Kohler v. Czajkowski

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 25-cv-01589-NYW-MDB
KENNETH KOHLER,
Plaintiff,
v.
KRISTOPHER CZAJKOWSKI,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss (or “Motion”) filed on June
25, 2025. [Doc. 11]. The Motion is fully briefed. [Doc. 17; Doc. 18]. Upon review of the
Motion, the related briefing, and the applicable case law, the Motion to Dismiss is
respectfully GRANTED.
BACKGROUND
The Court draws the following facts from the Complaint and Jury Demand, [Doc. 3],
and takes them as true when ruling on the Motion to Dismiss. On April 18, 2024, George
Sedlak’s work truck was stolen. 	[Id. at ¶ 12]. 	An eyewitness to the theft, Jody Scott,
described the suspect “as a white male in his younger 30s,” with a beard, wearing “dark
clothing [and a] blue backpack,” and appearing “somewhat dirty.” [Id. at ¶ 13]. Mr. Sedlak
was able to track the location of his truck, and an individual named Cris Sartin located the
vehicle. 	[Id. at ¶¶ 14–15]. 	When Mr. Sartin arrived, he saw a man “milling around the
truck.” [Id. at ¶ 15]. Mr. Sartin described the man as a “white male in his 20s” wearing “a
backwards baseball cap, dark long sleeve shirt, and cargo shorts.” [Id.].
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Mr. Sartin took a picture of the individual and shared the photo with Mr. Sedlak and
law enforcement. 	[Id. at ¶ 16]. 	Mr. Sedlak posted the picture on Facebook to see if
anyone recognized the person, and one of his friends, Kyle Miller, identified the suspect
as a former co-worker, Plaintiff Kenneth Kohler (“Plaintiff” or “Mr. Kohler”). 	[Id. at ¶ 16].
This information was relayed to Defendant Kristopher Czajkowski (“Defendant” or “Officer
Czajkowski”), a police officer with the Colorado Springs Police Department. [Id. at ¶¶ 11,
17]. 	Officer Czajkowski pulled Mr. Kohler’s photo from the Colorado Department of
Corrections (“CDOC”) website and “determined Mr. Kohler was the suspect based upon
a comparison of the two photographs.” [Id. at ¶ 17].
Officer Czajkowski completed an arrest warrant application and affidavit identifying
Mr. Kohler as the vehicle theft suspect. [Id. at ¶¶ 21–22]. The arrest warrant was signed
by a judicial officer on April 20, 2024, and Mr. Kohler was arrested on May 3, 2024. [Id.
at ¶¶ 24–25]. Mr. Kohler remained detained in the El Paso County Jail until May 30, 2024,
when the district attorney moved to dismiss the charges against him. [Id. at ¶¶ 26, 28].
Mr. Kohler claims that Officer Czajkowski performed an inadequate investigation
before applying for the arrest warrant and “falsely claimed he had positively identified Mr.
Kohler as the suspect in the case.” [Id. at ¶ 2]. Specifically, Plaintiff claims that Defendant
did not prepare a photo line-up with the suspect to present to witnesses. [Id. at ¶ 18]. He
also ignored “the fact that Mr. Kohler was between 10–20 years older than [the person
whom] the eyewitnesses described” and he performed only “a cursory comparison” of Mr.
Kohler’s CDOC photo and the suspect’s photo. [Id. at ¶¶ 18–19]. Plaintiff claims that if
Officer Czajkowski had performed a better comparison, he would have seen that the
suspect “had a gauge [earring],” while Mr. Kohler’s CDOC photo shows that he does not.
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[Id. at ¶ 19]. In addition, the suspect in the photograph is wearing shorts, with no visible
tattoos. [Id. at ¶ 20]. Plaintiff claims that “[i]f Officer Czajkowski had bothered to run the
Colorado Springs Police Department[] Records for Mr. Kohler, he would have seen that
Mr. Kohler has a tattoo of a skull with a steak [sic] through the head on his left calf.” [Id.
at ¶ 20]. Plaintiff asserts that the arrest warrant affidavit did not establish probable cause
for his arrest, but rather “contained false and/or misleading information and omitted
material exculpatory facts that should have been clear to Officer Czajkowski at the time
he drafted” the affidavit. [Id. at ¶ 23].
Mr. Kohler initiated this lawsuit on May 20, 2025, raised three claims against
Officer Czajkowski in his individual capacity, with each asserted under both 42 U.S.C.
§ 1983 and Colo. Rev. Stat. § 13-21-131: (1) an unlawful arrest claim, [Doc. 3 at ¶¶ 30–
39]; (2) a claim under Franks v. Delaware, 438 U.S. 154 (1978), [Doc. 3 at ¶¶ 40–47]; and
(3) a wrongful prosecution claim, [id. at ¶¶ 48–54]. Officer Czajkowski moves to dismiss
all three claims. [Doc. 11].
LEGAL STANDARDS
I. 	Rule 12(b)(6)
Under Rule 12(b)(6), 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), 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)). 	Nevertheless, 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.”
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 	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); see also Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of
the allegations in a complaint,” and that the allegations must be sufficient to nudge a
plaintiff’s claim(s) “across the line from conceivable to plausible”). 	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).
II. 	Qualified Immunity
Qualified immunity protects government officials from individual liability for actions
carried out while performing their official duties so long as their conduct does not violate
clearly established constitutional or statutory rights. 	Washington v. Unified Gov’t of
Wyandotte Cnty., 847 F.3d 1192, 1197 (10th Cir. 2017). Once a defendant has asserted
a qualified immunity defense, the burden shifts to the plaintiff who must establish that
(1) the defendant violated a constitutional right, and (2) the right was clearly established
at the time of the defendant’s action. 	Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir.
2015).
A right is clearly established if there is a Supreme Court or Tenth Circuit decision
on point or if the weight of authority in other courts provides that the right is clearly
established. Washington, 847 F.3d at 1197; DeSpain v. Uphoff, 264 F.3d 965, 979 (10th
Cir. 2001). A pleading need not contain all the necessary factual allegations to sustain a
conclusion that a defendant violated clearly established law, but must only satisfy the
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minimum pleading requirements articulated in Twombly. See Robbins, 519 F.3d at 1249
(recognizing that a heightened pleading standard is not required).
ANALYSIS
Mr. Kohler brings one claim of unlawful arrest, one Franks claim, and one claim of
malicious prosecution.1 [Doc. 3 at 6–9]. Each raises a federal constitutional claim under
§ 1983 and a state constitutional claim under § 13-21-131. See [id.].2 Defendant argues
that the legal standards that apply to Plaintiff’s federal claims apply equally to his state
claims (except for application of the doctrine of qualified immunity), see [Doc. 11 at 13–
14],3 and Plaintiff does not dispute this or argue that his federal and state claims should
be analyzed separately, see generally [Doc. 17]. 	Therefore, the Court addresses each
corresponding federal and state claim together. Cf. Weidner v. Doe, No. 24-1145, 2025
WL 1230531, at *6 n.6 (10th Cir. Mar. 5, 2025) (doing the same).
To state a claim of unlawful arrest under the Fourth Amendment, “the facts
asserted in a complaint must show that it is plausible that both a ‘seizure’ occurred and
that the seizure was ‘unreasonable.’” 	Asten v. City of Boulder, 652 F. Supp. 2d 1188,
1 Mr. Kohler captions his third claim as a claim for “wrongful prosecution.” [Doc. 3 at 9].
He does not address this claim or its elements in his Response to the Motion to Dismiss.
See [Doc. 17]. The Court construes this claim as a malicious prosecution claim. Cf. Pub.
Serv. Co. of Colo. v. Cont’l Cas. Co., 26 F.3d 1508, 1515 n.3 (10th Cir. 1994) (“Malicious
prosecution ‘is an intentional wrongful prosecution without just cause or excuse.’” (quoting
McIntosh v. City and Cnty. of Denver, 55 P.2d 1337, 1338 (Colo. 1936)).
2 Plaintiff asserts his Franks claim under federal and state law. [Doc. 3 at 7]. The Court
could locate no Colorado authority recognizing a Franks claim under Colorado law, and
neither Party cites any such authority. 	However, because Defendant proceeds as if a
Franks claim is cognizable under Colorado law, the Court assumes without deciding that
this type of claim can be raised under Colorado law.
3 “Qualified immunity is not a defense to liability” under § 13-21-131. See Colo. Rev. Stat.
§ 13-21-131(2)(b).
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1199 	(D. 	Colo. 	2009). 	An 	arrest 	is 	a 	quintessential 	“seizure” 	under 	the 	Fourth
Amendment, Romero v. Story, 672 F.3d 880, 885 (10th Cir. 2012), and an arrest “is
unreasonable unless it is supported by probable cause,” Michigan v. Summers, 452 U.S.
692, 700 (1981); see also Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996) (“[A]n
arrest 	warrant 	must be 	supported 	by 	probable 	cause 	to 	comply 	with 	the 	Fourth
Amendment.”). 	And to state a claim of malicious prosecution under § 1983, a plaintiff
must allege that “(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.” 	Carbajal v.
McCann, 808 F. App’x 620, 630 (10th Cir. 2020).
“In Franks, the Supreme Court held that affiants seeking arrest warrants violate
the constitution when they knowingly, or with reckless disregard for the truth, include false
statements in a supporting affidavit or omit information which, if included, would prevent
the warrant from lawfully issuing.” 	Kapinski v. City of Albuquerque, 964 F.3d 900, 905
(10th Cir. 2020) (citing Franks, 438 U.S. at 171). To state a claim under Franks, a plaintiff
must allege that (1) the affiant included false statements in, or omitted information from,
an affidavit; (2) the affiant acted knowingly or with reckless disregard for the truth; and
(3) if the false information were omitted, or if the omitted information were included, the
warrant would not have issued. 	Id. 	“When a Franks claim is based on omitted
information, the plaintiff must demonstrate that ‘the omitted information was “material” in
that its inclusion would have vitiated probable cause for issuing the warrant.’” 	Crothers
v. Carr, No. 23-8014, 2025 WL 1122681, at *5 (10th Cir. Apr. 16, 2025) (quoting Kapinski,
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964 F.3d at 905). Similarly, if a Franks claim is based on false statements in an affidavit,
there must be a showing that “probable cause would have been vitiated by exclusion of
the false statements from . . . the affidavit.” Montoya v. City & Cnty. of Denver, No. 16-
cv-01457-JLK, 2021 WL 1244264, at *18 (D. Colo. Mar. 4, 2021), aff’d, No. 21-1107, 2022
WL 1837828 (10th Cir. June 3, 2022).
Therefore, Plaintiff’s unlawful arrest claim, malicious prosecution claim, and
Franks claim all require the Court to consider whether Plaintiff has plausibly alleged that
the arrest warrant was unsupported by probable cause. 	Probable cause exists “where
the facts and circumstances within the . . . officer’s knowledge and of which [the officer]
had reasonably trustworthy information are sufficient in themselves to warrant a person
of reasonable caution to have the belief that an offense has been or is being committed
by the person to be arrested.” 	Koch v. City of Del City, 660 F.3d 1228, 1239 (10th Cir.
2011) (quotation omitted). Probable case “is not a high bar,” Kaley v. United States, 571
U.S. 320, 338 (2014), and “[f]ormulation of probable cause ‘does not require the fine
resolution of conflicting evidence that a reasonable-doubt or even a preponderance
standard demands,’” Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d 1204, 1220
(10th Cir. 2020) (quoting Gerstein v. Pugh, 420 U.S. 103, 121 (1975)). 	It also does not
“require the suspect’s guilt to be more likely true than false.” 	Kerns v. Bader, 663 F.3d
1173, 1188 (10th Cir. 2011) (quotation omitted). 	“Instead, the relevant question is
whether a substantial probability existed that the suspect committed the crime, . . .
requiring something more than a bare suspicion.” Id. (quotations omitted).
“Affiants seeking arrest warrants violate the Fourth Amendment when they
knowingly, or with reckless disregard for the truth, include false statements in an affidavit,
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or knowingly or recklessly omit from it information which, if included, would vitiate
probable cause.” Puller, 781 F.3d at 1197. But “[b]ecause probable cause is an objective
standard, it may exist despite a police officer’s false statements or material omissions.”
Sanchez v. Hartley, 299 F. Supp. 3d 1166, 1195 (D. Colo. 2017). Where a plaintiff has
alleged material misrepresentations or omissions in an arrest affidavit, courts “measure
probable cause by (1) removing any false information from the affidavit, (2) including any
omitted material information, and then (3) inquiring whether the modified affidavit
establishes probable cause for the warrant.” Puller, 781 F.3d at 1197.
“The burden is on the plaintiff to ‘make a substantial showing of deliberate
falsehood or reckless disregard for truth’ by the officer seeking the warrant.” Stonecipher
v. Valles, 759 F.3d 1134, 1142 (10th Cir. 2014) (quoting Snell v. Tunnell, 920 F.2d 673,
698 (10th Cir. 1990)). “[R]eckless disregard for the truth occurs whenever the affiant in
fact entertains serious doubts as to the truth of his allegations” or when the circumstances
“provide obvious reasons for doubting the truthfulness of the allegations.” 	Salmon v.
Schwarz, 948 F.2d 1131, 1140 (10th Cir. 1991).
Officer Czajkowski contends that Plaintiff’s claims should be dismissed because
the 	allegations 	in 	the 	Complaint 	establish 	that 	the 	arrest 	warrant, 	and 	Plaintiff’s
subsequent arrest, were supported by probable cause. 	[Doc. 11 at 5–13]. 	He argues
that because Plaintiff has not adequately alleged a constitutional violation, he is entitled
to qualified immunity against Plaintiff’s federal claims and is entitled to dismissal of
Plaintiff’s state claims under Rule 12(b)(6). [Id.].
Mr. Kohler disagrees. 	He argues that Officer Czajkowski’s “statement in the
warrant affidavit that he positively identified the Plaintiff as the suspect” can be viewed as
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either “an affirmative misrepresentation” or “a statement that required qualification by
omitted information . . . in Officer [Czajkowski’s] possession that indicated the Plaintiff
was not the suspect.” [Doc. 17 at 4]; see also [Doc. 11-1 at 5 (Officer Czajkowski stating
in the affidavit that he “determined based on the photographs that Mr. Kohler was
positively identified as the suspect in this case”)].4 Plaintiff argues, essentially, that due
to what he perceives as Officer Czajkowski’s insufficient investigation and failure to
consider other facts, Officer Czajkowski could not truthfully claim to have positively
identified Mr. Kohler as the suspect. [Doc. 17 at 5]. As for omissions, Mr. Kohler argues
that Officer Czajkowski “intentionally omitted both the gauge earring and the lack of tattoo
in the Affidavit.” 	[Id. at 6]. 	Specifically, he alleges in his Complaint that “[i]f Officer
Czajkowski would have done more than a cursory comparison of the photograph [of the
suspect], he would have seen that the suspect had a gauge [earring],” while “Mr. Kohler’s
[C]DOC photograph shows that he does not.” [Doc. 3 at ¶ 19]. In addition, Plaintiff alleges
that the suspect’s photograph “shows [that he] does not have any tattoos” on his legs,
and “[i]f Officer Czajkowski had bothered to run the Colorado Springs Police Department[]
Records for Mr. Kohler, he would have seen that Mr. Kohler has a tattoo of a skull with a
steak [sic] through the head on his left calf.” [Id. at ¶ 20].
The Court begins with the alleged false statement in the affidavit. Puller, 781 F.3d
at 1197. Mr. Kohler’s Complaint identifies just one alleged misrepresentation: that Officer
4 In ruling on a Rule 12(b)(6) motion, a “district court may . . . consider documents attached
to or referenced in the complaint if they are central to the plaintiff's claim and the parties
do not dispute the documents’ authenticity.” 	Brokers’ Choice of Am., Inc. v. NBC
Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017). 	The Court may consider the
affidavit because it is referenced in Plaintiff’s Complaint, [Doc. 3 at ¶¶ 22–24], it is central
to Plaintiffs’ claims, [id. at ¶¶ 33, 42, 49, 52], and no Party disputes its authenticity.
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Czajkowski “falsely claimed he had positively identified Mr. Kohler as the suspect in this
case.” [Doc. 3 at ¶ 2]. However, the Court is not convinced that Plaintiff has alleged facts
showing that Officer Czajkowski’s statement that he “positively identified [Mr. Kohler] as
the suspect in this case,” [Doc. 11-1 at 5], is in fact an affirmatively false statement, let
alone that Officer Czajkowski knew of or recklessly disregarded the falsity of this
statement. 	The statement appears to reflect Officer Czajkowski’s subjective belief that,
based on his investigation, he had identified the proper suspect, and Plaintiff alleges no
facts suggesting that Officer Czajkowski knew at the time that he was making this
statement that Mr. Kohler was not the actual suspect. 	See [Doc. 3]. 	Nor does Plaintiff
allege facts from which it could be inferred that Officer Czajkowski “entertain[ed] serious
doubts as to the truth of his allegations.” Salmon, 948 F.2d at 1140.
At best, Plaintiff suggests that Officer Czajkowski should have conducted a more
detailed investigation, and that had he done so, he would have discovered information
exculpating Plaintiff. 	See [Doc. 17 at 5]. 	But as explained in more detail below, “[t]he
failure to investigate a matter fully, to exhaust every possible lead, interview all potential
witnesses, and accumulate overwhelming corroborative evidence rarely suggests a
knowing or reckless disregard for the truth.” Metzler v. City of Colo. Springs, 841 F. App’x
94, 98 (10th Cir. 2021) (quotation omitted). “To the contrary, it is generally considered to
[be token] negligence at most.” Id. (quotation omitted). Thus, Plaintiff has not plausibly
alleged 	that 	Officer 	Czajkowski 	knowingly 	or 	recklessly 	included 	a 	material 	false
statement in the arrest warrant affidavit.
Next, the Court considers any “material information” allegedly omitted from the
affidavit. Puller, 781 F.3d at 1197. As a preliminary matter, the Court observes that Mr.
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Kohler’s allegations assert that Officer Czajkowski recklessly omitted information from the
affidavit, not that he knowingly omitted information. See, e.g., [Doc. 3 at ¶ 18 (“If Officer
Czajkowski would have done more than a cursory comparison of the photograph, he
would have seen that the suspect had a gauge [earring].” (emphasis added)); id. at ¶ 20
(“If Officer Czajkowski had bothered to run the Colorado Springs Police Department[]
Records for Mr. Kohler, he would have seen that Mr. Kohler has a tattoo of a skull with a
steak [sic] through the head on his left calf.” (emphasis added)); id. at ¶ 21 (“Instead of
doing any of this minimal investigation, Officer Czajkowski filled out an arrest warrant
claiming he had positively identified the suspect as Mr. Kohler.” (emphasis added))].5 To
plausibly allege reckless disregard, a plaintiff must allege facts establishing “that the
officer in fact entertained serious doubts as to the truth of his allegations.” Stonecipher,
759 F.3d at 1142 (quotation omitted). 	And as mentioned above, “[t]he failure to
investigate a matter fully . . . rarely suggests a knowing or reckless disregard for the truth,”
and is generally considered negligent at most. 	Metzler, 841 F. App’x at 98 (quotation
omitted).
5 Plaintiff does allege that Officer Czajkowski “knowingly omitted material exculpatory
facts known to him at the time he drafted the Affidavit.” [Doc. 3 at ¶ 42]. However, this
“is merely ‘a formulaic recitation of the elements of a cause of action’ and does not
‘plausibly give rise to an entitlement to relief.’” Weidner, 2025 WL 1230531, at *8 (quoting
Iqbal, 556 U.S. at 678–79). The Complaint does not identify any omitted facts that were
allegedly known to Officer Czajkowski at the time he drafted the affidavit. See generally
[Doc. 3]. 	To the extent that Plaintiff argues in his Response that Officer Czajkowski
“intentionally omitted both the gauge earring and the lack of tattoo in the Affidavit” and
that “[b]ased upon the Defendant’s own exhibits, Officer [Czajkowski] was in possession
of the exculpatory information,” [Doc. 17 at 6], these assertions are not supported by
citations to Plaintiff’s Complaint and are inconsistent with the actual allegations in
Plaintiff’s Complaint. 	Moreover, Plaintiff cannot defeat the Motion to Dismiss by raising
new factual allegations in his Response. 	Sudduth v. Citimortgage, Inc., 79 F. Supp. 3d
1193, 1199 n.3 (D. Colo. 2015).
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In his Complaint, Plaintiff alleges that Kyle Miller identified Mr. Kohler as the
suspect after seeing the suspect’s photograph on Facebook. [Doc. 3 at ¶ 16]. And in the
arrest warrant affidavit, which the Court may properly consider at the motion-to-dismiss
stage, Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir.
2017), Officer Czajkowski states that (1) he viewed the Facebook comment in which Mr.
Miller identified Mr. Kohler; (2) he spoke to Mr. Miller directly; (3) Mr. Miller had confirmed
that 	he 	believed 	the 	suspect 	was 	Mr. 	Kohler; 	(4) 	Mr. 	Miller 	had 	“talked 	to 	his
superintendent who agreed that the individual in the picture was” Mr. Kohler; and (5) Mr.
Miller had informed Officer Czajkowski that “he recognized Mr. Kohler [as the suspect in
the photograph] because [Mr. Kohler] always wears the blue gloves and bracelet [that the
suspect was wearing] in the photo,” [Doc. 11-1 at 5]. Officer Czajkowski also stated that
he 	compared 	the 	suspect’s 	photograph 	with 	photographs 	from 	“law 	enforcement
databases” and “determined” that Mr. Kohler was the suspect. [Id.].
In light of the information Officer Czajkowski had that connected Mr. Kohler to the
theft, 	Officer 	Czajkowski’s 	alleged 	failure 	to 	“run 	the 	Colorado 	Springs 	Police
Department[] Records for Mr. Kohler” to ascertain whether Mr. Kohler had any tattoos,
see [Doc. 3 at ¶ 20], does not demonstrate “knowing or reckless disregard for the truth,”
Metzler, 841 F. App’x at 98; see also Weidner, 2025 WL 1230531, at *8 (failure to conduct
additional investigation after discovering incriminating evidence did not amount to
reckless disregard). 	And Officer Czajkowski’s alleged failure to notice the suspect’s
gauge earrings, and Mr. Kohler’s lack of earrings, amounts to “negligence at most.”
Metzler, 841 F. App’x at 98. 	Based on the facts alleged in the Complaint and other
properly considered documents, Plaintiff has not plausibly alleged that Officer Czajkowski
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entertained “serious doubts as to the truth of his allegations” or the existence of “obvious
reasons for doubting the truthfulness of the allegations,” Salmon, 948 F.2d at 1140,6 and
the Court thus concludes that the Complaint does not plausibly allege that Officer
Czajkowski knowingly or recklessly omitted material information from the affidavit.
Therefore, the Court does not include this information in its probable cause analysis. See
Weidner v. McHale, No. 23-cv-00339-NYW-SBP, 2024 WL 1094488, at *7 (D. Colo. Mar.
13, 2024) (this Court reviewing affidavit “as is,” “looking at the totality of the circumstances
before” the affiant officer, because there were “no specific material omissions to include,
or false contents to exclude”), aff’d, 2025 WL 1230531.7
The Court’s task now is to determine whether, in light of the above analysis,
Plaintiff plausibly alleges that the affidavit did not supply probable cause for his arrest.
Id.; Puller, 781 F.3d at 1197. 	To establish probable cause, the affidavit did not have to
undertake a “fine resolution of conflicting evidence,” Hinkle, 962 F.3d at 1220, or establish
that Mr. Kohler’s guilt was “more likely true than false,” Kerns, 663 F.3d at 1188. Probable
cause requires only that “the facts and circumstances within [Officer Czajkowski’s]
knowledge, and of which they have reasonably trustworthy information, are sufficient in
6 The arrest warrant affidavit states that Mr. Sedlak informed Officer Czajkowski that he
had contacted Mr. Kohler’s parole officer and that the parole officer “said they talked to
Mr. Kohler who denied being involved.” [Doc. 11-1 at 4]. But an alleged suspect’s denial
of involvement in a crime would not provide “obvious reasons” to doubt Mr. Miller’s
identification of Mr. Kohler.
7 The Complaint alleges that the affidavit “omits any mention of . . . the fact [that] two eye-
witnesses described the suspect as decades younger than Mr. Kohler.” [Doc. 3 at ¶ 43].
In his Response to the Motion to Dismiss, Mr. Kohler does not raise any argument about
the discrepancy between the eyewitnesses’ estimates of the suspect’s age and Mr.
Kohler’s age. See [Doc. 17]. For purposes of completeness, the Court observes that the
affidavit states that Mr. Kohler was, at the time, 47 years of age, [Doc. 11-1 at 3], and also
mentions that the eyewitnesses estimated the suspect to be “in his younger 30s” and “in
his 20s,” [id. at 3–4].
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themselves to warrant a man of reasonable caution in the belief that an offense has been
or is being committed.” 	Cortez v. McCauley, 478 F.3d 1108, 1116 (10th Cir. 2007)
(quotation omitted). Here, the affidavit demonstrates that a person who was familiar with
Mr. Kohler identified him as the suspect based on the photograph, told Officer Czajkowski
that Mr. Kohler “always [wore] the blue gloves and bracelet” that the suspect was wearing
in the photo, and told Officer Czajkowski that his boss had also identified Mr. Kohler as
the suspect. [Doc. 11-1 at 5]. Under these circumstances, a reasonably prudent officer
would have an adequate basis for finding probable to arrest Mr. Kohler for the vehicle
theft. See Maw v. Kearl, No. 1:21-cv-00080-BSJ, 2023 WL 4463015, at *3 (D. Utah July
11, 2023) (“That these persons, who personally knew Mr. Maw, thought he looked like
the man who had robbed the bank, amounted to reliable evidence to support Detective
Kearl’s opinion that Mr. Maw should be considered a robbery suspect and supported a
probable cause affidavit.” (footnote omitted)).8
Because Plaintiff has not alleged sufficient facts to plausibly establish that he was
arrested without probable cause, he cannot establish a constitutional violation for
purposes of his unlawful arrest or malicious prosecution claims. Puller, 781 F.3d at 1200.
8 In his Response, Plaintiff argues that “whether the inclusion of the [gauge earring] and
tattoo information would have negated probable cause is a question of fact that should
be left for a jury and is not appropriate for a determination at this stage.” [Doc. 17 at 7].
But “[i]n a qualified immunity context, the probable cause evaluation is a question of law
appropriate for resolution by the Court.” Shimomura v. Carlson, 17 F. Supp. 3d 1120,
1132 (D. Colo. 2014) (citing Hunter v. Bryant, 502 U.S. 224, 228 (1991)). Moreover, the
Court here is not conclusively determining, as a matter of law, that there was probable
cause for Mr. Kohler’s arrest. Rather, the Court is deciding whether Plaintiff’s allegations
are sufficient to plausibly allege that the affidavit and his arrest lacked probable cause.
For the reasons explained above, the Court concludes that they are not. 	See Weidner,
2025 WL 1230531, at *6 (affirming dismissal because “the amended complaint fail[ed] to
plausibly allege [that the detective] acted without probable cause”).
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Similarly, for purposes of the Franks claim, Plaintiff has not plausibly alleged (1) that
Officer Czajkowski omitted material information that would have vitiated probable cause
or (2) Officer Czajkowski made a materially false statement that, if eliminated from the
affidavit, would have destroyed probable cause. Crothers, 2025 WL 1122681, at *5;
Montoya, 2021 WL 1244264, at *18.
Because Plaintiff has not plausibly alleged a federal constitutional violation, Officer
Czajkowski is entitled to qualified immunity on Plaintiff’s federal claims. And for the same
reason, Plaintiff fails to state a plausible claim under Rule 12(b)(6), necessitating
dismissal of his remaining state claims. The Motion to Dismiss is respectfully GRANTED,
and Plaintiff’s claims are DISMISSED without prejudice.9
In his Response, Plaintiff states that if the Court is unpersuaded by his arguments,
he “would ask for the opportunity to amend the Complaint.” 	[Doc. 17 at 8]. 	The Court
declines to grant leave to amend without a formal motion, as required by the Local Rules.
See D.C.COLO.LCivR 7.1(d) (“A motion shall not be included in a response or reply to
the original motion. 	A motion shall be filed as a separate document.”). 	“A district court
may deny leave to amend when a plaintiff fails to file a written motion and instead ‘merely
suggests []he should be allowed to amend if the court concludes [his] pleadings are
infirm.’” Johnson v. Spencer, 950 F.3d 680, 721 (10th Cir. 2020) (cleaned up). If Plaintiff
wishes to amend his Complaint, he may file a formal motion to amend that complies with
9 Defendant asserts that Plaintiff’s claims should be dismissed with prejudice, [Doc. 11 at
14], but he does not raise any argument in support. 	“A dismissal with prejudice is
appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting
leave to amend would be futile.” 	Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219
(10th Cir. 2006). 	The Court declines to undertake a futility analysis sua sponte and
instead dismisses Plaintiff’s claims without prejudice.
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the Local Rules and the Federal Rules of Civil Procedure no later than April 20, 2026,
after conferring with Defendant. 	If Plaintiff does not file a motion to amend by this
deadline, the Court will direct the Clerk of Court terminate this case without any further
notice.
CONCLUSION
For the reasons set forth herein, IT IS ORDERED that:
(1) 	The Motion to Dismiss [Doc. 11] is GRANTED;
(2) 	Plaintiff’s federal claims are DISMISSED without prejudice on the grounds
of qualified immunity and Rule 12(b)(6);
(3) 	Plaintiff’s state claims are DISMISSED without prejudice under Rule
12(b)(6);
(4) 	If Plaintiff wishes to amend his Complaint, he shall file a motion to amend
on or before April 20, 2026; and
(5) 	If Plaintiff does not file a motion to amend by the Court’s deadline, the Court
will direct the Clerk of Court to terminate this case.
DATED: March 30, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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