Leon v. Gosnell et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:24-cv-03568-NYW-SBP
LUIS LEON,
Plaintiff,
v.
SHANE GOSNELL and
MIKE MILLER,
Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This matter comes before the court on Defendant Shane Gosnell’s Fed. R. Civ. P. 12(b)(6)
Motion to Dismiss. ECF No. 44 (“Motion” or “Motion to Dismiss”). The court considers the
Motion pursuant to 28 U.S.C. § 636(b)(1), the memorandum referring the Motion (ECF No. 45),
and the Order Referring Case (ECF No. 37), and concludes that oral argument will not materially
assist in the resolution of the matter.
Having carefully reviewed the Motion and associated briefing, court records subject to
judicial notice, and the applicable law, the court now respectfully RECOMMENDS that the
Motion be GRANTED and the remaining claim for malicious prosecution claim against
Defendant Gosnell be dismissed with prejudice because he is entitled to qualified immunity.
The court further RECOMMENDS that the remaining claim for malicious prosecution against
Defendant Miller, who has never been served and has never appeared in this case, be dismissed
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without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
BACKGROUND
The catalyst for this civil case is the prosecution of a criminal action against Mr. Leon
following a traffic stop conducted by Defendant Gosnell, who was then a Colorado State Patrol
trooper,1 during which more than seventy-six pounds of methamphetamine were discovered in
Mr. Leon’s pickup truck. Mr. Leon was charged in a federal indictment with one count of
possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(viii). People v. Leon, No. 18-cr-00020-MSK-GPG (the “2018 Case”). He was
reindicted after the 2018 Case was dismissed without prejudice on speedy trial grounds. People
v. Leon, No. 19-cr-00442-CMA (the “2019 Case”).
The United States Court of Appeals for the Tenth Circuit ultimately reversed Mr. Leon’s
conviction because it found that Trooper Gosnell lacked reasonable suspicion to extend the
traffic stop, see United States v. Leon, 80 F.4th 1160, 1165-1170 (10th Cir. 2023), prompting Mr.
Leon to sue Trooper Gosnell and a host of others involved in his federal criminal case and
subsequent incarceration, including United States District Judges Marcia S. Krieger, Christine M.
Arguello, and Gordon P. Gallagher, and Jeremy Chaffin, the Assistant United States Attorney
1 At some point after his encounter with Mr. Leon, Mr. Gosnell took a position as a special agent
with Department of Homeland Security Investigations. See No. 19-cr-00442-GPG (D. Colo.),
ECF No. 63 at 8:2-4 (noting this employment as of February 10, 2021). In this recommendation,
the court refers to Mr. Gosnell as Trooper Gosnell, the position he held at the time of the events
at issue here.
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who prosecuted the case.2 See ECF No. 1 at 2-3.3
The claims in this civil action have been winnowed down to one: a claim entitled “Claim
4: Fourth Amendment Violation (Malicious Prosecution),” brought against Trooper Gosnell and
Defendant Miller pursuant to 42 U.S.C. § 1983 and for which Mr. Leon seeks $30,000,000 in
damages. See Amended Complaint, ECF No. 17 at 19, 22; see also ECF No. 20 at 17
(recommendation that all claims except Claim 4 claim be dismissed); ECF No. 22 (order
adopting recommendation).
Mr. Leon alleges that, on December 28, 2017, he was driving on Interstate 70 in far
western Colorado when he was stopped by Trooper Gosnell, who claimed—falsely, according to
Mr. Leon—that Mr. Leon “drove in the left lane for three miles,” in violation of Colorado
Revised Statute § 42-4-1013(1).”4 ECF No. 17 ¶ 7 (emphasis added). Mr. Leon asserts that
“Dashcam footage confirms [Mr. Leon] was in the right lane, driving lawfully at 75 miles per
hour, negating any basis for the stop.” Id. (emphasis added). According to Mr. Leon, Trooper
Gosnell then extended the stop “without reasonable suspicion,” based on the Trooper’s
perception of Mr. Leon’s “nervousness,” the “lived-in” appearance of his vehicle, and the fact
that Mr. Leon had an Arizona driver’s license and the vehicle bore Minnesota license plates. Id.
Trooper Gosnell is alleged to have taken “staged” photographs of items in Mr. Leon’s truck,
2 Mr. Leon later sought to resurrect his claims against AUSA Chaffin, see ECF No. 33, which the
court denied. See ECF Nos. 62 (recommendation to deny amendment); 66 (order adopting
recommendation).
3 Unless otherwise indicated, docket references in this recommendation are to the instant case.
4 “A person shall not drive a motor vehicle in the passing lane of a highway if the speed limit is
sixty-five miles per hour or more unless such person is passing other motor vehicles that are in a
nonpassing lane or turning left, or unless the volume of traffic does not permit the motor vehicle
to safely merge into a nonpassing lane.” Colo. Rev. Stat. § 42-4-1013(1).
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moving his clothes and books so as to “falsely depict[] a suspicious scene.” Id. ¶ 21. At some
unidentified point during the stop, Trooper Gosnell remarked that he “thought it was going to be
crack,” id. ¶ 24—apparently referring to the distribution quantity of methamphetamine found in
his vehicle. See Leon, 80 F.4th at 1163 (noting that a search of Mr. Leon’s vehicle “uncovered
seventy-six pounds of methamphetamine”).
B. 	Information Considered in Evaluating a Rule 12(b)(6) Motion
In assessing whether Mr. Leon has plausibly state a claim for relief, “a court must restrict
its review to only the ‘allegations within the four corners of the complaint,’ and cannot consider
other pleadings or external allegations.” Morphew v. Chaffee Cnty., Colorado, 172 F.4th 802,
813 (10th Cir. 2026) (quoting Brown v. City of Tulsa, 124 F.4th 1251, 1263 (10th Cir. 2025)).
But the Tenth Circuit Court has recognized exceptions to this rule: “(1) documents attached to
the complaint as exhibits, (2) documents referenced in the complaint that are central to the
plaintiff’s claims, provided their authenticity is undisputed, and (3) matters subject to judicial
notice.” Brown, 124 F.4th at 1264; see also Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir.
2006) (“[F]acts subject to judicial notice may be considered in a Rule 12(b)(6) motion without
converting the motion to dismiss into a motion for summary judgment.”).
As pertinent to the matter at hand, a court may take judicial notice of “another court’s
publicly filed records ‘concerning matters that bear directly upon the disposition of the case at
hand.’” Hodgson v. Farmington City, 675 F. App’x 838, 840-41 (10th Cir. 2017) (quoting United
States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007), and citing St. Louis Baptist Temple,
Inc. v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate
circumstances, may take notice of proceedings in other courts, both within and without the
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federal judicial system, if those proceedings have a direct relation to matters at issue.”)). Here,
the court properly takes judicial notice of the publicly filed records in the 2018 and 2019 Cases.
C. 	Facts
Consistent with these standards, the following facts are drawn from the operative
pleading, the entire docket in this matter, and publicly filed information in the underlying
criminal proceedings against Mr. Leon.
1. 	Proceedings in the 2018 Case
As a result of the December 28, 2017 traffic stop, Mr. Leon was arrested and charged in
state court in Mesa County, Colorado, with one count of possession with intent to distribute a
Schedule I or II controlled substance, a class one felony, and one count of importation of a
Schedule I or II controlled substance, a class four felony. See People v. Leon, No. 2017CR2434
(Mesa County District Court). A federal indictment was issued on January 11, 2018, in which Mr.
Leon was charged with one count of possession with intent to distribute 500 grams and more of a
mixture and substance containing methamphetamine, a Schedule II controlled substance, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii). See 2018 Case, ECF No. 1 at 1. The same
day, a federal warrant was issued for Mr. Leon’s arrest, id., ECF No. 2, and he was arraigned on
the federal charge on January 19, 2018. Id., ECF No. 4.
On April 2, 2018, Mr. Leon moved to suppress evidence of his statements and evidence
uncovered during the search of his truck. Id., ECF No. 23. In that suppression motion, Mr. Leon
argued “that the initial stop of his vehicle was unlawful, as he was properly operating his motor
vehicle on a public road in the proper manner,” id. at 6, and that the stop was also improperly
extended.” Id. at 9-10, Judge Gallagher, then a United States Magistrate Judge, conducted a two-
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day hearing on the suppression motion, at which Trooper Gosnell testified.5 See 2018 Case, ECF
No. 55 (Transcript of December 12, 2018 Hearing on Motion to Suppress).
On December 28, 2017, Trooper Gosnell—whose primary duty as a CSP trooper was
“criminal highway interdiction,” or interrupting “the transportation of narcotics and/or proceeds
on Colorado roadways”—was working in the area of mile marker 10 on Interstate 70 near the
Utah border. Id. at 12:25-13:5; 13:19-24. Trooper Gosnell “observed a silver pickup traveling
eastbound on Interstate 70 in the left lane with no other traffic around it,” in violation of § 42-4-
1013(1). Id. at 14:7-15. He initiated a traffic stop because the vehicle was “[t]raveling in the left
lane where prohibited.” Id. at 15:18-16:1. Trooper Gosnell also testified about his observations of
Mr. Leon and his vehicle that he avers established reasonable suspicion to extend the stop, see
generally id. at 17-36—an argument the Tenth Circuit rejected in reversing Mr. Leon’s
conviction. See Leon, 80 F.4th at 1170 (concluding that the factors identified by Gosnell “are not
inconsistent with drug trafficking, but they are also not meaningfully indicative of drug
trafficking,” and that although “[t]his is a close case, we cannot say the factors operate together
to eliminate a sufficient portion of innocent travel”).
At the suppression hearing, Mr. Leon’s counsel conducted a lengthy cross-examination of
Trooper Gosnell, see 2018 Case, ECF No. 55 at 50-87; ECF No. 56 at 7-158, including questions
5 The court considers Trooper Gosnell’s testimony, which is subject to judicial notice, not for the
truth of his statements but to show that they were indisputably made part of the record. See
Abdulmutallab v. Barr, No. 17-cv-02493-RM-KMT, 2019 WL 4463284, at *3 (D. Colo. Sept.
18, 2019) (in ruling on a motion to dismiss, approving “the Recommendation’s reliance on the
contents of the transcripts and statements contained in them from Plaintiff’s criminal
proceedings,” where the magistrate judge did not rely on them for the truth of the statements
made). In Leon, the Tenth Circuit also described testimony Trooper Gosnell’s testimony in the
trial court. See 80 F.4th at 1163-64.
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about Trooper Gosnell’s photographs of items in Mr. Leon’s truck. In response to questions from
defense counsel, Trooper Gosnell admitted that he “can’t testify everything [in a photograph] is
exactly where it was at the time of the initial stop.” Id. at 68:5-8. He acknowledged that the
“photos were taken after the search of the vehicle had been largely completed[.]” Id. at 68:11-12.
He agreed that some of the boxes had been removed from the back seat of Mr. Leon’s pickup
before the photographs were taken. Id. at 68:15-19. He further confirmed that “any box that
contained narcotics had been removed at the time these photos were taken,” id. at 69:4-6, and
that “[t]here were no photos taken of the actual boxes before they were moved from the back seat
of the vehicle to capture this tossed-in look that [Trooper Gosnell] described[.]” Id. at 83:20-
84:15. And Trooper Gosnell explained that, “[w]hen the [truck] door was opened for the search,
. . . wrapped packages of narcotics fell out”: “I remember packages fell on the ground and a box
at the search. I don’t recall exactly at what point.” Id. at 84:16-23.
After hearing the evidence at the suppression hearing, Judge Gallagher recommended that
the suppression motion be denied, id., ECF No. 44-1, and Judge Krieger, the presiding judicial
officer in the 2018 Case, “credit[ed] Trooper Gosnell’s testimony and [found] that the initial stop
was justified by a reasonable suspicion that the driver of the pickup truck had violated C.R.S.
§ 42-4-1013(1).” Id., ECF No. 44-2 at 4. After examining each component of the extended stop,
Judge Krieger concluded “that Trooper Gosnell had reasonable suspicion supporting each of the
critical stages of the stop and search of Mr. Leon and his vehicle.” Id. at 16.
The 2018 Case was ultimately dismissed without prejudice on Speedy Trial Act grounds.
Id., ECF No. 82.
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2. 	Proceedings in the 2019 Case
When the government refiled the criminal case against Mr. Leon, it did so by means of a
complaint docketed on September 30, 2019. 2019 Case, ECF No. 1. The complaint was
supported by an affidavit submitted by Kevin Doheny, a Special Agent with the Drug
Enforcement Administration. Id., ECF No. 1-1.
In the affidavit, Special Agent Doheny described Trooper Gosnell’s encounter with Mr.
Leon on December 28, 2017, id. ¶¶ 2-11, and the interview of Mr. Leon later that morning in the
DEA office in Grand Junction, in which Special Agent Doheny participated. Id. ¶¶ 12-19.
According to the affidavit, Mr. Leon waived his Miranda rights, id., 12-13, and described his
agreement to transport the boxes found to have contained methamphetamine for a person he had
met in Mexico. Id. ¶¶ 14-15. Mr. Leon “gave agents full access to his telephone,” which revealed
details concerning the logistics of the transport. Id. ¶¶ 16-18. Per the affidavit, Mr. Leon “stated
that he moved the boxes of product around in his truck to make room for his things and at that
point, noted that it was not marijuana he was transporting, but he surmised it was some kind of
synthetic drug.” Id. ¶ 18. Special Agent Doheny attested to the contents of his affidavit before
Judge Gallagher, id. at 6, who found probable cause to sign the criminal complaint. Id., ECF No.
1.
An indictment was subsequently docketed on October 18, 2019, id., ECF No. 6, and the
case was transferred to United States District Judge Arguello. Id., ECF No. 36. Mr. Leon filed
another motion to suppress the evidence obtained during the December 2017 traffic stop, arguing
(1) that dash-cam video footage “does not show the pickup traveling in the left lane, and Mr.
Leon disputes the claim that it was,” and (2) that “the detention which followed exceeded the
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permissible scope and/or duration of the initial traffic stop and rendered the seizures of Mr. Leon
and the truck unreasonable under the Fourth Amendment.” Id., ECF No. 15 at 2, 4. Trooper
Gosnell’s testimony at the suppression hearing in the 2019 Case substantively replicated his
testimony in the 2018 suppression hearing. See generally id., ECF No. 63 at 10-30 (describing
Gosnell’s observation of the vehicle as being in the left lane with no other vehicles around; the
condition of the interior of the vehicle; a single key in the ignition; the driver’s license and
vehicle registration issued by different states; and Leon’s vague travel plans, his contradictory
remarks about where he was living and his failure to confirm exactly where he was living; his
overly cooperative” and “nervous” manner of speech; and his frequent cross-border travel
between the United States and Mexico).
Questions about Trooper Gosnell’s photographs of the items in Mr. Leon’s vehicle were
raised at the second suppression hearing, with Trooper Gosnell again agreeing with defense
counsel’s characterization of the photographs:
Q. 	But 	we 	don’t 	have 	a 	picture 	of 	how 	[the 	boxes 	that 	contained 	the
methamphetamine] actually looked before, when you first approached the
vehicle, do we –
A. No. we do not.
Q. -- because you didn’t take any photos until after you and Deputy Miller had
started moving things around and taking items out of the truck?
A. Yes, that’s accurate.6
6 Here, again, the court references these statements not for their truth, but in recognition of the
fact that they were made by Trooper Gosnell at the second suppression hearing and heard by the
court. See Abdulmutallab, 2019 WL 4463284, at *3.
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2019 Case, ECF No. 63 at 37:13-20.
After hearing the evidence, including testimony from Mr. Leon, see id. at 70-90, Judge
Arguello denied the motion to suppress on the record at the hearing. Id. at 118-138. Specifically,
Judge Arguello found that “the Government has demonstrated that Trooper Gosnell had
reasonable suspicion for the stop.” Id. at 119:21-22. She took note of Trooper Gosnell’s
testimony “that he observed the pickup truck driving in the left-hand lane of the highway while
no other traffic was present,” in violation of § 42-4-1013(1). Id. at 119:21-120:4. But she also
acknowledged that “Mr. Leon did testify that he was in the right lane, not in the left lane.” Id. at
120:10-11. Recognizing these divergent points of view, Judge Arguello found that this “disputed
issue of fact . . . will be for the jury to decide,” then proceeded to find that that disagreement was
“not a basis for the Court to find that the stop was not constitutional.” Id. at 120:15-18 (emphasis
added).
Judge Arguello concluded that “the initial stop was justified by Trooper Gosnell’s
reasonable suspicion that a traffic offense had occurred,” id. at 120:19-21, and she also rejected
Mr. Leon’s argument that Trooper Gosnell unconstitutionally prolonged the stop. Id. at 126:12-
23. The court denied Mr. Leon’s motion to suppress, id., ECF No. 60, and his subsequent motion
to reconsider that decision. Id., ECF No. 59.
3. 	Mr. Leon’s Guilty Plea and Post-Conviction Appeal
After Judge Arguello’s disposition of the suppression motion, Mr. Leon entered into a
plea agreement, id., ECF No. 92, and the court adjudged him guilty of one count of possession
with intent to distribut methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(viii), for which he was sentenced to seventy months in the custody of the Federal
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Bureau of Prisons. Id., ECF No. 110 at 1-2.
Mr. Leon appealed his conviction, raising a single issue before the Tenth Circuit:
“Whether the district court erred in finding the officer had reasonable suspicion to extend the
traffic stop.” See United States v. Leon, No. 22-1070, ECF No. 58-1 at 7. Mr. Leon did not appeal
Judge Arguello’s finding that “the initial stop was justified by Trooper Gosnell’s reasonable
suspicion that a traffic offense had occurred.” 2019 Case, ECF No. 55 at 120:19-21. The Tenth
Circuit ruled in favor of Mr. Leon, finding “that Trooper Gosnell did not have reasonable
suspicion to extend the stop,” reversing the denial of the motion to suppress in the 2019 Case,
and remanding with instructions to vacate Mr. Leon’s conviction. See 80 F.4th at 1170. This
litigation followed.
B. 	The Malicious Prosecution Claim Against Trooper Gosnell
The only remaining claim in this case is Claim 4, entitled “Fourth Amendment Violation
(Malicious Prosecution).” ECF No. 17 ¶ 24. 7 As factual support for that claim, Mr. Leon alleges
that Trooper Gosnell and Defendant Miller orchestrated a “baseless prosecution” by fabricating
evidence—specifically, the “staging” of photographs calculated to make Mr. Leon appear “far
more culpable.” Id. Mr. Leon alleges that Defendant Miller encouraged Trooper Gosnell’s
behavior by offering him a promotion to a federal task force, and that these actions “fueled” Mr.
Leon’s conviction, which the Tenth Circuit ultimately overturned. Id.
7 As United States Magistrate Judge Varholak explained in his recommendation to narrow the
scope of Mr. Leon’s claims, the malicious prosecution claim—which accrued when the criminal
proceedings terminated in Mr. Leon’s favor on October 6, 2023—is the only Fourth Amendment
claim that is not time-barred. ECF No. 20 at 11.
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ANALYSIS
I. 	Trooper Gosnell’s Motion to Dismiss
Trooper Gosnell argues that he is entitled to qualified immunity on Mr. Leon’s malicious
prosecution claim because Mr. Leon has failed to allege a violation of his Fourth Amendment
rights, much less a violation of clearly established law. See generally ECF No. 44.
A. 	Issue Preclusion
Trooper Gosnell first argues that there is a fact the court must accept as undisputed in
conducting the qualified immunity analysis: that he had arguable reasonable suspicion to initiate
the stop of Mr. Leon because he was driving in the left lane of Interstate 70 for a lengthy period
of time in violation of Colorado law. ECF No. 44 at 5-11. The court begins its analysis of the
issue preclusion question by noting the incongruity between Trooper Gosnell’s argument and
Mr. Leon’s remaining malicious prosecution claim, which hinges on sufficient allegations that he
was prosecuted without probable cause—not on whether he lacked arguable reasonable
suspicion to initiate the traffic stop.
A plaintiff may bring a Fourth Amendment malicious prosecution claim in one of two
ways:
If arrested without a warrant—and thus triggering the Fourth Amendment
requirement of a judicial determination of probable cause as a prerequisite to
extended restraint of liberty following arrest—a plaintiff can challenge the probable
cause determination made during the constitutionally-required probable cause
hearing. Or, if arrested pursuant to a warrant, plaintiff can challenge the probable
cause determination supporting the warrant’s issuance.
Wilkins v. DeReyes, 528 F.3d 790, 798 (10th Cir. 2008) (citation modified). In either case,
“[u]nlike a false arrest or false imprisonment claim, malicious prosecution concerns detention
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only after the institution of legal process.” Id. (quotation omitted). “Although the Tenth Circuit
has not precisely defined what constitutes the institution of legal process, precedent suggests that
a judicial determination of probable cause—be it through the issuance of a warrant or through a
preliminary hearing—is required.” Orozco v. Cherry, No. 16-cv-01570-WYD-NYW, 2017 WL
11487112, at *4 (D. Colo. Oct. 31, 2017) (quoting Rodriguez v. Chavez, No. 12-cv-01071-PAB-
MJW, 2015 WL 5174226, at *11 (D. Colo. September 3, 2015) (citing Wilkins, 528 F.3d at 798;
Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008) (suggesting that legal process is
instituted when a criminal defendant “is bound over by a magistrate or arraigned on charges”)).
“The common law elements of malicious prosecution are the ‘starting point’ for [an]
analysis of a § 1983 malicious prosecution claim. But the ultimate question in such a case is
whether plaintiff has proven the deprivation of a constitutional right.” Wilkins, 528 F.3d at 797
(citation modified). To state a § 1983 malicious prosecution claim, a plaintiff must allege facts
plausibly establishing the following elements: “(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 sustained damages.” Id. at 799 (citing Novitsky
v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007)); see also Morphew, 172 F.4th at 814-15
(holding, in the context of a malicious prosecution claim asserting that “the defendants
maliciously prosecuted [the plaintiff] when they ‘fabricated evidence and manufactured
inculpatory evidence,’” that “‘[t]o state a § 1983 claim for malicious prosecution, a plaintiff must
show, among other things, that the original action terminated in favor of the plaintiff, and that no
probable cause supported the original arrest, continued confinement, or prosecution’”) (quoting
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Fenn v. City of Truth or Consequences, 983 F.3d 1143, 1149-50 (10th Cir. 2020)); Shrum v.
Cooke, 60 F.4th 1304, 1310 n.3 (10th Cir. 2023) (“A key element of the § 1983 malicious
prosecution claim requires ‘no probable cause supported the original arrest, continued
confinement, or prosecution.’”) (quoting Margheim v. Buljko, 855 F.3d 1077, 1085 (10th Cir.
2017)); Taylor v. Meacham, 82 F.3d 1556, 1558 (10th Cir. 1996) (malicious prosecution claim
requires showing that there was no probable cause to arrest).
There is thus a fundamental mismatch between Trooper Gosnell’s argument that
“Plaintiff is barred by issue preclusion from alleging that Trooper Gosnell lacked reasonable
suspicion to initate the traffic stop,” ECF No. 44 at 5, and the probable cause analysis that
informs a malicious prosecution claim. The reasonable suspicion and probable cause standards,
while bearing some similarities, are nevertheless distinct in significant respects. See Kansas v.
Glover, 589 U.S. 376, 380 (2020) (“Because it is a less demanding standard, reasonable
suspicion can be established with information that is different in quantity or content than that
required to establish probable cause.”) (citation modified); see also, e.g., Martinez v. Lujan, Civ.
No. 10-652 JH/WDS, 2011 WL 13284668, at *3 (D.N.M. July 11, 2011) (“While reasonable
suspicion cannot be based upon a ‘mere hunch,’ it also ‘need not rise to the level required for
probable cause, and it falls considerably short of satisfying a preponderance of the evidence
standard.’”) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002) (emphasis added)).
Given these differences, the court cannot find that “the issue previously decided [by
Judge Arguello] is identical with the one presented in the action in question,” nor can it
definitively be said that the issue of probable cause “was actually and necessarily decided” in
Mr. Leon’s criminal case. See Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1297 &
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n.1 (10th Cir. 2014) (quotation omitted); id. at 1297 (party invoking the doctrine of issue
preclusion has the burden to establish these elements). In other words, even if Trooper Gosnell
was found to have “had reasonable suspicion to initate a traffic stop,” see ECF No. 44 at 7, that
finding would not answer the question whether the higher probable cause standard was satisfied
so as to support “an extended restraint of liberty” for purposes of a malicious prosecution claim.
See Wilkins, 528 F.3d at 798. Importantly, and further militating against a finding of issue
preclusion. is Judge Arguello’s explicit, affirmative refusal to find that Mr. Leon was in fact
driving in the left lane, which she characterized as a “disputed issue of fact . . . for the jury to
decide.” 2019 Case, ECF No. 63 at 120:15-18 (emphasis added). The issue preclusion ruling
Trooper Gosnell seeks would be in conflict with that ruling.
For these reasons, the court finds no basis to assign preclusive effect to the reasonable
suspicion findings made by the trial court judges in Mr. Leon’s criminal case.
B. 	Trooper Gosnell’s Assertion of Qualified Immunity
Having found that issue preclusion has no purchase here, the undersigned proceeds to
examine Trooper Gosnell’s qualified immunity defense on the basis of information properly
before the court at this juncture. The court first lays out the operative legal framework, then
delineates the reasons why Mr. Leon’s pleading falters on the causation element of his malicious
prosecution claim.
1. 	Legal Principles
a. 	Federal Rule of Civil Procedure 12(b)(6)
Pursuant to this Rule, a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6),
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the court must “accept as true all well-pleaded factual allegations . . . and view these allegations
in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir.
2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). “The burden is on
the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he
or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
A plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Rather, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The ultimate duty of the court is to
“determine whether the complaint sufficiently alleges facts supporting all the elements necessary
to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v.
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
In applying these principles, the court is mindful that Mr. Leon proceeds pro se and thus
affords his papers and filings a liberal construction. Smith v. Allbaugh, 921 F.3d 1261, 1268
(10th Cir. 2019). But the court cannot and does not act as his advocate, United States v. Griffith,
928 F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules and substantive
law to Mr. Leon as to a represented party. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th
Cir. 2018); see also Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1235 (D. Colo.
2012) (“Pro se status does not relieve Plaintiff of the duty to comply with various rules and
procedures governing litigants and counsel, or the requirements of the substantive law and, in
these regards, the Court will treat Plaintiff according to the same standard as counsel licensed to
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practice law before the bar of this Court.”).
b. 	Qualified immunity
Under the doctrine of qualified immunity, “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A motion to dismiss based on
qualified immunity creates a presumption of immunity, Bledsoe v. Carreno, 53 F.4th 589, 606
(10th Cir. 2022) (citation omitted), and the burden shifts to the plaintiff to overcome the defense.
Hunt v. Montano, 39 F.4th 1270, 1284 (10th Cir. 2022).
To overcome qualified immunity, “the onus is on the plaintiff to demonstrate (1) that the
official violated a statutory or constitutional right, and (2) that the right was clearly established at
the time of the challenged conduct.” Surat v. Klamser, 52 F.4th 1261, 1270-71 (10th Cir. 2022)
(quotations omitted); Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (same). When
qualified immunity is assessed in the context of a Rule 12(b)(6) motion, “the plaintiff ‘must
allege facts sufficient to show (assuming they are true) that the defendants plausibly violated
their constitutional rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017)
(quoting Robbins, 519 F.3d at 1249). As for the second prong of the qualified immunity inquiry,
an official’s conduct violates clearly established law when, at the time of the challenged conduct,
“the contours of a right are sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011) (cleaned up) (emphasis added). For the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision “on point, or the clearly established weight of authority
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from other courts must have found the law to be as the plaintiff maintains.” Halley v. Huckaby,
902 F.3d 1136, 1149 (10th Cir. 2018) (quotation omitted). It is the plaintiff’s obligation to cite to
cases that satisfy the burden of demonstrating the asserted law is clearly established. Thomas v.
Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the burden of citing to us
what he thinks constitutes clearly established law.”).
The court has “discretion to decide the order in which to engage the two prongs of the
qualified immunity standard.” Andersen v. DelCore, 79 F.4th 1153, 1163 (10th Cir. 2023)
(citation modified). Regardless of the order, “if the plaintiff fails to establish either prong of the
two-pronged qualified-immunity standard, the defendant prevails on the defense.” A.M. v.
Holmes, 830 F.3d 1123, 1134-35 (10th Cir. 2016); see also Andersen, 79 F.4th at 1163 (if the
court “conclude[s] that the plaintiff has not met his burden as to either part of the two-prong
inquiry, [the court] must grant qualified immunity to the defendant”) (citing Medina v. Cram,
252 F.3d 1124, 1128 (10th Cir. 2001) (emphasis added)). “The record must clearly demonstrate
the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to
qualified immunity.’” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014)
(citation modified) (quoting Medina, 252 F.3d at 1128).
2. 	Application
Trooper Gosnell asserts that he is entitled to qualified immunity for three reasons: (1) he
had arguable reasonable suspicion to extend the traffic stop of Mr. Leon; (2) Mr. Leon’s pleading
does not satisfy the causation element of a malicious prosecution claim and thus states no
violation of violation of a constitutional right; and (3) Mr. Leon “cannot point to a published
Supreme Court or Tenth Circuit case from December 28, 2017, or before that clearly established
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the rights at issue in this case.” ECF No. 44 at 12-15; ECF No. 52 at 3-10. The court finds that
Trooper Gosnell is entitled to qualified immunity for the reason he articulates in the second
argument.
a. 	Arguable Reasonable Suspicion
Trooper Gosnell first asserts that, “in the context of a § 1983 action the officer is entitled
to qualified immunity if a reasonable officer could have believed that reasonable suspicion
existed to detain the plaintiff—i.e., if the officer had ‘arguable reasonable suspicion.’” Id. at 12
(quoting Vondrak v. City of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008) (citation
modified)). That may be, but the absence of “arguable reasonable suspicion” is not the standard
for evaluating the plausibility of a malicious prosecution claim; probable cause is. See Wilkins,
528 F.3d at 799. And as explained in the preceding analysis of Trooper Gosnell’s issue
preclusion argument, those standards are different.
Relevant here, Trooper Gosnell has not attempted to articulate how Mr. Leon has fallen
short of alleging the absence of probable cause to support his prosecution, and the court will not
construct that argument for him. See, e.g., Herren v. Lappegaard, No. 18-cv-00209-CMA-KLM,
2018 WL 3999658, at *5 (D. Colo. July 30, 2018) (declining to consider whether the defendants
were entitled to qualified immunity on the clearly established prong of the analysis where they
did not raise the issue), report and recommendation adopted, 2018 WL 3996601 (D. Colo. Aug.
20, 2018); Fisher v. Glanz, No. 14-CV-678-TCK-PJC, 2016 WL 1175239, at *11 n.11 (N.D.
Okla. Mar. 24, 2016) (refusing to conduct “sua sponte research and analyze aspects of the
qualified immunity analysis [defense counsel] did not brief”). Accordingly, Trooper Gosnell is
not entitled to qualified immunity on Mr. Leon’s malicious prosecution claim on grounds that he
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possessed arguable reasonable suspicion to initiate or extend the traffic stop.
b. 	Causation Element of Malicious Prosecution
Trooper Gosnell argues that Mr. Leon has failed to allege only one element of a Fourth
Amendment malicious prosecution claim—the causation element—entitling him to qualified
immunity. See ECF No. 44 at 13-14. And he additionally asserts that Mr. Leon “cannot point to a
published Supreme Court or Tenth Circuit case from December 28, 2017, or before that clearly
established the rights at issue in this case. Id. at 14-15.
In evaluating the purported causation defect in Mr. Leon’s pleading, the court begins by
acknowledging the well-established principle that “pursuing a malicious prosecution claim
against a police officer is ‘anomalous’” because “‘[t]he principal player in carrying out a
prosecution . . . is not police officer but prosecutor.’” Taylor, 82 F.3d at 1563 n.8 (quoting
Albright v. Oliver, 510 U.S. 266, 279 n.5 (1994) (Ginsburg, J., concurring)). “Thus, even when
police officers ‘set in motion a malicious prosecution,’ the chain of causation is ordinarily
broken by an indictment or preliminary hearing.” Horocofsky v. City of Lawrence, Kansas, ---
F.4th ---, 2026 WL 2130707, at *4 (10th Cir. July 24, 2026) (quoting Taylor, 82 F.3d at 1564).
But this rule is not absolute. Officers are not shielded from liability for malicious prosecution “if
they misrepresent facts or conceal them from the prosecutor.” Carbajal v. McCann, 808 F.
App’x 620, 633 (10th Cir. 2020) (citations omitted); Sodaro v. City & Cnty. of Denver, 629 F.
Supp. 3d 1064, 1078 (D. Colo. 2022) (“Most commonly, officers can be liable for malicious
prosecution if they conceal or misrepresent material facts to the prosecutor, whose judgment was
thereby influenced by the false statements.”) (citing Pierce v. Gilchrist, 359 F.3d 1279, 1292-93
(10th Cir. 2004)).
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Affording Mr. Leon’s pleading maximum credit, the evidence “fabrication” which forms
the basis of his malicious prosecution claim consisted of “staging items like clothes and books to
snap photos” at the time of the traffic stop. ECF No. 17 ¶ 24. But Mr. Leon was indicted in both
the 2018 and 2019 Cases, and a federal judge also found probable cause to sign the complaint
that initiated the 2019 Case. Additionally, at the suppression hearings in both cases, Trooper
Gosnell was subjected to rigorous cross-examination about the positioning of the items depicted
in the photographs, and he admitted without hesitation that the pictures were taken after he and
Defendant Miller had moved certain items. 2018 Case, ECF No. 55 at 68:5-8, 68:11-12, 68:15-
19, 69:4-6, 83:20-84:15; 2019 Case, ECF No. 63 at 37:13-20.
Mr. Leon now purports to make the positioning and photographing of these items the
factual linchpin of his malicious prosecution claim, but his allegations that Trooper Gosnell
“staged” some of his personal effects before taking photographs is not enough for the court to
reasonably infer that this reflects an intent to influence the prosecution by means of
misrepresentation or concealment. See Carbajal, 808 F. App’x at 633; Sodaro, 629 F. Supp. 3d
at 1078. This is particularly so where the court record in the underlying criminal case
demonstrates that the photograph issue was exposed to the scrutiny of three federal judges in the
context of vigorous cross-examination in which Trooper Gosnell acceded to defense counsel’s
descriptions of the manner of taking the photographs, on every point.8 Mr. Leon’s conclusory
8 While not determinative of the court’s assessment of any pleading deficiency on the causation
element of malicious prosecution, neither Judge Krieger nor Judge Arguello credited Mr. Leon’s
argument that Trooper Gosnell’s manner of taking the photographs negated reasonable suspicion.
2018 Case, ECF No. 59 at 16 (Judge Krieger observing “certain inconsistencies between Trooper
Gosnell’s hearing testimony and the video of the physical search of the car, relating to when
certain boxes were removed and when photographs were taken,” and finding that “[t]he Court
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allegation about the movement of these items—and he alleges nothing more than that they were
moved in some imprecisely-defined fashion, see ECF No. 17 ¶¶ 21, 24—fails to provide “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. The court can infer no intent to fabricate and
manipulate evidence from the facts properly considered here, nor can the court conclude that Mr.
Leon has plausibly alleged that his case is among those “anomalous” situations in which a law
enforcement officer caused his prosecution. See Taylor, 82 F.3d at 1563 n.8. Put otherwise, the
chain of causation here remains firmly broken by two indictments and one criminal complaint—
notably, a complaint initiated by a DEA agent and not Trooper Gosnell. See 2019 Case, ECF No.
1-2 (Doheny Affidavit). And these breaks were further solidified by the independent assessment
of three federal judicial officers of Trooper Gosnell’s testimony at the suppression hearing about
the manner in which he took photographs of the items in Mr. Leon’s truck.
Because Mr. Leon has not alleged the causation element of a Fourth Amendment
malicious prosecution claim, and thus has failed to demonstrate that Trooper Gosnell’s actions
violated a constitutional right, Trooper Gosnell is entitled to qualified immunity for that reason
alone. See Surat, 52 F.4th at 1270; Andersen, 79 F.4th at 1163 (the court “must grant qualified
immunity” if the plaintiff fails to meet his burden on either part of the qualified immunity test);
cannot say that those discrepancies materially influence the Court’s assessment of Trooper
Gosnell’s credibility to the analysis here”); 2019 Case, ECF No. 63 at 126:12-127:2 (findings by
Judge Arguello that “[t]aken together, all of this information,” including “the condition of the
interior of the vehicle,” “provided Trooper Gosnell with a reasonable suspicion that Mr. Leon
was engaged in criminal activity,” and that “[t]he minor inconsistencies in Trooper Gosnell’s
testimony that were highlighted in Mr. Leon’s cross-examination of him do not cast meaningful
doubt on his credibility”).
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see also CFP Acquisitions, Inc. v. Rhoades, No. 20-5073, 2021 WL 4806403, at *4 (10th Cir.
Oct. 15, 2021) (affirming dismissal of claims because “the amended complaint failed to allege at
least one element of each claim”). In light of the disposition on the first prong of the qualified
immunity inquiry, it is unnecessary to reach Trooper Gosnell’s argument on the clearly
established prong of the qualified immunity analysis. 9
The court therefore respectfully RECOMMENDS that the malicious prosecution claim
9 The court observes, however, that multiple citations in Mr. Leon’s response to what he argues is
clearly established law, ECF No. 46 at 7-8, appear to be hallucinated cases. Mr. Leon is
respectfully advised that this may constitute a violation of his obligations under Federal Rule of
Civil Procedure 11. See, e.g., Lowrey v. City of Rio Rancho, Civ. No. 25-849 JFR/LF, 2025 WL
3089580, at *10 (D.N.M. Nov. 5, 2025) (recognizing that “courts tend to find that Fed. R. Civ. P.
11(b)(2) applies in the context of litigants citing to AI-hallucinated cases in documents submitted
to courts. Plaintiff is subject to Fed. R. Civ. P. 11 notwithstanding his status as a pro se
plaintiff.”).
The court further notes that both Mr. Leon and Trooper Gosnell focus their clearly-
established-law arguments solely on cases addressing the reasonable suspicion requirement to
extend a traffic stop. ECF No. 44 at 15; ECF No. 46 at 7-8. So far as this court is able to tell,
none of the referenced caselaw mentions a malicious prosecution claim and, in particular, the
legal standard for assessing whether Mr. Leon’s rights were clearly established for purposes of
such a claim: whether Trooper Gosnell had “arguable probable cause” to pursue the prosecution.
See, e.g., Coones v. Bd. of Cnty. Commissioners of Unified Gov’t of Wyandotte Cnty./Kansas
City, Kansas, 166 F.4th 1, 25-26 (10th Cir. 2026) (“When the second prong of the qualified
immunity analysis [for purposes of a malicious prosecution claim] is at issue on appeal, we
‘determine whether the plaintiff’s rights were clearly established, which we approach by asking
whether the officers arguably had probable cause.’”) (quoting Felders, 755 F.3d at 879).
Trooper Gosnell does not raise the issue of “arguable probable cause” in his briefing. See ECF
Nos. 44, 52. It may be that the referenced reasonable-suspicion cases are probative of the
analysis of arguable probable cause, but the court will not take up that inadequately-briefed issue
here. See Coones, 166 F.4th at 27 (declining to reach clearly-established-law question where
defendant detectives “did not adequately raise their arguable probable cause argument before the
district court”).
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against Trooper Gosnell be dismissed with prejudice. 10
II. 	Claims Against Defendant Miller
Finally, the court addresses Mr. Leon’s claims against Mr. Miller, who has not been
served and has never appeared in this case. The case was drawn, in part, on July 15, 2025, and so
the 90-day period to effect service on Mr. Miller expired on October 13, 2025. Fed. R. Civ. P.
4(m) (“If a defendant is not served within 90 days after the complaint is filed, the court—on
motion or on its own after notice to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a specified time.”). The United States
Marshals Service has made two unsuccessful attempts to serve Mr. Miller. ECF Nos. 26, 30.
On December 15, 2025, this court issued an Order Setting Deadline for Service, taking
note of the service requirements established in Rule 4(m) and the two futile attempts to serve Mr.
Miller, and reminding Mr. Leon of his obligation to provide sufficient information for the
Marshals Service to effect service on Mr. Miller. ECF No. 63 (citing Lang v. Reed, No. 19-cv-
01558-KLM, 2019 WL 13402012, at *1 (D. Colo. Nov. 15, 2019), report and recommendation
adopted, 2020 WL 13835889 (D. Colo. Dec. 4, 2020); Fields v. Okla. State Penitentiary, 511
F.3d 1109, 1113 (10th Cir. 2007)); see also, e.g., Pemberton v. Patton, 673 F. App’x 860, 864
(10th Cir. 2016) (“[T]he Marshals Service is not responsible for lack of service where a plaintiff
10 See, e.g., Lamle v. Eads, 134 F.4th 562, 567 (10th Cir. 2025) (affirming “dismissal with
prejudice” because defendant was “entitled to qualified immunity on the claim for damages”);
Encinias v. New Mexico Corr. Dep’t, No. 23-2052, 2024 WL 4380477, at *6 (10th Cir. Oct. 3,
2024) (affirming district court’s order dismissing plaintiff’s claim with prejudice on the basis of
qualified immunity); Vreeland v. Olson, No. 20-cv-02330-PAB-SKC, 2021 WL 4237269, at *5
n.7 (D. Colo. Sept. 16, 2021) (dismissing claims against defendants “with prejudice because they
are entitled to qualified immunity”).
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does not provide correct information required for service.”). The court simultaneously issued a
specific directive to Mr. Leon, informing him that he “must provide sufficient information to
allow the Marshals or another court officer to serve Defendant Miller by January 15, 2026,” and
warning him that if he “fails to provide sufficient information, or if additional attempts at service
are unsuccessful, this court may recommend dismissal without prejudice of Defendant Miller
without further notice to Plaintiff.” Id. (emphasis in original). Mr. Leon’s pro se status does not
relieve him of the obligation to adhere to and comply with “the same rules of procedure that
govern other litigants[,]” including Rule 4. DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir.
1993); see also, e.g., Young v. Rios, No. CIV-15-641-R, 2018 WL 2079509, at *1 (W.D. Okla.
May 4, 2018) (“Plaintiff’s pro se, inmate status alone does not provide cause to extend the
ninety-day service deadline”).
The docket reflects no attempt by Mr. Leon to comply with the court’s order, and Mr.
Miller remains unserved. Accordingly, the court now RECOMMENDS that the remaining claim
against Mr. Miller for malicious prosecution be dismissed without prejudice for failure to effect
timely service pursuant to Rule 4(m).
CONCLUSION
Consistent with the foregoing, it is respectfully RECOMMENDED as follows:
(1) That Defendant Shane Gosnell’s Motion to Dismiss, ECF No. 44, be granted and the
remaining malicious prosecution claim against him be dismissed with prejudice; and
(2) That the remaining malicious prosecution claim against Defendant Mike Miller be
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dismissed without prejudice for failure to effect timely service on him pursuant to Rule 4(m).11
DATED: August 3, 2026 	BY THE COURT:
Susan Prose
United States Magistrate Judge
11 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. § 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); see also Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objective
and the consequences of failing to object”).
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