F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES LEE WELLS,
Plaintiff-Appellant,
v. No. 03-1360
(D.C. No. 02-MK-1367-BNB)
THE CITY AND COUNTY OF (D. Colo.)
DENVER; DENVER POLICE
DEPARTMENT; CHRIS CAMERON;
JAMES MONEGHAN; ED DAVID,
and John Does 1 through 10, all
Denver Police Officers, whose
identities are not known to Plaintiff,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
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This order and judgment is not binding precedent, except under the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.
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.
James Lee Wells appeals from the grant of summary judgment to
defendant s on state tort and federal civil rights claims following a traffic stop
which resulted in his arrest and detention. We have jurisdiction over this appeal
by virtue of 28 U.S.C. § 1291. Appellant challenges the district court ’s ruling
only as to certain claims against the individual defendants: 1) state tort claims of
false arrest and assault and battery and 2) civil rights claims, brought pursuant to
42 U.S.C. § 1983, characterized by the district court as false arrest and excessive
force. We review the district court’s grant of summary judgment de novo ,
applying the same legal standards as the district court . Simms v. Okla. ex rel.
Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326
(10th Cir. 1999).
The district court granted summary judgment on the assault and battery
claim and granted qualified immunity to the individual defendants on the
excessive force claim, based on its conclusion that appellant had neither argued
nor presented factual evidence about whether the force used in effectuating his
arrest was reasonable. We agree with the district court ’s reasoning. Despite
appellant’s appellate arguments that evidence which would support these claims
existed in the record, the district court is not required to either manufacture legal
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argument or sift through the record to find factual support for potential claims.
See Mitchell v. City of Moore , 218 F.3d 1190, 1198-99 (10th Cir. 2000).
Summary judgment was properly granted on these claims.
The district court rejected appellant’s false arrest claims because it
determined there was probable cause to arrest, which conclusion precludes a false
arrest claim under both Colorado and federal constitutional law. See Enright v.
Groves , 560 P.2d 851, 853 (Colo. Ct. App. 1977); Taylor v. Meacham , 82 F.3d
1556, 1561 (10th Cir. 1996) (stating elements of a common law claim are starting
point for civil rights violations based on state law tort). As he did before the
district court, appellant contends probable cause was lacking for his arrest. But,
in support of this position, he raises three arguments never presented to the
district court. Absent unusual circumstances not present here, we decline to
address theories raised for the first time on appeal. See Bancamerica Commercial
Corp. v. Mosher Steel of Kan., Inc. , 100 F.3d 792, 798-99 (10th Cir.),
op. amended on other grounds , 103 F.3d 80 (10th Cir. 1996).
Accordingly, the judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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