FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 22, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID WEBB,
Plaintiff - Appellant,
v. No. 15-4078
(D.C. No. 1:11-CV-00128-DB-DBP)
TIMOTHY SCOTT, Police Officer at (D. Utah)
Ogden City Police Department; FNU
MURRAY, Police Officer at Ogden City
Police Department; JON GREINER, Chief
of Police at Ogden City Police Department,
Defendants - Appellees,
and
TERRY L. THOMPSON, Sheriff for
Weber County; ROBERT WEST, Sgt. at
Weber County Correctional Facility;
ALTON JOHNSON, Sgt. at Weber County
Correctional Facility; ANDREW FLATT,
Correctional Officer at Weber County
Correctional Facility; KEVIN MCCLEOD,
Undersheriff at Weber County Sheriff’s
Office; KEVIN BURTON, Captain and
Corrections Division Chief Deputy at
Weber County Correctional Facility; FNU
GATES, Correctional Officer at Weber
County Correctional Facility,
Defendants.
_________________________________
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
(continued)
_________________________________
Before LUCERO, GORSUCH, and McHUGH, Circuit Judges.
_________________________________
David Webb appeals the district court’s grants of summary judgment and
qualified immunity in favor of Timothy Scott, Kevin Murray, and Jon Greiner
(collectively, “Ogden Defendants”). The district court certified its grant of summary
judgment as final under Fed. R. Civ. P. 54(b). Exercising jurisdiction under 28
U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.
I
Greiner is the former Ogden City Chief of Police, and Scott and Murray are
Ogden City police officers. On July 20, 2011, Webb was driving in Ogden City
when Murray pulled him over for a traffic equipment violation. According to
Murray’s affidavit, as he was driving behind Webb it appeared that Webb’s license
plate light may not have been functioning. Webb contends that his license plate light
was functioning properly and points to evidence supporting that position. Murray
counters that he could not confirm the malfunction while his headlights were shining
on Webb’s license plate, but established that the light was not functioning after he
turned his headlights off. A dash camera recording from the patrol car neither
confirms nor contradicts Murray’s or Webb’s claims due to the video’s poor quality.
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.
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Murray arrested Webb without a warrant for the malfunctioning license plate
light and took him to the Weber County Correctional Facility (“WCCF”). At
Murray’s request, Webb was strip searched during the booking process. Murray
completed a Weber County “Probable Cause Affidavit” with information pertaining
to Webb’s arrest (the “Affidavit”). That form was placed in a filing receptacle in the
WCCF’s booking area to await a judge’s approval or denial. According to the Weber
County Sheriff, it was WCCF practice for a judge to review the affidavits in the filing
receptacle at least every other day. But for unknown reasons, a judge never reviewed
the Affidavit. Consequently, Webb remained in the WCCF for five days without
receiving a judicial probable cause determination. Webb eventually received a
hearing, during which the prosecutor struck all charges. He was then released.
Webb filed this pro se action raising claims under 42 U.S.C. §§ 1983, 1985,
and 1986.1 As relevant to this appeal, Webb challenged the legality of the traffic
stop, his arrest, the strip search, and his detention without a prompt judicial probable
cause determination.
Ogden Defendants moved for summary judgment on all claims. A magistrate
judge issued a report and recommendation (“R&R”) recommending the motion be
granted. After Webb filed pro se objections to the R&R, the court appointed counsel.
1
Webb fails to develop an argument regarding §§ 1985 and 1986, and thus
those claims are waived.
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It ordered Webb, through counsel, to file a new objection to the R&R.2 After
reviewing Webb’s objections and Ogden Defendants’ responses, the district court
adopted the R&R and granted Ogden Defendants summary judgment on all claims.
Although several claims remained pending against other defendants, Webb
filed in this court a Petition for Permission to Appeal the summary judgment ruling in
favor of Ogden Defendants. We denied his petition. Webb v. Scott, No. 15-602,
order at 3 (10th Cir. April 21, 2015). Ogden Defendants then moved the district
court to certify its summary judgment ruling as final under Fed. R. Civ. P. 54(b).
The court granted that motion, and Webb filed a notice of appeal.3
II
On appeal, Webb challenges only the district court judgment pertaining to
Murray. He does not argue that the judgment was erroneous as to Scott. And as to
Greiner he only argues a violation of the Hatch Act. This claim is waived because
Webb’s objections to the R&R stated that he did not object to dismissing his Hatch
Act claims. Soliz v. Chater, 82 F.3d 373, 375-76 (10th Cir. 1996) (arguments not
raised in objections to R&R are waived).
2
After filing objections to the R&R on his behalf, Webb’s counsel withdrew,
and he resumed proceeding pro se.
3
Webb now argues that the summary judgment grant is not appealable because
there is factual overlap between some of his claims against Ogden Defendants and
several other defendants. We disagree. The rights and liabilities of Ogden
Defendants were finally decided in the summary judgment order, In re Integra Realty
Res., Inc., 262 F.3d 1089, 1107 (10th Cir. 2001), and it was within the discretion of
the district court to grant Rule 54(b) certification.
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We review the district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to Webb. Schneider v. City of Grand
Junction Police Dep’t, 717 F.3d 760, 766 (10th Cir. 2013). “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). To defeat summary judgment based on qualified immunity, a plaintiff must
“show (1) a reasonable jury could find facts supporting a violation of a constitutional
right, which (2) was clearly established at the time of the defendant’s conduct.”
Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). Because Webb
proceeds pro se, we liberally construe his filings. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
A
Webb contends there are disputed issues of material fact which preclude
summary judgment on his claims that Murray, the arresting officer, lacked reasonable
suspicion for the traffic stop. “A traffic stop is valid under the Fourth Amendment if
the stop is based on an observed traffic violation or if the police officer has
reasonable articulable suspicion that a traffic or equipment violation has occurred or
is occurring.” United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir. 1997)
(quotations omitted). The reasonableness of a traffic stop does not depend on the
subjective motivation of the officer. Id. Rather, “[r]easonable suspicion requires that
an officer provide some minimal level of objective justification.” United States v.
Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004) (quotations omitted). “Moreover,
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reasonable suspicion may be supported by an objectively reasonable good faith belief
even if premised on factual error. [And] reasonable suspicion may rely on
information less reliable than that required to show probable cause, and it need not be
correct.” Id. (quotations omitted).
Murray’s affidavit indicates that, while following Webb’s car, he turned his
headlights off momentarily and observed that Webb’s license plate light was not
functioning. Webb argues that the dash cam video contradicts Murray’s assertion
that he turned his headlights off, but we agree with the district court that the video is
inconclusive on that point. Webb also contends that the district court improperly
disregarded evidence that his license plate light was functioning at the time of the
stop. But a mistaken, yet reasonable, belief that a traffic violation has occurred is
sufficient to support a traffic stop. Id.
Webb also argues that Murray intentionally turned off his wireless microphone
when constitutional violations occurred. The video does not substantiate this claim.
Instead, the video shows that Murray’s wireless microphone was turned on before he
exited the patrol car, and it stayed on until shortly after the passenger in Webb’s car
left the scene. This chronology is consistent with Murray’s affidavit, in which he
states it is his practice to turn off his wireless microphone just before he begins
transporting an arrestee to jail when there are no other witnesses to be interviewed.
Webb does not point to evidence inconsistent with Murray’s account.
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Because Webb has not pointed to any fact in the record that would allow a
rational jury to find that Officer Murray lacked reasonable suspicion to stop him, we
affirm the district court’s grant of qualified immunity on this claim.4
B
We reach a different conclusion on Webb’s illegal arrest claim. An arrest must
be based on probable cause, which “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.” York v. City of Las Cruces, 523 F.3d 1205,
1210 (10th Cir. 2008) (quotations omitted). Probable cause “require[es] something
more than a bare suspicion.” Storey v. Taylor, 696 F.3d 987, 992 (10th Cir. 2012)
(quotations omitted). The district court held there was no genuine dispute that
Murray had probable cause to arrest Webb for having a non-functioning license plate
light. The court pointed to Murray’s belief that the light was not working; the fact
(confirmed by the dash cam video) that Murray told Webb he was under arrest for
that reason; Webb’s failure to state during the stop that his license plate light was
4
Webb also contends that the district court abused its discretion by denying
his motion to provide additional time for discovery regarding eight other prior traffic
stops by Murray to flesh out a race-based claim of selective enforcement. Webb
argues that the district court failed to consider the discretionary factors relevant to
reopening discovery. See Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)
(listing permissible factors). Webb’s contention is factually inaccurate. The district
court considered whether discovery would likely lead to relevant evidence, id., and
found that it would not. Webb does not provide any other basis suggesting that the
district court abused its discretion by denying additional time.
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functioning; and Murray’s field report reiterating that he arrested Webb for a faulty
equipment violation.
But Webb submitted evidence that his license plate light was functioning at the
time of the stop. He stated in his verified complaint that he observed that the light
was working from his position in the patrol car after he was arrested. In an affidavit
opposing Ogden Defendants’ summary judgment motion, Webb pointed to a portion
of the dash cam video in which the headlights from Murray’s patrol car are not
shining on his license plate, and it appears that the plate is lighted. Webb argued in
his counseled objections to the R&R that Murray failed to confirm that Webb’s
license plate light was malfunctioning after stopping Webb, and that the dash cam
video does not show Murray looking at the license plate on his way to the driver’s
side of Webb’s car. The district court determined that the video did not confirm
whether the light was functioning, but nevertheless accepted as true Murray’s
assertion that the light was not functioning. And the court failed to consider Webb’s
assertions in his verified complaint that his license plate light was functioning at the
time of the stop. Viewing the evidence in the light most favorable to Webb,
Schneider, 717 F.3d at 766, a rational jury could find that the light was functioning,
and that there was not any reasonably trustworthy information to allow a prudent
person to believe it was not, York, 523 F.3d at 1210.
Murray argues against this conclusion by suggesting that Webb’s arguments
rely on “new evidence” submitted after the magistrate judge filed his R&R—and
specifically evidence submitted in Webb’s counseled objection to the R&R. But the
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R&R considered allegations in Webb’s verified complaint and in Webb’s affidavit,
and the dash cam video was in the summary judgment record. Moreover, the district
court solicited Webb’s supplemental, counseled objections to the R&R, and it did not
state in its order adopting the R&R that it had refused to consider arguments made in
those objections.
Murray alternatively argues that, even considering Webb’s evidence that his
license plate light was working at the time of the traffic stop, summary judgment was
nonetheless appropriate. He cites an unpublished decision holding that an officer had
reasonable suspicion to stop a car for having its headlights off, even though the
headlights were, in fact, on. Valencia v. De Luca, 612 F. App’x 512, 516-17 (10th
Cir. 2015). But consistent with Valencia, we have affirmed the district court’s ruling
that Murray had reasonable suspicion to stop Webb. Murray fails to address Webb’s
argument that he cannot meet the higher probable cause standard. Storey, 696 F.3d at
992.
Viewing the evidence in the light most favorable to Webb, we conclude there
is a genuine issue of material fact whether Murray had probable cause to arrest Webb
for having a non-functioning license plate light. We therefore reverse the district
court’s grant of summary judgment on this claim.5
5
The district court did not grant Murray qualified immunity on this claim and
Ogden Defendants do not argue that Murray is entitled to qualified immunity even if
Webb demonstrated a Fourth Amendment violation. Consequently, we do not
address that issue.
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C
Webb also alleges that the strip search performed at the WCCF violated the
Fourth Amendment. Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993) (strip
searches of minor traffic offense detainees without particularized reasonable
suspicion are unconstitutional). The parties first debate whether this issue is properly
before us. Ogden Defendants argue that Webb did not raise this claim against
Murray in his complaint. We disagree. The complaint asserted that Murray violated
Webb’s constitutional rights in connection with the strip search, and it alleged that
Murray was present when the strip search occurred. Ogden Defendants also contend
that Webb did not assert an illegal strip search claim against Murray in his summary
judgment motion. This, too, is belied by the record. Finally, Ogden Defendants
chide Webb for failing to assert his illegal strip search claim in opposition to their
summary judgment motion, but they acknowledge that they did not address that claim
in their motion. If they did not seek summary judgment on this claim, there was not
any reason for Webb to argue against the same.
However, Ogden Defendants are correct that the summary judgment order did
not rule on Webb’s illegal strip search claim against Murray. But in light of Webb’s
inclusion of that claim in his complaint and in his summary judgment motion, we
conclude that this omission was an oversight, rather than a holding that Webb failed
to assert the claim against Murray.
If a district court fails to rule on a claim, we ordinarily remand to the district
court to consider the claim in the first instance. See Tabor v. Hilti, Inc., 703 F.3d
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1206, 1227 (10th Cir. 2013). We do not discern any reason to deviate from that
practice with regard to this claim, the proper resolution of which is not “beyond any
doubt.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). Ogden Defendants’ sole
argument is that Webb did not raise this claim against them. They do not address
whether Webb has demonstrated a genuine issue of material fact that Murray violated
his clearly established Fourth Amendment right. 6 And they do not urge any basis for
this court to decide this issue in the first instance. Accordingly, we direct the district
court to consider this claim on remand.
D
Webb also appeals the grant of summary judgment and qualified immunity to
Murray on Webb’s claim of prolonged detention without probable cause. Under the
Fourth Amendment, a person arrested without a warrant is entitled to a prompt
judicial determination of probable cause to justify any significant pretrial detention.
Gerstein v. Pugh, 420 U.S. 103, 114, 125 (1975). In general, a probable cause
determination is sufficiently prompt if it occurs within 48 hours of an arrest. Cty. of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). If the arrestee does not receive a
probable cause determination within 48 hours, the government bears the burden “to
demonstrate the existence of a bona fide emergency or other extraordinary
circumstance.” Id. at 57.
6
We note that the record reflects evidence that Murray personally participated
in the alleged violation. Specifically, the summary judgment order cites a document
indicating that Murray requested the strip search.
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The parties do not dispute that Webb had a Fourth Amendment right to a
prompt probable cause determination, and that such a right was clearly established
during Webb’s detention. Webb was detained at the WCCF for five days without a
judicial probable cause determination, and Ogden Defendants do not identify a bona
fide emergency or other extraordinary circumstance justifying his prolonged
detention. Id. The district court nevertheless granted summary judgment and
qualified immunity to Murray on this claim, holding there was not any evidence that
Murray personally violated Webb’s clearly established constitutional right because
Murray relinquished custody of Webb when he was booked at the WCCF, and thus
Murray was not personally involved in his prolonged detention.
Webb argues that Murray was responsible under Utah law for promptly
bringing Webb before a magistrate. In Wilson v. Montano, 715 F.3d 847 (10th Cir.
2013), we looked to state law to determine who has a duty to ensure an arrestee
receives a prompt judicial probable cause determination. Id. at 854. We referenced
New Mexico law requiring that “[w]henever a peace officer makes an arrest without
warrant for a misdemeanor within magistrate trial jurisdiction, he shall take the
arrested person to the nearest available magistrate court without unnecessary delay.”
Id. at 855 (quoting N.M. Stat. § 35-5-1). Because the statute expressly assigned the
duty to the arresting officer, the complaint in Wilson sufficiently alleged personal
involvement by the arresting officer. Id. at 855.
The relevant Utah Statute does not expressly impose the same duty on an
arresting officer. See Utah Code § 77-7-23(1)(a) (“When an arrest is made without a
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warrant by a peace officer or private person, the person arrested shall be taken
without unnecessary delay to the magistrate.”). But the Utah Supreme Court has
observed that the person making an arrest has that duty. McFarland v. Skaggs Cos.,
678 P.2d 298, 301 (Utah 1984) (“In the case of a lawful arrest without a warrant, the
person making the arrest must present the prisoner promptly before a magistrate. An
unreasonable delay in this respect will . . . render the actor liable for that portion of the
imprisonment which is in excess of the reasonable period allowed for such presentment.”
(quotation omitted)). Based on this observation, arresting officers in Utah bear
responsibility for a judicial probable cause determination, and thus Murray was
personally involved in Webb’s alleged prolonged detention.
That Murray relinquished control of Webb at the WCCF does not alter our
analysis. In Wilson, the transfer of custody to authorities at the county jail did not
negate the arresting officer’s duty under state law to take the arrestee promptly before
a judicial officer. Rather, we concluded in Wilson that the complaint stated a
plausible prolonged detention claim against both the arresting officer and the jail
authorities. 715 F.3d at 855, 858. Ogden Defendants do not cite any law weighing
against joint responsibility.
Because Murray was personally involved in the alleged deprivation of Webb’s
Fourth Amendment right to a prompt judicial determination of probable cause, and
because Webb has presented evidence upon which a reasonable jury could find facts
supporting a violation of his clearly established constitutional right, Estate of Booker,
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745 F.3d at 411, Murray is not entitled to qualified immunity on this claim. For the
same reasons, Murray is not entitled to summary judgment.7
7
Webb raises several other claims that are procedurally barred. A pro se party
must comply with the same procedural rules as other litigants. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Webb admits that he
did not raise his argument that Ogden Defendants’ counsel had a conflict of interest
below, nor does he cite the record to support his contention that he raised a First
Amendment claim or a claim for destruction of evidence below, 10th Cir. R.
28.2(C)(2), and our review of the record does not reveal any such instances. These
claims are waived. Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144,
1150 (10th Cir. 2012) (issue is preserved if party alerts district court to the issue and
seeks a ruling). In addition, in his counseled objections to the R&R Webb: (1) stated
that he did not object to dismissing his claims of intentional infliction of emotional
distress, excessive force, conspiracy, failure to intervene, violation of the Hatch Act,
violation of the Fifth Amendment, and his state-law claims; (2) stated that his pro se
complaint should be construed as an individual action, rather than a class action; and
(3) failed to argue, as he does before us, that Murray’s qualified immunity was
abrogated by 42 U.S.C. § 2000d-7. These claims are all waived. Soliz, 82 F.3d at
375-76. Webb also inadequately develops his arguments that the district court erred
in denying leave to file both an amended complaint and a supplemental opposition to
the motions for summary judgment. These arguments are likewise waived. Gaines-
Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998)
(“[A]rguments not set forth fully in the opening brief are waived.”).
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III
We REVERSE the district court’s grant of summary judgment to Murray on
Webb’s illegal arrest claim and its grants of summary judgment and qualified
immunity to Murray on Webb’s prolonged detention claim. We REMAND these
claims for further proceedings in the district court. On remand, we further direct the
district court to consider Webb’s illegal strip search claim against Murray. We
otherwise AFFIRM. We DENY Webb’s motion for sanctions.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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