UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TAMMY FISHER, Plaintiff - Appellant,

v. BRIAN KOOPMAN, individually and in his official capacity as Detective in Loveland, Colorado Police Department; LUKE HECKER, individually and in his official capacity as Chief of Loveland Police Department, Defendants - Appellees. No. 16-1335 (D.C. No. 1:15-CV -00166-WJM-NYW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , HOLMES , and PHILLIPS , Circuit Judges.

________________ _________________ After an investigation spearheaded by Detective Brian Koopman, the Loveland Police Department (the “Department”) accu sed former police officer Tammy Fisher of alerting friends to a ch ild pornography investigation— allowing the friends to delete files from their computer’s hard drive before the poli ce executed a search

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### May 23, 2017 Elisabeth A. Shumaker Clerk of Court2 warrant. The Department ultimately deci ded not to pursue any official misconduct charges against Ms. Fisher, but th e matter did not end there. Ms. Fisher filed this 42 U.S.C. § 19 83 action against Detective Koopman and the Chief of Police, Luke Hecker. She al leged malicious prosecution and failure to train and supervise in viol ation of her due process rights under the Fourteenth Amendment, as well as numer ous state law claims. Later, she sought to add another defendant and Fourth Amendm ent claims. The district court denied her motion to amend and ultimately granted summary j udgment in favor of the defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND Ms. Fisher worked for the Loveland Poli ce Department for 15 years, first as a community service officer then as a police officer. She retired in September 2012, though she remained connected to the Depa rtment through her marriage to police sergeant Jeff Fisher. In July 2012, toward the end of her employment, Ms. Fisher responded to a harassment call at the home of Stanley and Lisa Romanek. Upon her return to the station, she learned the Department wa s investigating the Romaneks for child pornography. Even so, Ms. Fisher and he r husband developed a friendship with the Romaneks. They met periodically duri ng the March-April 2013 time frame and dined together in early April. The parties debate what Ms. Fisher said and when she said it, but at some point Ms. Fisher alerted the Ro maneks to the ongoing child pornography investigati on against them.3 That investigation dates back to 2009. It stalled, then resumed in 2013 when a federal law enforcement agency notified the Department of additional illegal activity originating at Mr. Romanek’s IP address. Detective Koopma n took charge and requested a search warrant for the Ro maneks’ home on April 10, 2013. The Department executed the search warrant on April 12, only to find that files on the hard drive of the Romaneks’ computer had recently been erased . Meanwhile, as the search was taking place, Ms. Romanek advised Detective Koopman of the Romanek-Fisher friendship. She also told him how Ms. Fisher warned her approximately three weeks earl ier to expect a police vis it, having issued an earlier warning in 2012. A search of Ms. Roma nek’s cell phone corroborated an exchange of texts between the women at critical times during the De partment’s investigation. Convinced Ms. Fisher had thwarted the investigation by tipping off the Romaneks, Detective Koopman expanded his cr iminal inquiry to encompass her. On May 8, 2013, he submitted an application for a search warrant for Ms. Fisher’s phone records from March 1 to April 12, 2013. The record contains no evidence the Department actually executed a search, though. Nor did the Department ever file charges against, detain, or arrest her. It considered filing charges under C.R.S. § 18-8-405 (“Second degree official misc onduct”) but did not do so because of statute of limita tions concerns. Unhappy with the Department’s investig ation of her, Ms. Fisher filed this lawsuit against Detective Koopman and Chie f Hecker in state court—naming them in both their individual and offi cial capacities. Sh e asserted two federal claims based4 on the Fourteenth Amendment. For the firs t claim, she alleged that both men pursued a malicious prosecution against her without probable cause, focusing in particular on Detective Koopman’s applicat ion for a search warrant. For the second claim, she alleged that Chief Hecker failed to ad equately train and supervise Detective Koopman and others in the Department. Sh e also asserted ten tort claims arising under Colorado law. Against Detective K oopman, she alleged malicious prosecution, intentional infliction of emo tional distress, tortious in terference with a business relationship, abuse of process, and defama tion per se. Against Chief Hecker, she alleged negligent hiring, ne gligent supervisi on, negligent rete ntion, respondeat superior, and vicario us liability. The defendants removed the action to federal court. After the deadline passed to amend her complaint as a matter of cour se, Ms. Fisher sought le ave to add the City of Loveland as a defendant and to plead her ma licious prosecution claims as Fourth Amendment violations as well. The magistrate judge is sued a report and recommendation (R&R) to deny the motion to amend, conc luding: (1) suing the City of Loveland would be duplicative since th e defendants already we re sued in their official capacities; and (2 ) adding Fourth Amendment- based maliciou s prosecution claims would be futile since Ms. Fisher concedes she was never seized or prosecuted, as required for such claims. Ms. Fisher objected to the R&R, but the district court adopted it and denied the mo tion for leave to amend. Following extensive discovery, the defendants moved for summary judgment. They challenged the claims on the merits and also asserted qualified immunity for the5 federal claims and immunity under th e Colorado Governmental Immunity Act (CGIA) for the state claims. In her response, Ms. Fisher tried to salvage the federal claims by again seeking to add Fourth Am endment claims; in th e alternative, she asked the district court to treat her pe nding claims as alr eady encompassing the Fourth Amendment. The district court granted summary judgmen t to the defendants. It held that the malicious prosecution claims based on the Fourteenth Amendment fail as a matter of law. It rejected the notion that the pending claims somehow include a Fourth Amendment violation, citing the plain language of the complaint and the motion to amend to add Fourth Amendment clai ms (which it again deemed futile). And it determined that the state la w claims, as a group, are s ubject to dismissal based on CGIA immunity—though it also explained why summary judgment is appropriate for each claim based on the merits and record evidence (or lack ther eof). Ms. Fisher appealed. II. ANALYSIS A. Motion for Leave to Amend Complaint In Albright v. Oliver , 510 U.S. 266, 274 (1994) (p lurality opinion), a plurality of the Supreme Court declared the Four th Amendment to be the “relevan[t]” constitutional provision to assess “the depr ivations of liberty that go hand in hand with criminal prosecutions.” The plaintiff in Albright had not included a Fourth Amendment claim in his complaint, so the Court rejected his suit. Id. at 275. Anxious to avoid the same outcome, Ms . Fisher belatedly—and unsuccessfully—6 sought permission to amend her complaint to add Fourth Amendment claims. She now appeals the denial of that request, c ognizant that our resolu tion of this issue effectively determines the fa te of her federal claims. “In general, leave to amend a complain t should be freely granted ‘when justice so requires.’” Jones v. Norton , 809 F.3d 564, 579 (1 0th Cir. 2015) (quoting Fed. R. Civ. P. 15(a)(2)), cert. denied , 137 S. Ct. 197 (2016). But there are a number of well established reasons to deny leave to amend, including futility of amendment. Minter v. Prime Equip. Co. , 451 F.3d 1196, 1204 (10th Ci r. 2006). “A proposed amendment is futile if the co mplaint, as amended, would be subject to dismissal.” Fields v. City of Tulsa , 753 F.3d 1000, 1012 (10th Ci r. 2014) (internal quotation marks omitted). “[W]e genera lly review for abuse of di scretion a district court’s denial of leave to amend a complaint.” Cohen v. Longshore , 621 F.3d 1311, 1314 (10th Cir. 2010). But where, as here, denial is based on a futility determination, “our review for abuse of discretion includes de novo review of the legal basis for the finding of futility.” Id. (internal quotation marks omitted). Ms. Fisher contends the di strict court’s futility asse ssment was erroneous for two reasons. First, she ar gues a search without a seiz ure can support a claim for malicious prosecution. Sec ond, she asserts it is enough that Detective Koopman and the Department “conducted a criminal inve stigation, presented possible (false) charges to a court to obtain a search warr ant, and formally s ubmitted a criminal charge to the district atto rney.” Aplt. Opening Br. at 25. Our precedent holds otherwise.7 “We have repeatedly recognized in this circuit that, at least prior to trial, the relevant constitutional underp inning for a claim of malicious prosecution under § 1983 must be the Fourth Amendment’s right to be free from unreasonable seizures ,” rather than the F ourteenth Amendment’s due process guarantees. Becker v. Kroll , 494 F.3d 904, 914 (10th Cir. 2007) (internal quot ation marks omitted) (emphasis added). The seizur e requirement is incorporated into the elements for a Fourth Amendment-based ma licious prosecution claim under § 1983: “(1) the defendant caused the plaintiff’s continued confinement or prosecution ; (2) the original action terminated in favor of the plaintiff; (3) no prob able cause supported the original arrest, continued confin ement, or prosecution ; (4) the defendant acted with malice; and (5) the plai ntiff sustained damages.” Wilkins v. DeReyes , 528 F.3d 790, 799 (10th Cir. 200 8) (emphasis added). In Becker , we discussed seizures of both property and persons. See 494 F.3d at 914-17. Ms. Fisher cannot establish eith er, even under the mo st generous version of the facts. She does not allege any search or seizure of her pho ne records or other property. And we have refu sed to “expand Fourth Amendm ent liability” to cases in which “the plaintiff has not been arrested or incarcerated.” Id. at 915; see also id. (“A groundless charging decision may abuse the criminal pr ocess, but it does not, in and of itself, violate the Fourth Ame ndment absent a significant restriction on liberty.”). Ms. Fisher exp licitly concedes she was not charged with a crime or confined. See, e.g. , Opening Br. at 8 (“The investig ation and any pr osecution were terminated prior to the filin g of criminal charges.”); id. at 25 (“It is already settled that8 Fisher was not arrested or imprisoned during this event. In fact, it is also not disputed that Fisher was even charged with a crime (the activity being complained of having terminated without charges).”). Under these circumstances, we discern no abuse of discretion in the district c ourt’s denial of he r motion as futile. B. Summary Judgment Motion Ms. Fisher also challenges the distri ct court’s summary judgment ruling. We review the grant of su mmary judgment de novo, applyi ng the same st andard the district court applied. Cillo v. City of Greenwood Vill. , 739 F.3d 451, 461 (10th Cir. 2013). Summary judgment must be granted if “there is no genuine dispute as to any material fact and the mo vant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When applying this standard, “[w]e must vi ew facts in the light most favorable to the non-moving part[y]” and “resol v[e] all factual disputes and reasonable inferences in [her] favor.” Cillo , 739 F.3d at 461 (int ernal quotation marks omitted). Once again we agree with the district court. As a th reshold matter, Ms. Fisher did not present a “competen t factual record” in oppos ing summary judgment. See R., Vol. 1 at 92. For example, she failed to comply with prac tice standards that require the non-moving party to admit or de ny each enumerated fact a sserted by a defendant, she did not include appropria te citations to evidence to supp ort her own statement of facts, and the limited record evidence ci ted does not support her statements. See R., Vol. 1 at 92-94. Her appellate briefs are similarly flawed, as they consist largely of unsubstantiated statements wi thout any “citations to the . . . parts of the record on9 which [she] relies,” as require d by Fed. R. App. P. 28(a) (8)(A). Even with these deficiencies, however, it is clear the “claim s fail as a matter of law under any version of the facts put forward. ” R., Vol. 1 at 94. 1. Federal Claims for Ma licious Prosecution Turning first to the federal claims, both of Ms. Fisher’s malicious prosecution claims are based on the Fourteenth Amendment. But we explained in Becker that a plaintiff “must allege a violation of the Fo urth Amendment in order to proceed on a theory of § 1983 malicious pr osecution.” 494 F.3d at 919. Becker thus presents an insurmountable obstacle to th e § 1983 claims: Because Ms . Fisher did not (and cannot) allege a Fourth Amendment violation, her fe deral malicious prosecution claims have no constitutional violation to sustain them. The lack of a constitutional violation likewise dooms the official capacity claims against Detective Koopman and Chief Hecke r. An official capacity suit against a municipal official like a police officer is tr eated as a suit against the municipality. Watson v. City of Kansas City, Kan. , 857 F.2d 690, 695 (1 0th Cir. 1988). And “a municipality may not be held liable wh ere there was no unde rlying constitutional violation by any of its officers.” Graves v. Thomas , 450 F.3d 1215, 1218 (10th Cir. 2006). Likewise, the failure to train and supervise claim agains t Chief Hecker fails without a constitutional violation. See Aplt. Reply Br. at 11 (“conc ed[ing]” this claim is “appropriately dismissed” “if there is no underlying constitutional violation”). Boxed in, Ms. Fisher tries to overcome the ramifications of Becker with a brand new argument: The Fourteenth Amendment can sustain a malicious prosecution claim10 where no adequate state remedy exists. And Colorado does not have an adequate remedy because the potential for qualified immun ity under the CGIA dilutes due process protections. We decline to consider this bela ted contention. “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff , 428 U.S. 106, 120 (1976); see also Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10th Cir. 20 11) (explaining that a theory not raised before the trial court is forfeited). We “will reverse a district court’s judgment on the basis of a forfeited theory only if failing to do so would entrench a plainly erroneous result.” Richison , 634 F.3d at 1128. That is decidedly not the case here. 2. State Law Claims Last, Ms. Fisher challenges th e district court’s findings for all of her state law claims, without going into any depth on how the court purportedly erred. We affirm the summary judgment grant on th e state law claims for subs tantially the same reasons outlined in the district court’s thorough and well reasoned order dated August 1, 2016. The district court correctly explained why all of these claims fail under the CGIA, which immunizes Detective Ko opman and Chief He cker from suit because Ms. Fisher has not established wi llful and wanton behavior. It also und ertook a painstakingly detailed analysis of each claim, in wh ich it explained why summary judgment is appropriate based on the merits and a lack of record ev idence. We have nothing to add to the district c ourt’s assessment.11 III. CONCLUSION We affirm the district court’s denial of Ms. Fisher’s motion to amend the complaint and its grant of summary judgment.

Entered for the Court
Mary Beck Briscoe Circuit Judge