Gollaher v. Wentland

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 22, 2022
• Docket: 20-4127
• Status: Unpublished

Opinion

Appellate Case: 20-4127 Document: 010110660923 Date Filed: 03/22/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 22, 2022 _________________________________ Christopher M. Wolpert Clerk of Court SCOTT LOGAN GOLLAHER,

Plaintiff - Appellant,

v. Nos. 20-4127 & 21-4010 (D.C. No. 2:15-CV-00133-TS) WILLIAM Z. WENTLAND, (D. Utah)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and EID, Circuit Judges. _________________________________

Plaintiff Scott Logan Gollaher, proceeding pro se,1 appeals from the district

court’s order granting Defendant William Z. Wentland’s motion for judgment on the

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Mr. Gollaher also proceeded pro se in district court until the court appointed pro bono counsel for the limited purpose of helping him draft and file his third amended complaint. The scope of the appointment did not extend beyond that specific task. Because he is proceeding pro se on appeal, we liberally construe Mr. Gollaher’s appellate filings. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). But we do not “take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Appellate Case: 20-4127 Document: 010110660923 Date Filed: 03/22/2022 Page: 2

pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (appeal

no. 20-4127). He also appeals from the district court’s order denying his petition

for rehearing, which sought reconsideration of the district court’s decision on the

Rule 12(c) motion (appeal no. 21-4010). These appeals were consolidated for

procedural purposes. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm

the district court’s decisions in both appeals.

I. Background

The operative complaint for the purposes of this appeal is Mr. Gollaher’s third

amended complaint, which brought two claims under 42 U.S.C. § 1983 against

Detective Wentland, who worked for the Morgan County Sheriff’s Office.2 The

complaint asserted that Detective Wentland violated Mr. Gollaher’s constitutional

rights when Detective Wentland participated in obtaining and executing search

warrants for Mr. Gollaher’s residence and other property and in arresting him.

Detective Wentland filed an answer and then subsequently filed a motion for

judgment on the pleadings under Rule 12(c) of the Rules of Civil Procedure. He

argued that he was entitled to qualified immunity because Mr. Gollaher’s complaint

“failed to state a claim for a Fourth Amendment violation related to the search of his

property or his subsequent arrest because both were supported by probable cause.”

R., Vol. II at 6.

2 Although Detective Wentland no longer works for the Morgan County Sheriff’s Office, we refer to him in this decision by his title during the events at issue. 2 Appellate Case: 20-4127 Document: 010110660923 Date Filed: 03/22/2022 Page: 3

A magistrate judge initially recommended denying the motion without

prejudice. The district court rejected the report and recommendation after

considering Detective Wentland’s objections and Mr. Gollaher’s response to those

objections and reviewing the issues de novo.

The district court first considered Mr. Gollaher’s contention that

Detective Wentland omitted material information and made false representations in

his affidavit for the search warrants. The court explained that “[e]ven when the

additional information is added [to the affidavit] and the allegedly false statements

are omitted, the salient assertion remains the same: [Mr. Gollaher] allegedly took

pictures with his cell phone of minors in various states of undress.” Id. at 208. The

court further explained that “[t]his provides sufficient probable cause that

[Mr. Gollaher’s] cell phone and other electronic devices may have contained

evidence of sexual exploitation of a minor.” Id.

As for Mr. Gollaher’s contention that he was arrested without probable cause,

the court noted that “[t]he only allegation to support this assertion is that, on

information and belief, ‘no evidence had been found at Mr. Gollaher’s residence or

Morgan property that would have provided probable cause to believe Mr. Gollaher

had committed acts of sodomy on a child or sexual exploitation of a minor.’” Id. at

210 (quoting R., Vol. I at 391-92). The court explained that “the allegation is totally

conclusory because it completely lacks factual support” and “[Mr. Gollaher] merely

asserts that no evidence had been found to support a finding of probable cause but

provides no factual assertions to shore up this conclusory statement.” Id. at 211. The

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court further explained “[i]t seems implausible that Plaintiff would be arrested and

subjected to an ongoing criminal proceeding if ‘no evidence’ had truly been found.

Without more, this claim is subject to dismissal.” Id.

The court granted the Rule 12(c) motion for judgment on the pleadings.

Mr. Gollaher subsequently filed a petition for rehearing, which sought

reconsideration of the district court’s decision under Rules 59(e) and 60(b) of the

Federal Rules of Civil Procedure. The district court denied the petition.

Mr. Gollaher now appeals from the order granting the motion for judgment on

the pleadings (appeal no. 20-4127) and the order denying the petition for rehearing

(appeal no. 21-4010).

II. Discussion

We treat a motion for judgment on the pleadings under Rule 12(c) as a motion

to dismiss under Rule 12(b)(6), Atl. Richfield Co. v. Farm Credit Bank of Wichita,

226 F.3d 1138, 1160 (10th Cir. 2000), and “[w]e review de novo a dismissal of a

complaint under Rule 12(b)(6),” TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175,

1180 (10th Cir. 2007). In reviewing the complaint, “[w]e accept as true all

well-pleaded factual allegations” and “view those allegations in the light most

favorable to the nonmoving party.” Id. (internal quotation marks omitted).

A.

Mr. Gollaher first argues that the district court abused its discretion by

narrowly limiting its review to only his third amended complaint and the exhibits

attached to his complaint when deciding to grant the Rule 12(c) motion for judgment

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on the pleadings. But, as noted above, a Rule 12(c) motion is treated as a

Rule 12(b)(6) motion to dismiss, and “[t]he court’s function on a Rule 12(b)(6)

motion is not to weigh potential evidence that the parties might present at trial, but to

assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for

which relief may be granted.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.

2009) (internal quotation marks omitted).

Moreover, although Mr. Gollaher asserts that the district court’s “constricted

review left it without context critical to a fair determination on the case merits,” Aplt.

Opening Br. at 7, he does not identify any specific documents the district court

should have considered or cite any authority for the proposition that the district court

was required to consider evidence outside of the complaint when ruling on the

motion. Instead, he contends the district court should have considered

“repudiation[s]” he made in his response to the defendant’s objections to the

magistrate judge’s report and recommendation, as well as his assertion that pro bono

counsel failed to make corrections to his third amended complaint before filing it.

See id. at 7. But Mr. Gollaher did not move to amend his complaint to correct any

alleged misstatements that he learned of prior to filing his response to the objections.

And when reviewing a Rule 12(c) motion, the district court’s role is to review the

sufficiency of the complaint, not to weigh potential evidence, see Smith, 561 F.3d

at 1098. Mr. Gollaher has therefore failed to show the district court abused its

discretion in considering only the third amended complaint and the attached exhibits

in deciding the Rule 12(c) motion.

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B.

Mr. Gollaher next argues that when the district court was considering his

unlawful arrest claim, it relied on evidence outside of the complaint—although it

stated it was not doing so—and adopted a factual assertion in favor of the moving

party, contrary to the Rule 12(c) standard of review. But even assuming it did so,

“because our review is de novo, we need not concern ourselves with any alleged

misstatements or errors by the district court.” TMJ Implants, 498 F.3d at 1181

(summarily disposing of party’s contention on appeal from Rule 12(b)(6) dismissal

that “the district court resolved several issues of fact against it and ignored issues of

disputed material fact”).

We consider only the allegations in Mr. Gollaher’s third amended complaint

and view those allegations in his favor. After doing so, we conclude that the district

court properly dismissed the unlawful arrest claim.

“To survive a motion to dismiss, 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) (internal quotation marks omitted).

“[M]ere labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not suffice; a plaintiff must offer specific factual allegations to support

each claim.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.

2011) (internal quotation marks omitted). “A claim has facial plausibility when the

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plaintiff pleads 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.

Mr. Gollaher was arrested without a warrant, but “[a] warrantless arrest is

permissible when an officer has probable cause to believe that a person committed a

crime,” Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc) (internal

quotation marks omitted). “Probable cause to arrest exists only when the facts and

circumstances within the officers’ knowledge, and of which they have reasonably

trustworthy information, are sufficient in themselves to warrant a man of reasonable

caution in the belief that an offense has been or is being committed.” United States

v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004) (internal quotation marks omitted).

To support his claim for unlawful arrest, Mr. Gollaher alleged: “On

information and belief, at the time Detective Wentland arrested Mr. Gollaher, no

evidence had been found at Mr. Gollaher’s residence or the Morgan Property that

would have provided probable cause to believe Mr. Gollaher had committed acts of

sodomy on a child or sexual exploitation of a minor.” R., Vol. I at 391-92. He also

alleged, on information and belief, that “after [he] had been incarcerated for

approximately 230 days, the Morgan County prosecuting attorney” moved to dismiss

the charges and, on information and belief, the charges were dismissed “because no

evidence existed to convict him of the crimes for which he had been charged.” Id. at

392.

We first note that the allegations about the charges being dismissed are not

relevant to the plausibility of the unlawful arrest claim because “probable cause for a

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warrantless arrest is determined in terms of the circumstances confronting the

arresting officer at the time of the seizure,” so “the validity of such an arrest is not

undermined by subsequent events in the suspect’s criminal prosecution such as

dismissal of charges.” Wilder v. Turner, 490 F.3d 810, 814 (10th Cir. 2007) (internal

quotation marks omitted).

That leaves only one allegation to support Mr. Gollaher’s assertion he was

arrested without probable cause—that, on information and belief, “no evidence had

been found at [his] residence or the Morgan property that would have provided

probable cause to believe [he] committed acts of sodomy on a child or sexual

exploitation of a minor,” R., Vol. I at 391-92. We conclude this allegation is too

conclusory and lacking in factual support to plausibly state a claim that

Detective Wentland lacked probable cause to arrest Mr. Gollaher. This is especially

so where Mr. Gollaher also admitted in his complaint that after “several hours of

unauthorized searching of electronic media at his residence, Detective Wentland

arrested [him] on 10 counts of child pornography and one count of sodomy on a

child,” id. at 391, and “Detective Wentland and others executing the Search Warrants

seized several computers and other ‘digital media,’” id. at 394. It seems implausible

that no evidence was found to support probable cause for an arrest when

Mr. Gollaher admits that the officers searched his residence for several hours and

seized computers and other digital media.

In any event, “[d]ismissal is appropriate where the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct,” Al-Owhali v.

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Holder, 687 F.3d 1236, 1240 (10th Cir. 2012) (internal quotation marks omitted), and

the conclusory allegation that “no evidence had been found . . . that would have

provided probable cause,” R., Vol. II at 391-92, does not permit this court to infer

more than the mere possibility of misconduct. In other words, there are no

non-conclusory allegations that could plausibly lead to the conclusion that

Mr. Gollaher was arrested without probable cause. We therefore affirm the district

court’s dismissal of the unlawful arrest claim.

C.

In his third argument, Mr. Gollaher raises four separate issues. He argues that

Detective Wentland: (1) exploited the errors and omissions that pro bono counsel

made in the third amended complaint; (2) refused to stipulate to permit Mr. Gollaher

to amend his complaint for a fourth time; (3) filed his Rule 12(c) motion prematurely;

and (4) told the court that the parties had not conducted discovery when

Detective Wentland knew he had obtained extensive discovery. We have considered

these issues and none of them show that the district court committed reversible error

in granting the Rule 12(c) motion.

D.

After the district court granted the Rule 12(c) motion, Mr. Gollaher filed a

petition for rehearing, which sought reconsideration of the district court’s decision

under Rules 59(e) and 60(b). The court denied the petition for rehearing and

Mr. Gollaher appealed the denial. But in his opening brief, he does not make any

arguments as to how the district court erred or abused its discretion in denying his

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petition for rehearing. He has therefore waived any challenge to the district court’s

denial of his petition for rehearing. See Silverton Snowmobile Club v. U.S. Forest

Serv., 433 F.3d 772, 783 (10th Cir. 2006) (“[W]e have held that the failure to raise an

issue in an opening brief waives that issue.” (brackets and internal quotation marks

omitted)).

III. Conclusion

For the foregoing reasons, we affirm the district court’s decision granting the

Rule 12(c) motion and dismissing Mr. Gollaher’s third amended complaint in appeal

no. 20-4127, and we affirm the denial of Mr. Gollaher’s petition for rehearing in

appeal no. 21-4010. We grant Mr. Gollaher’s motions for leave to proceed in these

appeals without prepayment of the filing fees. Mr. Gollaher is obligated to continue

making partial payments until the fees have been paid.

Entered for the Court

Bobby R. Baldock Circuit Judge