F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 29 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ERNEST E. WALKER,
Plaintiff - Appellant,
v. No. 02-1020
D.C. No. 00-S-1931
OFFICER DISNER; JOHN DOE OF (D. Colorado)
ARAPAHOE COUNTY DETENTION
FACILITY,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Earnest Walker, a state prisoner appearing pro se , appeals the
district court’s order dismissing his amended complaint alleging, under 42 U.S.C.
§ 1983, that Officer Edward Disner, a Sheridan, Colorado, police officer, and
an unidentified John Doe violated his civil rights. 1
The magistrate judge
recommended that the complaint be dismissed under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief could be granted. By separate order, the
magistrate judge denied Mr. Walker’s motion to amend his complaint for a third
time. The district court affirmed the denial of the motion to amend and, adopting
the magistrate judge’s recommendation, dismissed the complaint. We affirm.
“We review de novo the district court’s grant of a [Rule] 12(b)(6) motion
to dismiss, bearing in mind that all well-pleaded allegations in the complaint are
accepted as true and viewed in the light most favorable to the nonmoving party.”
Stidham v. Peace Officer Standards & Training , 265 F.3d 1144, 1149 (10th Cir.
2001) (quotation and alteration omitted). The district court thoroughly and
1
John Doe remains unknown and unserved. The district court informed
Mr. Walker by order dated December 20, 2000, that he must provide sufficient
information so that this defendant could be identified. Mr. Walker never provided
further identifying information. Mr. Walker has waived his right to appellate
review of the dismissal of this John Doe defendant because he did not raise any
objections to the dismissal of this defendant in his objections to the magistrate
judge’s report and recommendation, see Key Energy Res. Inc. v. Merrill (In re
Key Energy Res. Inc.) , 230 F.3d 1197, 1199-1200 (10th Cir. 2000), or in his
opening brief on appeal, see Coleman v. B-G Maint. Mgmt. of Colo., Inc. , 108
F.3d 1199, 1205 (10th Cir. 1997).
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accurately described Mr. Walker’s allegations, as contained in his amended
complaint and his verified statement of facts filed in response to the motion to
dismiss. Thus, we only briefly summarize them here.
Mr. Walker returned to the apartment he shared with his wife on the
morning of September 28, 1999, after an argument with her the evening before.
He could not unlock the door, and the apartment maintenance manager told him
his wife had changed the locks and requested he not be allowed inside the
apartment. Nevertheless, Mr. Walker admits he manipulated the locks on the door
and entered the apartment. The maintenance manager called the police. Officer
Disner and an unidentified fellow officer arrived, and were told by the
maintenance manager that there was an unwanted person in the apartment.
The officers knocked on the door, but Mr. Walker was unable to answer at
the time. The officers again knocked on the door and then forcibly entered the
apartment. The officers handcuffed Mr. Walker. After searching his wallet, the
officers told Mr. Walker he was being arrested for a violation of a restraining
order. Although Mr. Walker’s wife had previously obtained a restraining order
against him, it was later determined that the restraining order had been vacated
prior to September 28, 1999. The officers briefly searched the apartment, and
then arrested Mr. Walker for criminal mischief for manipulating the locks and for
violating a restraining order.
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Mr. Walker contends Officer Disner violated his constitutional rights
because he did not obtain a search warrant prior to entering his apartment and
arrested him without probable cause. We agree with the district court that Officer
Disner is entitled to qualified immunity because the facts, taken in the light most
favorable to Mr. Walker, do not show that Officer Disner violated a constitutional
right. See Saucier v. Katz , 533 U.S. 194, 200 (2001).
Absent exigent circumstances, police may not enter a citizen’s home
without a warrant. Payton v. New York , 445 U.S. 573, 590 (1980). Here, Mr.
Walker admits that the police responded to a call of a suspected burglary and
were told by the apartment maintenance manager that an unwanted person was in
the apartment. He admits that he manipulated the locks to enter the apartment
and that he did not respond to the officers’ initial knock. Because the officers
had received a burglary call, and upon arriving at the apartment, observed signs
of a burglary, Officer Disner’s entry into, and brief search of, the apartment
were lawful pursuant to the emergency exception to the warrant requirement. See
United States v. Tibolt , 72 F.3d 965, 970-71 (1st Cir. 1995) (holding that
responding to report of possible burglary is exigent circumstance authorizing
warrantless entry into home).
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Furthermore, these same facts are sufficient to demonstrate that Officer
Disner had probable cause to believe Mr. Walker had committed a criminal
offense.
A police officer may arrest a person without a warrant if he has
probable cause to believe that person committed a crime. Probable
cause exists if facts and circumstances within the arresting officer’s
knowledge and of which he or she has reasonably trustworthy
information are sufficient to lead a prudent person to believe that the
arrestee has committed or is committing an offense.
Romero v. Fay , 45 F.3d 1472, 1476 (10th Cir. 1995) (quotations and citations
omitted). Although Mr. Walker contends that Officer Disner lacked probable
cause to arrest him for violating the restraining order, he ignores the fact that
he was also arrested for criminal mischief for manipulating the locks on the
apartment door. He offers no argument why Officer Disner lacked probable cause
to arrest him for this charge. The district court correctly ruled that Mr. Walker
failed to assert the violation of a constitutional right.
Mr. Walker alleges it was error for the district court to deny his motion to
file a third amended complaint on grounds of futility. We review the district
court’s denial of a motion to amend a complaint for abuse of discretion. See
Ramirez v. Okla. Dep’t of Mental Health , 41 F.3d 584, 596 n.9 (10th Cir. 1994).
Officer Disner’s motion to dismiss had been pending for two months when
Mr. Walker filed his motion to amend. He did not detail the changes he sought
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to make in his amended complaint or offer any justification for the proposed
amendment. We find no abuse of discretion.
We AFFIRM the district court’s judgment. We remind Mr. Walker to
continue making partial payments until the entire balance of the appellate
filing fee is paid.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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