Fisher v. Koopman, 693 F. App'x 740

Background

Tammy Fisher, a former Loveland police officer, allegedly warned friends (the Romaneks) about an ongoing child-pornography investigation; a subsequent search found recently erased files.
Detective Brian Koopman led the renewed investigation in 2013, sought a warrant for the Romaneks’ home, and later applied for Fisher’s phone records; Fisher was never arrested, charged, or prosecuted.
Fisher sued Koopman and Chief Luke Hecker under 42 U.S.C. § 1983 (malicious prosecution and failure-to-train/supervise under the Fourteenth Amendment) and asserted multiple Colorado tort claims; she later sought to add the City of Loveland and Fourth Amendment-based malicious prosecution claims.
The magistrate judge recommended denying leave to amend (duplicative official-capacity claims and futility of Fourth Amendment claims because Fisher was not seized or prosecuted); the district court adopted the R&R.
Defendants moved for summary judgment asserting lack of a constitutional violation, qualified immunity (federal), and Colorado Governmental Immunity Act (CGIA) protections (state claims); the district court granted summary judgment on all claims.
On appeal, the Tenth Circuit affirmed: amendment to add Fourth Amendment claims was futile; federal malicious-prosecution claims fail because a Fourth Amendment seizure is required; state claims fail under the CGIA and on the merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether leave to amend should be granted to add Fourth Amendment malicious-prosecution claims	Fisher argued amendment should be allowed late and that Fourth Amendment claims apply because defendants sought warrants and pursued investigation	Defendants argued amendment is futile because Fisher was never seized, arrested, or prosecuted—so Fourth Amendment malicious-prosecution elements cannot be met	Denied as futile; Tenth Circuit affirmed because malicious-prosecution under § 1983 requires a Fourth Amendment seizure and Fisher was not seized or prosecuted
Whether Fisher’s Fourteenth Amendment malicious-prosecution claims can proceed	Fisher contended the Fourteenth Amendment could support malicious-prosecution claims because defendants pursued investigation and sought warrants/records	Defendants relied on Tenth Circuit precedent that malicious prosecution under § 1983 must rest on the Fourth Amendment seizure framework	Dismissed: court held Fourteenth-based malicious-prosecution claims fail because precedent requires alleging a Fourth Amendment violation (seizure)
Whether official-capacity and failure-to-train/supervise claims survive absent an underlying constitutional violation	Fisher argued municipality/officials can be liable based on their conduct and purportedly inadequate training/supervision	Defendants argued municipal/official-capacity liability and failure-to-train require an underlying constitutional violation by an officer	Dismissed: official-capacity and failure-to-train/supervise claims fail because there was no underlying constitutional violation
Whether Colorado state-law claims survive given CGIA immunity and record evidence	Fisher disputed dismissal of state tort claims but did not develop detailed rebuttal on appeal	Defendants argued CGIA immunized them absent willful and wanton conduct and that the record lacks proof for each tort claim	Affirmed: CGIA immunity applies (no willful/wanton conduct shown); district court’s merits-based analysis also supports summary judgment for defendants

Key Cases Cited

Albright v. Oliver, 510 U.S. 266 (U.S. 1994) (Fourth Amendment governs deprivations tied to criminal prosecutions; plaintiff cannot proceed without alleging Fourth Amendment violation)
Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) (malicious-prosecution § 1983 claims must be grounded in the Fourth Amendment seizure framework)
Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008) (elements of Fourth Amendment malicious-prosecution claim include a seizure/continued confinement or prosecution without probable cause)
Jones v. Norton, 809 F.3d 564 (10th Cir. 2015) (Rule 15(a) standard: leave to amend generally freely granted but subject to futility analysis)
Watson v. City of Kansas City, Kan., 857 F.2d 690 (10th Cir. 1988) (official-capacity suits against municipal officials are treated as suits against the municipality)
Graves v. Thomas, 450 F.3d 1215 (10th Cir. 2006) (municipality cannot be held liable under § 1983 absent an underlying constitutional violation)