1

 “[#16]” is an example of the convention I use to identify the docket number assigned to a

specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this

convention throughout this order.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Civil Case No. 11-cv-02192-REB-CBS

MARJORIE A. KESSLING, and

TRENTON H. PARKER,

Plaintiffs,

v.

BRUCE T. BARKER, individually and in his official capacity,

STEPHANIE L. ARRIES, individually and in her official capacity,

BETHANY SALZMAN, individually and in her official capacity,

GARY SCHWARTZ, individually and his official capacity,

NICK MAEGHER, individually,

JOHN COOK, individually and in his official capacity, and

THE WELD COUNTY COMMISSIONERS, individually and in their official capacities,

Defendants.

ORDER CONCERNING RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE

Blackburn, J.

This matter is before me on the following: (1) Defendants Barker, Arries,

Salzman, Schwartz, Cook and “The Weld County Commissioners’” Motion to

Dismiss Plaintiffs’ Amended Complaint (ECF No. 14) Pursuant to Fed. R. Civ. P.

12(b)(6) and 12(b)(1) [#16]1

 filed December 30, 2011; and (2) the Recommendation of

United States Magistrate Judge [#25] filed July 23, 2012, which addresses the motion

to dismiss. Because no objections to the recommendation have been filed, I review it

only for plain error. See Morales-Fernandez v. Immigration & Naturalization

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 This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.

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Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2 I conclude that the recommendation

should be adopted in part and rejected in part.

The plaintiffs are proceeding pro se. Thus, I have construed their pleadings more

liberally and held them to a less stringent standard than formal pleadings drafted by

lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167

L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519,

520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). 

In their complaint [#1], the plaintiffs allege the defendants unlawfully subjected

the plaintiffs to one or more unlawful and unconstitutional searches and seizures of

private property belonging to or under the control of the plaintiffs. According to the

plaintiffs, 

on September 29, 2009, [defendants] Salzman, Schwartz and Maegher

come onto the ranch property and conducted an unlawful search, seizure,

inspection, investigation of ranch property and proceed photograph, film or

video tape the ranch property and the office unit, feed storage unit, car,

truck, tool shed, horse trailer, barn, storage container, tool truck, farm

equipment or building supplies.

Amended complaint [#14], ¶ 14. In addition, the plaintiffs allege that 

on September 29, 2009, the Defendants, by their concerted actions, did

knowingly, intentionally, wantonly and willfully and with a reckless

disregard for the civil and constitutional rights of the Plaintiffs, entered

onto the subject ranch property described in “Paragraph 12" of the

“Complaint,” and conducted a search of the defendants’ ranch property

including the Plaintiff’s private offices, storage trailers, recreational

vehicles, tool trailers, cars, trucks and storage containers, and took

pictures of the property and its contents without permission of the plaintiffs

or any authorized agent of the plaintiffs and all in violations of state and

federal law. Furthermore, the Defendants did not have any form or type of

search warrant issued by any court of law to cover their . . . acts . . . .

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Amended complaint [#14], ¶ 16.

The magistrate judge concluded that the plaintiffs have not alleged facts

sufficient to state a plausible claim that the defendants conspired to violate the plaintiff’s

constitutional rights. Recommendation [#25], pp. 6 - 8. I agree with the analysis and

conclusion of the magistrate judge concerning the conspiracy claim. 

In addition, the magistrate judge concluded that the plaintiffs have not alleged

facts sufficient to support a claim under the Fourth Amendment independent of the

conspiracy claim. Id., p. 11 n. 2. Respectfully, I disagree with that conclusion. Based

on the allegations quoted above, and related allegations in the plaintiffs’ amended

complaint, I conclude that the plaintiffs have alleged specific facts sufficient to state a

plausible Fourth Amendment claim against defendants Bethany Salzman and Gary

Schwartz. 

On a related issue, the magistrate judge concludes that the individual defendants

are entitled to qualified immunity because the allegations in the complaint do not state a

claim for violation of the plaintiffs’ constitutional rights. With regard to the Fourth

Amendment claim against Ms. Salzman and Mr. Schwartz, I respectfully disagree. The

facts alleged by the plaintiffs make out a plausible claim for violation of the plaintiffs’

Fourth Amendment rights. The rights allegedly violated were clearly established at the

time of the alleged misconduct. In this context, a motion to dismiss based on qualified

immunity must be denied as to the Fourth Amendment claim against Ms. Salzman and

Mr. Schwartz. See, e.g., Leverington v. City of Colorado Springs, 643 F.3d 719, 732

(10th Cir. 2011). 

In paragraph 14 of their amended complaint, the plaintiffs allege that defendant

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Nick Meagher participated in the unlawful September 29, 2009, search with Ms.

Salzman and Mr. Schwartz. However, according to the complaint, Mr. Meagher was a

private person, and not a state actor, at the time of the search. Amended complaint, ¶

2. A claim under 42 U.S.C. § 1983 for violation of the Fourth Amendment can be

asserted only against a state actor and cannot be asserted against a private person. 

Thus, I conclude that the Fourth Amendment claim asserted against Mr. Meagher must

be dismissed for failure to state a claim on which relief can be granted.

In addition, the magistrate judge recommends that the claims against Mr.

Meagher be dismissed under FED. R. CIV. P. 4(m) because Mr. Meagher has not been

served with a summons and the complaint within 120 days of the filing of the complaint. 

I agree. All claims against Mr. Meagher must be dismissed under Rule 4(m).

In the motion to dismiss, defendants Bruce Barker and Stephanie Arries assert

the defense of prosecutorial immunity. The magistrate judge recommends that all

claims against Bruce Barker and Stephanie Arries be dismissed based on their

assertion of prosecutorial immunity. I agree with the analysis of the magistrate judge on

the issue of prosecutorial immunity. Thus, all claims asserted against Mr. Barker and

Ms. Arries must be dismissed.

The magistrate judge recommends also that the court decline to exercise

supplemental jurisdiction over the plaintiffs’ claim of “willful, wanton and outrageous

conduct,” as stated in the Amended complaint [#14], ¶ 20, if the court dismisses all of

the plaintiffs’ federal claims under § 1983. The willful, wanton, and outrageous conduct

claim is asserted against defendants Bethany Salzman, Bruce Barker, and Stephanie

Arries. All claims against Mr. Barker and Ms. Arries are subject to dismissal based on

their prosecutorial immunity. Thus, the only question is whether the court should

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exercise supplemental jurisdiction over the willful, wanton, and outrageous conduct

claim asserted against defendant Bethany Salzman. Viewing the complaint as a whole

and reading its allegations liberally, I conclude that the plaintiffs’ have stated a viable

outrageous conduct claim against Bethany Salzman. Because one of the plaintiffs’

federal claims remains viable, the court shall continue to exercise supplemental

jurisdiction over the closely related outrageous conduct claim against Bethany Salzman. 

On the several other issues addressed by the magistrate judge in the

recommendation, I agree with the analysis and conclusions of the magistrate judge. On

those issues, I approve and adopt the recommendation of the magistrate judge.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [#25] filed

July 23, 2012, respectfully is REJECTED to the extent the magistrate judge

recommends that the defendants’ motion to dismiss be granted as to the plaintiffs’

Fourth Amendment claim against defendants Bethany Salzman and Gary Schwartz;

2. That the Recommendation of United States Magistrate Judge [#25] filed

July 23, 2012, respectfully is REJECTED to the extent the magistrate judge

recommends that the court decline to exercise supplemental jurisdiction over the

outrageous conduct claim against Bethany Salzman;

3. That the Defendants Barker, Arries, Salzman, Schwartz, Cook and “The

Weld County Commissioners’” Motion to Dismiss Plaintiffs’ Amended Complaint

(ECF No. 14) Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1) [#16] filed December

30, 2011, is DENIED as to the plaintiffs’ Fourth Amendment claim asserted against

defendants Bethany Salzman and Gary Schwartz in their individual capacities;

4. That the Defendants Barker, Arries, Salzman, Schwartz, Cook and “The

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Weld County Commissioners’” Motion to Dismiss Plaintiffs’ Amended Complaint

(ECF No. 14) Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1) [#16] filed December

30, 2011, is DENIED as to the plaintiffs’ outrageous conduct claim against Bethany

Salzman;

5. That otherwise, the Recommendation of United States Magistrate Judge

[#25] filed July 23, 2012, is APPROVED and ADOPTED as an order of this court;

6. That otherwise, the Defendants Barker, Arries, Salzman, Schwartz, Cook

and “The Weld County Commissioners’” Motion to Dismiss Plaintiffs’ Amended

Complaint (ECF No. 14) Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1) [#16] filed

December 30, 2011, is GRANTED;

7. That under FED. R. CIV. P. 12(b)(6), all claims asserted against the individual

defendants in their official capacities are DISMISSED without prejudice;

8. That the claims asserted against defendant Nick Meagher are DISMISSED

without prejudice under FED. R. CIV. P. 4(m);

9. That under FED. R. CIV. P. 12(b)(6), the Fourth Amendment claim against

defendant Nick Meagher is dismissed without prejudice;

10. That under FED. R. CIV. P. 12(b)(6), the claims asserted against defendants

Bruce Barker and Stephanie Arries are DISMISSED without prejudice based on the

assertion of prosecutorial immunity by these defendants;

11. That under FED. R. CIV. P. 12(b)(6), and on the bases articulated by the

magistrate judge in his recommendation [#25], all claims asserted against Bethany

Salzman and Gary Schwartz, except the plaintiffs’ Fourth Amendment claim against

Bethany Salzman and Gary Schwartz and the plaintiffs’ outrageous conduct claim

against Bethany Salzman, are DISMISSED without prejudice;

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12. That under FED. R. CIV. P. 12(b)(6), and on the bases articulated by the

magistrate judge in his recommendation [#25], all claims asserted against defendants

John Cook and the Weld County Commissioners are DISMISSED without prejudice;

13. That defendants Bruce Barker, Stephanie Arries, Nick Meagher, John Cook,

and the Weld County Commissioners are DROPPED as defendants in this action, and

the caption of future pleadings and other filings shall be so AMENDED.

Dated August 30, 2012, at Denver, Colorado.

BY THE COURT:

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