Marino v. Mayger

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 7 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk

MICHAEL MARINO a/k/a Mike
Marino, and DANETTE MARINO,

Plaintiffs-Appellants,
v. No. 02-1345
District of Colorado
SPRAGUE MAYGER, NANCY (D.C. No. 98-S-2386 (PAC))
MAYGER a/k/a Niky Mayger,
FRANCIS JOHN HIEMER a/k/a Frank
Hiemer, GENE HILL, individually and
as former SHERIFF OF MONTROSE
COUNTY, WARREN WATERMAN,
individually and as SHERIFF OF
MONTROSE COUNTY and former
Lieutenant Patrol Commander of
Montrose County Sheriff’s
Department, GREG HILER,
individually and as Investigations
Lieutenant for the Montrose County
Sheriff’s Department, and
MONTROSE COUNTY SHERIFF’S
DEPARTMENT,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before EBEL , BRISCOE , and TYMKOVICH , Circuit Judges.

*
This order and judgment is not binding precedent, except under the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 case is about a neighborhood conflict that disintegrated into violence.

Plaintiffs Michael and Danette Marino claim that three of their neighbors and

three members of the Montrose County, Colorado Sheriff’s Department (MCSD)

violated their constitutional rights by conspiring to drive the Marinos from their

rural property after a prolonged dispute over the administration of an irrigation

ditch erupted into violence. The Marinos brought a 42 U.S.C. § 1983 (1996)

action against the MCSD, two former Montrose County sheriffs and a sheriff

deputy, and state tort claims against three neighbors. After extensive briefing, a

magistrate judge found (1) that the Marinos failed to state a claim against MCSD

and the private defendants, Sprague Mayger, Nancy Mayger, and Francis Hiemer,

and (2) that qualified immunity barred suit against Gene Hill (former Sheriff of

Montrose County), Warren Waterman (current Sheriff and former MCSD deputy),

and Greg Hiler (former MCSD deputy) (collectively the “sheriff defendants”).

The district court accepted the magistrate judge’s recommendation and dismissed

the Marinos’ action in its entirety. Our jurisdiction is based on 28 U.S.C. § 1291.

Finding no federal constitutional violations, we conclude that the district court

did not err in granting dismissal.

We affirm.

2
 I. B ACKGROUND

In 1995, Michael and Danette Marino moved to Colorado and purchased

some acreage in a rural Montrose County subdivision. Soon after the Marinos

began constructing their home, they developed an acrimonious relationship with

their neighbors, Sprague and Nancy Mayger to the south and Francis Hiemer to the

southeast. (I App. at 115) The Maygers and Hiemer are long-time residents of the

subdivision as well as friends. (Id. at 161)

The subdivision in question receives water from the West Canal, an irrigation

ditch that runs along the subdivision’s western border. (Id. at 115, 162) The

subdivision’s residents, including the parties to this appeal, are responsible for the

ditch’s upkeep and administration. The same head gate on the ditch regulates water

flow to a smaller, lateral ditch that delivers water to both the Marino and Mayger

properties. This lateral irrigation ditch flows through the Marinos’ property to

reach the Maygers’. (Id. at 162) Because the ditch’s head gate is on the Marinos’

property, the Maygers are entitled to use an irrigation easement on both sides of the

ditch to access the head gate and perform ditch maintenance. (Id.)

In 1996, after quarreling with the Marinos about other property-related

matters, Sprague Mayger and Francis Hiemer unilaterally appointed themselves the

subdivision’s “irrigation committee” and informed the Marinos that the Marinos

would not be receiving their full allotment of monthly irrigation water. (Id.) The

3
Marinos responded by filing suit in Montrose County District Court. In September

1997, the state court entered permanent restraining orders against the Maygers and

Hiemer, directing them to remain at least ten yards away from the Marinos at all

times. (Id. at 38–45) Then, in October 1997, the Marinos secured a judicial

declaration of their water rights. (Id. at 46) The court ruled that the Marinos were

entitled to receive their full share of irrigation water and, further, limited the

private defendants’ use of the ditch easement to “irrigation purposes.” (Id.) The

court’s order also required the Maygers and Hiemer to give the Marinos prior

notice before crossing the easement. (Id.)

According to the Marinos’ second amended complaint, Sprague Mayger and

Francis Hiemer violated the restraining orders on several occasions during the

ensuing months. The Marinos also claim that MCSD deputies refused to enforce

the terms of the court orders. On one occasion, Deputy Warren Waterman allowed

Hiemer to dig a utility ditch across the front of the Marinos’ property, and

threatened to arrest Michael Marino when he came outside his house to protest.

The Marinos met with Sheriff Gene Hill to discuss the situation, but Sheriff Hill

apparently refused to take any remedial action regarding enforcement of the orders.

In addition, the Marinos’ complaint alleges that MCSD aligned itself with the

Maygers and Hiemer. They point out that Mayger and Hiemer met with Sheriff Hill

and MCSD deputies multiple times during this period. In this regard, the complaint

4
alleges that Hiemer and the Maygers did everything Sheriff Hill advised with

regard to the hostile situation. 1 The Marinos also note as evidence of MCSD’s

alignment with the private defendants that Sheriff Hill issued Mayger a concealed

weapons permit during this tense period.

On April 5, 1998, the feud erupted into violence. At approximately 4:00

p.m., Mayger notified Michael Marino that he would be using the ditch easement to

access the head gate. When he and Hiemer came onto the Marinos’ property,

Marino began videotaping them. Mayger and Hiemer turned on the irrigation water

and then began walking back toward the Maygers’ property. As they passed

Marino, Mayger hit him in the face with the handle of an irrigation shovel,

knocking his glasses to the ground but not causing any apparent injury.

Three hours later, Mayger and Hiemer returned to check the flow of water in

the ditch, and Marino began videotaping them again. When they passed by Marino

this time, Hiemer struck him violently in the head with the shovel, knocking him

unconscious and smashing the video camera in the process. They left Marino lying

on the ground, bleeding, and returned to the Maygers’ residence.

1
This allegation is based on testimony given during the hearing on Sprague
Mayger’s motion to have his restraining order lifted. Deputy Waterman stated
that “[e]ver since this got started, they [Mayger and Hiemer] were the ones to
come and contact us in regards to anything going on and ask for advice. And they
would pretty much do whatever we asked them to do.” (I 170) Sprague Mayger
testified: “we had asked [Sheriff Hill’s] direction and guidance and what he
wanted us to do with regard to this difficult issue. And we followed everything
that he said.” (Id.)

5
 After witnessing the attack on her husband, Danette Marino ran to the house

and called 911. MCSD deputies and an ambulance arrived a short time later.

Meanwhile, Hiemer called Deputy Waterman from the Maygers’ residence and told

him about the attack. Hiemer was later taken to MCSD by a sheriff’s deputy,

questioned by Waterman and Sheriff Hill, and charged with first degree assault

before he was released.

MCSD deputies conducted a preliminary investigation of the crime scene that

same night. They recovered several pieces of the broken video camera but could

not locate the portion containing the tape. Deputy Greg Hiler conducted MCSD’s

official investigation into the assault. As part of his investigation, Hiler obtained a

search warrant for the Marinos’ residence, stating in the accompanying affidavit

that he believed the remainder of the video camera was in the Marinos’ residence.

After the search of the Marinos’ house failed to turn up evidence of the camera,

Hiler obtained the private defendants’ consent to search their homes. Neither the

video camera nor the tape of the attack was ever found. Deputy Hiler did not seize

the shovel used in the assault until October 1998, and he failed to preserve the tape

of Danette Marino’s 911 call.

According to the Marinos, Francis Hiemer and Deputy Waterman had been

close friends for several years before the assault, and Sprague Mayger developed a

personal relationship with Waterman after the dispute with the Marinos began. The

6
Marinos also point out that Waterman announced his candidacy for Montrose

County Sheriff two days after the assault, and that Hiemer hosted a political

function for Waterman at his home a few weeks later.

Following these events, a Montrose County jury convicted Hiemer of first

degree assault and he was sentenced to 10 years in prison. The Marinos brought

this 42 U.S.C. § 1983 action with pendant state law claims against Francis Hiemer,

the Maygers, MCSD, and the sheriff defendants in their individual and official

capacities. The Marinos allege that the sheriff defendants conspired with the

Maygers and Hiemer to drive them out the community and in the process created

the danger that Hiemer would assault Michael Marino. They also maintain that

certain actions of the sheriff defendants, both before the assault and in the course

of the investigation, violated their constitutional and civil rights and that MCSD

policy or custom was the moving force behind the constitutional deprivations.

In a comprehensive recommendation, a United States Magistrate Judge

determined that the Marinos’ second amended complaint failed to state a claim

against the private defendants and MCSD, and that the individual sheriff

defendants were entitled to qualified immunity. The district court accepted the

magistrate judge’s recommendation and dismissed the Marinos’ claims pursuant to

Federal Rule of Civil Procedure 12(b)(6). The court also dismissed the pendent

state law tort claims.

7
 II. D ISCUSSION

A. Standard of Review

Whether plaintiffs have stated a claim upon which relief can be granted

under Federal Rule of Civil Procedure 12(b)(6) is a question of law this court

reviews de novo, applying the same standards as the district court. Stidham v.

Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001). The

court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that

the parties might present at trial, but to assess whether the plaintiff’s complaint

alone is legally sufficient to state a claim for relief. Sutton v. Utah State Sch. for

Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “admits

all well-pleaded facts in the complaint as distinguished from conclusory

allegations,” Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976), and all

reasonable inferences must be resolved in the plaintiff’s favor. Bauchman v. West

High Sch., 132 F.3d 542, 550 (10th Cir. 1997) (citations omitted). A court may not

grant a 12(b)(6) motion “unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief.” Sutton,

173 F.3d at 1236 (quotations and citation omitted).

B. Qualified Immunity

To state a cause of action under § 1983, a plaintiff “must allege both the

8
deprivation of a federal right and that the alleged action was taken under color of

state law.” 2 S. Disposal, Inc. v. Tex. Waste Mgmt., 161 F.3d 1259, 1265 (10th Cir.

1998) (quotation omitted). The Marinos’ second amended complaint alleges that

the individual sheriff defendants conspired with the private defendants to violate

various constitutional rights. Specifically, the Marinos assert violations of their

rights (1) to equal protection of the laws, (2) to be free from physical abuse,

assault, battery and serious bodily injury, (3) to be free from unreasonable searches,

and (4) to due process of law.

In response, the sheriff defendants assert the defense of qualified immunity.

Once a defendant raises qualified immunity in the context of a motion to dismiss, a

court must first determine whether the plaintiff has alleged a violation of federal

law. Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). 3 If the answer is

2
42 U.S.C. § 1983 provides, as relevant here,

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law . . . .
3
In reviewing plaintiffs’ allegations, we are mindful that we no longer
apply a “heightened pleading” standard to plaintiffs complaint, as the magistrate
judge did in her recommendation. See Currier v. Doran, 242 F.3d 905, 916 (10th
Cir. 2001). Rather, we review the complaint under the traditional standards
applicable to a motion to dismiss. Id. at 917; see also Ruiz v. McDonnell, 299
(continued...)

9
“yes,” then the court must decide whether the right was clearly established when

the alleged violation occurred. Id.; see also Smith v. Cochran, 339 F.3d 1205, 1211

(10th Cir. 2003). To be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although the very

conduct in question need not have been held unlawful, “in the light of pre-existing

law the unlawfulness must be apparent.” Id. If a plaintiff fails to demonstrate that

a defendant’s conduct violated the law, then we need not reach the additional

question of whether the law was clearly established. Butler v. Rio Rancho Pub.

Schs. Bd. of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003).

We recently explained the degree of specificity required of prior cases to

clearly establish a constitutional violation for qualified immunity purposes. In

Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004), we noted that the

Supreme Court’s decision in Hope v. Pelzer, 536 U.S. 730 (2002), “shifted the

qualified immunity analysis from a scavenger hunt for prior cases with precisely the

same facts toward the more relevant inquiry of whether the law put officials on fair

(...continued)
3

F.3d 1173, 1181 n.3 (10th Cir. 2002).

10
notice that the described conduct was unconstitutional.” 4 Pierce further explained

that, under the fair notice standard, “[t]he degree of specificity required from prior

case law depends in part on the character of the challenged conduct. The more

obviously egregious the conduct in light of prevailing constitutional principles, the

less specificity is required from prior case law to clearly establish the violation.”

Id. (citing Vineyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002)).

Thus, to summarize, the sheriff defendants are entitled to qualified immunity

unless the Marinos can show a violation of a constitutional right and that the law

regarding that right was clearly established at the time the violation took place.

With these standards in mind, we proceed to analyze whether the sheriff defendants

are entitled to qualified immunity on the Marinos’ claims.

4
Pierce quoted the following relevant language from Hope:

[O]fficials can still be on notice that their conduct
violates established law even in novel factual
circumstances. Indeed, in [United States v. Lanier, 520
U.S. 259 (1997)], we expressly rejected a requirement
that previous cases be “fundamentally similar.”
Although earlier cases involving “fundamentally
similar” facts can provide especially strong support for a
conclusion that the law is clearly established, they are
not necessary to such a finding. . . . [T]he salient
question . . . is whether the state of the law [at the time
of the conduct] gave respondents fair warning that their
alleged treatment of [plaintiff] was unconstitutional.

359 F.3d at 1298.

11
 1. Equal Protection

The Marinos contend that their second amended complaint made out a

cognizable Fourteenth Amendment equal protection claim. According to the

Marinos, defendants Waterman and Hill violated their right to equal protection of

the laws by refusing to enforce the restraining orders against Francis Hiemer and

Sprague Mayger, an omission they attribute to the personal animosity the sheriff

defendants harbor toward them. Relying on Village of Willowbrook v. Olech, 528

U.S. 562 (2000) (per curiam), they argue that the law has been well established that

an individual’s Fourteenth Amendment equal protection rights are violated by state

action that is motivated by a “spiteful effort to ‘get’ him for reasons wholly

unrelated to any legitimate state objective.” See Aplt. Opening Br. at 43. We

construe this argument as a “class of one” equal protection claim, i.e., a claim that

the government has intentionally treated the Marinos differently from other

similarly situated citizens.

“The equal protection clause is triggered when the government treats

someone differently than another who is similarly situated.” Buckley Constr., Inc.

v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d 853, 859 (10th Cir. 1991) (citing

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)).

Ordinarily the Equal Protection Clause is applied to claims of class-based

discrimination. See Campbell v. Buckley, 203 F.3d 738, 747 n.61 and

12
accompanying text (10th Cir. 2000) (citing cases). However, in recent years, courts

have expanded the concept to include claims of selective discrimination against

individuals.

The Supreme Court has stated that “equal protection claims [may be] brought

by a ‘class of one,’ where the plaintiff alleges that she has been intentionally

treated differently from others similarly situated and that there is no rational basis

for the difference in treatment.” Olech, 528 U.S. at 564 (internal quotation and

citations omitted). This circuit recognized Olech in Bartell v. Aurora Public

Schools, 263 F.3d 1143 (10th Cir. 2001), where we considered whether plaintiff’s

assertion that he was the victim of “selective, purposeful discrimination by

government officials who harbor animosity towards [him]” states a claim under the

Equal Protection Clause. Id. at 1148. In concluding that it did, we held that a

plaintiff must show that “the action taken by the state, whether in the form of

prosecution or otherwise, was a spiteful effort to ‘get’ [him] for reasons wholly

unrelated to any legitimate state objective.” Id. at 1149 (quoting Esmail v.

Macrane, 53 F.3d 176, 180 (7th Cir. 1995)). In other words, a plaintiff must not

merely allege that the government acted out of animus or spite, but also must assert

that the government treated him differently from similarly situated citizens and that

no rational basis existed for such differential treatment. Id; see also Jennings v.

Stillwater, 383 F.3d 1199, 1209–11 (10th Cir. 2004) .

13
 Here, the Marinos do not specifically allege that the sheriff defendants

treated them differently from similarly situated landowners. The basis of their

equal protection claim appears only to be that the sheriff defendants violated their

legal obligation to enforce the restraining orders against Mayger and Hiemer

because of personal animus. Therefore, although the magistrate judge found “it is a

close question whether the Second Amended Complaint alleges facts to support an

equal protection claim,” Recommendation at 30, we conclude that the absence of an

allegation of disparate treatment is fatal to the Marinos’ claim. See Jennings, 383

F.3d at 1213 (dismissing plaintiff’s equal protection claim in part because “she

failed to make an adequate showing that similarly situated persons were treated

differently”) (citations omitted).

Furthermore, even assuming the Marinos alleged sufficient facts showing

disparate treatment, the sheriff defendants are nevertheless immune to suit on this

claim because the law was not clearly established when the alleged violation

occurred. See Herring v. Keenan, 218 F.3d 1171, 1178–80 (dismissing claim

because the law at issue was not clearly established at the time of the alleged

violation). In Norton v. Village of Corrales, 103 F.3d 928, 933–34 (10th Cir.

1996), we held that an equal protection claim based on allegations of selective

discrimination was not clearly established for the purposes of qualified immunity.

Norton was decided in 1996, at least a year before the challenged conduct occurred

14
in this case. 5 No post-Norton decision from the Supreme Court or this circuit

suggested that an equal protection claim for selective discrimination had become

clearly established by the time the conduct in this case occurred. In fact, it was not

until its Olech decision—which was decided in 2000—that the Supreme Court

specifically considered whether the Equal Protection Clause gives rise to a cause of

action on behalf of a “class of one” where the plaintiff did not allege membership

in class or group. 528 U.S. at 564–65. Nor can we say that the challenged

governmental conduct was not so “obviously egregious” in light of “prevailing

constitutional principles” that defendants had fair notice that their actions were

unconstitutional. See Pierce, 359 F.3d at 1298. Therefore, we conclude that

defendants are entitled to qualified immunity on this claim.

2. Substantive Due Process

The Marinos argue that the acts and omissions of the sheriff defendants

created the danger that Mayger or Hiemer would seriously injure them. According

to the Marinos, the sheriff defendants acted jointly with the Maygers and Hiemer to

deprive Michael Marino of his constitutional right to be free from attempted

5
The Montrose County District Court entered the permanent restraining
order against the Maygers and Heimer in September 1997. The assault on
Michael Marino occurred in April 1998.

15
murder, physical abuse, assault, battery, and serious bodily injury. 6 The magistrate

judge treated the Marinos’ allegation as a Fourteenth Amendment substantive due

process claim, as do we.

Generally, state actors have no affirmative duty to protect individuals against

harm by third parties. DeShaney v. Winnebago County Dep’t of Social Servs., 489

U.S. 189, 197 (1989). However, this court has recognized two exceptions to the

rule that state actors are generally not liable for acts of private violence: (1) the

special relationship doctrine and (2) the “danger creation” theory. Uhlrig v.

Harder, 64 F.3d 567, 572 (10th Cir. 1995). “A special relationship exists when the

state assumes control over an individual sufficient to trigger an affirmative duty to

provide protection to that individual.” Id. (citing DeShaney, 489 U.S. at 199–200).

Under the danger creation theory, state officials can be liable for the acts of third

parties where those officials “created the danger” that caused the harm. Armijo v.

Wagon Mound Pub. Schs., 159 F.3d 1253, 1260 (10th Cir. 1998) (citations

omitted). The Marinos assert their claim under this latter theory.

To support a substantive due process claim based upon the danger creation

6
They also allege that the defendants deprived Danette Marino of her
constitutionally-protected right to be free from fear of those injuries. However,
Danette Marino has no constitutionally-protected liberty interest in being free
from emotional trauma suffered as a result of observing the assault on her
husband. See Archuleta v. McShan, 897 F.2d 495, 498 (10th Cir. 1990).

16
theory, a § 1983 plaintiff must demonstrate that

(1) the charged state entity and the charged individual actors created the
danger or increased plaintiff’s vulnerability to the danger in some way; (2)
the plaintiff was a member of a limited and specifically definable group; (3)
the defendants’ conduct put plaintiff at substantial risk of serious, immediate,
and proximate harm; (4) the risk was obvious or known; (5) the defendants
acted recklessly in conscious disregard of that risk; and (6) such conduct,
when viewed in total, shocks the conscience.

Ruiz v. McDonnell, 299 F.3d 1173, 1182–83 (10th Cir. 2002). Further, “this state-

created danger doctrine necessarily involves affirmative conduct on the part of the

state in placing the plaintiff in danger.” Id. at 1183 (emphasis added) (quotation

and citation omitted).

Here, the Marinos allege that defendants Waterman and Hill “authorized and

encouraged” Mayger and Hiemer to inflict serious bodily injury on Michael Marino.

They allege that defendant Hill issued Mayger a concealed weapon permit, knowing

that the situation was volatile and that someone could get hurt, and that Waterman

“directed” Hiemer to violate the restraining order by permitting him to dig the ditch

across the Marinos’ property. They further allege that Mayger and Hiemer did

everything Waterman and Hill told them to do and that Waterman and Hill

participated in Hiemer’s and Mayger’s attempts to provoke Michael Marino through

verbal confrontations and trespasses.

In dismissing the Marinos’ claim, the magistrate judge concluded,

17
 Even assuming that Sheriff Hill put plaintiff at risk of
serious and immediate harm by issuing Mayger a
concealed weapons permit, the risk of harm was that
Mayger might shoot Michael Marino with a gun, not that
Hiemer would assault plaintiff with a shovel. It cannot be
reasonably inferred that Hill’s issuance of a concealed
weapon permit to Mayger created the danger that Hiemer
would assault plaintiff with a shovel. Further, Hill’s
statement that Mayger and Hiemer did everything that Hill
and Waterman told them to do is too vague to support a
reasonable inference that Hill and Waterman directed
Hiemer to physically attack the plaintiffs.

Recommendation at 15.

We agree with the magistrate judge’s analysis and conclude that the Marinos

have failed to allege a viable substantive due process claim under the danger

creation theory. The Marinos have alleged no facts that demonstrate affirmative

conduct on the part of the sheriff defendants that created or increased the danger

that Francis Hiemer would assault Michael Marino on April 5, 1998. “Affirmative

conduct for purposes of § 1983 should typically involve conduct that imposes an

immediate threat of harm, which by its nature has a limited range and duration.”

Ruiz, 299 F.3d at 1183. No such conduct has been alleged here. See Graham v.

Independent Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994) (finding lack of

an allegation of affirmative conduct fatal to plaintiff’s substantive due process

claim).

Further, even if sufficient affirmative conduct had been alleged, the ultimate

18
measure of whether conduct by state actors violates due process is whether “the

challenged government action ‘shocks the conscience’ of federal judges.” Ruiz,

299 F.3d at 1183 (citing Uhlrig, 64 F.3d at 573). We consider the following three

factors in making such a determination: “(1) the need for restraint in defining the

scope of substantive due process claims; (2) the concern that § 1983 not replace

state tort law; and (3) the need for deference to local policymaking bodies in

making decisions impacting public safety.” Id. at 1184. “These factors counsel

that application of danger creation as a basis for § 1983 claims is reserved for

exceptional circumstances.” Id. (citation and quotation omitted). Lastly, “[w]e

have noted that ordinary negligence does not shock the conscience, and that even

permitting unreasonable risks to continue is not necessarily conscience shocking[.]

Rather, a plaintiff must demonstrate a degree of outrageousness and a magnitude of

potential or actual harm that is truly conscience shocking.” Id. (quotations and

citations omitted).

While we agree that the sheriff defendants’ alleged conduct in this case, if

accurately portrayed, was inconsistent with what we expect from public officials,

we cannot conclude that their actions were so egregious or fraught with

unreasonable risk as to “shock the conscience.” To the extent that Hill, Waterman,

and Hiler permitted a potentially volatile situation to persist, we do not believe

their cumulative inaction rises above the level of negligence. Nor do we believe

19
that the sheriff defendants created the danger that Michael Marino would be

assaulted by Francis Hiemer with a shovel on that particular day. Therefore,

because the Marinos have failed to allege affirmative conduct that shocks the

conscience, we conclude that the district court properly dismissed the Marinos’

substantive due process claim.

3. Fourth Amendment Right To Be Free From Unreasonable Searches

Next, the Marinos contend that defendant Hiler violated their Fourth

Amendment right to be free from unreasonable searches by intentionally making

false statements and material omissions in his search warrant affidavit.

“To impeach an otherwise valid warrant on the ground that it was issued on

specified information that was false and critical to the finding of probable cause

requires proof that the affiant seeking the warrant knew that the challenged

information was false or that he had a reckless disregard for its truthfulness.”

Beard v. Northglenn, 24 F.3d 110, 114 (10th Cir. 1994) (citing Franks v. Delaware,

438 U.S. 154, 155–56 (1978)). “Allegations of negligence or innocent mistake are

insufficient.” Id. (quotation omitted). This standard applies to an officer’s

decision “to omit from his warrant affidavit information in his possession that is

also critical to the showing of probable cause.” Id.

The primary defect with the Marinos’ Fourth Amendment claim is that they

have failed to adequately allege that the sheriff defendants knowingly or recklessly

20
gave false information in obtaining the warrant. Cf. Snell v. Tunnell, 920 F.2d 673,

699–700 (10th Cir. 1990) (holding that plaintiffs had pled a Fourth Amendment

claim under § 1983 because they showed “specific evidence” that officers had

knowingly fabricated allegations of wrongdoing in obtaining a warrant). Although

the Marinos claim that Hiler made false statements regarding the thoroughness of

MCSD deputies’ search of the crime scene and the location of a discovered piece of

video camera, neither allegation impugns the integrity of the affiant in this case. A

review of Hiler’s search warrant affidavit demonstrates that his basis for probable

cause was finding a piece of video camera near the Marinos’ residence and a

considerable distance from the location of the assault, and the improbability that

Mayger or Hiemer dropped it there as they left the scene. Further, Hiler stated in

his affidavit that he believed Danette Marino may have lied about finding a piece of

the camera on the grass the day after the assault because the area was searched by

deputies the previous day. He concluded that the reasonable inference to be drawn

from those facts was that the Marinos’ residence should be searched.

The Marinos also argue that Hiler omitted information from the affidavit that

contradicts the private defendants’ statements that Michael Marino was struck only

once, as well as information regarding the possibility that the video camera had

been thrown in the ditch. However, the first challenged omission is not critical to

the probable cause finding in this case. Moreover, in terms of the second claimed

21
omission, the affidavit contains a description of Hiler’s interview with Michael

Marino in which Marino states his belief that the camera may have been thrown in

the ditch. See Addendum of Exhibits to Aplt. Opening Br., II App. at Tab 19 ¶ 10.

Thus, information regarding this possibility was in fact before the judge issuing the

search warrant.

Because the Marinos have not demonstrated that Hiler omitted any of these

facts in reckless disregard of the truth or omitted information that was critical to a

probable cause finding, we conclude that no Fourth Amendment violation has been

alleged.

4. Waived Claims

In her recommendation, the magistrate judge construed the Marinos’

complaint as stating procedural due process claims based on the deprivation of the

Marinos’ property interest in the enforcement of the restraining orders. She also

construed the Marinos’ complaint as asserting a claim that they were denied their

First Amendment right of access to the courts. She ultimately found that the sheriff

defendants were entitled to qualified immunity on both of these claims. See

Recommendation at 17, 35–36.

In their objections to the recommendation, the Marinos state that the

recommendation “resolved claims that are not in the Complaint (such as procedural

due process, right of access and failure to protect).” See II Aplt. App. at 333–34;

22
Order at 2. Not surprisingly, therefore, the Marinos failed to object to the

magistrate judge’s findings on the procedural due process or right of access claims.

“This circuit has ‘adopted a firm waiver rule’ which ‘provides that the failure

to make timely objection to the magistrate’s findings or recommendations waives

appellate review of both factual and legal questions.’” Engberg v. Wyoming, 265

F.3d 1109, 1119 (10th Cir. 2001) (quoting Moore v. United States, 950 F.2d 656,

659 (10th Cir. 1991)). In this case, the Marinos not only failed to object to the

magistrate judge’s recommendation on their procedural due process and right of

access claims, but they also disclaimed any intent to bring such claims in the first

place. Accordingly, we conclude that the Marinos abandoned their procedural due

process and First Amendment right of access claims in the district court. 7

5. Summary

The Marinos have failed to allege that the sheriff defendants violated any of

their clearly established constitutional rights. Accordingly, defendants Hill,

Waterman and Hiler are entitled to qualified immunity on these claims. Albright v.

7
Regarding the First Amendment claim, in their briefing to this court the
Marinos characterize their claim as one of discriminatory treatment in retaliation
for exercising their First Amendment right of access to the courts. According to
the Marinos, the sheriff defendants subjected them to hostile and discriminatory
treatment because the Marinos had sought redress against the Maygers and
Hiemer. Aplt. Opening Br. at 42. The Marinos’ retaliation claim is therefore
properly framed as a claim for violation of equal protection, which we have
addressed supra at section II.B.1.

23
Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995).

C. Section 1983 Conspiracy

Although typically “[t]he only proper defendants in a Section 1983 claim are

those who represent the state in some capacity,” Anaya v. Crossroads Managed

Care Sys., Inc., 195 F.3d 584, 595 (10th Cir. 1999), a plaintiff may assert the

necessary state action for § 1983 by implicating state officials in a conspiracy with

private defendants. As we stated in Dixon v. Lawton, 898 F.2d 1443, 1449 n.6

(10th Cir. 1990), “[a] § 1983 conspiracy claim may arise when a private actor

conspires with state actor to deprive a person of a constitutional right under color

of state law.” 8 Id. at 1449. In order to prevail on such a claim, “a plaintiff must

plead and prove not only a conspiracy, but also an actual deprivation of rights;

pleading and proof of one without the other will be insufficient.” Id.; Snell v.

Tunnell, 920 F.2d 673, 701 (10th Cir. 1990). In pleading conspiracy, a plaintiff

must allege “specific facts showing agreement and concerted action among [the

alleged co-conspirators].” Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994).

“Conclusory allegations of conspiracy are insufficient to state a valid § 1983

claim.” Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989). Thus, a plaintiff

8
“Provided that there is an underlying constitutional deprivation, the
conspiracy claim allows for imputed liability; a plaintiff may be able to impose
liability on one defendant for the actions of another performed in the course of
the conspiracy.” Dixon, 898 F.2d at 1449 n.6 (citations omitted).

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fails to state a claim for conspiracy absent specific facts showing a “meeting of the

minds” among the alleged co-conspirators. See Hunt, 17 F.3d at 1268.

In this case, all of the Marinos’ constitutional claims are premised on the

allegation that the sheriff defendants conspired with the Maygers and Hiemer to

drive them out of the community. This conspiracy claim is the linchpin by which

the Marinos hope to impute the private defendants’ tortious or criminal conduct to

the public defendants. However, we previously determined that the Marinos failed

to establish a deprivation of any constitutional right. Therefore, their § 1983

conspiracy claim must also fail. In addition, the Marinos’ complaint is unsupported

by specific facts showing an agreement among the alleged co-conspirators to drive

the Marinos out of the community. Accordingly, we affirm the district court’s

dismissal of the claims against Sprague Mayger, Nancy Mayger, and Francis

Hiemer.

D. Liability of MCSD

“A [§ 1983] suit against a municipality and a suit against a municipal official

acting in his or her official capacity are the same.” Watson v. Kansas City, 857

F.2d 690, 695 (10th Cir. 1988) (citations omitted). In addition, a plaintiff seeking

to recover damages in an official capacity suit, or in a suit against a department of

a governmental entity, must look to the governmental entity alone for payment. See

Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, the Marinos’ claims

25
against the MCSD and the individual sheriff defendants in their official capacities

are construed as claims against Montrose County.

“A plaintiff suing a municipality under section 1983 for the acts of one of its

employees must prove: (1) that a municipal employee committed a constitutional

violation, and (2) that a municipal policy or custom was the moving force behind

the constitutional deprivation.” Myers v. Oklahoma County Bd. of County

Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (citations omitted). If no

underlying constitutional violation by a municipal employee exists, the claims

against the county must be dismissed. Id.

We previously dismissed the Marinos’ § 1983 claims against the sheriff

defendants, in their individual capacities, for failure to allege a constitutional

violation. Accordingly, the § 1983 claims against Montrose County and against

Waterman, Hill and Hiler in their official capacities are properly dismissed for

failure to state an underlying constitutional deprivation.

E. Amendment of the Complaint

Following the magistrate judge’s issuance of her recommendation, the

Marinos filed a combined Motion for Leave to Amend Second Amended Complaint

and Objections to Recommendation of United States Magistrate Judge. (II App. at

315–498) The Marinos’ motion to amend was largely based on “newly discovered

evidence” gleaned from a deposition of Heimer taken on June 2, 2000. The district

26
court denied the motion to amend on multiple grounds. First, it noted that the

Marinos had failed to tender a third amended complaint. Second, it concluded that

it would be unfair to allow the Marinos to amend their complaint in response to the

magistrate judge’s adverse recommendation, particularly after the Marinos had

chosen to stand on the allegations in their second amended complaint. Third, the

court found the additional allegations gleaned from defendant Hiemer’s June 2,

2000 deposition constituted inadmissible hearsay. We review the district court’s

denial of a motion to amend for abuse of discretion. See Las Vegas Ice & Cold

Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990).

On appeal, the Marinos argue that the district court erred in denying their

motion to amend. They argue that Hiemer’s deposition testimony constitutes an

admission of a party opponent as to the existence of a conspiracy. Federal Rule of

Evidence 801(d)(2)(E) provides that a statement is not hearsay if made by a

co-conspirator “during the course and in furtherance of the conspiracy.” A co-

conspirator statement is made “during the course” of the conspiracy if it is made

before “the objectives of the conspiracy have either failed or been achieved.”

United States v. Perez, 989 F.2d 1574, 1579 (10th Cir. 1993) (quoting Advisory

Committee Notes to Rule 801(d)(2)(E)).

Hiemer’s deposition was taken more than two years after the events at issue

had concluded. The Marinos offer no evidence that the alleged conspiracy

27
continued past the date of Michael Marino’s assault, or, more importantly, that it

has continued during Hiemer’s term in prison. Because it appears that the

objectives of the alleged conspiracy had failed by June 2, 2000, Hiemer’s

deposition testimony given on that date constitutes inadmissible hearsay. 9 The

district court did not abuse its discretion.

F. State Law Tort Claims

Finally, we conclude the district court did not abuse its discretion in

dismissing the Marinos’ pendent state law tort claims. Gold v. Local 7 United

Food and Commercial Workers Union, 159 F.3d 1307, 1310 (10th Cir. 1998)

(decision not to exercise supplemental jurisdiction reviewed for abuse of

discretion) overruled on other grounds by Styskal v. Weld County Comm’rs, 365

F.3d 855 (10th Cir. 2004). The supplemental jurisdiction statute provides,

[I]n any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a). The statute also states that a district court may decline to

As the district court noted, Hiemer’s statements may be admissible as
9

admissions against Hiemer. See Fed. R. Evid. 801(d)(2)(A). But here, the
Marinos sought to use Hiemer’s statements as evidence of a conspiracy between
Hiemer, the Maygars, and the sheriff defendants. (II App. 320) Hiemer’s
admissions are inadmissible for this purpose. See Order at 4.

28
exercise supplemental jurisdiction if “the district court has dismissed all claims

over which it has original jurisdiction.” Id. subsection (c)(3). Such is the case

here. Accordingly, we perceive no abuse of discretion.

III. C ONCLUSION

The Marinos have failed to state a claim upon which relief can be granted.

Therefore, the district court’s order dismissing the Marinos’ action is AFFIRMED.

Entered for the Court

Timothy M. Tymkovich
Circuit Judge

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