Kabutu v. Short

Appellate Case: 21-3229 Document: 010110717776 Date Filed: 07/29/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 29, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
WILLIAM KABUTU,
Plaintiff - Appellant,
v. No. 21-3229
(D.C. No. 2:21-CV-02407-EFM-KGG)
ROBERT SHORT, (D. Kan.)
Defendant - Appellee.
–––––––––––––––––––––––––––––––––––
WILLIAM KABUTU,
Plaintiff - Appellant,
v. No. 21-3230
(D.C. No. 2:21-CV-02340-EFM-KGG)
ROBERT CHISHOLM, (D. Kan.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Appellate Case: 21-3229 Document: 010110717776 Date Filed: 07/29/2022 Page: 2
William Kabutu, proceeding pro se, appeals the district court’s dismissal of
two civil rights actions he filed. Because the actions arise from the same set of
operative facts, we have combined the appeals for disposition only. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm in each appeal. We also deny all of
Mr. Kabutu’s pending motions.
I. Background
Mr. Kabutu’s two-year-old son drowned in the swimming pool of the mobile
home park where Mr. Kabutu lived. While awaiting trial in Kansas state court on
murder charges related to the drowning, Mr. Kabutu filed two actions under
42 U.S.C. § 1983 in Kansas federal district court. In the case underlying appeal no.
21-3229, he named as defendant the lead prosecutor in his state criminal prosecution,
Robert Short. Mr. Kabutu alleged that the prosecution of his criminal case was
occurring in bad faith and amounted to an abuse of process because of an unlawful
seizure, search, and retention of his cell phone and the deletion of allegedly
exculpatory Google Maps data from the phone regarding his location at the time his
son died. The district court granted Mr. Short’s motion to dismiss based on the
Younger abstention doctrine, see Younger v. Harris, 401 U.S. 37 (1971). In the case
underlying appeal no. 21-3230, Mr. Kabutu sued a police detective, Robert Chisholm,
in his individual capacity. Detective Chisholm participated in the criminal
investigation which led to Mr. Kabutu’s arrest and prosecution. Mr. Kabutu alleged
that Detective Chisholm’s seizure and retention of his cell phone violated his Fourth,
Fifth, and Fourteenth Amendment rights. The district court dismissed that action
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based on qualified immunity. Mr. Kabutu appeals both dismissals and a magistrate
judge’s ruling in no. 21-3229 staying discovery and denying his motion to compel
discovery.
II. Appeal No. 21-32291
A. Younger dismissal
Younger abstention applies if
(1) there is an ongoing state criminal, civil, or administrative proceeding,
(2) the state court provides an adequate forum to hear the claims raised in
the federal complaint, and (3) the state proceedings involve important state
interests, matters which traditionally look to state law for their resolution or
implicate separately articulated state policies.
Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir.
2003) (internal quotation marks omitted). “Once these three conditions are met,
Younger abstention is non-discretionary and, absent extraordinary circumstances, a
district court is required to abstain.” Id.The district court concluded that all three conditions were met and no
extraordinary circumstances existed. It therefore applied Younger abstention and
dismissed the action. On appeal, Mr. Kabutu contests only the second and third
conditions. Our review is de novo. See Phelps v. Hamilton, 122 F.3d 885, 889
(10th Cir. 1997).
1
Because Mr. Kabutu represents himself, we construe his filings liberally, but
we may not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).
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As to the second condition, Mr. Kabutu argues that the Kansas state court is
not an adequate forum to litigate his constitutional claims because he has not had any
success there with respect to his cell phone. We disagree. As a general matter,
Kansas state courts provide an adequate forum for the resolution of constitutional
claims incident to a state criminal prosecution absent a clear state bar to the assertion
of such claims. See Kugler v. Helfant, 421 U.S. 117, 124 (1975) (“[O]rdinarily a
pending state prosecution provides the accused a fair and sufficient opportunity for
vindication of federal constitutional rights.”); Crown Point I, 319 F.3d at 1215(“Typically, a plaintiff has an adequate opportunity to raise federal claims in state
court unless state law clearly bars the interposition of the federal . . . constitutional
claims.” (brackets and internal quotation marks omitted)). Mr. Kabutu has not
demonstrated that such a bar exists. In his complaint, he alleged only that various
attorneys who represented him during pretrial proceedings in his criminal case did
not do enough to procure the return of his cell phone, and that despite docketing a
hearing on a pro se motion he filed seeking the return of his phone, the state trial
court did not hear that motion as scheduled. These allegations fail to show that the
state court is an inadequate forum for resolution of his constitutional claims
regarding his cell phone.
Concerning the third condition, Mr. Kabutu argues that although Kansas has an
interest in a fair and just criminal justice system, his criminal proceedings have not
been fair because (1) he has been on house arrest for eighteen months, (2) he worries
about his bond conditions because he has lost his job, and (3) he could not get any
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relief from the state court through his attorneys in the criminal proceeding. The first
two points are irrelevant to the fairness of the criminal proceeding as related to his
cell phone. And the third point does not undermine Kansas’s strong interest in the
administration of its criminal justice system. See, e.g., Kelly v. Robinson, 479 U.S.
36, 49 (1986) (“[T]he States’ interest in administering their criminal justice systems
free from federal interference is one of the most powerful of the considerations that
should influence a court considering equitable types of relief.”).
The district court further concluded that despite Mr. Kabutu’s allegations of
bad faith, Younger abstention was appropriate because the bad-faith allegations were
“conclusory and unsupported.” R. at 77; see Phelps, 122 F.3d at 889 (“[I]t is the
plaintiff’s heavy burden to overcome the bar of Younger abstention by setting forth
more than mere allegations of bad faith or harassment.” (internal quotation marks
omitted)). The district court considered three factors relevant to whether a state
prosecution allegedly “commenced in bad faith or to harass” can overcome
Younger abstention:
(1) whether it was frivolous or undertaken with no reasonably objective
hope of success; (2) whether it was motivated by the defendant’s suspect
class or in retaliation for the defendant’s exercise of constitutional rights;
and (3) whether it was conducted in such a way as to constitute harassment
and an abuse of prosecutorial discretion, typically through the unjustified
and oppressive use of multiple prosecutions.
Phelps, 122 F.3d at 889. Mr. Kabutu does not expressly argue bad faith on appeal as
a means of overcoming abstention under Younger, but we agree with the district
court’s conclusion that there is no indication that any of these factors are present.
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We also reject Mr. Kabutu’s argument that he should not have to wait until he
completes appellate and post-conviction remedies before securing the relief he
believes he is entitled to. See Winn v. Cook, 945 F.3d 1253, 1259 (10th Cir. 2019)
(“[W]e have consistently refused to find an exception to Younger when the injury
could ultimately be corrected through the pending state proceeding or on appeal.”).
B. Discovery issues
Mr. Short filed a motion to stay discovery based on his motion to dismiss
under Younger. Mr. Kabutu filed a motion to compel discovery. The magistrate
judge granted the motion to stay because the case would be resolved if the district
court granted the motion to dismiss and fact discovery would not affect that
resolution because Younger presents a legal issue. The magistrate judge denied the
motion to compel because discovery had not commenced, so there was nothing to
compel, and Mr. Kabutu had not complied with the meet-and-confer requirements of
Fed. R. Civ. P. 37(a)(1) and the corresponding local court rule.
Mr. Short suggests this court lacks jurisdiction to consider Mr. Kabutu’s
appellate arguments concerning the magistrate judge’s discovery ruling because he
failed to file any objections to that ruling with the district court, as required under
Fed. R. Civ. P. 72(a). We disagree. Rule 72(a) sets a 14-day deadline for filing
objections to non-dispositive orders and provides that “[a] party may not assign as
error a defect in the order not timely objected to.” However, the failure to file timely
objections to a magistrate judge’s non-dispositive rulings does not deprive this court
of jurisdiction over an appellate challenge to the rulings but only serves as a
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non-jurisdictional waiver subject to our firm waiver rule. Sinclair Wyo. Refin. Co. v.
A & B Builders, Ltd., 989 F.3d 747, 781–83 (10th Cir. 2021). Under the firm waiver
rule, “a party who fails to make a timely objection to the magistrate judge’s [ruling]
waives appellate review of both factual and legal questions,” subject to limited
exceptions. Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005).
Construing Mr. Short’s argument as invoking the firm waiver rule, we agree
that Mr. Kabutu failed to make a timely objection. Eight days after the magistrate
judge’s ruling, Mr. Kabutu filed a motion for reconsideration, which the magistrate
judge promptly denied, see R. at 3 (ECF No. 20) (text-only docket entry). Even
liberally construed, we are unable to read the motion for reconsideration as an
objection to the magistrate judge’s ruling, and Mr. Kabutu does not argue that he
intended it to be an objection. Nor does he argue that an exception to the firm waiver
rule applies. We therefore enforce the waiver and decline to review the discovery
ruling.2
III. Appeal No. 21-3230
“Individual defendants named in a § 1983 action may raise a defense of
qualified immunity, which shields public officials from damages actions unless their
conduct was unreasonable in light of clearly established law.” Est. of Booker v.
2
Even if we overlooked the waiver, we would conclude that the magistrate
judge did not abuse his discretion in staying discovery and denying Mr. Kabutu’s
motion to compel. See Diaz v. Paul J. Kennedy L. Firm, 289 F.3d 671, 674 (10th Cir.
2002) (“A district court’s discovery rulings are reviewed for an abuse of
discretion.”).
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Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (alteration, citation, and internal
quotation marks omitted). “[W]hen a defendant asserts qualified immunity, the
plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a
federal constitutional or statutory right, and, if so, (2) that the right was clearly
established at the time of the defendant’s unlawful conduct.” Id. (internal quotation
marks omitted). “To determine whether the right was clearly established, we ask
whether the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Id. (internal
quotation marks omitted). “[I]n order for the law to be clearly established, there
must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as
the plaintiff maintains.” Id. (internal quotation marks omitted).
In this case, Mr. Kabutu alleged that when officers responded to the scene of
the drowning, he accessed his cell phone several times to provide the names and
telephone numbers for contacts requested by law enforcement. However, Detective
Chisholm said in addition to looking for contact information, Mr. Kabutu might have
spoken with someone, and another officer observed Mr. Kabutu watching a video
about gun cleaning and assembly. Detective Chisholm then seized the phone and
asked Mr. Kabutu for the password. Mr. Kabutu refused to provide the password and
said he would not turn over the phone without a warrant. Detective Chisholm
apparently turned the phone over to the other officer, who took Mr. Kabutu to the
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hospital for a blood draw. Meanwhile, Detective Chisholm obtained a warrant, went
to the hospital, and seized the phone.3
The district court granted Detective Chisholm’s motion to dismiss on the
ground of qualified immunity because (1) he obtained Mr. Kabutu’s cell phone after
acquiring a search warrant; (2) Mr. Kabutu supplied no controlling precedent
indicating that it was unreasonable for an officer in Detective Chisholm’s position to
rely on an unsigned warrant to seize Mr. Kabutu’s phone; and (3) nothing in the
complaint showed that Detective Chisholm could have accessed information on the
phone.
Our review is de novo. See Thompson v. Ragland, 23 F.4th 1252, 1255
(10th Cir. 2022). Before we begin our analysis, we note that in his complaint,
Mr. Kabutu named Detective Chisholm in his individual capacity only, but in the
complaint’s opening paragraph and prayer for relief, he asked only for declaratory
and injunctive relief. The complaint, therefore, is ambiguous as to whether
Mr. Kabutu sought damages against Detective Chisholm in his individual capacity or
equitable relief against Detective Chisholm in his official capacity. The district court
3
Based on paragraph 48 of the complaint, the district court interpreted
Mr. Kabutu’s allegations to mean that the other officer seized the phone at the scene.
But paragraph 10 of the complaint suggests that Detective Chisholm was the seizing
officer. Read in the light most favorable to Mr. Kabutu, we construe these
allegations to mean Detective Chisholm initially seized the phone but gave it to the
other officer until Detective Chisholm could obtain a warrant. See Albers v. Bd. of
Cnty. Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014) (in considering a motion to
dismiss, a court “must accept all the well-pleaded allegations of the complaint as true
and must construe them in the light most favorable to the plaintiff” (internal
quotation marks omitted)).
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apparently treated the complaint as seeking damages because Detective Chisholm
was named only in his individual capacity, see Brown v. Montoya, 662 F.3d 1152,
1161 n.5 (10th Cir. 2011) (“Section 1983 plaintiffs may sue individual-capacity
defendants only for money damages and official-capacity defendants only for
injunctive relief.”), and qualified immunity is a defense against claims seeking
monetary relief but not equitable relief, see Brown v. Buhman, 822 F.3d 1151, 1161
n.8 (10th Cir. 2016) (“Neither the absolute nor qualified immunities extend to suits
for injunctive or declaratory relief under § 1983.” (internal quotation marks
omitted)). Mr. Kabutu has not contested the district court’s characterization.
Therefore, for purposes of analyzing the district court’s ruling, we will treat the
claims as seeking damages.
Mr. Kabutu argues that the search warrant was invalid because it lacked the
date and time of issuance and the signature of the issuing judge. He further maintains
that Detective Chisholm deleted information that established his whereabouts at the
time of the crime and posits that a reasonable person would have known that deleting
exculpatory evidence violated his constitutional rights. These arguments are
insufficient to show error in the district court’s ruling.
In support of his arguments, Mr. Kabutu cites cases involving the general
requirement of a valid search warrant supported by probable cause. But he does not
acknowledge or contest the district court’s observation that in United States v. Cruz,
774 F.3d 1278, 1285 (10th Cir. 2014), this court held that the Fourth Amendment
does not require an issuing judge’s signature on a search warrant. And he provides
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no authority for his argument that the warrant was constitutionally invalid because it
lacked a date and time. Nor has he challenged the district court’s determination that
there was adequate probable cause for seizure of the phone based on officers’
observations of him using the phone at the scene or that the complaint failed to
adequately demonstrate that Detective Chisholm did or could have accessed the data,
as would be necessary to show a constitutional violation based on deleting allegedly
exculpatory data.
Moreover, even if there was a constitutional violation regarding the seizure of
the phone, Mr. Kabutu cites no authority clearly establishing it would have been
apparent to Detective Chisholm that, despite any constitutional infirmities in the
initial warrantless seizure, he violated Mr. Kabutu’s constitutional rights by relying
on the later-issued warrant even though it lacked a date, a time, or the issuing judge’s
signature. “[C]learly established law must be particularized to the facts of the case.”
White v. Pauly, 580 U.S. 73, 137 S. Ct. 548, 552 (2017) (internal quotation marks
omitted). “Of course, general statements of the law are not inherently incapable of
giving fair and clear warning to officers, but in the light of pre-existing law the
unlawfulness must be apparent[.]” Id. (citation and internal quotation marks
omitted). Mr. Kabutu’s reliance on general legal principles regarding search
warrants or the principle that “qualified immunity [will] be defeated if an official
knew or reasonably should have known that the action he took within his sphere of
official responsibility would violate the [plaintiff’s] constitutional rights,” Harlow v.
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Fitzgerald, 457 U.S. 800, 815 (1982) (internal quotation marks omitted), is
insufficient to meet his burden.
IV. Pending Motions
A. Motion to supplement record in appeal no. 21-3230
In appeal no. 21-3230, Mr. Kabutu has filed a Motion For Leave To
Supplement The Record And To Allow Initial Brief’s [sic] Exhibits. He seeks to add
to the record on appeal (1) transcripts from his state criminal proceeding and
(2) exhibits to his opening brief. Mr. Kabutu claims the transcripts would show that
the state proceedings have been unfair and the exhibits would show that Detective
Chisholm took Mr. Kabutu’s cell phone home with him. As a general matter, we
“will not consider material outside the record before the district court.” United States
v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000). This court is authorized to
supplement the record on appeal but only when “anything material to either party is
omitted from or misstated in the record by error or accident.” Fed. R. App.
P. 10(e)(2)(C). Mr. Kabutu’s motion does not meet this standard because none of the
materials he seeks to add to the record were before the district court. Instead, he
seeks to build a new record, which Rule 10(e) does not permit. See Kennedy,
225 F.3d at 1191. Accordingly, we deny his motion.
B. Motions related to tolling limitations period
In each appeal, Mr. Kabutu has filed two substantially identical motions: (1) a
Motion For Leave To File Motion Seeking Order To Toll Time and (2) a Motion
Seeking Order To Toll Time. In these motions, he invokes equitable tolling and the
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continuing-violations doctrine to request orders from this court that the § 1983
limitations period for claims related to the deletion of data from his cell phone should
stop on the date he informed his attorneys about the deletion (October 27, 2020) and
not begin again until his phone is returned to him. We construe these requests as
seeking opinions from this court that the limitations period on a § 1983 action he
might file in the future regarding alleged tampering with his cell phone is tolled until
the police return the phone to him. We deny all four motions because we have
“neither the power to render advisory opinions nor to decide questions that cannot
affect the rights of litigants in the case before [us].” Preiser v. Newkirk, 422 U.S.
395, 401 (1975) (internal quotation marks omitted).
C. Motions related to limited remand
In each appeal, Mr. Kabutu has filed two substantially identical motions: (1) a
Motion For Leave To File Motion Seeking Urgent Limited Remand To The District
Court and (2) a Motion Seeking Urgent Limited Remand To The District Court. In
these motions, he asks us to remand both cases to the district court for an evidentiary
hearing because at a recent hearing in his state criminal proceeding, a State forensics
expert testified that Google Maps data was deleted from Mr. Kabutu’s cell phone
sometime after he remotely accessed his Google account. Mr. Kabutu provides no
legal authority for such a remand, nor are we aware of any. Consequently, we deny
these four motions.
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V. Conclusion
We affirm the district court’s judgments in each appeal. We deny all of
Mr. Kabutu’s pending motions.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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