Appellate Case: 21-1418 Document: 010110749234 Date Filed: 10/05/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 5, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
WYATT T. HANDY, JR.,
Plaintiff - Appellant,
v. No. 21-1418
(D.C. No. 1:20-CV-03132-LTB-GPG)
OFC. SHEDERICK DOBBIN; DET. (D. Colo.)
LYNNETTE NEDERLAND; OFC.
BRADLEY MURPHY; OFC.
ANNALISSA REYNOLDS; OFC.
WENDY ANDERSON; OFC. JOHN DOE;
OFC. JANE DOE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
In this 42 U.S.C. § 1983 malicious-prosecution case, Wyatt T. Handy, Jr., appeals
from district court orders that dismissed his amended complaint against the defendant law
enforcement officers and denied reconsideration. Exercising jurisdiction under 28 U.S.C.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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§ 1291, we affirm in part, vacate in part and remand for further proceedings in light of
Thompson v. Clark, 142 S. Ct. 1332 (2022).
BACKGROUND
On December 6, 2018, Handy’s wife, Ashlee, went to a Denver Police Department
substation and told Officer Shederick Dobbin that she had been a victim of domestic
violence. Officer Dobbin interviewed her and made a police report, stating that Handy
punched and shoved Ashlee, broke her phone and eyeglasses, and cut up her purse and
clothes. Detective Lynnette Nederland later interviewed Ashlee and made a similar
report, but with the added allegation that Handy would not allow her to leave during the
incident.
Based on their reports and an arrest-warrant affidavit, a magistrate issued a
warrant for Handy’s arrest. Officers Bradley Murphy, Annalissa Reynolds, and Wendy
Anderson arrested him on December 13. He was booked into the Denver City Jail on
charges of third-degree assault, criminal mischief, and false imprisonment. He posted
bail two days later.
In March 2019, the prosecutor “add[ed] charges for harassment, telephone-
obstruct service, and child abuse.” R. at 43. But before trial, the charges were dismissed.
After the dismissal, in October 2020, Handy filed an eight-claim, pro se complaint
in federal district court against Officers Dobbin, Murphy, Reynolds, and Anderson,
Detective Nederland, and the City and County of Denver. A magistrate judge granted
Handy in forma pauperis (IFP) status and reviewed the complaint, finding that it failed to
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comply with the pleading requirements of Fed. R. Civ. P. 8. Consequently, the
magistrate judge ordered Handy to file an amended complaint.
In response, Handy winnowed the claims and removed the City and County of
Denver as a defendant. He alleged that Officer Dobbin and Detective Nederland falsified
their reports and the affidavit. In particular, Handy alleged that Ashlee did not make any
of the reported statements, and Officer Dobbin and Detective Nederland lied “for the
purpose of misleading the issuing Magistrate and prosecution[ ] to make a probable cause
finding and to cause false . . . charges to be filed against [him].” R. at 39. Handy
claimed that Officer Dobbin and Detective Nederland maliciously prosecuted him in
violation of the Fourth and Fourteenth Amendments. 1
Before the defendants were served, a magistrate judge recommended that the
amended complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim. The magistrate judge explained that Handy’s malicious-prosecution claims failed
because he did not allege the criminal case was dismissed because of his innocence.
Handy objected and sought leave to amend.
The district court reviewed the recommendation de novo and adopted it in full.
The court explained that Handy failed to plausibly allege malicious prosecution because
he did not allege “the criminal proceedings were dismissed for reasons indicative of
1
Handy also asserted claims for false arrest/imprisonment and excessive force.
The district court ultimately dismissed those claims. Handy later indicated his desire
to abandon those claims, and on appeal he offers no argument against their dismissal.
“The failure to raise an issue in an opening brief waives that issue.” Singh v. Cordle,
936 F.3d 1022, 1041 n.6 (10th Cir. 2019) (brackets and internal quotation marks
omitted).
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innocence and were not based on agreement of compromise, extension of clemency, or
technical grounds having little or no relation to his guilt.” R. at 82. The court stated that
allowing Handy another opportunity to amend appeared futile, and that in any event,
Handy failed to submit a proposed second amended complaint. The district court
dismissed Handy’s complaint and entered judgment in favor of the defendants.
Handy sought reconsideration under Fed. R. Civ. P. 59(e), pointing out that the
Supreme Court had recently granted certiorari in a case to consider whether a Fourth
Amendment malicious-prosecution plaintiff must allege innocence to show a favorable
termination. See Pet. for Writ of Cert., Thompson v. Clark, 2020 WL 6712185, at *i
(U.S. Nov. 6, 2020) (No. 20-659) (questioning “[w]hether the rule that a plaintiff must
await favorable termination before bringing a Section 1983 action alleging unreasonable
seizure pursuant to legal process requires the plaintiff to show that the criminal
proceeding against him has formally ended in a manner not inconsistent with his
innocence, or that the proceeding ended in a manner that affirmatively indicates his
innocence” (citation and internal quotation marks omitted)); Thompson v. Clark,
141 S. Ct. 1682 (2021) (amending the grant of certiorari). Handy also renewed his
request for leave to amend, asserting that he could plead an innocence-based dismissal of
the criminal case.
The district court denied relief, reasoning that his reliance on Thompson was
premature and misplaced, and that in any event, he failed to plead “facts indicative of
innocence as the basis for the dismissal of his case.” R. at 182.
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Five months later, the Supreme Court issued its opinion in Thompson and held:
“[A] Fourth Amendment claim under § 1983 for malicious prosecution does not require
the plaintiff to show that the criminal prosecution ended with some affirmative indication
of innocence. A plaintiff need only show that the criminal prosecution ended without a
conviction.” Thompson, 142 S. Ct. at 1341.
DISCUSSION
I. Standards of Review
“We review de novo the district court’s decision to dismiss an IFP complaint
under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). We apply the same standard of review as we would in a
dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Id. “In particular, we
look to the specific allegations in the complaint to determine whether they plausibly
support a legal claim for relief.” Id. at 1218 (internal quotation marks omitted).
“We review a district court’s ruling on a Rule 59(e) motion for reconsideration for
abuse of discretion. That abuse of discretion review, however, involves verifying that the
district court’s discretion was not guided by erroneous legal conclusions.” Walker v.
BOKF, Nat’l Ass’n, 30 F.4th 994, 1002 (10th Cir. 2022) (citation and internal quotation
marks omitted), petition for cert. filed, (U.S. Sept. 16, 2022) (No. 22-262).
Because Handy proceeds pro se, we liberally construe his filings. See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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II. Malicious Prosecution 2
“[A] § 1983 malicious prosecution claim includes the following elements: (1) the
defendant[s] caused the plaintiff’s continued confinement or prosecution; (2) the original
action terminated in favor of the plaintiff; (3) no probable cause supported the original
arrest, continued confinement, or prosecution; (4) the defendant[s] acted with malice; and
(5) the plaintiff sustained damages.” Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir.
2008).
The district court’s dismissal of Handy’s Fourth Amendment malicious-
prosecution claim and its denial of reconsideration centered entirely on the favorable-
termination element, which this court had interpreted as requiring a showing that the
plaintiff’s “charges were dismissed in a manner indicative of innocence,” Cordova v. City
of Albuquerque, 816 F.3d 645, 653 (10th Cir. 2016); see also Wilkins, 528 F.3d at 803.
But that interpretation is no longer correct. “A plaintiff need only show that the criminal
prosecution ended without a conviction.” Thompson, 142 S. Ct. at 1341. Handy’s first
amended complaint, construed liberally, contained such an allegation. See R. at 43
(alleging that the “charges were dismissed”). Consequently, Handy’s Fourth Amendment
Although Handy pled two malicious prosecution claims—one under the
2
Fourth Amendment and one under the Fourteenth Amendment, his appellate
arguments relate solely to a Fourth Amendment malicious-prosecution claim. See
Aplt. Br. at 30 (“The district court . . . erred in concluding that the Fourth
Amendment required Mr. Handy to make some additional showing of favorability.”).
Thus, he has waived any argument relating to the dismissal of his Fourteenth
Amendment malicious-prosecution claim, see Singh, 936 F.3d at 1041 n.6, and we do
not address that claim.
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malicious-prosecution claim was not properly dismissed based on this court’s “indicative
of innocence” rule. 3
CONCLUSION
We vacate the district court’s judgment as it pertains to Fourth Amendment
malicious prosecution, and we remand for further proceedings consistent with Thompson.
We affirm the remainder of the judgment. Finally, we grant Handy’s motion to proceed
IFP on appeal.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
3
Five months after Handy filed his Opening Brief, he sent this court an
unauthorized “Amended Opening Brief.” This court received, but did not file, the
amended brief. In any event, his two briefs appear to differ only in respect to the
citation of Thompson v. Clark, 142 S. Ct. 1332 (2022), which we have considered.
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