Shrum v. Cooke ( 2023 )

Appellate Case: 21-3150 Document: 010110818915 Date Filed: 02/28/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 28, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
WALT JASPER SAMUEL SHRUM,
Plaintiff - Appellant,
v. No. 21-3150
DUSTIN COOKE, Investigator, Kingman
County, Kansas Sheriff’s Office in his
official and individual capacities; TRAVIS
SOWERS, Sergeant, City of Kingman,
Kansas Police Department in his official
and individual capacities; KINGMAN
COUNTY, KANSAS; CITY OF
KINGMAN KANSAS; RANDY L. HILL,
Sheriff, Kingman County, Kansas in his
official and individual capacities; DAVID
LUX, Chief, City of Kingman, Kansas
Police Department in his official and
individual capacities,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:20-CV-01314-JWB-GEB)
_________________________________
Brian F. McCallister, The McCallister Law Firm, P.C., Kansas City, Missouri, for
Plaintiff-Appellant.
Lyndon W. Vix (Brooks Severson with him on the brief), Fleeson, Gooing, Coulson &
Kitch, L.L.C., Wichita, Kansas, for Defendant-Appellees Travis Sowers, David Lux and
City of Kingsman, Kansas.
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Allen G. Glendenning, Watkins Calcara, CHTD, Great Bend, Kansas, for Defendants-
Appellees Dustin Cooke, Randy Hill and Kingman County.
_________________________________
Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
TYMKOVICH, Circuit Judge.
_________________________________
While investigating the overdose death of Walter Shrum’s wife, law enforcement
officers searched Mr. Shrum’s home and discovered drugs, firearms, and ammunition.
He was charged with various crimes in federal court. Before trial he argued the officers
had illegally searched his home, and that the evidence discovered could not be used
against him at trial. The district court disagreed, and Mr. Shrum entered a conditional
plea of guilty, reserving the right to appeal the suppression order. On appeal, we
concluded the search violated the Constitution, and any resulting evidence should have
been excluded.
Without this evidence, the government dismissed its prosecution. Shrum then
sued various state and federal law enforcement officials for civil rights violations arising
from the illegal search and subsequent prosecution. The district court dismissed the
action as time-barred and insufficiently pled.
We agree. First, the district court did not plainly err by dismissing Shrum’s
§ 1983 search, seizure, and false arrest claims as time barred. Shrum fails to prove he is
entitled to equitable tolling under Kansas or federal law. Second, reviewing de novo, we
agree with him that the district court erred in concluding that his malicious prosecution
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claim failed because he did not demonstrate the prosecution terminated in a way that
demonstrated his innocence. But while that was true at the time the court reviewed the
complaint, an intervening change in Supreme Court case law altered Tenth Circuit
precedent to allow malicious prosecution claims to proceed when the government
dismisses charges as it did here. Nevertheless, because Shrum’s complaint inadequately
alleges all of the requirements for a malicious prosecution claim against the City and
County defendants, we affirm the dismissal of that claim.
I. Background
A brief review of Shrum’s initial encounter with the police and subsequent history
and timeline will clarify the issues.
A. Underlying Search, Seizure, and Arrest
Walter Shrum’s wife suffered a medical emergency around 5 a.m. in March 2015
in Kingman, Kansas. He suspected that she overdosed on prescription drugs. Shrum
called 911, an ambulance took her to the hospital, and she was pronounced dead within
an hour.
Meanwhile, a police sergeant from the City of Kingman, Travis Sowers, arrived at
Shrum’s house, secured the premises, and apprised a county investigator, Dustin Cooke,
of his actions. As a result, officers prohibited Shrum from entering his house for about
twelve hours.
The Kingman County Sheriff’s Office promptly began a criminal death
investigation. Cooke arrived at the hospital to interview Shrum.
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Cooke later asked Shrum to execute a “consent to search” form. This form would
enable Cooke to retrieve Shrum’s wife’s prescription drugs. Shrum complied because he
thought he had no other choice.
Cooke, with Sergeant Sowers and the Kingman Chief of Police, David Lux,
present, entered Shrum’s house and took pictures of the area where he found the
medications. One photo captured ammunition in Shrum’s closet. Another officer
reminded Cooke of Shrum’s felon status. Cooke contacted a federal officer who
confirmed that Shrum was prohibited from possessing ammunition under federal law. A
team of county, city, and federal actors (including Cooke and Sowers) executed a search
warrant for Shrum’s house. They discovered firearms, ammunition, and
methamphetamine.
Shrum was arrested and spent about five days in custody.
B. Shrum’s Criminal Prosecution
A few weeks later, a federal grand jury indicted Shrum on various counts of being
a felon in possession. Shrum moved to suppress the evidence supporting the search
warrant and his arrest, arguing that officers obtained the evidence during an unreasonable
search of his house. The court denied his motion.
As a result, Shrum conditionally pled guilty to one count of possession of a
firearm by a convicted felon. He reserved his right to appeal the suppression ruling. On
appeal, we ruled that the extended seizure of Shrum’s home was unconstitutional because
the officers lacked probable cause to seize the home in the first instance and no exigent
circumstances justified the response. United States v. Shrum, 908 F.3d 1219, 1231–32
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(10th Cir. 2018). We therefore reversed the district court’s suppression ruling. After the
adverse ruling, the government voluntarily dismissed the charges against Shrum.
C. Procedural History
Shrum sued the state and federal officers and various municipal employers for
violations of his constitutional rights under 42 U.S.C. § 1983 and for intentional and
negligent infliction of emotional distress under state law.
The defendants moved to dismiss the claims, arguing they were time barred,
insufficiently alleged, and jurisdictionally barred.
The district court determined the statute of limitations barred the § 1983 claims for
unlawful search, seizure, and arrest. As to the malicious prosecution claim, the court
dismissed it after concluding the criminal prosecution did not terminate in favor of the
plaintiff, as then required by Tenth Circuit precedent. The court would also have found
the complaint deficient to state a malicious prosecution claim.
Shrum appeals only the dismissal of his § 1983 claims, and only as to the state
defendants.
II. Analysis
Shrum contends the district court erred by failing to extend the statute of
limitations to his search and seizure claims, arguing Kansas law allows for equitable
tolling during the time he faced criminal charges. He also argues the district court
misapplied the “favorable termination” prong in dismissing his malicious prosecution
claim.
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A. Statute of Limitations
Shrum first argues the district court erred by declining to provide equitable tolling
for his § 1983 search, seizure, and arrest claims. He did not make this argument below,
so we review for plain error.
When a party fails to raise an issue before the district court, “we usually hold it
forfeited.” Richison v. Ernest Group, Inc., 634 F.3d 1123, 1127 (10th Cir. 2011). “[W]e
will reverse a district court’s judgment on the basis of a forfeited theory” only when the
litigant “establish[es] the presence of (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 1128. “In civil cases, this burden is
extraordinary . . . and nearly insurmountable.” Somerlott v. Cherokee Nation Distrib.,
Inc., 686 F.3d 1144, 1151 (10th Cir. 2012) (internal quotation marks omitted).
Shrum failed to raise the equitable tolling argument below that he presents on
appeal. To be sure, he raised an argument for equitable tolling before the district court.
But that argument turned on general claims about the burdens of concurrent litigation he
faced, a criminal proceeding in federal court and a simultaneous § 1983 civil action based
on similar facts.
In his briefs on appeal, Shrum shifted to a new theory based on equitable tolling.
He grounded that theory in the principle that the government should not force an
individual to give up one right to vindicate another. His argument is that to litigate his
civil rights suit he would have to admit and use facts that could have then been used
against him in the criminal proceeding. But the district court did not have the opportunity
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to consider this theory, and “[c]hanging to a new theory on appeal that falls under the
same general category as an argument presented at trial . . . is not adequate to preserve
issues for appeal.” Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1314 n.4 (10th Cir.
1998) (internal quotation marks omitted).
Because Shrum forfeited his equitable tolling theory below, we review the district
court’s judgment for plain error.1 Plain error requires a party to establish not just that the
district court made an obvious error, but that that error affected his “substantial rights”
and “seriously affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.” Richison, 634 F.3d at 1128.
First, we find no plain error. In a § 1983 action, we look to state law for tolling
rules. Under Kansas law, one party’s bad faith attempts to delay another party’s suit
triggers equitable tolling. Fairness requires that the law not reward bad faith attempts at
preventing another party from complying with the statute of limitations. Friends Univ. v.
W.R. Grace & Co., 608 P.2d 936, 941 (Kan. 1980). Shrum points to Kansas cases that
suggest a plaintiff might obtain equitable tolling when he has pursued his rights
“diligently” but “some extraordinary circumstance stood in the way and prevented timely
filing.” McClain v. Roberts, 304 P.3d 364, 2013 WL 3970215, at *3 (Kan. Ct. App.
1
Ordinarily, “[w]e review the district court’s refusal to apply equitable tolling for an
abuse of discretion.” Garrett v. Fleming, 362 F.3d 692, 695 (10th Cir. 2004). But
because Shrum did not raise his current theory below, we find plain error appropriate.
Regardless, we would not find the district court abused its discretion in denying equitable
tolling for the same reasons we offer here.
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2013) (unpublished table decision); Harris v. Neill, 216 P.3d 191, 2009 WL 3082642, at
*6 (Kan. Ct. App. 2009) (unpublished table decision).
Shrum argues that requiring him to file his § 1983 suit during the pendency of his
criminal trial would violate his constitutional rights, and that the spectre of that
constitutes an “extraordinary circumstance” preventing timely filing. But we are aware
of no case that supports this risk as extraordinary or even unusual. In fact, the Supreme
Court does not characterize concurrent litigation as “unusual,” holding that “the risk of
concurrent litigation . . . [is] an entirely common state of affairs,” and observing that it
has never “been the law that a criminal defendant, or a potential criminal defendant, is
absolved from all other responsibilities that the law would otherwise place upon him[.]”
Wallace v. Kato, 549 U.S. 384, 396 (2007). We therefore find that Kansas law does not
provide for equitable tolling.
Next, even if Kansas law is unavailing, Shrum contends that tolling should apply
as a matter of federal constitutional law. He argues the district court should have
extended equitable tolling to avoid what he calls an unconstitutional Hobson’s choice.
Namely, had he tried to timely vindicate his § 1983 claims, he would have needed to
offer incriminating evidence in the civil case. The government could then have used that
evidence against him in his pending criminal trial. Shrum styles this dilemma as
requiring him to choose between vindicating his Fourth Amendment rights and
maintaining his Fifth Amendment right against self-incrimination. The district court, he
contends, should have extended equitable tolling to vindicate his rights.
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For his argument, Shrum relies on Simmons v. United States, 390 U.S. 377 (1968).
In that case, the petitioner sought the exclusion of evidence at his criminal trial. But
under contemporary law, he had to prove ownership of the evidence before contesting its
use. And by providing proof, the petitioner provided incriminating testimony that the
government then swiftly entered against him. The Court found it “intolerable that one
constitutional right should have to be surrendered in order to assert another.” Id. at 394.
The Simmons principle has not had a long shelf-life. Shortly after that case, the
Supreme Court explained that “to the extent that [Simmons’s] rationale was based on a
‘tension’ between constitutional rights and the policies behind them, the validity of that
reasoning must now be regarded as open to question, and it certainly cannot be given [a]
broad thrust. . . .” McGautha v. California, 402 U.S. 183, 212–13 (1971). According to
the Court, “[t]he criminal process, like the rest of the legal system, is replete with
situations requiring the making of difficult judgments as to which course to follow . . .
Although a defendant may have a right, even of constitutional dimensions, to follow
whichever course he chooses, the Constitution does not by that token always forbid
requiring him to choose.” Id. at 213 (internal quotation marks omitted).
Lower courts similarly construe Simmons narrowly. See, e.g., United States v.
Ashimi, 932 F.2d 643, 647–48 (7th Cir. 1991) (“Simmons does not apply, however, when
a defendant is made to choose between a constitutional benefit and a statutory benefit.”);
see also United States v. Wilks, 629 F.2d 669, 672 (10th Cir. 1980) (“The necessity of
choosing between holding the government to the exact time limits of the Speedy Trial
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Act and requesting time to prepare a defense does not, on the facts of this case, create the
sort of trade-off of constitutional rights denounced by Simmons. . . .”).
We do not think Simmons applies. Because the Supreme Court declined to give
Simmons “broad thrust” and questioned the vitality of its underlying theory, we cannot
endorse a claim that contends there is an unconstitutional “trade-off” between a statutory
right—the § 1983 causes of action—and a constitutional right. McGautha, 402 U.S. at
213. 2
In summary, the district court did not plainly err by declining to extend equitable
tolling. We affirm the court’s dismissal of Shrum’s search, seizure, and false arrest
claims.
B. Malicious Prosecution
Shrum next argues that the district court erred by dismissing his malicious
prosecution claim for failure to plead “favorable termination,” one of the five elements of
a malicious prosecution claim. In light of intervening Supreme Court precedent, the
district court misapplied this element. But because the district court’s decision can be
2
We are not persuaded that a trade-off even existed. The Supreme Court observed in
different circumstances, “[i]f a plaintiff files a false-arrest claim before he has been
convicted (or files any other claim related to rulings that will likely be made in a pending
or anticipated criminal trial), it is within the power of the district court, and in accord
with common practice, to stay the civil action until the criminal case or the likelihood of
a criminal case is ended.” Wallace, 549 U.S. at 393–94. Surely a similar path would
have been available to Shrum had he decided to take it.
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supported for the alternative reason that Shrum failed to plead his complaint with the
requisite specificity, we affirm the court’s judgment.3
A § 1983 malicious prosecution claim includes five elements, with this argument
turning on the second element: (1) the defendant caused the plaintiff’s continued
confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3)
no probable cause supported the arrest, confinement, or prosecution; (4) the defendant
acted maliciously; and (5) the plaintiff sustained damages. Wilkins v DeReyes, 528 F.3d
790, 799 (10th Cir. 2008).
Under our precedent, a prosecutor’s dismissal, without more, did not constitute
favorable termination. Wilkins, 528 F.3d at 802–03. Instead, we required that the
prosecution was terminated for reasons tending to indicate the accused’s innocence. Id.An example of this is when a prosecutor enters a nolle prosqui (a voluntary dismissal of
3
While our affirmance turns on Shrum’s failure to plead his malicious prosecution claim
with the specificity required by our precedents, we also note his failure to plead the
“probable cause” prong. A key element of the § 1983 malicious prosecution claim
requires “no probable cause supported the original arrest, continued confinement, or
prosecution.” Margheim v. Buljko, 855 F.3d 1077, 1085 (10th Cir. 2017). Shrum makes
only one allegation concerning the baselessness of the prosecution. He claims that
“Defendants instigated and continued the unlawful prosecution of Plaintiff Shrum without
probable cause and acting out of malice.” App. 30 (emphasis added). But “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice” to satisfy our pleading standards. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). On appeal, Shrum suggests the prosecution lacked probable cause because it was
based on illegally obtained evidence. See Aplt. Br. at 34. While the argument enjoys
intuitive appeal, we do not think the omission of evidence under the exclusionary rule
necessarily retroactively vitiates probable cause in malicious prosecution claims. See
Restivo v. Hessemann, 846 F.3d 547, 569–71 (2d Cir. 2017); see also Shaw v. Schulte, 36
F.4th 1006, 1017–18 (10th Cir. 2022).
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criminal charges) after deciding he cannot prove guilt beyond a reasonable doubt. But if
an official concludes a prosecution out of mercy for the accused, for instance, the
termination did not indicate the accused’s innocence. The district court correctly found
under our existing precedent that Shrum’s prosecution did not terminate in a manner that
indicated his innocence.
After the judgment below the Supreme Court clarified the meaning of “favorable
termination.” The Court found that a criminal prosecution terminates favorably, for the
purposes of a § 1983 malicious prosecution claim, when the prosecution ends without a
conviction. Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022). The Court explained that
“[t]o determine the elements of a constitutional claim under § 1983,” we should “first
look to the elements of the most analogous tort as of 1871 when § 1983 was enacted, so
long as doing so is consistent with the values and purposes of the constitutional right at
issue.” Id. at 1337 (internal quotation marks omitted). And looking to American
malicious prosecution tort law, most American courts held that “the favorable termination
element of a malicious prosecution claim was satisfied so long as the prosecution ended
without a conviction”—no affirmative indication of innocence required. Id. at 1338.
As a result, our precedents applying the favorable termination element are no
longer good law. The district court therefore erred in granting dismissal on this ground.
C. Deficient Pleading
We nonetheless affirm the district court for the alternative reason raised below.
Shrum has failed to adequately plead with specificity all of the other required elements
for malicious prosecution against the state officials. We apply a three-part test in
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considering our discretion to affirm on an alternative ground. First, we consider whether
the litigants fully briefed and argued the issue here and below. Second, we consider
whether the parties had a fair opportunity to develop the factual record. And third, we
consider whether our decision would involve only questions of law. Elkins v. Comfort,
392 F.3d 1159, 1162 (10th Cir. 2004).
All of those requirements are met here. First, the City of Kingman defendants
raised the specificity argument below. App. 42. The district court noted that the
“undifferentiated and non-specific allegations” in the malicious prosecution claim likely
rendered the claim deficient. App. 216. On appeal, the city defendants re-asserted this
argument. City Br. at 19–24. And Shrum addressed those arguments in his reply brief.
Reply Br. at 18–22. Second, the factual record is not at issue because the alternative
ground concerns only pleading defects. And third, the alternative ground concerns only a
question of law.
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (internal citations and quotation marks omitted).
While the federal pleading standard does not vary across subject matters, the
degree of specificity required for factual allegations depends on context. In § 1983 cases,
for example, defendants typically sue various government entities alongside various
individual actors. In those cases, “it is particularly important in such circumstances that
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the complaint make clear exactly who is alleged to have done what to whom.” Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008).
We have repeatedly emphasized the importance of connecting defendants to
misconduct in pleadings: “To recover damages from each of [multiple] Defendants
under § 1983, [Plaintiff] had to show that such Defendant personally participated in the
alleged constitutional violation.” Vasquez v. Davis, 882 F. 3d 1270, 1275 (10th Cir.
2018).
Specificity is particularly important in a complaint alleging malicious prosecution.
A complaint could draw many actors into a malicious prosecution claim, but while “a
wrongful arrest could be the first step towards a malicious prosecution[,]” “the chain of
causation is broken by an indictment, absent an allegation of pressure or influence
exerted by the police officers, or knowing misstatements made by the officers to the
prosecutor.” Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996); Taylor v.
Meacham, 82 F.3d 1556, 1564 (10th Cir. 1996) (adopting the Seventh Circuit’s logic).
Shrum’s complaint casts a wide net over undifferentiated defendants and therefore
falls short of our pleading standards. Consider first the City of Kingman defendants,
Sergeant Sowers and Chief Lux. Shrum points us to the “Common to All Counts”
allegations section in particular. He emphasizes that “Sowers’s name is referred to in the
Complaint 19 separate times and Lux’s name is referred to in the Complaint 15 separate
times.” Reply Br. at 21. True enough. But that does not tell us if the complaint makes
out “who is alleged to have done what to whom.” Robbins, 519 F.3d at 1250.
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Shrum highlights a few allegations that he thinks satisfies our pleading
requirements. He points to his allegation that “Sowers, Chief Lux and Cooke knew that
Walt’s house was seized without a warrant and without probable cause. . . .” App. 17.
He directs us to the assertion that “[w]hen he secured Plaintiff’s home, Sowers excluded
Plaintiff Shrum from his home and (a) did not have a warrant . . . (b) did not have
probable cause to secure Plaintiff’s home; [and] (c) did not have probable cause to
request a warrant be issued for the search. . . .” App. 18. And then he highlights the
claim that “Cooke and Chief Lux acquiesced in Sowers’s seizure of Plaintiff Shrum’s
home.” App. 18.
The above allegations do not even concern the elements of the malicious
prosecution claim. While the malicious prosecution claim does require a showing that
the government acted without probable cause, Shrum’s allegations go to probable cause
for the search. They do not concern probable cause for the “arrest, continued
confinement, or prosecution.” Wilkins, 528 F.3d at 799. And even if the allegations did
go to the prosecution’s probable cause, Shrum offers no complementary allegations that
indicate what role, if any, Sowers and Lux played in the prosecution. See Meacham, 82
F.3d at 1564. In fact, criminal charges were not brought until several weeks after the
search and arrest, and nothing in the complaint alleges what role these state defendants
had in pressuring federal prosecutors to bring charges. The complaint may have put
Sowers and Lux on notice that they had been accused of malicious prosecution, but it
falls short of properly alleging each officer’s role in a way that allows us reasonably to
infer liability.
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Consider next the Kingman County defendant, Dustin Cooke.4 Cooke features
prominently throughout the “Common to All Counts” section. It alleges Cooke
questioned Shrum, App. 19, prodded Shrum into signing a consent-to-search form under
“false pretenses,” App. 21, illegally searched Shrum’s home, App. 23, and then secured a
search warrant based on evidence from the illegal search. App. 25.
What the complaint does not do is allege Cooke’s role in the malicious
prosecution. To be sure, the complaint alleges that Cooke, like Sowers and Lux, lacked
probable cause to search his home. But those allegations are insufficient for the same
reasons listed above. And as to Cooke’s role in the prosecution, we are told nothing
more.
The “Common to All Counts” section offers only one remaining allegation
pertaining to the prosecution:
Armed with the fruits of the unlawful seizure and subsequent
tainted search of Walt’s home and having denied Walt access
to his home, Walt was unlawfully indicted based upon the
tainted evidence, prosecuted and found guilty of significant
federal crimes for which he should never have been
prosecuted and spent a significant time in prison as a result of
the unlawful prosecution.
App. 25–26. The allegation does not identify an offending actor, much less a nameless
group of state defendants.
Having failed to piece together a cognizable malicious prosecution claim from the
“Common to All Counts” section, we turn to “Count I” of the complaint, where Shrum
4
While Randy Hill, the Sheriff of Kingman County, is listed as an appellee, Shrum
conceded below all of his claims against Hill.
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explicitly housed the claim. The section almost exclusively uses the collective term
“Defendants.” When Shrum does identify specific defendants, the allegations do not
address any malicious prosecution elements.
Only two allegations come close to invoking the elements of a malicious
prosecution claim. First, Shrum alleges “[t]he actions of the Defendants mentioned under
this Count resulted in multiple violations of Plaintiff’s rights . . . and subsequently
resulted in the unlawful prosecution . . . of Plaintiff Shrum in the federal prison system.”
App. 30. Second, Shrum claims “[b]y all of the above, Defendants instigated and
continued the unlawful prosecution of Plaintiff Shrum without probable cause and acting
out of malice.” Id. But neither allegation connects the “unlawful prosecution” with any
particular actor—and Shrum levels the claim against six individuals. See VanZandt v.
Okla. Dep’t of Hum. Servs., 276 F. App’x 843, 849 (10th Cir. 2008) (finding that
plaintiffs failed to plead a § 1983 action by “fail[ing] to individualize each Defendant’s
alleged misconduct from the Defendants as a collective group.”).
In short, Shrum’s complaint does not tell us who instigated the prosecution or who
continued the prosecution. It does not connect the defendants to their allegedly unlawful
conduct, and therefore fails to provide fair notice for the basis of the claims against each
defendant. See Robbins, 519 F.3d at 1250 (citing “fair notice” as a reason for requiring
allegations specific to each defendant). The district court’s dismissal of the malicious
prosecution claim was appropriate on this alternative ground.
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III. Conclusion
For the foregoing reasons, we affirm the district court’s dismissal of Shrum’s
§ 1983 claims.
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