FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 27, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOSEPH V. LIBRETTI, JR.,
Plaintiff - Appellant,
v. No. 15-8039
(D.C. No. 2:14-CV-00107-SWS)
TAYLOR COURTNEY; STEVEN (D. Wyo.)
WOODSON, in their individual capacities,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
_________________________________
Joseph V. Libretti, Jr., a law school graduate appearing pro se,1 appeals the
district court’s order dismissing his Bivens2 action against two law enforcement
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We note that Mr. Libretti is not a typical pro se litigant. He graduated “near
the top of his class at the Cleveland Marshall College of Law in December 2014,” but
the Ohio Supreme Court denied his application for admission to the Ohio bar, finding
that he did not possess the requisite character, fitness, and moral qualifications for
admission to the practice of law. In re Application of Libretti, No. 2014-1555, 2015
WL 6291333, at *2, *6 (Ohio Oct. 22, 2015) (permanently barring Libretti from
(continued)
officers, Steven Woodson, the current Director of the Wyoming Division of Criminal
Investigation (DCI) and formerly a Special Agent for the United States Drug
Enforcement Administration (DEA), and Taylor Courtney, a deputy sheriff with the
Natrona County, Wyoming, Sheriff’s Office and a member of a DCI/DEA drug task
force. We exercise jurisdiction under 29 U.S.C. § 1291 and affirm.
The parties are familiar with the facts and procedural history of this case, and
we need not restate either here. Briefly, Libretti was indicted in March 2011 on one
count of conspiring to possess with the intent to distribute 50 grams or more of
methamphetamine. He was ultimately acquitted, after which he filed this Bivens
action against Woodson and Courtney. He alleged they violated his constitutional
rights in obtaining and executing a June 2010 search warrant of his residence in
Casper, Wyoming, and an April 2011 seizure warrant of his bank accounts.3 In a
thirteen count complaint, he claimed Woodson’s applications for these two warrants
lacked probable cause and included false statements or omitted pertinent information,
reapplying because “[his] ethical infractions are longstanding and so permeate the
admissions process that his honesty and integrity are shown to be intrinsically
suspect”).
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
3
Libretti also filed a Bivens action against Woodson and Courtney in Ohio
raising substantially the same allegations as here, but in connection with a search of
Libretti’s residence in Ohio. The case was dismissed on the ground that Woodson
and Courtney were entitled to qualified immunity. See Libretti v. Woodson,
600 F. App’x 367, 372 (6th Cir. 2015) (affirming dismissal).
2
that the warrants were constitutionally overbroad, that items were seized beyond the
scope of the warrants, and that Courtney failed to return certain seized items. The
district court ruled the officers were entitled to qualified immunity, granting
Woodson’s motion to dismiss under Fed. R. Civ. P. 12(b)(6) and Courtney’s motion
for summary judgment under Fed. R. Civ. P. 56.
We review de novo the district court’s Rule 12(b)(6) grant of qualified
immunity to Woodson. Denver Justice & Peace Comm., Inc. v. City of Golden, 405
F.3d 923, 927 (10th Cir. 2005). Similarly, we review de novo the district court’s
grant of summary judgment to Courtney based on qualified immunity. See
Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014). “When a defendant
raises qualified immunity as a defense, a plaintiff must properly allege a deprivation
of a constitutional right and must further show that the constitutional right was
clearly established at the time of the violation.” Id. (internal quotation marks
omitted). “Whether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally turns on the
objective legal reasonableness of the action, assessed in light of the legal rules that
were ‘clearly established’ at the time it was taken.” Id. (bracket and internal
quotation marks omitted).
In the context of a qualified immunity defense on an unlawful search claim,
the court determines whether a defendant violated clearly established law by asking
whether there was “arguable probable cause” for the challenged conduct. Id.
3
Officers must have probable cause to initiate a search, arrest, and
prosecution under the Fourth Amendment. . . . [T]he relevant question is
whether a substantial probability existed that the suspect committed the
crime, requiring something ‘more than a bare suspicion.’ As the standard
itself indicates, probable cause does not require metaphysical certitude or
proof beyond a reasonable doubt. Probable cause is a matter of
probabilities and common sense conclusions, not certainties. At the same
time, probable cause requires . . . more than mere suspicion that unlawful
activity is afoot.
***
The burden is on the plaintiff to make a substantial showing of
deliberate falsehood or reckless disregard for truth by the officer seeking
the warrant.
Id. at 1141-42 (brackets, citations, and internal quotation marks omitted).
Having reviewed the briefs, the record, and the applicable law pursuant to the
above-mentioned standards, we agree with the district court that there was arguable
probable cause to support both the June 2010 search warrant and the April 2011
seizure warrant and that Woodson and Courtney were entitled to qualified immunity
on all of Mr. Libretti’s claims. We hold that Mr. Libretti has not identified any
reversible error in this case. We therefore affirm the judgment of the district court
for substantially the same reasons stated in its two thorough and well-reasoned orders
of dismissal dated March 27, 2015, and its order denying Mr. Libretti’s Fed. R. Civ.
P. 59(e) motion dated June 11, 2015.
Entered for the Court
Bobby R. Baldock
Circuit Judge
4