Date: 07-10-2018

Case Style:

Case Number: 17-4065

Judge: Timkovich

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Utah (Salt Lake County)

Plaintiff's Attorney: Mark Shurtleff and Steve Christensen

Defendant's Attorney: Jennifer Bailey, Sim Gill, David Quealy

Description: Silvan Warnick brings this 42 U.S.C. § 1983 malicious prosecution case
and a number of state law tort claims against several Salt Lake County
prosecutors and investigators. He claims he was falsely accused of tampering
with evidence that led to the filing of criminal charges against him that were later
dismissed.
The district court granted the defendants’ motion to dismiss, and Warnick
appealed. We affirm. Like the district court, we find that absolute prosecutorial
immunity precludes Warnick from suing the prosecutors for filing charges, and
that Warnick has failed to plead the rest of his allegations with sufficient factual
specificity.
I. Background
We take all facts from Warnick’s complaint, accepting them as true for
purposes of our de novo review. Brown v. Montoya, 662 F.3d 1152, 1162 (10th
Cir. 2011).
Silvan Warnick served as a constable in Salt Lake County. A constable is
the local vernacular for a county peace officer. Daniel Herboldsheimer worked
for Warnick as a deputy constable. On August 24, 2011, Herboldsheimer was
serving as bailiff for the South Salt Lake City Justice Court when a criminal
defendant attempted to flee. Herboldsheimer pursued, and eventually both
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Herboldsheimer and Scott Hansen, another deputy constable, apprehended the
defendant.
After the fact, Herboldsheimer filed an incident report describing what had
happened. According to the complaint, Warnick told Herboldsheimer that his
report did not comport with county policy because it contained hearsay
observations from others, and not Herboldsheimer’s direct observations. In
particular, Herboldsheimer’s report made incorrect statements about Hansen’s use
of force to subdue the fleeing defendant.
A. The Charges
This case concerns what happened next. As Warnick alleges,
Herboldsheimer took offense to Warnick’s rebuke. Soon afterward,
Herboldsheimer contacted the Salt Lake County Attorney’s Office and falsely
complained that Silvan Warnick and his staff member, Alanna Warnick (Silvan
Warnick’s wife), had instructed him to falsify his incident report. In addition,
Herboldsheimer told the prosecutors that Warnick had made changes to his
report—something he took to be falsification.
Three prosecutors were later tasked with investigating this complaint:
Bradford Cooley, Ethan Rampton, and Jeffrey Hall. Prosecutor Hall also asked
Robin Wilkins and Mark Knighton—investigators for the County—to look into
Herboldsheimer’s complaint. Warnick contends the prosecutors and investigators
together conducted an inadequate investigation even though they had a duty to
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investigate. He also claims they “encourage[d]” Herboldsheimer to provide “false
information.” App. 9 ¶ 26. All the parties involved “knew or should have known
that the information provided by . . . Herboldsheimer was false and that Plaintiff
Silvan Warnick had not committed a crime.” Id.
All the while knowing of Warnick’s innocence, the prosecutors and
investigators “conspired to file charges” against him. Id. ¶ 27. And, in fact, the
prosecutors did bring charges—twice. Prosecutor Cooley first brought charges
for witness and evidence tampering against both Silvan and Alanna Warnick. At
this first hearing on March 13, 2012, the court dismissed one of the charges
against Silvan Warnick for a reason unrelated to the merits, and Prosecutor
Cooley moved to dismiss the other charge voluntarily. Warnick alleges
Prosecutor Cooley moved to dismiss the charge because he “suspected that the
Judge would dismiss that charge as well, because there was insufficient evidence
to support the State’s burden of proof.” Id. 11 ¶ 33. As for Alanna
Warnick—office manager and wife to Silvan Warnick—the court dismissed the
charges for lack of probable cause.
Some time later, the prosecutors again brought the same witness and
evidence tampering charges against Silvan Warnick. At the probable cause
hearing for this second round of charges, the court dismissed the charges for lack
of probable cause.
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Though both charges were ultimately dismissed, Warnick did not go
unscathed. Because of those charges, Warnick contends he lost his position as a
constable and his reputation was damaged within the law enforcement community.
B. The Lawsuit
Silvan Warnick then sued Herboldsheimer, the prosecutors, and the
investigators in the District of Utah.1 He sought relief for (1) malicious
prosecution under § 1983,2 (2) conspiracy to violate his constitutional rights under
§ 1985, (3) malicious prosecution under state law, (4) negligence, (5) conspiracy,
(6) defamation, (7) negligent or intentional infliction of emotional distress, and
(8) interference with contractual relations.
The defendants moved to dismiss, but instead of filing a response—and
without leave of court—Warnick simply filed an amended complaint. The
defendants moved to strike. The court agreed Warnick had not complied with the
rules for amending, but let his amended complaint stand. Believing the new
complaint did not sufficiently shore up the prior complaint’s problems, the
defendants renewed their motion to dismiss for substantially the same reasons.
1 Herboldsheimer is no longer part of this lawsuit. Aple. Br. at 4 n.1.
2 Warnick’s complaint does not call his § 1983 claim a “malicious
prosecution” claim specifically, but it is the natural label for the allegations he
makes.
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The magistrate judge assigned to this case recommended the district court
dismiss the case, but did not specify whether it recommended the court do so with
or without prejudice. Warnick filed a brief objecting to this recommendation. He
asked the district court to deny the motion to dismiss, and also hedged with an
alternative request: should the district court agree with the magistrate judge and
dismiss his claims, Warnick asked for the court to do so without prejudice so that
he could amend his complaint.
The district court agreed with most of the magistrate judge’s reasoning and
granted the defendants’ motion to dismiss.3 The court did not, however, grant
Warnick’s request for leave to amend, instead dismissing his claims with
prejudice.
II. Analysis
Warnick appeals the district court’s decision granting the defendants’
motion to dismiss. Alternatively, he asks us to instruct the district court to grant
him leave to amend.
A. The Motion to Dismiss
3 The district court only disagreed with the magistrate judge on the
applicability of absolute immunity to a prosecutor’s investigative activities. The
magistrate judge seemed to have assumed immunity applied to such activities, but
the district court explained the investigative activities Warnick complained of
could be outside the scope of prosecutorial immunity, and it was premature to
conclude otherwise at that stage in the case. App. 229.
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We review a district court’s dismissal for failure to state a claim under Rule
12(b)(6) de novo. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir.
2003). In so doing, we accept all of Warnick’s well-pleaded allegations as true
and view them in the light most favorable to Warnick. See Colby v. Herrick, 849
F.3d 1273, 1279 (10th Cir. 2017).
But before we accept Warnick’s allegations as true, they must be wellpleaded
allegations. Determining whether a complaint contains well-pleaded
facts sufficient to state a claim is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009). The court must determine whether the
plaintiff has pleaded “enough facts to state a claim to relief that is plausible on its
face,” not just “conceivable.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Though a complaint need not provide “detailed factual allegations,” it
must give just enough factual detail to provide “fair notice of what the . . . claim
is and the grounds upon which it rests.” Id. at 555 (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements” do not count as well-pleaded
facts. Id. at 678. If, in the end, a plaintiff’s “well-pleaded facts do not permit the
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court to infer more than the mere possibility of misconduct,” the complaint fails
to state a claim. Iqbal, 556 U.S. at 679.4
With this standard in mind, we turn to Warnick’s various claims.
1. The § 1983 Claims
Warnick brought § 1983 claims against both the county prosecutors and the
investigators.
We begin with Warnick’s allegations against the prosecutors. He claims
the prosecutors violated his constitutional rights by (1) filing charges based on
“frivolous, scurrilous, and inaccurate information,” (2) maliciously investigating
and prosecuting him, and (3) “maligning [his] character.” App. 13.
Warnick’s first allegation fails because the prosecutors are entitled to
absolute immunity from liability for their decision to file charges. A district court
may grant a motion to dismiss “on the basis of an affirmative defense . . . when
the law compels that result.” Caplinger v. Medtronic, Inc., 784 F.3d 1335, 1341
(10th Cir. 2015). And it is well-established law that “[p]rosecutors are entitled to
absolute immunity” for anything they do in their roles as advocates, including
their “decisions to prosecute.” Nielander v. Bd. of Cty. Comm’rs, 582 F.3d 1155,
1164 (10th Cir. 2009); e.g., Snell v. Tunnell, 920 F.2d 673, 693 (10th Cir. 1990)
4 Warnick argues the district court failed to apply the correct standard, but
after reviewing its opinion, we conclude the court correctly applied the standard
laid out in Iqbal and other cases. See App. 170, 178.
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(“[A] prosecutor who performs functions within the continuum of initiating and
presenting a criminal case, such as filing charges . . . ordinarily will be entitled to
absolute immunity.” (emphasis added)).
Warnick argues the prosecutors lost their absolute immunity for filing
charges by engaging in other activities that were not related to their roles as
advocates. But while prosecutors may not enjoy absolute immunity for activities
unrelated to advocacy, that does not mean that engaging in such activities
removes their immunity for activities that are related to advocacy. As the district
court explained, absolute immunity is not “subject to all-or-nothing
application”—it can apply to some of the prosecutor’s actions while not to others
at the same time. App. 228 n.2; see Buckley v. Fitzsimmons, 509 U.S. 259,
273–74 (1993).
Warnick also contends absolute immunity does not apply to a prosecutor’s
decision to file charges if the prosecutor had no probable cause to do so. He
argues that when a prosecutor did not have probable cause to file charges, only
qualified immunity can apply. This theory would go a long way toward
eliminating absolute prosecutorial immunity altogether, and it is not the law. It is
true that activities undertaken by a prosecutor before probable cause exists often
lie outside the purview of a prosecutor’s role as an advocate. Buckley, 509 U.S.
at 274. But while a lack of probable cause is a good clue a prosecutor is engaging
in activity beyond the scope of advocacy, it is not determinative. Some
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functions—like filing charges—are inherently related to a prosecutor’s role as an
advocate, and therefore protected by absolute immunity whether or not probable
cause exists. Hence the well-settled rule that prosecutors are “entitled to absolute
immunity for the malicious prosecution of someone whom [they] lacked probable
cause to indict.” Id. at 274 n.5. The cases Warnick cites to the contrary are not
applicable, as they concerned the application of qualified immunity to
prosecutors’ activities outside the advocacy function.5
In short, Warnick cannot hold the prosecutors liable for their decision to
file charges against him. Absolute immunity shields them from such claims.
Warnick’s allegations that the prosecutors maliciously investigated him fail
for a different reason: he does not plead specific facts demonstrating why the
investigation violated the Constitution. Warnick alleges the county prosecutors
“encourage[d]” Herboldsheimer to provide “false information.” App. 9 ¶ 26. He
then, perhaps inconsistently, asserts the prosecutors conducted an inadequate
5 See Broam v. Bogan, 320 F.3d 1023, 1031 (9th Cir. 2003) (“To determine
whether a state law enforcement officer or a prosecutor is entitled to qualified, as
opposed to absolute, immunity a court must decide whether the alleged
unconstitutional conduct occurred during the performance of an investigative
function,” such as “conducting interrogations to determine . . . whether probable
cause exists.”); Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995)
(“[I]mmunity does not protect those acts a prosecutor performs in administration
or investigation not undertaken in preparation for judicial proceedings. . . .
Before any formal legal proceeding has begun and before there is probable cause
to arrest, it follows that a prosecutor receives only qualified immunity for his
acts.”).
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investigation and “knew or should have known that the information provided by
Defendant Herboldsheimer was false.” Id. ¶¶ 26–28. These comprise the entirety
of Warnick’s allegations about the investigation, aside from further conclusory
statements repeating the same.
These bare statements do not amount to a plausible claim of a constitutional
violation. The crux of Warnick’s complaint about the investigation is that the
prosecutors encouraged Herboldsheimer to provide false information. Evidence
fabrication could, of course, violate Warnick’s Fourth Amendment rights. See
Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). But Warnick does not
tell us what the fabricated statements were—not in his complaint, nor in his
briefing, nor even when asked at oral argument. Recall that according to
Warnick’s own complaint, it was Herboldsheimer who contacted the prosecutors
alleging that Warnick had falsified the report. That means the prosecutors could
not have fabricated those general allegations. We are thus left to ponder what
false statements Warnick might be referring to. So too, are we left wondering
what specific acts each individual prosecutor engaged in.
The prosecutors cannot reasonably respond to such a conclusory assertion
of misdeeds. See, e.g., Robbins v. Oklahoma, 519 F.3d 1242, 1247–48 (10th Cir.
2008). And without any specific factual allegations, Warnick’s complaint simply
cannot cross the line from a merely possible claim of evidence fabrication to a
plausible one. See Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th
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Cir. 2011). Indeed, if the prosecutors did fabricate evidence, they either did not
use that evidence against Warnick, or else were surely incapable
fabricators—unable even to convince the judge they crossed the not-so-high bar
of probable cause.
This brings us to another problem with the allegations. Warnick’s
complaint also leaves us in the dark as to whether the prosecutors used any of that
allegedly concocted evidence against him. That too is fatal to his claim, for, as
the Seventh Circuit explained, if “an officer (or investigating prosecutor)
fabricates evidence and puts that fabricated evidence in a drawer, making no
further use of it, then the officer has not violated due process.” Bianchi v.
McQueen, 818 F.3d 309, 319 (7th Cir. 2016) (quoting Whitlock v. Brueggermann,
682 F.3d 567, 582 (7th Cir. 2012)). We are “aware of[] no authority for the
proposition that the mere preparation of false evidence, as opposed to its use in a
fashion that deprives someone of a fair trial or otherwise harms him, violates the
Constitution.” Buckley, 509 U.S. at 281 (Scalia, J., concurring); Advantageous
Cmty. Servs., LLC v. King, No. 1:17-CV-00525-LF-KK, 2018 WL 1415184, at *8
(D.N.M. Mar. 21, 2018) (“The fabrication of evidence—like the suppression of
exculpatory evidence—only matters if it deprives any person of a fair trial and
thereby deprives the person of liberty or property.”); cf. United States v. Bagley,
473 U.S. 667, 678 (1985) (“[S]uppression of evidence amounts to a constitutional
violation only if it deprives the defendant of a fair trial.”); Becker v. Kroll, 494
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F.3d 904, 924 (10th Cir. 2007) (a plaintiff cannot prevail on a Brady claim
“unless the case goes to trial and the suppression of exculpatory evidence affects
the outcome”).
In sum, because Warnick does not plead facts showing what false evidence
the prosecutors fabricated, or how they used it, his allegations fail to state a claim
that the prosecutors’ investigation violated his constitutional rights.
We meet a similar inadequacy in Warnick’s allegation that the prosecutors
violated his rights by “maligning his character” and subjecting him to “public
ridicule and loss of business.” App. 13–14 ¶¶ 41, 47. Putting to one side the fact
that Warnick has not explained in what way these actions violated his
constitutional rights, Warnick once again provides no specifics. He does not tell
us what the prosecutors said about him. If he simply means the prosecutors
maligned his character by bringing charges, we have already explained the
prosecutors cannot be brought to court for such harms. At bottom, Warnick’s
complaint simply does not provide enough detail for us to infer a viable claim.
Little changes when we turn to Warnick’s claims against the investigators.
Warnick included the investigators in almost all the allegations he made against
the prosecutors. He added no allegations unique to the investigators (except that,
since the investigators cannot and did not bring charges, Warnick only alleges
they caused charges to be filed, though without explaining how). Left again with
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no specific factual allegations from which to infer a plausible claim, we hold
these claims fail to state a claim too. See Iqbal, 556 U.S. at 678–79, 680–81.6
2. The § 1985 Claims
In the same vein as his § 1983 claim, Warnick alleges the prosecutors and
investigators violated § 1985 by conspiring to bring false charges against him.
The district court apparently assumed Warnick was making a claim under section
three of § 1985, and concluded he failed to state a claim because he did not allege
the prosecutors and investigators were motivated by animus against a protected
class of persons. App. 234 (quoting Tilton v. Richardson, 6 F.3d 683, 686 (10th
Cir. 1993)); see Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
Warnick devotes all of one page to his § 1985 claim in his briefing, and
does not explain why the district court’s rationale was mistaken. Given no reason
to doubt the district court’s conclusion, we consider Warnick’s argument waived.
6 Warnick urges us to take into account the transcripts for the probable
cause hearings, claiming these make good the factual holes in his complaint. On
review of a Rule 12(b)(6) motion, we consider the complaint “as well as . . .
documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). The prosecutors and investigators argue Warnick’s
complaint did not incorporate those documents by reference and that we should
not take judicial notice of them. We decline to decide this dispute, as the
transcripts would not change our conclusion. At most, these transcripts only
show the prosecutors did not have probable cause to charge Warnick. That may
be “consistent with” Warnick’s theory of their wrongdoing, but it is “just as much
in line with” lawful conduct. See Twombly, 550 U.S. at 554. The transcripts do
little to flesh out Warnick’s allegations regarding the investigation.
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See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). But even
if we considered the argument, the district court was correct: Warnick failed to
provide any specific allegation of a motive based on racial or class-based
discrimination, and such is required to state a § 1985(3) claim. See Griffin, 403
U.S. at 102.7
3. The State Law Claims
The district court also dismissed all of Warnick’s state law claims, holding
some barred by the Utah Governmental Immunity Act and the rest insufficiently
pleaded. App. 234–36. Warnick does not challenge the district court’s dismissal
of his state law claims in his opening brief, so he has forfeited any argument on
that point. See United States v. Fisher, 805 F.3d 982, 991 (10th Cir. 2015).8
B. Leave to Amend
Warnick contends that even if his complaint is deficient, the district court
erred by dismissing his claims with prejudice. He claims he should have been
given a chance to amend his complaint a second time.
7 We assume the district court was correct that Warnick attempted to state
a claim under section three of § 1985, and Warnick has not argued otherwise.
8 In his brief, Warnick also seems to argue the prosecutors and
investigators retaliated against him for engaging in a constitutionally protected
activity. Aplt. Br. at 24. Since Warnick did not raise this claim in his complaint,
we do not address it. See BV Jordanelle, LLC v. Old Republic Nat’l Title Ins.
Co., 830 F.3d 1195, 1204 (10th Cir. 2016). Even if he had, the argument is
inadequately briefed. See Adler, 144 F.3d at 679.
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We review a district court’s decision denying a plaintiff leave to amend for
abuse of discretion. Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th
Cir. 1994). Courts are supposed to give leave to amend “freely . . . when justice
so requires.” Fed. R. Civ. P. 15(a)(2). Indeed, Rule 15(a)’s purpose is “to
provide litigants ‘the maximum opportunity for each claim to be decided on its
merits rather than on procedural niceties.’” Minter v. Prime Equip. Co., 451 F.3d
1196, 1204 (10th Cir. 2006) (quoting Hardin v. Manitowoc-Forsythe Corp., 691
F.2d 449, 456 (10th Cir. 1982)).
Yet, as our standard of review demonstrates, the decision still lies within
the district court’s discretion. Id. A district court may deny leave to amend upon
“a showing of undue delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments previously allowed,
or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.
1993). A court may also deny leave to amend on timeliness grounds, Duncan v.
Manager, Dep’t of Safety, 397 F.3d 1300, 1315 (10th Cir. 2005), or where a
plaintiff fails to file a written motion and instead “merely suggest[s] she should
be allowed to amend if the court conclude[s] her pleadings [a]re infirm.” See
Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010).
The district court gave several reasons for refusing to allow Warnick to
amend his complaint. Warnick (1) did not file a proper motion, (2) failed to
provide the court with a proposed complaint as local rules required, see DUCivR
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15-1, and (3) requested leave to amend nearly three years after filing his first
amended complaint. App. 237–38. The court also thought it likely that Warnick
could not cure the deficiencies in his complaint. Warnick’s first amendment had
not done the job. And even considering the new facts Warnick mentioned in his
objections to the magistrate judge’s recommendation, the court found those facts
were not sufficient to state a claim either. Id. at 238 n.7. It thus denied Warnick
the opportunity to amend.
We conclude the district court’s decision was well within its discretion.
Warnick complains the district court should not have taken into account the
tardiness of his request (nearly three years after his first amended complaint).
The delay in his case, Warnick says, could only be laid at the feet of the court’s
own scheduling, not his negligence.
But even if we eliminate timeliness as a consideration, the district court
still had ample reason to deny Warnick’s request. Warnick did not file a written
motion for leave to amend. Instead, his brief objecting to the magistrate judge’s
recommendation “merely suggested [he] should be allowed to amend if the court
concluded [his] pleadings were infirm.” Garman, 630 F.3d at 986. We have
already held that is not enough. Id. And Warnick also failed to let the district
court know just how he intended to fix his complaint. Contrary to the local rules
of the district court, he did not file a proposed amended complaint—leaving the
district court and the defendants to wonder what the basis of amendment might
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be. Considering all this—and considering too that Warnick had once before
amended without leave of court, and the court had allowed it—we hold the district
court did not abuse its discretion.

Outcome: We therefore AFFIRM the district court’s dismissal of Warnick’s claims
with prejudice.

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