F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS December 15, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
R OBER T JO SEPH ,
Plaintiff-Appellant, v. No. 04-4212 (D.C. No. 2:00-CV-340 DAK) R ICHA RD SH EPH ER D and STEVE (District of Utah) BA RTLETT,
Defendants-Appellees.
RO BERT JOSEPH and RA CH ELLE JO SEPH ,
Plaintiffs-Appellants,
v. No. 05-4181 (D.C. No. 2:00-CV-340 DAK) DEE D EE C ORR ADINI; RO SS C (District of Utah) A N D ERSO N ; R UB EN B. O RTEGA; JERRY M END EZ; A.M . CO NN OLE, also known as M ac Connole, in their individual capacities; SA LT LAKE C ITY , a municipal corporation; GUY Y O SH IK A WA , an individual; ROY W A SD EN, an individual; WILLIAM SHELTON, an individual; LARRY STOTT, an individual; CH AR LES RICK DINSE, an individual; SCOTT D . FO LSO M , an individual; JUDY DENCKER, an individual; M ARK ZELIG, an individual M ARK SCHARM AN, an individual; M ARK A SK ER LU N D , an individual; JASON SNOW , an individual; DAVID GREER; ZANE SW IM , an individual,
Defendants-Appellees. OR D ER AND JUDGM ENT *
Before BR ISC OE, HOL LOW AY, and M cCO NNELL, Circuit Judges.
This is the second time Plaintiff Robert L. Joseph has appeared before this
Court to challenge district court rulings in favor of persons and entities he claims
participated in an unconstitutional cabal to remove him from the Salt Lake City
Police Department. In his first appeal, we affirmed the district court’s grant of
summary judgment to David Yocum, the Salt Lake County District Attorney, and
Salt Lake County on M r. Joseph’s malicious prosecution claim. Joseph v. Yocum,
53 F. App’x 1, 4 (10th Cir. 2002). This appeal comprises claims under 42 U.S.C.
§ 1983 against other employees of the Salt Lake County District Attorney’s
office, Salt Lake City, and officers of the Salt Lake City Police Department. W e
hold that the district court properly dismissed each defendant and therefore
A FFIR M its judgments.
I. Facts
Late in the evening of M arch 26, 1999, M r. Joseph, who was then a Salt
Lake City police officer, met his wife, Rachelle, at a park to give her a house key
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 10 th Cir. R. 32.1.
-2- because she had been inadvertently locked out of their home. W hile they were
conversing, a car passed them at excessive speed. M r. Joseph left the park and
pursued the car. W hen M r. Joseph caught the speeding motorist, an altercation
ensued. M r. Joseph claims that the motorist opened the door and put the car in
motion, thereby scooping him onto the car. M r. Joseph fired his weapon at the
suspect eleven times before the motorist drove away.
Rachelle Joseph happened upon the scene as she w as driving home, before
any other officers arrived but after the motorist had driven away. M r. Joseph told
her he had been involved in a shooting and asked her to leave. She obliged, but
had not gone far when she saw emergency vehicles with lights on driving in her
husband’s direction. Fearing for his safety, M rs. Joseph returned to the scene.
Since the area was cordoned off when she arrived, M rs. Joseph approached
Officer Poulsen at the scene perimeter, told him who she was, and asked to see
her husband. Officer Poulsen let M rs. Joseph, who was upset and crying, into his
car so he could take her to the scene to talk to M r. Joseph. Subsequent events at
the shooting scene led her to file a claim under 42 U.S.C. § 1983 for alleged
violations of her Fourth Amendment rights. W e discuss those events in greater
detail below, when reviewing the district court’s dismissal of her claim.
Both the Salt Lake City Police Department and the Salt Lake County
District Attorney’s office investigated M r. Joseph’s role in the shooting. The
D.A.’s office assigned defendant Steve Bartlett to the case. As a result of the
-3- investigations by M r. Bartlett and others, M r. Joseph was eventually indicted for
second-degree aggravated assault. Before trial, however, the D.A.’s office
dropped the charges. On January 18, 2000, defendant Richard Shepherd wrote a
letter to former Salt Lake City Police Chief Arthur Connole describing the
decision of the D .A.’s office to file and subsequently drop charges against M r.
Joseph.
Even though M r. Joseph never stood trial for the shooting, he was
terminated from the police force. He appealed his termination to the Salt Lake
City Civil Service Commission, but failed to participate in discovery. The City
eventually filed a motion to dismiss M r. Joseph’s appeal as a sanction for his
refusal to cooperate. Shortly before the Commission was scheduled to rule on
that motion, M r. Joseph, through counsel, agreed to provide all the materials the
City had requested within fifteen days. M r. Joseph failed to live up to his end of
the bargain, however, and the City again moved to dismiss. This time, the
Commission granted its request. M r. Joseph appealed the Commission’s decision
to the Utah Court of A ppeals, claiming that he had been denied the due process
right to challenge his termination. The Utah Court of Appeals upheld the
Commission’s decision, specifically rejecting M r. Joseph’s due process argument.
Joseph v. Salt Lake City Civil Serv. Comm’n, 53 P.3d 11, 16 (Utah Ct. App.
2002). The Utah Court of Appeals’ judgment became final after both the Utah
Supreme Court, Joseph v. Salt Lake City Civil Serv. Comm’n, 63 P.3d 104 (Utah
-4- 2002), and the United States Supreme Court, Joseph v. Salt Lake City Civil Serv.
Comm’n, 540 U.S. 821 (2003), denied certiorari.
M r. Joseph then filed this § 1983 case in the district court. The district
court dismissed all claims against M r. Yocum and Salt Lake County, and this
Court affirmed. Joseph, 53 F. App’x at 4. M r. Joseph then amended his
complaint to allege malicious prosecution claims against M r. Shepherd and M r.
Bartlett. He also alleged that Salt Lake City denied him due process during the
Civil Service Commission hearings.
II. Procedural H istory and Standard of Review
Case number 04-4212 is M r. Joseph’s appeal from the grant of a Rule
12(b)(6) motion to dismiss the malicious prosecution claims against M r. Shepherd
and M r. B artlett. We review de novo the district court’s grant of a Rule 12(b)(6)
motion to dismiss, “applying the same standards as the district court.” M oore v.
Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006). W e accept all well-pleaded
factual allegations in the complaint as true and view them “in the light most
favorable to the nonmoving party.” Id. (internal quotation marks omitted). But
merely conclusory allegations in a complaint do not constitute well-pleaded
factual allegations. Tal v. Hogan, 453 F.3d 1244, 1261 (10th Cir. 2006).
Case number 05-4181 is the Josephs’ appeal of the district court’s grant of
summary judgment in favor of Salt Lake City and Officers M endez and Zelig on
their due process and Fourth Amendment claims. “W e review the grant of
-5- summary judgment de novo and affirm only if the record, considered in the light
most favorable to the [nonmoving party], establishes no genuine issue of material
fact, and the defendant is entitled to a judgment as a matter of law.” Westland
Holdings, Inc. v. Lay, 462 F.3d 1228, 1229 (10th Cir. 2006) (internal quotation
marks and citations omitted).
III. The M alicious Prosecution Claim s
A. Richard Shepherd
In January 2000, Richard Shepherd was the director of the Criminal
Division in the Salt Lake County District Attorney’s office. On January 18, 2000,
he w rote a letter to then-Police Chief A rthur Connole describing his office’s
decision to file and then dismiss criminal charges against M r. Joseph for Joseph’s
role in the M arch 26, 1999, shooting. The letter contained M r. Shepherd’s
opinion of the legality of M r. Joseph’s conduct, concluding with this statement:
“Unfortunately there are factual disputes that exist and there is no other forum
available to resolve these issues. The only conclusion I can assert with some
finality is that the decision was made not to proceed further with criminal
prosecution.” A ppellees’ Br., Ex. H, at 2. M r. Joseph’s claims against M r.
Shepherd relate solely to Shepherd’s authorship of that letter. A ppellant’s Br. 8.
Since this letter followed the dismissal of criminal charges against M r.
Joseph, it cannot form the basis for a § 1983 malicious prosecution claim. See
Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1244 (10th Cir. 2003). The only
-6- possible due process claim it may raise is an infringement upon M r. Joseph’s
“‘liberty interest in [his] good name and reputation as it affects [his] property
interest in continued employment.’” Stidham v. Peace O fficer Standards &
Training, 265 F.3d 1144, 1153 (10th Cir. 2001) (quoting Workman v. Jordan, 32
F.3d 475, 480 (10th Cir. 1994)). The district court held that M r. Joseph failed to
state a claim. W e agree.
To establish this type of liberty deprivation, a plaintiff must allege and
prove each of these four elements: “‘First, . . . the statements must impugn the
good name, reputation, honor, or integrity of the employee. Second, the
statements must be false. Third, the statements must occur in the course of
terminating the employee or must foreclose other employment opportunities. And
fourth, the statements must be published.’” Id. (quoting Workman, 32 F.3d at
481).
M r. Joseph’s brief does not cite to the paragraphs in his complaint that
allege these four elements. The complaint is particularly deficient in two
respects. First, although the complaint contains the conclusory allegation that the
letter was “falsified,” it does not identify any specific statements of purported
facts that it alleges both to be false and to impugn his reputation. M r. Shepherd’s
letter states that “[t]he only conclusion I can assert with some finality is that the
decision was made not to proceed further with criminal prosecution.” Appellees’
Br., Ex. H, at 2. That statement— the only factual conclusion asserted with “some
-7- finality”— is undoubtedly true, and it does not impugn his reputation. M r. Joseph
does not contend otherw ise. The letter also states that “[u]nfortunately there are
factual disputes that exist,” but again, M r. Joseph does not contend this is false
(indeed, his account of the events in question seems to corroborate rather than
contradict the presence of factual disputes). Nor does this statement impugn M r.
Joseph’s reputation. In his brief, M r. Joseph seems to argue that the problem with
the letter is that it insinuated the reason for dismissing the case was lack of, or
uncertainty about, the evidence, rather than that M r. Joseph was exonerated. But
M r. Joseph’s obligation as a plaintiff is to identify a statement in the letter that is
false and that impugns his good name. Failure to exonerate him is not the same
as impugning his good name, reputation, honor, or integrity.
Second, the complaint contains no allegation that M r. Shepherd “published”
the letter. Internal communications, if not made public, can have no effect on an
employee’s good name or reputation, and there is no allegation in the complaint
that the defendants made the letter public. See Lancaster v. Indep. Sch. Dist. No.
5, 149 F.3d 1228, 1235 (10th Cir. 1998) (“Also fatal to plaintiff’s liberty interest
claim is the fact that the defendants made no public statements disparaging [the
plaintiff] or harming his standing or associations in the community. The Supreme
Court has rejected the theory that the mere fact of dismissal, absent some
publicizing of the reasons for the action, could amount to a stigma infringing
one’s liberty.” (internal quotation marks and emphasis omitted)); Dickeson v.
-8- Quarberg, 844 F.2d 1435, 1440 (10th Cir. 1988) (“A liberty interest is not
violated when one is discharged without public disclosure of the reasons for the
discharge.”). A ccordingly, we affirm the district court’s judgment dismissing this
cause of action for failure to state a claim.
B. Steve Bartlett
Steve Bartlett was the district attorney’s office investigator assigned to M r.
Joseph’s shooting incident. M r. Joseph alleges in his § 1983 malicious
prosecution claim that M r. Bartlett “conducted [a] deliberate investigation against
him ” by allegedly failing to “follow[] the protocol, . . . to implore [sic] his own
judgment . . . , and deliberately whether knowingly or recklessly, withheld the
State Crime Lab information from prosecutors at the time of screening.”
Appellant’s Br. 6. The district court held that M r. Bartlett was entitled to
prosecutorial immunity and qualified immunity. It also held that M r. Joseph’s
claims against M r. Bartlett w ere barred by claim and issue preclusion.
W e affirm the district court’s judgment granting absolute immunity to M r.
Bartlett for his role “in presenting criminal charges to the D.A. by personally
preparing an information against Officer Joseph [and by] obtain[ing] an arrest
warrant.” A ppellant’s App. 60. Though M r. Bartlett is not the prosecutor,
prosecutorial immunity extends to certain agents of the prosecutor when they are
engaged in performing tasks that are inherently prosecutorial in nature. As we
explained in Perez v. Ellington, 421 F.3d 1128 (10th Cir. 2005), when
-9- determining whether a defendant is entitled to absolute immunity, we employ a
functional approach that examines “‘the nature of the function [the defendant]
performed, not the identity of the actor who performed it.’” Id. at 1133 (quoting
M alik v. Arapahoe County Dep’t of Soc. Servs., 191 F.3d 1306, 1314 (10th Cir.
1999)). An investigator who prepares a criminal complaint and seeks an arrest
warrant is therefore entitled to absolute immunity. Roberts v. Kling, 144 F.3d
710, 711 (10th Cir. 1998). W ith regard to the district court’s holding that M r.
Bartlett enjoys absolute prosecutorial immunity for his role in these two actions,
this case is controlled by Roberts, and we affirm.
W e also agree that qualified immunity shields M r. Bartlett from liability
with regard to the other allegations in M r. Joseph’s complaint. “In order to defeat
a qualified immunity defense, ‘a plaintiff must show that (1) the official violated
a constitutional or statutory right; and (2) the constitutional or statutory right was
clearly established when the alleged violation occurred.’” Johnson ex rel. Estate
of Cano v. Holmes, 455 F.3d 1133, 1142 (10th Cir. 2006) (quoting M imics, Inc. v.
Village of Angel Fire, 394 F.3d 836, 841 (10th Cir. 2005)).
M r. Joseph fails at step one. W e recently reiterated that in constitutional
tort cases, “the common law tort serves as an important guidepost for defining the
constitutional cause of action,” but “the ultimate question is always whether the
plaintiff has alleged a constitutional violation.” Pierce v. Gilchrist, 359 F.3d
1279, 1289 (10th Cir. 2004) (citing Taylor v. M eacham, 82 F.3d 1556, 1561 (10th
-10- Cir. 1996)). M ost of M r. Joseph’s factual allegations simply do not state a Fourth
Amendment violation. It is not unconstitutional for a district attorney’s office
employee to investigate a crime as his superiors direct, nor is it unconstitutional
for an investigator to rely upon a fellow officer’s investigation when determining
whether probable cause for an arrest exists. See United States v. Troutman, 458
F.2d 217, 220 (10th Cir. 1972). W hile withholding exculpatory evidence that
would vitiate probable cause for an arrest can amount to a Fourth Amendment
violation, see Pierce, 359 F.3d at 1292, M r. Joseph does not allege that this
occurred here.
In Grubbs v. Bailes, 445 F.3d 1275, 1278 (10th Cir. 2006), this Court said
that “[t]he constitutional inquiry” for a claim such as M r. Joseph’s “focuses on
the materiality of the misconduct in relation to the determination of probable
cause.” Id. The Court continued:
W here information has been omitted from an affidavit, we determine the existence of probable cause by examining the affidavit as if the omitted information had been included and inquiring if the affidavit would still have given rise to probable cause for the warrant. If hypothetically correcting the misrepresentation or omission would not alter the determination of probable cause, the misconduct was not of constitutional significance and is not actionable under § 1983; but if this hypothesizing would alter the probable-cause determination, the misconduct undermined Fourth Amendment guarantees and may support redress under § 1983.
Id. (internal quotation marks and citations omitted).
-11- M r. Joseph’s brief does not direct us to specific averments in his complaint
that describe what facts M r. Bartlett allegedly neglected to tell prosecutors. Out
of an abundance of caution, we examined the complaint ourselves and reviewed
such allegations. The seven or so we found do not on their face vitiate probable
cause for M r. Joseph’s arrest, nor does he explain in his brief how they might do
so. Accordingly, M r. Joseph’s allegations do not state a Fourth Amendment
violation, and the district court properly held that M r. Bartlett was entitled to
qualified immunity.
IV . T he D ue Process and Fourth Am endment Claims
Case number 05-4181 involves appeals by Robert Joseph and his wife,
Rachelle Joseph, from the district court’s judgment in favor of Salt Lake City
Corporation, Lieutenant Zelig, and Sergeant M endez. The Josephs’ opening brief
lists eight issues for appeal but contains argument sections corresponding only to
three of them. 1 W e w ill address only those three issues they briefed, for “[o]n
appeal, . . . parties must do more than offer vague and unexplained complaints of
error. Perfunctory complaints that fail to frame and develop an issue are not
sufficient to invoke appellate review.” Femedeer v. Haun, 227 F.3d 1244, 1255
(10th Cir. 2000) (internal quotation marks and brackets omitted).
1 In addition to the two issues discussed below, M r. Joseph challenges the district court’s dismissal of his complaint against Salt Lake City as a sanction for scandalous litigation practices. See Appellant’s Br. 37–44. Because w e affirm the dismissal on the merits, we need not address this alternative holding.
-12- A. Salt Lake C ity
First, M r. Joseph argues that Salt Lake City “deprived Joseph a [sic] due
process in the manner it had prosecuted [him] during the course of the Salt Lake
City Civil Service Proceedings.” Appellant’s Br. 26–27. The problem with this
claim, however, is that the Utah Court of Appeals has already held “that the
Commission did not violate Joseph’s due process right to a post-deprivation
hearing.” Joseph v. Salt Lake City Civil Serv. Comm’n, 53 P.3d at 16. The Utah
Court of Appeals’ holding stemmed from Joseph’s multiple failures, though he
was represented by counsel, to comply with the City’s discovery requests. See id.
at 14, 16. Because this claim already has been litigated to finality between these
same parties, the doctrine of claim preclusion bars this cause of action. Wilkes v.
Wyo. Dep’t of Employment Div. of Labor Standards, 314 F.3d 501, 504 (10th Cir.
2002).
B. Rachelle Joseph
Rachelle Joseph sued Lieutenant M ark Zelig and Sergeant Jerry M endez
under § 1983 for allegedly violating her Fourth Amendment rights after she
voluntarily returned to the shooting scene. She alleges that she was detained in a
locked police car for several hours, even after she had given a statement to a
police officer and had expressed a desire to go home. She contends that this
encounter constituted a seizure for purposes of the Fourth Amendment and that
the length of the detention— four hours— was unreasonable. Appellant’s Br. 47.
-13- The district court granted summary judgment for the defendant officers, and w e
affirm.
1. Factual Background and District Court Ruling
It is undisputed that M rs. Joseph and her minor son were the first people on
the scene after the shooting. Her husband told her that he had just been involved
in a shooting and asked her to leave. She left but soon saw emergency vehicles
with lights on speeding towards her husband, so she voluntarily returned to the
scene. Her purpose in returning was to make sure her husband was unharmed.
Appellant’s App. 886, 944, 951.
She arrived around 1:00 a.m. By that time, the police had set up a
perimeter around the scene. She approached Officer Poulsen, who is not a
defendant, and told him who she was and that she had been with her husband just
prior to the shooting. She and her son got into his car so he could take them to
the scene and facilitate a visit w ith M r. Joseph. Id. at 945, 951. They sat with
Officer Poulsen in his car for half an hour to forty-five minutes. Id. at 887, 945,
952. After sitting with Officer Poulsen for some amount of time, “somebody
came in and told [Officer Poulsen] to take” M rs. Joseph’s statement, which he
did. R. Joseph Dep., Appellee’s Supp. App. 92. M rs. Joseph does not “remember
exactly” what she said to him. Id. at 93. At about this same time— about half an
hour to forty-five minutes after she arrived at the scene— M rs. Joseph testified
that Officer Poulsen told her that Officer M endez had requested that she be taken
-14- to the police station for questioning. Appellant’s App. 887, 946, 952. M rs.
Joseph never spoke directly with Officer M endez; rather, she learned of M endez’s
request from Officer Poulsen and Officer Zelig. Id. at 887, 953. Either as part of
this conversation or somewhat later, M rs. Joseph spoke to her husband and
learned for the first time that he was “okay.” Supp. App. 100. 2
According to her version of the events, 3 she remained in the police car until
she was told, apparently by Detective W ooldridge, a non-defendant, that she
could leave and that she would be interviewed later. App. 890. In her deposition,
M rs. Joseph estimated that she returned home betw een 3:00 a.m. and 4:30 a.m.
Supp. App. 103. In her affidavit, she stated that she “got home around 5:30 a.m.”
App. 888. She estimated that her home was about a 25 minute drive from the
scene of the shooting. Supp. App. 102. As is appropriate on a motion for
2 M rs. Joseph’s deposition testimony differed from her affidavit with regard to the precise time of these events. In her deposition, she estimated that Officer Poulsen told her she had to go to the station between 30 and 45 minutes after her arrival, Supp. App. 97, and she talked with her husband more than an hour, and possibly more than two hours, after her arrival. Id. at 100. In her affidavit, which was prepared subsequent to her deposition, M rs. Joseph stated that the request that she be taken to the station for questioning and her conversation with her husband occurred at the same time, about half an hour after she arrived at the scene of the shooting. App. 887. Neither party treats these discrepancies as material. 3 Officer Poulsen testified by affidavit that M rs. Joseph left the scene “shortly after she spoke with her husband and determined he was okay,” that he was never asked or ordered by any officer to detain her, and that she was not detained. Poulsen Aff. at 2, App. 858. For purposes of summary judgment, the district court properly credited M rs. Joseph’s version of the events.
-15- summary judgment, the district court gave the plaintiff the benefit of the doubt,
and assumed she w as in the police car for a total of four hours.
During the period between her last contact with Officer Zelig and her
departure for home, M rs. Joseph remained in the locked police car. A pp. 888-89.
But, according to her account, she was not isolated. In addition to conversations
with Officer Poulsen and her husband, “other officers came to check and see if I
was alright.” R. Joseph Aff. at 5, App. 888. She mentioned three officers by
name: M ark Schuman, Cameron Platt, and Chad Lambourne. Id. She told these
(or perhaps other) officers that she wanted to go home because one of her children
was sick and she needed to give him medicine. Id. at 888–89. An officer from
either the Sandy or Salt Lake City Police Departments drove to M rs. Joseph’s
home to check on her children. The officer observed the children and informed
M rs. Joseph that they were sleeping and appeared all right. Id. at 889. During
the night, several officers brought her and her son hot chocolate. One officer
took her son to use a convenience store restroom, and Officer Poulsen later took
her and her son to another nearby restroom. Id. at 889, 892. W hen M rs. Joseph
left the scene to go home, she thanked Officer Poulsen before she left, and hugged
him. Poulsen Aff. at 3, App. 859.
The district court granted summary judgment in favor of the defendants,
stating a number of alternative grounds:
-16- Although there is a dispute as to the length of time M rs. Joseph was at the scene of the shooting, and the court is not permitted to make factual determinations in the context of a summary judgment motion, the court nonetheless agrees w ith the City Defendants that no reasonable jury could conclude that the police conduct in this case would have communicated to a reasonable person that she had been detained. M oreover, even if the undisputed facts supported the fact that M rs. Joseph reasonably perceived that she was being detained, the actions of the officers w ere reasonable under the circumstances. M rs. Joseph had indicated that she was the first on the scene, and it w as reasonable for the officers to seek to question her. They understandably had certain duties that they were required to attend to before they could assist M rs. Joseph in talking with her husband. There is no indication that the detention was painful, degrading, or unduly prolonged. There is no evidence that the officers used or threatened to use any force or that they made threatening statements. There is no evidence that the officers unnecessarily detained her after they learned that she had not seen the actual incident.
In addition, there is no clearly established law regarding the length of time an officer may request that a witness stay for questioning. Thus, even assuming that M rs. Joseph was actually detained at the scene of the shooting for over four hours, against her will, the remaining defendants would have qualified immunity for their actions. Accordingly, her claim for unlawful detention is dismissed.
App. 81–82. M rs. Joseph now appeals from this order.
2. Standard of review
Because Officers M endez and Zelig invoked the defense of qualified
immunity, M rs. Joseph must show that they violated her clearly established
Fourth Amendment rights in order to hold them liable under § 1983. Johnson ex
rel. Estate of Cano, 455 F.3d at 1142. W e review de novo a grant of summary
judgment based on qualified immunity, “and affirm only if the record reveals no
genuine issue of material fact.” Arredondo v. Locklear, 462 F.3d 1292, 1297
-17- (10th Cir. 2006). To prove that there is a genuine issue as to a material fact— i.e.,
that summary judgment is improper and a trial is necessary— the nonmoving party
must show that “the evidence, construed in the light most favorable to the
non-moving party, is such that a reasonable jury could return a verdict for the
non-moving party.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.
2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986)).
That obligation requires the nonmoving party to “‘make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.’” Hom v. Squire, 81 F.3d 969,
974 (10th Cir. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). It is also well established that we “may affirm a grant of summary
judgment on grounds other than those relied on by the district court when the
record contains an adequate and independent basis for that result.” Bones, 366
F.3d at 875 (citing Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 528 (10th
Cir. 1994)).
3. M rs. Joseph’s Brief
The Appellants’ opening brief consists of slightly more than two pages of
argument addressing M rs. Joseph’s detention. It contains precisely five record
citations, four of which are citations to the district court’s order; the fifth refers to
legal argument by the city attorney in district court. See Appellant’s Br. 45–48.
The brief cites one Tenth Circuit case discussing what qualifies as a seizure under
-18- the Fourth Amendment but does not otherwise develop the remaining framew ork
that governs suits under § 1983 for Fourth Amendment violations. The
Appellants’ reply brief does not even mention M rs. Joseph’s claims.
This is barely sufficient to invoke appellate review. See Femedeer, 227
F.3d at 1255. M rs. Joseph does not identify the essential elements on which she
would bear the burden of proof at trial, Hom, 81 F.3d at 973–74, nor does she cite
one piece of evidence that would allow a reasonable jury to find in her favor on
those (unmentioned) elements. See Bones, 366 F.3d at 875. Nor does she offer
any reply to Appellees’ alternative ground that the detention, if it was a detention,
was reasonable. Appellees’ Br. 44–48.
It is w ell established in this Circuit that it is not the Court’s responsibility
to “search the record in an effort to determine whether there exists dormant
evidence which might require submission of the case to a jury.” Thom as v.
Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir. 1992); see also
United States v. Abdenbi, 361 F.3d 1282, 1290 (10th Cir. 2004) (“This court
should neither raise sua sponte an argument not advanced by a party either before
the district court or on appeal, nor then advocate a particular position and resolve
the appeal based on that advocacy.”).
Notwithstanding the deficiencies in Appellants’ brief, we will set forth our
rationale for affirmance.
4. Analysis
-19- Although the district court’s grant of summary judgment was based on a
number of alternative grounds, Appellants focus their argument on the proposition
that “the [district] Court should have determined that Plaintiff was seized for
purposes of the Fourth Amendment and that the four hour detention was
unreasonable.” Appellants’ Br. 47.
To determine whether the conduct of Officers Zelig and M endez constituted
an investigative detention, we ask whether, “‘in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not
free to leave.’” M ichigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting
United States v. M endenhall, 446 U.S. 544, 554 (1980)). In United States v. Hill,
199 F.3d 1143 (10th Cir. 1999), we identified these factors as guiding our
determination of whether a person was subject to this type of seizure:
the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; prolonged retention of a person’s personal effects . . . ; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public.
Id. at 1147–48. “None of these factors are dispositive, nor should they be treated
as exclusive, and it may be that the strong presence of two or three factors
demonstrates that a reasonable person would have believed that he was not free to
terminate an encounter with government officials.” Fuerschbach v. Southwest
-20- Airlines Co., 439 F.3d 1197, 1203 (10th Cir. 2006) (internal quotation marks
omitted).
W hen evaluating an investigative detention’s reasonableness, we ask (1)
was the detention “‘justified at its inception,’” and (2) were the officer’s actions
“‘reasonably related in scope to the circumstances which justified the interference
in the first place’”? United States v. Johnson, 364 F.3d 1185, 1189 (10th Cir.
2004) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). “At both stages, the
reasonableness of the officer’s suspicions is judged by an objective standard
taking the totality of the circumstances and information available to the officers
into account.” Id. (internal quotation marks omitted). In addition, the Supreme
Court has held that “an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop,” Florida v. Royer,
460 U.S. 491, 500 (1983), and that police must “diligently pursue their
investigation,” United States v. Place, 462 U.S. 696, 709 (1983). In this
connection, the Supreme Court has “impose[d] no rigid time limitation” on
investigative detentions, preferring instead to let “common sense and ordinary
human experience . . . govern over rigid criteria.” United States v. Sharpe, 470
U.S. 675, 685 (1985).
The most glaring deficiency in M rs. Joseph’s case is the absence of any
evidence connecting the supposed constitutional violation to the defendants. As
this Court recently explained:
-21- Section 1983 requires plaintiffs to show causation, imposing liability on a defendant who “subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights . . . .” 42 U.S.C. § 1983. W e have explained Section 1983’s causation requirement: “[A] defendant may not be held liable under § 1983 unless he or she subjected a citizen to the deprivation, or caused a citizen to be subjected to the deprivation.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 518 (10th Cir. 1988). “A plaintiff must allege factual causation— i.e. ‘but for’ causation— in order to state a claim under § 1983.” Scott v. Hern, 216 F.3d 897, 911 (10th Cir. 2000).
Lippoldt v. Cole, — F.3d — , 2006 W L 3200864, at *11 (10th Cir. Nov. 7, 2006).
Because M rs. Joseph intentionally omitted Officer Poulsen as a defendant and
sued only Officers M endez and Zelig, see Appellee’s Supp. App. 113, it is
important to identify exactly what role M endez and Zelig played in the incident.
In her memorandum in opposition to the defendants’ motion for summary
judgment, M rs. Joseph expressly admitted “that M endez’s involvement” with the
incident “w as limited to the following”:
a. Zelig said that M endez wanted to have her taken to the police station to be interview ed. This occurred at approximately 1:30 or 1:45 a.m., one-half hour or forty-five minutes after Rachelle first entered Officer Poulsen’s police car.
b. Rachelle Joseph never personally spoke to M endez.
c. Rachelle Joseph has no other knowledge of M endez’s involvement with her alleged detention.
Appellant’s App. 948, 958, citing R. Joseph Dep. at 39, 40, 46. Similarly,
Appellant expressly admitted “that Zelig’s involvement is limited to the
following”:
-22- a. Zelig told Officer Poulsen that M endez wanted to have her taken to the police station to be interviewed. This occurred at approximately 1:30 or 1:45 a.m., one-half hour or forty-five minutes after Rachelle first entered Officer Poulsen’s police car.
b. Zelig asked or told Rachelle Joseph to wait for a homicide detective to talk to her about the events she observed or possibly told this to someone else and Rachelle Joseph overheard him. This is probably the same event described in (a) above.
Id. at 948–49, 959, citing R. Joseph Dep. at 39, 40, 87-89.
By Appellants’ own admission, therefore, Officers Zelig and M endez had
no direct or indirect contact with M rs. Joseph after 1:45 a.m. This was forty-five
minutes after she voluntarily returned to the scene, no later than fifteen minutes
after she gave her statement to Officer Poulsen, and about the same time she saw
and spoke to her husband. Neither defendant had any further involvement in her
alleged detention. Lieutenant Zelig’s entire involvement was to convey Sergeant
M endez’s desire that she be further questioned. There is no evidence that either
defendant was aware that she remained in the police car as long as she did, knew
-23- that she had requested to go home, 4 or was otherwise aware of the conditions or
circumstances.
Based on this record, we conclude that the district court properly granted
summary judgment for the defendants. It is undisputed that M rs. Joseph was at
the shooting scene voluntarily for between thirty and forty-five minutes, until she
talked to her husband and learned he was not seriously injured. Because this
portion of the encounter was consensual, it does not implicate the Fourth
Amendment. Lopez, 443 F.3d at 1283. At the very earliest, the incident escalated
from a consensual encounter to an investigative detention after M rs. Joseph
learned that Officer M endez wanted her to be interviewed. See Shareef, 100 F.3d
at 1500. Assuming without deciding that at this point the encounter became an
investigative detention, M rs. Joseph must also show that the detention was
unreasonable, Fuerschbach, 439 F.3d at 1202, by identifying evidence from
which a reasonable jury could conclude that her detention was not justified at its
4 In her deposition, M rs. Joseph testified:
Q: Did you ever tell anybody, I’ve told you all I know. I want to go home? A. Yes. Q: W ho did you tell that? A: Poulsen
R. Joseph Dep., Supp. App. 99. In her affidavit, M rs. Joseph stated that she told certain “officers” that she wanted to go home, mentioning only Cameron Platt by name. R. Joseph Aff. at 5, App. 888. This w as after her last conversation with Officer Zelig.
-24- inception and not reasonably related in scope to the circumstances justifying it,
Johnson, 364 F.3d at 1189.
As to the first step, the undisputed evidence shows that Officers M endez
and Zelig were justified in asking M rs. Joseph to be interviewed. They knew that
M rs. Joseph was the first on the shooting scene and thus a possible crime witness.
M rs. Joseph does not argue that this judgment was unreasonable.
M rs. Joseph’s apparent argument is that any further questioning was
unnecessary because she had already told Officer Poulsen that she did not observe
the shooting and did not know anything. W e do not agree. There is no evidence
that Officers M endez or Zelig knew that M rs. Joseph had given a statement to
Officer Poulsen; indeed, there is no evidence that her statement to Poulsen
preceded M endez’s decision to question her. Nor is there any evidence that they
knew , at the time of that decision, what she said to O fficer Poulsen. M oreover,
when they asked M rs. Joseph to be interviewed, Officers M endez and Zelig knew
that M r. Joseph had been in a shooting approximately thirty to forty-five minutes
earlier, M rs. Joseph w as the first on the scene follow ing the shooting, and M rs.
Joseph was so upset that after first leaving the scene she returned, crying, to learn
of her husband’s welfare. In her deposition, M rs. Joseph said she could not
“remember exactly” what she said in her statement to Officer Poulsen. R. Joseph
Dep., Supp. App. 93. Even assuming that M endez knew that M rs. Joseph had
-25- already given a statement, it would not be unusual, or objectively unreasonable,
for police to requestion a witness under such circumstances.
As to the length of the detention, based on the facts in the record, no
reasonable jury could conclude that Officers M endez and Zelig were responsible
for M rs. Joseph’s presumed three-and-a-half-hour stay in O fficer Poulsen’s
cruiser after she had talked to her husband. Lippoldt, — F.3d — , 2006 W L
3200864, at *11; Scott, 216 F.3d at 911. She admitted that she never spoke
directly to M endez, and that M endez’s only involvement was instructing Zelig to
have someone interview her. Appellant’s App. 948, 958. There is no evidence
that M endez or Zelig knew , or could reasonably have foreseen, that this request
would entail a multi-hour detention in Officer Poulsen’s car, or that either of
them had any awareness of M rs. Joseph’s situation after 1:45 a.m. Indeed, M rs.
Joseph expressly admits in her response to the defendants’ summary judgment
motion that she has no knowledge of either defendant’s involvement after this
time. See id. at 948–49, 958–59.
So far as the record reveals, it was Officer Poulsen— not the
defendants— who was responsible for placing M rs. Joseph in the police car and
who was (along with two other non-defendant officers) aware of her
circumstances and the length of time of her detention. Yet she rewarded him for
his efforts w ith thanks and a hug, not with a law suit.
-26- If Officer Poulsen were a named defendant, the length of her stay in his car
might well require us to reverse the grant of summary judgment. But the sum
total of the evidence relating to the two named defendants is that one officer told
another to ask M rs. Joseph to be interview ed, the second officer complied with
the first officer’s instruction, and then both left the scene. Based on these facts,
no reasonable jury could conclude that M endez and Zelig w ere the but-for cause
of M rs. Joseph’s prolonged stay in Poulsen’s car. This absence of predicate facts
establishing but-for causation means that M rs. Joseph has not alleged a
constitutional violation attributable to these defendants. Accordingly, Officers
M endez and Zelig are entitled to qualified immunity.
VI. Conclusion
W e A FFIR M the district court’s judgment dismissing M r. Joseph’s cause
of action against M r. Shepherd for failure to state a claim, and the district court’s
grant of qualified immunity to M r. Bartlett. W e also AFFIRM the grant of
summary judgment in favor of Salt Lake City because M r. Joseph’s due process
cause of action is barred by the doctrine of claim preclusion. And we AFFIR M
the district court’s grant of summary judgment in favor of Lieutenant Zelig and
Sargent M endez on M rs. Joseph’s Fourth Amendment claims.
That leaves us w ith the pending motions in these two cases, which we
resolve as follows: we GR A N T the unopposed motion in case number 05-4181 to
seal the briefs and appendices, GRANT the motion in 04-4212 to strike the
-27- attachments to M r. Joseph’s motion to separate appeals, and DENY the motion in
05-4181 to strike the appellee’s brief.
Entered for the Court,
M ichael W . M cConnell Circuit Judge
-28-