Good v. Board of County ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 25, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN FRANKLIN GOOD,
Plaintiff-Appellant,
v. No. 04-3224
(D.C. No. 01-CV-4067-RDR)
JOAN M. HAMILTON, former (D. Kan.)
Shawnee County District Attorney,
Defendant-Appellee,
and
BOARD OF COUNTY
COMMISSIONERS, SHAWNEE
COUNTY, KANSAS; RICHARD
BARTA, Shawnee County Sheriff;
JOEL W. MEINECKE, Shawnee
County Assistant District Attorney;
TONY W. RUES, Shawnee County
Assistant District Attorney; JACK
METZ; DANIEL JARAMILLO;
SCOTT HOLLADAY; PHILLIP
BLUME; DIANE GORDY,
Defendants.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRISCOE , ANDERSON , and BRORBY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Plaintiff John Franklin Good, a former Shawnee County, Kansas deputy
sheriff, brought suit alleging claims under 42 U.S.C. § 1983 and state law against
several defendants, including Joan M. Hamilton, the former Shawnee County
District Attorney. Ms. Hamilton is the only defendant relevant to this appeal. See
Aplt. Br at 1-2; Aplt. App., Vol. V at 580 (notice of appeal). Mr. Good’s claims
against her for conspiracy, malicious prosecution, and abuse of process arise from
his employment termination and two criminal prosecutions for perjury. 1
The
district court (1) dismissed the conspiracy claim, because it had previously
granted summary judgment in favor of defendant Diane Gordy on the same issue,
Aplt. App., Vol. I at 91 n.1, 94; (2) dismissed the malicious prosecution claim
1
This case has a complicated and lengthy factual background. Because the
parties are familiar with the facts, we will not set them forth here. See Good v.
Bd. of County Comm’rs , 331 F. Supp. 2d 1315, 1320-23 (D. Kan. 2004)
(discussing undisputed facts).
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based on absolute prosecutorial immunity, and also decided that to the extent any
malicious prosecution claims remained, Ms. Hamilton was entitled to summary
judgment on them because Mr. Good failed to show that she acted without
probable cause in filing the perjury charges and thus was absolutely immune, id.
at 92-94; Good v. Bd. of County Comm’rs , 331 F. Supp. 2d 1315, 1328-29, 1330
(D. Kan. 2004); and (3) entered summary judgment against Mr. Good on the
abuse of process claim, because he had failed to show that Ms. Hamilton acted
with an ulterior motive, Good , 331 F. Supp. 2d at 1331. Mr. Good appeals. We
exercise jurisdiction under 28 U.S.C. § 1291, and we affirm.
Mr. Good first argues that the district court erred in granting summary
judgment to Ms. Hamilton on his conspiracy claim, because she did not file a
motion for summary judgment. The district court, however, did not grant
summary judgment on the claim; rather, the court dismissed the claim. In doing
so, the district court stated as follows:
In a recent opinion, the court granted summary judgment to Gordy
because plaintiff had not provided sufficient evidence of any
agreement or concerted action between Hamilton and Gordy to
manufacture the false evidence. This ruling would, of course, also
apply to Hamilton since they are the only members of the alleged
conspiracy.
Aplt. App., Vol. I at 91 n.1.
We review the district court’s dismissal of Mr. Good’s conspiracy claim
under Fed. R. Civ. P. 12(b)(6) de novo. Sutton v. Utah State Sch. for Deaf &
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Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). Dismissal under Rule 12(b)(6) is
appropriate only when it “appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.” Id. (quotations
omitted).
Because only Ms. Hamilton and Ms. Gordy allegedly participated in the
conspiracy, and the district court had found no conspiracy concerning Ms. Gordy,
the court correctly concluded Ms. Hamilton could not conspire alone. Despite the
district court’s prior ruling, Mr. Good failed to provide any evidence rebutting or
in any way calling that ruling into doubt. Accordingly, we conclude the district
court did not err in dismissing the conspiracy claim against Ms. Hamilton. 2
Next, Mr. Good argues that the district court should not have dismissed or
granted summary judgment in Ms. Hamilton’s favor on his claims of malicious
prosecution and abuse of process. He contends, without further elaboration, that
Ms. Hamilton was not entitled to absolute immunity for filing both perjury actions
against him because she was a complaining witness for each action. He also
contends, without specification, that there were many factual issues in dispute.
2
Mr. Good argues that the conspiracy claim was both a § 1983 claim and a
state-law tort-of-outrage claim. Aplt. Br. at 1. In the district court, however, he
abandoned the outrage claim. Aplt. App., Vol. II at 125 n.1, 161. And because
he only lists, but does not argue this issue in his brief, it is waived. See
Abercrombie v. City of Catoosa , 896 F.2d 1228, 1231 (10th Cir. 1990).
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Mr. Good’s appellate arguments are conclusory and undeveloped. As such,
they are insufficient for us to consider. Cf. Adler v. Wal-Mart Stores, Inc. ,
144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the
opening brief are waived, . . . and bald assertions in briefs that there are genuine
issues of material fact are insufficient to merit reversal of summary judgment);
Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (deciding that where
appellant “fail[ed] to frame and develop an issue,” there was insufficient basis to
invoke appellate review); Ambus v. Granite Bd. of Educ. , 975 F.2d 1555, 1558 n.1
(10th Cir. 1992) (deciding that issue mentioned on appeal, but not addressed, is
waived), modified on other grounds on reh’g , 995 F.2d 992 (10th Cir. 1993).
Nonetheless, we have examined the appellate briefs, Mr. Good’s appendix,
and the applicable law and have reviewed the district court’s decisions de novo,
see Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000) (summary
judgment); Sutton , 173 F.3d at 1236 (dismissal). We affirm the decisions for
substantially the same reasons stated by the district court in its Memorandums and
Orders filed April 22, 2002, Aplt. App., Vol. I at 87, and May 19, 2004, Good ,
331 F. Supp. 2d at 1327-29, 1330-31.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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