this is a malicious-prosecution claim, it accrued upon the institution of legal process. To do so, he plucks one statement from Wilkins : “[D]etention was thus pr eceded by the institution of legal process, triggering the malic ious prosecution cause of action.” Id. Read in context,

(11th Cir. 1996) (distinguishing malicious pros ecution and false arrest based on whether detention occurred before or after the institution of legal process).

5 See Restatement (Second) of Torts § 654 cmt. c (1977) (“Criminal proceedings are usually instituted by the i ssuance of some form of process, generally a warrant for arrest, the purpose of which is to bring the ac cused before a magistrate in order for him to determine whether the accused shall be bound ov er for further action by a grand jury or for trial by a court.”).- 9 - however, it is clear the institution of lega l process “triggers” a malicious-prosecution claim only in the sense that a claim before (or without) the institu tion of legal process would be for false imprisonment. Id. at 798–99. Koopman’s read ing would set this Court against the “the standard rule that [accrual occurs] when the plain tiff has a complete and present cause of action.” Wallace , 549 U.S. at 388 (alterati on in original) (quotations omitted). A malicious-prosecution claim is not cognizable until all the elements are satisfied, and one of the elemen ts is that the original acti on terminated in favor of the plaintiff. Wilkins , 528 F.3d at 799. As such, this Court has held that a maliciousprosecution claim does not accr ue until proceedings terminat e in the plaintiff’s favor. Mondragon, 519 F.3d at 1083. The district court adopted the wrong analogy because it overlooked a pivotal detail—Myers’ detention occurre d after the institution of lega l process. In fact, Myers properly stated a Fourth Amendment claim for malicious prosecution, which accrued on November 15, 2007, wh en the proceedings re solved in his favor. He timely filed his complaint within two years on November 5, 2009.

CONCLUSION

For the reasons discussed above , we affirm the district court’s dismissal of Myers’

Fourteenth Amendment claim and reverse the district court’s dismissal of Myers’ Fourth

Amendment claim. Accord ingly, the judgment of the distri ct court is reversed, in part, and the case is remanded for further proceedings consistent with this opinion. Koopman’s arguments regarding absolute and qualified i mmunity should be ad dressed in the first- 10 - instance by the district court. 6

Case number 12-1482 is AFFIRMED in part, REVERSED in part, and REMANDED. Case number 12-1487, the cross-appeal, is DISMISSED for lack of jurisdiction.

6 This Court does not have jurisdiction ov er Koopman’s cross-appeal because he prevailed fully below and the district court’ s judgment did not le ave open the possibility of future litigation. See Deposit Guar. Nat. Bank v. Roper , 445 U.S. 326, 333 (1980). Thus, we grant Myers’ motion to dismiss Koopman’s cross-appeal. We decline to consider his immunity argumen ts as alternative grounds fo r affirmance because he did not propose them as such until his reply brief. See M.D. Mark, Inc. v. Kerr-McGee Corp. , 565 F.3d 753, 768 n.7 (10th Cir. 2009).