Hartz v. Campbell ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CORNELIUS A. HARTZ,
Plaintiff - Appellant,
v. No. 16-3127
(D.C. No. 5:15-CV-03068-SAC-DJW)
DARREN CAMPBELL, Law Enforcement (D. Kan.)
Officer/Security Guard, in his individual
and official capacity; JOSHUA SMITH,
District Attorney, in his individual and
official capacity; DAVID B.
DEBENHAM, District Court Judge, in his
individual and official capacity; TOPEKA
POLICE DEPARTMENT; SHAWNEE
COUNTY; STATE OF KANSAS,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Cornelius A. Hartz, a pro se prisoner, appeals from a district court order that sua
sponte dismissed his civil-rights complaint for failure to state a claim. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
BACKGROUND
On May 20, 2014, a theft occurred at a Topeka, Kansas Walgreen’s store.
Specifically, a black male walked up to a clerk and asked for a carton of cigarettes and to
look at a Bluetooth speaker. When the clerk placed the items on the counter, the man
took them and left the store without paying.
The next day, the manager notified the store’s security guard, Darren Campbell,
about the theft. Campbell was an off-duty police officer from the Topeka Police
Department. Campbell viewed surveillance video of the theft and interviewed the clerk.
On May 22, the clerk notified Campbell that the suspect had returned, and he
pointed at Plaintiff Hartz. Campbell, who was in uniform, called dispatch and requested
back up.
Campbell then approached Hartz, who was standing in a checkout line. Campbell
directed him to come along to the manager’s office and inquired whether he had stolen
from the store two days earlier. Hartz denied any wrongdoing and expressed concern
about his unguarded bicycle outside, urging Campbell to go outside with him. Hartz
turned around, looked toward the front door, and bumped into Campbell several times.
When it appeared that Hartz was trying to get to the front door, Campbell attempted to
restrain him. This, Hartz agrees, “[c]aus[ed] [him] to become combative.” R., Vol. I at
17.
A physical struggle ensued, and both men fell to the floor. Officer Campbell drew
his Taser and pointed it at Hartz. Fearing that he might be tased, Hartz ran toward the
front door, but again encountered Officer Campbell. Still fearful, Hartz retreated to the
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back of the store and jumped out the pharmacy’s drive-thru window. He was soon
apprehended outside by police officers who had been dispatched to the scene based on
Campbell’s request for assistance.
Campbell later completed an arrest report for the incident, charging Hartz with
battery against a police officer (a Class A misdemeanor), felony theft (based on prior
theft convictions),1 obstruction (a Class A misdemeanor), and criminal damage to
property (a Class B misdemeanor). After several continuances, Hartz went to trial in
December 2014. At the close of evidence, District Attorney Joshua Smith dismissed the
obstruction charge and amended the battery charge to simple battery (a Class B
misdemeanor). A jury found Hartz not guilty on the theft and criminal-damage charges,
but guilty of battery. State District Judge David Debenham sentenced him to six months
in the Shawnee County Jail.
Based on the Walgreen’s encounter, Hartz filed a 42 U.S.C. § 1983 suit in federal
court, naming six defendants: Campbell; District Attorney Smith; District Judge
Debenham; the Topeka Police Department; Shawnee County; and the State of Kansas.
Hartz alleged that he was detained and arrested based only on “probable cause to believe
[he] had committed a misdemeanor theft,” R., Vol. I at 4; prosecuted without “the video
evidence of the alleged theft,” id. at 5; and tried with “deliberate indifference to
[Campbell's] unconstitutional actions,” id. at 6. For relief, Hartz sought monetary
damages exceeding five million dollars.
1
Without the prior convictions, theft of the cigarettes and speaker would have
been a Class A misdemeanor. See Kan. Stat. Ann. § 21-5801(b)(4) (“property . . . of
the value of less than $1,500”).
3
A magistrate judge screened Hartz’s complaint and ordered him to show cause
why the case should not be summarily dismissed for failure to state a claim. When Hartz
failed to respond, a district judge “reviewed the findings and rulings of [the magistrate
judge] together with the file,” concluded that Hartz had failed to plead a plausible claim,
and dismissed the case. Id. at 68.
Hartz appeals.2
DISCUSSION
We review de novo the district court’s dismissal for failure to state a claim. Young
v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). In doing so, “we accept as true the well
pleaded factual allegations and then determine if the plaintiff has provided enough facts
to state a claim to relief that is plausible on its face.” Hogan v. Winder, 762 F.3d 1096,
1104 (10th Cir. 2014). Because Hartz is proceeding pro se, we construe his filings
liberally. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
On appeal, Hartz first addresses his seizure by Campbell. He contends that
Campbell “acted on speculative information” and “allow[ed] his emotions to overcome
his responsibilities as a police officer.” Aplt. Br. at 3.
“The Fourth Amendment protects against unreasonable seizures.” Maresca v.
Bernalillo Cty., 804 F.3d 1301, 1308 (10th Cir. 2015). “[I]nvestigative detentions[,]
2
In addition to filing a notice of appeal challenging the dismissal, Hartz filed
two motions to reopen. Both motions were denied and were not followed by an
amended notice of appeal. Consequently, Hartz has perfected an appeal only from
the district court’s dismissal order. See Fed. R. App. P. 4(a)(4)(B)(ii) (providing that
a party intending to challenge a prescribed post-judgment order must timely file a
notice of appeal or an amended notice of appeal designating that order).
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which are Fourth Amendment seizures of limited scope and duration[,] . . . must be
supported by a reasonable suspicion of criminal activity,” whereas arrests, which are “the
most intrusive of Fourth Amendment seizures,” are “reasonable only if supported by
probable cause.” United States v. Madden, 682 F.3d 920, 925 (10th Cir. 2012) (internal
quotation marks omitted). Even assuming that Campbell’s seizure of Hartz for the May
20 theft constituted an arrest, we conclude there was probable cause.
“Probable cause 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.” Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008) (internal
quotation marks omitted). “[T]he mere fact that the suspect is later acquitted of the
offense for which he is arrested is irrelevant to the validity of the arrest.” Michigan v.
DeFillippo, 443 U.S. 31, 36 (1979).
Before approaching Hartz, Officer Campbell had viewed the videotape of the
theft. Further, the clerk—who had directly interacted with the thief—identified Hartz as
the thief. Based on these circumstances, a prudent person could conclude that Hartz had
committed the theft. See Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012)
(“Identification by a single eyewitness who lacks an apparent grudge against the accused
person supplies probable cause for arrest.”); Curley v. Village of Suffern, 268 F.3d 65, 70
(2d Cir. 2001) (“When information is received from a putative victim or an eyewitness,
probable cause exists, unless the circumstances raise doubt as to the person’s veracity[.]”
(citation omitted)); Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir.1999) (“A law
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enforcement officer is entitled to rely on an eyewitness identification to establish
adequate probable cause with which to sustain an arrest.”); cf. Easton v. City of Boulder,
776 F.2d 1441, 1449 (10th Cir. 1985) (stating that “when examining informant evidence
used to support a claim of probable cause for . . . a warrantless arrest, the skepticism and
careful scrutiny usually found in cases involving informants, sometimes anonymous,
from the criminal milieu, is appropriately relaxed if the informant is an identified victim
or ordinary citizen witness”).
Hartz next argues that Campbell had no authority to seize him until “an on duty
officer” arrived and investigated the matter. Aplt. Br. at 3. But if Campbell lacked such
authority, we fail to see how he acted under color of state law for purposes of § 1983
liability. See Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir. 1996) (noting that § 1983
liability requires an “exercise[ ] [of] power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law” (internal
quotation marks omitted)).
To the extent Hartz complains he was arrested in violation of Kansas law for a
misdemeanor completed outside of Campbell’s presence,3 “Fourth Amendment
3
Kansas law permits a warrantless arrest for a misdemeanor completed
outside an officer’s “view” if there is probable cause to believe that the person
committed the crime and
(A) The person will not be apprehended or evidence of the crime will be
irretrievably lost unless the person is immediately arrested;
(B) the person may cause injury to self or others or damage to property
unless immediately arrested; or
(C) the person has intentionally inflicted bodily harm to another person.
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protections [are not linked] to state law.” Virginia v. Moore, 553 U.S. 164, 176 (2008).
And neither the Supreme Court nor the Tenth Circuit has definitively declared that “the
Fourth Amendment entails an ‘in the presence’ requirement for purposes of misdemeanor
arrests,” Atwater v. City of Lago Vista, 532 U.S. 318, 340 n.11 (2001); see also Chimera
v. Lockhart, 511 F. App’x 785, 793 n.9 (10th Cir. 2013) (stating in dicta “that the circuits
to have addressed the [in-presence] issue have consistently held that it does not” “give
rise to § 1983 liability”). Indeed, it is widely recognized that the Fourth Amendment
does not impose an in-presence requirement. See Graves v. Mahoning City, 821 F.3d
772, 778-79 (6th Cir. 2016) (collecting cases); 3 W. LaFave, Search & Seizure § 5.1(c)
(2013) (stating that the in-presence requirement “is not mandated by the Fourth
Amendment”).
As for the dismissal of Hartz’s claim against District Attorney Smith, Hartz states
that he withheld “potentially exculpatory impeachment evidence” by not “produc[ing] the
video evidence of the alleged theft.” Aplt. Br. at 3. But a prosecutor has absolute
immunity from a civil damages suit, even if he “deliberately withholds exculpatory
information.” Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007).
Hartz’s claim against Judge Debenham is likewise barred by the doctrine of
absolute immunity. See Dennis v. Sparks, 449 U.S. 24, 27 (1980) (observing that “judges
defending against § 1983 actions enjoy absolute immunity from damages liability for acts
performed in their judicial capacities” (internal quotation marks omitted)).
Kan. Stat. Ann. § 22-2401(c)(2).
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Hartz does not argue that the district court erred in dismissing his claims against
the State of Kansas, Shawnee County, or the Topeka Police Department. Nor could he.
See Coleman v. Court of Appeals of Md., 566 U.S. 30, 35 (2012) (“A foundational
premise of the federal system is that States, as sovereigns, are immune from suits for
damages, save as they elect to waive that defense.”); Bd. of Cty. Comm’rs v. Brown, 520
U.S. 397, 403 (1997) (explaining that a municipality is not subject to § 1983 liability
absent “a municipal ‘policy' or ‘custom' that caused the plaintiff's injury”). Moreover,
“[t]he failure to raise an issue in an opening brief waives that issue.” Silverton
Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (internal
quotation marks omitted).
CONCLUSION
The judgment of the district court is affirmed. Hartz is thus eligible for a strike
under the Prison Litigation Reform Act. See Hafed v. Fed. Bureau of Prisons, 635 F.3d
1172, 1176, 1177 (10th Cir. 2011). Hartz’s motion for leave to proceed without
prepayment of costs and fees is granted, and he is reminded of his continuing obligation
to make partial payments until the fees are paid in full.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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