Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 3, 2022 _________________________________ Christopher M. Wolpert Clerk of Court LAWRENCE RUBIN MONTOYA,
Plaintiff - Appellee,
v. No. 21-1107 (D.C. No. 1:16-CV-01457-JLK) CITY AND COUNTY OF DENVER; (D. Colo.) DETECTIVE MARTIN E. VIGIL; DETECTIVE MICHAEL MARTINEZ; LIEUTENANT JONATHAN W. PRIEST; DETECTIVE R.D. SCHNEIDER, JR., in their individual and official capacities,
Defendants - Appellants. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, CARSON, and ROSSMAN, Circuit Judges. _________________________________
Lawrence Montoya alleges Denver Police Department detectives coerced him
into falsely confessing to murder in January 2000 when he was fourteen years old,
causing him to spend over thirteen years in prison for a crime he did not commit.
Mr. Montoya brought constitutional claims under 42 U.S.C. § 1983 against the three
detectives who elicited the confession and a fourth detective who used the allegedly
false statements to obtain an arrest warrant for murder. Defendants moved to dismiss
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 2
under Federal Rule of Civil Procedure 12(b)(6), asserting the detectives were entitled
to the defense of qualified immunity and Mr. Montoya’s claims were barred under
Heck v. Humphrey, 512 U.S. 477 (1994). As relevant here, the district court denied
the motion as to two claims: (1) the officers included material misstatements in the
warrant affidavit in violation of Franks v. Delaware, 438 U.S. 154 (1978); and
(2) the officers conspired to commit the Franks violation. The district court rejected
the detectives’ qualified-immunity defense and concluded the claims were not barred
by Heck.
Defendants filed this interlocutory appeal challenging the denial of qualified
immunity. They also ask us to review the district court’s Heck ruling under the
discretionary doctrine of pendent jurisdiction. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm the denial of qualified immunity and decline Defendants’
request to exercise pendent jurisdiction.
BACKGROUND
I. Factual Background1
The background facts are fully detailed in Montoya v. Vigil (Montoya I), 898
F.3d 1056 (10th Cir. 2018). A summary suffices for purposes of this appeal.
1 The factual background derives from the well-pleaded allegations in Mr. Montoya’s Second Amended Complaint, including the arrest-warrant affidavit attached thereto. See Porter v. Ford Motor Co., 917 F.3d 1246, 1247 n.1 (10th Cir. 2019); Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (“[I]n deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look both to the complaint itself and to any documents attached as exhibits to the complaint.” (citing Fed. R. Civ. P. 10(c)). 2 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 3
On January 1, 2000, Emily Johnson was murdered at her home, and her car
was stolen. As part of the investigation, Denver Police Department (DPD) detectives
questioned Nicholas Martinez, who admitted he and his cousin stole the car and later
picked up some friends. Detectives interviewed several individuals they suspected
were in the stolen car, including Mr. Montoya.
Throughout their interrogation of Mr. Montoya, DPD Detectives Martin Vigil,
Michael Martinez, and Jonathan Priest allegedly used impermissible interrogation
techniques, ultimately coercing Mr. Montoya into falsely confessing to Ms.
Johnson’s murder. At the time, Mr. Montoya was fourteen years old and still in
eighth grade. His “cognitive deficiencies and developmental delays” were “readily
apparent and recognizable to an adult spending any time speaking to him.” Aplts.
App. vol. 1 at 250. Without Mr. Montoya’s mother present, the detectives
“aggressively interrogated [Mr. Montoya] using techniques known to cause false
confessions, including . . . lying about evidence, manipulation, threats, false promises
of leniency, and fe[eding] him statements to be repeated.” Id. at 252.
Detective R.D. Schneider also was involved in the murder investigation from
its inception and reviewed all relevant reports and statements, including those related
to Mr. Montoya’s interrogation. Id. at 257. Mr. Montoya’s statements were
“obviously false” in light of “the threats made by the officers, the feeding of facts by
the officers, the false promises of leniency by the officers, the physical and mental
intimidation by the officers, as well as[] the facts which [Mr. Montoya] got obviously
wrong about the crime and the crime scene.” Id. at 258. In addition to the obviously
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false confession, Detective Schneider knew that other witness statements “did not
even mention [Mr. Montoya] as being present during the robbery, burglary, assault or
murder.” Id. Still, Defendant Schneider authored an arrest-warrant affidavit
containing statements he knew were untrue.
The affidavit generally described the crime, indicating Ms. Johnson was
murdered in her home and her car was stolen. Aplts. App. vol. 2 at 327. According to
the affidavit, her car was located later that same day, with significant damage to the
body of the car and blood on the interior. “Witnesses in the area reported seeing
several young [H]ispanic males running from the scene.” Id. The affidavit stated that
Nicholas Martinez was identified as a suspect and he confessed that he and another
individual stole the victim’s car. Id. at 327-28. “Based on subsequent witness
interviews, Denver Police homicide investigators learned the identity of a third
individual who was also present when the victim’s vehicle was stolen from the
victim’s residence. This individual was identified as Lorenzo2 Montoya . . . .” Id. at
328. The remainder of the affidavit describes the interrogation of Mr. Montoya,
including his confession to murder. This information purportedly established
probable cause to arrest Mr. Montoya for murder, aggravated robbery, burglary, and
aggravated motor vehicle theft.
2 According to the complaint, “during Mr. Montoya’s prosecution he was referred to as Lorenzo, however, his proper first name, and that which appears on his identification documents[,] is and was Lawrence.” Aplts. App. vol. 1 at 243. 4 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 5
Based on the affidavit, a judge issued an arrest warrant, and Mr. Montoya was
arrested the next day. A jury convicted Mr. Montoya of all charges, and he was
sentenced to life in prison without parole.
Mr. Montoya was incarcerated at the age of fourteen and spent thirteen years
in prison before the state agreed to vacate his convictions in exchange for his
pleading guilty to the charge of accessory to a class 1 or 2 felony. See Colo. Rev.
Stat. Ann. § 18-8-105(1), (3). He was sentenced to ten years of imprisonment with
credit for time served and was immediately released. Montoya I, 898 F.3d at 1062.
II. Procedural Background
Following remand from this court in Montoya I,3 Mr. Montoya filed a Second
Amended Complaint bringing eight claims for relief. Only two are at issue in this
appeal.
First, Mr. Montoya alleges a Franks violation: “Defendants Vigil, Martinez,
Priest and Schneider, knowingly and intentionally, or with reckless disregard for the
3 In Montoya I, we reviewed the district court’s order denying a previous motion to dismiss on qualified and absolute immunity grounds and held (1) Defendants were entitled to qualified immunity on Mr. Montoya’s malicious prosecution claim; (2) they were entitled to qualified and absolute immunity on Mr. Montoya’s Fifth Amendment claim; and (3) we lacked jurisdiction to consider whether qualified immunity applied to Mr. Montoya’s false arrest claim. 898 F.3d at 1059. As to malicious prosecution, we concluded Mr. Montoya failed to establish the “favorable termination” element. Id. at 1068. The Supreme Court recently abrogated our “favorable termination” jurisprudence. Thompson v. Clark, 142 S. Ct. 1332, 1335-36 (2022) (expressly abrogating Cordova v. Albuquerque, 816 F.3d 645, 649 (10th Cir. 2016)). Because Defendants do not contend that “favorable termination” is an element of Mr. Montoya’s Franks claim, we need not consider Thompson’s impact on this case. 5 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 6
truth, made false statements that were included in the Affidavit and Application for
an Arrest Warrant in the underlying criminal case.” Aplts. App. vol. 1 at 288.
“Defendant Schneider knew, or proceeded in reckless disregard of the truth, that the
information in the Affidavit for an Arrest Warrant was false and/or contained
omissions of material information.” Id. at 289.
Mr. Montoya also alleges a civil rights conspiracy in violation of 42 U.S.C.
§ 1983. Aplts. App. vol. 1 at 289. His claim is that Defendants “reached an
understanding, engaged in a course of conduct, acted in concert and otherwise
conspired among and between themselves to deprive [Mr. Montoya] of his
Constitutional rights, and did deprive him of said rights, including . . . [the right to
be] free from arrest by false statements and omissions in the arrest affirmation.” Id.
He alleges that using false statements in the affidavit was an overt act in furtherance
of the conspiracy.
Defendants filed a motion to dismiss on qualified-immunity grounds and also
argued that Mr. Montoya’s claims were barred by Heck v. Humphrey, 512 U.S. 477
(1994). Defendants contended Mr. Montoya’s Franks claim failed because, even after
removing the allegedly false statements, the affidavit still established probable cause
for accessory. In support, Defendants relied on the affidavit’s statement that
witnesses identified Mr. Montoya as being present when the vehicle was stolen from
the victim’s home. The district court rejected this argument:
Officer Schneider asserts that even without Mr. Montoya’s confession there still would have been probable cause to arrest him for acting as an accomplice or accessory. But, as I explained, the well-pleaded 6 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 7
allegations contradict that any witness placed Mr. Montoya at Ms. Johnson’s home, and there is no other information in the affidavit that implicates him in any way. Moreover, I am not inclined, under these circumstances, to apply the ‘any-crime-rule’ and consider whether probable cause existed for some other crime not specified in the affidavit.
Aplts. App. vol. 5 at 1329-30 (emphasis added).
As for Mr. Montoya’s conspiracy claim based on the Franks violation, the
district court found “the allegations are sufficient at this stage in the case.” Aplts.
App. vol. 5 at 1335. The district court also concluded Heck did not bar
Mr. Montoya’s claims. Id. at 1341-45. Accordingly, the district court denied the
motion to dismiss as to Mr. Montoya’s Franks and conspiracy claims.
Defendants timely appealed.
DISCUSSION
Defendants seek reversal, contending the district court erred in denying them
qualified immunity on Mr. Montoya’s Franks and conspiracy claims. Detectives
Vigil, Martinez, and Priest insist the complaint fails to establish their personal
participation in the Franks violation because they did not prepare the warrant
affidavit. And all four detectives contend any constitutional violation on the Franks
claim was not clearly established. As to the conspiracy claim, Defendants contend the
allegations of an agreement are conclusory and the district court erred by failing to
separately address qualified immunity in the conspiracy context. Defendants also ask
us to exercise pendent jurisdiction to decide Mr. Montoya’s claims are barred by
Heck.
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We affirm the district court’s denial of the motion to dismiss based on
qualified immunity and decline to reach the Heck issue.
I. Qualified Immunity: Franks and Conspiracy
Under the doctrine of qualified immunity, “government officials are not
subject to damages liability for the performance of their discretionary functions when
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Brown v. Montoya, 662 F.3d 1152,
1164 (10th Cir. 2011) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)).
“In resolving a motion to dismiss based on qualified immunity, a court must consider
whether the facts that a plaintiff has alleged make out a violation of a constitutional
right, and whether the right at issue was clearly established at the time of defendant’s
alleged misconduct.” Id. (citation omitted).
“We review the district court’s denial of a motion to dismiss based on
qualified immunity de novo.” Id. at 1162 (citation omitted). In reviewing a motion to
dismiss, “all well-pleaded factual allegations in the . . . complaint are accepted as true
and viewed in the light most favorable to the nonmoving party.” Id. (alteration in
original) (citation omitted). “[I]n a § 1983 action it is ‘particularly important’ that
‘the complaint make clear exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of the claims against him or
her, as distinguished from collective allegations against the state.’” Id. at 1163
(citation omitted).
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A. Franks claim
“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 v. Delaware, 438
U.S. 154, 171 (1978)). Thus, “a Fourth Amendment violation occurs if (1) an
officer’s affidavit supporting [an arrest] warrant application contains a reckless
misstatement or omission that (2) is material because, but for it, the warrant could not
have lawfully issued.” United States v. Herrera, 782 F.3d 571, 573 (10th Cir. 2015)
(citing Franks, 438 U.S. at 155-56). Mr. Montoya generally alleges Officers Vigil,
Martinez, and Priest coerced him into giving a false confession and Detective
Schneider included this materially false information in the arrest-warrant affidavit.
Mr. Montoya further claims all four defendants acted knowingly, intentionally, or
recklessly in making these statements in the affidavit. The district court concluded
these allegations were sufficient to make out a clearly established Franks violation.
We agree.
Defendants advance two independent arguments on appeal to support their
assertion that the district court erred. First, Defendants Vigil, Martinez, and Priest
contend the complaint fails to establish their personal participation in the Franks
violation because they did not prepare the warrant affidavit. Second, Defendants all
argue it was not clearly established in January 2000 that a constitutional violation
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occurs where, notwithstanding a Franks violation, an affidavit supports probable
cause for another crime not specifically identified in the affidavit—here, accessory.
We consider each argument, and as we explain, neither is availing.
1. All Defendants personally participated in the Franks violation.
“Personal participation is an essential allegation in a § 1983 claim.” Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (citations omitted). According to
defendants, “it is undisputed Defendant Schneider prepared the arrest affidavit and
not Defendants Vigil, Martinez, and Priest.” Aplts. Opening Br. at 22. Thus, they
maintain they did not personally participate in the Franks violation and are entitled to
qualified immunity. The district court rejected this argument, finding “Mr. Montoya
alleges Officers Vigil, Martinez, and Priest knowingly, intentionally, or recklessly
coerced a false confession from him with the intent that it be used to obtain a warrant
for his arrest. . . . These allegations indicate that Defendant Officers personally
participated in the procurement of the warrant.” Aplts. App. vol. 5 at 1327. We agree
with the district court.
Contrary to the officers’ contentions, it is well established “Franks is not
limited to false representations made by the affiant himself.” Marin v. King, 720 F.
App’x 923, 936 (10th Cir. 2018). As Mr. Montoya maintains on appeal, Franks itself
recognized “police could not insulate one officer’s deliberate misstatement merely by
relaying it through an officer-affiant personally ignorant of its falsity.” 438 U.S. at
163 n.6. Thus, we “hold the government accountable for statements made not only
by the affiant but also for statements made by other government employees which
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were deliberately or recklessly false or misleading insofar as such statements were
relied upon by the affiant in making the affidavit.” United States v. Kennedy, 131
F.3d 1371, 1376 (10th Cir. 1997) (citations omitted). The notion that the officers who
allegedly manufactured the false evidence somehow did not participate in the Franks
violation is meritless.
Defendants acknowledge the complaint alleges they “coerced a false
confession intending its use to obtain an arrest warrant.” Aplts. Reply Br. at 4. But
they contend the claim fails because it does not allege they “personally participated
in drafting the Affidavit.” Id. In support, Defendants rely on Melton v. Phillips, 875
F.3d 256, 263-64 (5th Cir. 2017), but that case does not advance their cause. Melton
recognized that an officer is subject to liability on a Franks claim “if he helped
prepare the complaint by providing information for use in it.” Id. (emphasis added)
(citation omitted). That is just what Mr. Montoya alleges here.
This is not a case where the plaintiff has indiscriminately lodged “collective
allegations against the state.” Brown, 662 F.3d at 1163 (citation omitted). Mr.
Montoya specifically alleges three detectives coerced a false confession for use in an
arrest-warrant affidavit. That readily satisfies Mr. Montoya’s burden to allege their
personal participation in the Franks violation.4
4 In their reply, Defendants argue for the first time on appeal that Mr. Montoya’s Franks claim necessarily fails because this Court and the district court held that use of the alleged coerced confession throughout his criminal proceedings did not violate Mr. Montoya’s Fifth Amendment right against self-incrimination. Aplts. Reply Br. at 5-9. That argument is waived. Burke v. Regaldo, 935 F.3d 960, 1018 n.44 (10th Cir. 2019) (“[A]n appellant generally waives an argument by waiting 11 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 12
2. Defendants’ clearly-established argument is waived.
In the district court, Defendants asserted there was no clearly established
constitutional violation because “even without Mr. Montoya’s confession there still
would have been probable cause to arrest him for acting as an accomplice or
accessory.” Aplts. App. vol. 5 at 1329. The district court rejected this argument for
two reasons. First, “the well-pleaded allegations contradict that any witness placed
Mr. Montoya at Ms. Johnson’s home, and there is no other information in the
affidavit that implicates him in any way.” Id. at 1329-30. “Moreover, I am not
inclined, under these circumstances, to apply the ‘any-crime-rule’ and consider
whether probable cause existed for some other crime not specified in the affidavit.”
Id.
On appeal, Defendants concede, at least for the sake of argument, that the so-
called “any-crime rule” does not apply to this context based on current precedent.
That is, when a Franks violation occurs, whether the affidavit establishes probable
cause for some other crime is irrelevant—the warrant is invalid and the Fourth
Amendment is violated. However, Defendants contend the inapplicability of the any-
crime rule was not clearly established in January 2000. Thus, according to
Defendants, because the affidavit established probable cause to arrest Mr. Montoya
for accessory, the constitutional violation was not clearly established.
to make it in a reply brief.”) (citation omitted). It is also meritless. For purposes of a Fourth Amendment Franks violation, it is enough that a false statement was included in the warrant affidavit. Whether use of that same information in other contexts violated the Fifth Amendment is beside the point. 12 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 13
The any-crime rule derives from Devenpeck v. Alford, 543 U.S. 146 (2004).
There, the Supreme Court held that a warrantless arrest is lawful even where “the
criminal offense for which there is probable cause to arrest is not ‘closely related’ to
the offense stated by the arresting officer at the time of arrest.” Id. at 148. In other
words, a warrantless arrest is valid so long as the arresting officer had probable cause
to arrest the suspect for any crime. Defendants argue that at the time of the alleged
Franks violation, whether the any-crime rule extended to warrant-based arrests was
not clear. In that hypothetical warrant-based scenario, the any-crime rule would
provide that no Fourth Amendment violation occurs if the warrant affidavit, when
purged of its recklessly false statements, establishes probable cause for any crime,
whether or not it was specified in the affidavit. As applied here, Defendants contend
the any-crime rule would negate the alleged Franks violation because, when the
allegedly false statements are omitted, the affidavit still established probable cause to
arrest Mr. Montoya for the offense of accessory.
Whatever the merits of this argument may be, we need not reach them. As Mr.
Montoya points out, the district court expressly found that the affidavit did not
establish probable cause for accessory, and Defendants fail to challenge this factual
finding on appeal. Accordingly, they waived review of this issue.5
5 Mr. Montoya also contends Defendants forfeited the issue by failing to raise it in the district court. Aplee. Br. at 7-9, 16-17; see Hayes v. SkyWest Airlines Inc., 12 F.4th 1186, 1201 (10th Cir. 2021) (“Forfeiture occurs when a party fails to raise a theory, argument, or issue before the district court. . . . We will reverse a district court based on a forfeited theory only under our rigorous plain-error standard . . . .”). In their reply, Defendants maintain they did raise it, and in any event, the issue is 13 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 14
Defendants’ opening brief addresses the district court’s finding only in a two-
sentence preface to their main argument: “The District Court erred in concluding the
facts outlined in the Affidavit did not support arguable probable cause for Plaintiff’s
arrest for ‘any crime.’ Below Schneider contended arguable probable cause existed
for accessory to a felony due to facts suggestive of Plaintiff’s participation in
disposing of the victim’s blood-stained vehicle.” Aplts. Opening Br. at 23.
Defendants do not further develop this conclusory assertion or explain why the
district court’s probable-cause finding was erroneous.
Mr. Montoya argues Defendants “point[] to no evidence within the four
corners of the affidavit—or even to information outside the affidavit—that would
have established probable cause for murder or any other crime.” Aplee. Br. at 14. Nor
do Defendants address “the District Court’s conclusion that ‘the well-pleaded
allegations contradict that any witness placed Mr. Montoya at [the victim’s] home,
and there is no other information in the affidavit that implicates him in any way.’”
Aplee. Br. at 15 (alteration in original) (quoting Aplts. App. vol. 5 at 1329-30).
Defendants’ “primary argument depends on [their] assertion that, after the false and
misleading statements are removed, the affidavit contains facts that demonstrated
preserved because the district court ruled on it—forfeiture “does not apply when the district court explicitly considers and resolves an issue of law on the merits.” Aplts. Reply Br. at 10 (quoting Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 991 (10th Cir. 2019)). We easily reject Defendants’ latter contention because the district court did not address whether the any-crime rule was clearly established at the time, only that it did not apply currently. Whether Defendants sufficiently raised the issue below is a much closer call on which we need not definitively opine because, as we explain, Defendants waived review on appeal for a different reason. 14 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 15
probable cause to arrest [Mr.] Montoya for accessory.” Aplee. Br. at 33. Yet
Defendants do “not direct this Court to any place in the affidavit where such
information allegedly appears.” Aplee. Br. at 34.
Defendants failed to respond to this argument in their reply brief, again
focusing solely on whether the inapplicability of the any-crime rule was clearly
established in 2000. Failing to engage with this issue is fatal to their claim.
As Mr. Montoya correctly points out, that the affidavit established probable
cause for some other crime—i.e., accessory—is a foundational premise of
Defendants’ any-crime rule argument. The district court specifically found that the
valid portions of the affidavit did not implicate Mr. Montoya “in any way.” Aplts.
App. vol. 5 at 1329-30 (“[T]he well-pleaded allegations contradict that any witness
placed Mr. Montoya at Ms. Johnson’s home, and there is no other information in the
affidavit that implicates him in any way.”). Defendants do not meaningfully
challenge this finding on appeal and thus have waived the issue. Burke, 935 F.3d at
1014 (“[A]n appellant may waive an issue by inadequately briefing it. . . . ‘Cursory
statements, without support analysis and case law’ are inadequate to preserve an
issue.” (citation omitted)).6
6 At oral argument, when asked to point out where in the briefing Defendants challenged this finding, counsel said only that it appeared within the “clearly established” analysis. Oral Arg. at 4:32-50. Apart from what we have discussed above, it does not. Indeed, counsel agreed any challenge was not “separately articulated” and that the Defendants’ briefing on appeal merely “assumes it.” Id. at 4:50-55. 15 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 16
In light of the district court’s unchallenged finding that the valid portions of
the affidavit do not establish probable cause for accessory, whether the
inapplicability of the any-crime rule was clearly established in January 2000 is
irrelevant. We need not decide the issue in this appeal.
B. Conspiracy
Defendants further contend, for two reasons, the district court erred by denying
their motion to dismiss as to Mr. Montoya’s conspiracy claim: (1) the allegations as
to the existence of an agreement are conclusory; and (2) the district court failed to
address qualified immunity. Mr. Montoya maintains that his conspiracy allegations
are sufficient under Rule 12(b)(6) and that the district court did not err by relying on
its previous qualified immunity analysis of the underlying Franks violation.
1. The conspiracy claim is sufficiently pled.
“To prove a conspiracy under § 1983, a plaintiff must show ‘at least a
combination of two or more persons acting in concert and an allegation of a meeting
of the minds, an agreement among the defendants, or a general conspiratorial
objective.’” Frasier v. Evans, 992 F.3d 1003, 1024 (10th Cir. 2021) (citation
omitted). “[A] plaintiff must allege specific facts showing an agreement and
concerted action amongst the defendants. ‘Conclusory allegations of conspiracy are
insufficient to state a valid § 1983 claim.’” Id. (citation omitted). As we have
explained:
A plaintiff seeking redress need not prove that each participant in a conspiracy knew the “exact limits of the illegal plan or the identity of all the participants therein.” An express agreement among all the 16 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 17
conspirators is not a necessary element of a civil conspiracy. The participants in the conspiracy must share the general conspiratorial objective, but they need not know all the details of the plan designed to achieve the objective or possess the same motives for desiring the intended conspiratorial result. To demonstrate the existence of a conspiratorial agreement it simply must be shown that there was “a single plan, the essential nature and general scope of which [was] know[n] to each person who is to be held responsible for its consequences.”
Id. at 1024-25 (alterations in original) (citation omitted).
The essence of Defendants’ argument is that Mr. Montoya’s complaint “does
nothing more than use the catchwords of ‘conspiracy’ and ‘conspire,’” and that all
the allegations of conspiracy are conclusory. Aplts. Opening Br. at 38. This,
according to Defendants, is insufficient.
This district court found otherwise. It recognized that “[w]hile cooperating
does not necessarily equate to conspiring, Mr. Montoya alleges Defendant Officers
did not just jointly interrogate him, they used improper tactics to coerce him and then
falsified an affidavit in support of the warrant for his arrest.” Aplts. App. vol. 5 at
1337. Thus, the district court concluded the “allegations—that Defendant Officers
ignored the obvious falsity of his statements and that each advanced the clear
common goal—nudge Mr. Montoya’s claim ‘across the line from conceivable to
plausible.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We
agree with the district court.
Mr. Montoya’s allegations of conspiracy are not impressively detailed, and
some of the boilerplate language he uses might not hold up in every case. But under
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the circumstances here, and in the context of this complaint viewed as a whole,
nothing more is needed to allege conspiracy under § 1983. The factual allegations
underlying the Franks violation are clear—Defendants Vigil, Martinez, and Priest
elicited a false confession for use in an affidavit prepared by Defendant Schneider in
violation of Franks. From this, it is reasonable to infer all four DPD Defendants
implicitly agreed to use false information supporting a warrant to arrest Mr.
Montoya. Again, this is not a case where a plaintiff indiscriminately alleged
“collective allegations against the state.” Brown, 662 F.3d at 1163 (citation omitted).
Nor was it a rapidly evolving situation that might make a conspiracy claim
implausible. See Shimomura v. Carlson, 811 F.3d 349, 360 (10th Cir. 2015) (“[T]he
alleged agreement could not plausibly have preceded [the] arrest. The video reflects
the incident, which unfolded only a few seconds before [the arrest].”). Thus, we
agree with the district court that Mr. Montoya plausibly alleged a common
conspiratorial objective. Twombly, 550 U.S. at 570.
2. Defendants’ qualified-immunity argument is waived.
Defendants fault the district court for failing to engage in separate qualified
immunity analyses for conspiracy and the underlying Franks violation. However, as
Mr. Montoya observes, Defendants made no conspiracy-specific qualified immunity
arguments in their briefing below—they made only a general assertion that their
qualified immunity defense applied to all claims. And on appeal, they fail to explain
how the qualified immunity analysis should be any different for conspiracy than it is
for the underlying Franks violation. They do not explain how the district court’s
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analysis was erroneous. We therefore reject their unsupported assertion. See Burke,
935 F.3d at 1014.
II. We decline to exercise pendent jurisdiction over Defendants’ Heck claim.
“In Heck, 512 U.S. at 480-87, the Supreme Court held that a plaintiff could not
bring a civil-rights claim for damages under § 1983 based on actions whose
unlawfulness would render an existing criminal conviction invalid.” Havens v.
Johnson, 783 F.3d 776, 782 (10th Cir. 2015). Defendants contend Mr. Montoya’s
claims are barred by Heck because his accessory conviction has not been dismissed
and his claims are an impermissible collateral attack on that conviction.
As threshold matter, Defendants acknowledge the Heck issue is not
independently appealable—they ask this Court to exercise pendent jurisdiction. Mr.
Montoya asserts that pendent jurisdiction is inappropriate because the Heck issue is
not inextricably intertwined with the qualified immunity issues. We agree and decline
to exercise pendent jurisdiction.
This Court has “discretion to exercise pendent appellate jurisdiction ‘where the
otherwise nonappealable decision is “inextricably intertwined” with the appealable
decision, or where review of the nonappealable decision is “necessary to ensure
meaningful review” of the appealable one.’” Estate of Ceballos v. Husk, 919 F.3d
1204, 1220-21 (10th Cir. 2019) (citation omitted). “[A] pendent appellate claim can
be regarded as inextricably intertwined with a properly reviewable claim on collateral
appeal only if the pendent claim is coterminous with, or subsumed in, the claim
before the court on interlocutory appeal—that is, when the appellate resolution of the
19 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 20
collateral appeal necessarily resolves the pendent claim as well.” Id. (alterations in
original) (citation omitted). Because “the exercise of pendent appellate jurisdiction is
generally disfavored[,] . . . [w]e exercise this discretionary authority sparingly.” Id.
(alterations in original) (citation omitted).
First, Defendants argue the Heck issue is inextricably intertwined with
qualified immunity. If we agreed that Heck barred Mr. Montoya’s claims, Defendants
insist, then it would obviate the need to resolve the qualified immunity issues.
However, that an alternative ground for dismissal is potentially dispositive does not
mean that, for purposes of pendent appellate jurisdiction, it is inextricably
intertwined with the appealable decision. The pendent claim is inextricably
intertwined when “appellate resolution of the collateral appeal necessarily resolves
the pendent claim as well,” id. (citation omitted)—not the other way around.
Alternatively, Defendants argue the qualified immunity issue and the Heck
issue are coterminous because both require an inquiry into whether there was
probable cause. According to Defendants, probable cause is relevant to the
constitutional violation prong of qualified immunity, and in the Heck analysis, the
alleged lack of probable cause is “evidence that Plaintiff is directly challenging the
validity of the conviction.” Aplts. Opening Br. at 42. At most, the common probable-
cause inquiry just shows there is some potential overlap in the analysis. That is not
enough.
We have previously recognized the distinctions between qualified immunity
and the Heck doctrine:
20 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 21
Qualified immunity and Heck are analytically distinct doctrines: qualified immunity asks whether a defendant violated a constitutional or statutory right that was clearly established; Heck evaluates whether a favorable judgment on a prisoner’s § 1983 claim “would necessarily imply the invalidity of his conviction or sentence.” The Heck analysis does not bear on the qualified immunity inquiry, and because Heck issues are effectively reviewable on appeal while the denial of qualified immunity is not, courts generally decline to exercise jurisdiction over Heck issues raised on interlocutory appeal from the denial of qualified immunity.
Sayed v. Virginia, 744 F. App’x 542, 547-49 (10th Cir. 2018) (citation omitted)
(quoting Heck, 512 U.S. at 487 (1994)) (citing Cunningham v. Gates, 229 F.3d 1271,
1285 (9th Cir. 2000) (“The Heck issue is not ‘inextricably intertwined’ with the
qualified immunity issues properly before us on interlocutory appeal, nor is it
necessary to decide the issue to ensure meaningful review of the defendants’
qualified immunity claims.”)).
Sayed is not binding precedent, but we find its reasoning persuasive here.7
Defendants have cited no contrary authority where a court found qualified immunity
and Heck to be inextricably intertwined. As in Sayed, “we need not consider the Heck
issue to determine whether the allegations in the [second] amended complaint state a
violation of [the plaintiff’s] clearly established rights.” Id. at 548 (citation omitted).
Simply put, “nothing about the Heck inquiry is necessary to resolve qualified
immunity.” Id. We decline to exercise pendent jurisdiction over Defendants’ Heck
claim.
7 See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1. 21 Appellate Case: 21-1107 Document: 010110692520 Date Filed: 06/03/2022 Page: 22
CONCLUSION
We AFFIRM the district court’s order denying Defendants’ motion to dismiss
Mr. Montoya’s Franks and conspiracy claims on qualified immunity grounds. We
DISMISS Defendants’ appeal of the district court’s denial of the motion to dismiss on
Heck grounds.
Entered for the Court
Veronica S. Rossman Circuit Judge