* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 6 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NASRULLA KHAN,

Plaintiff-Appellant,

v. DAVID H. LUCAS; R.L. LYTHGOE; MICHAEL JUNK; OGDEN CITY CORPORATION; NORMAN ASHTON; MARK DECARIA; JAN GRAHAM; DAN DAVIS; LARRY CHATTERTON; SCOTT THORLEY; WEBER COUNTY; U.S. ATTORNEY; STATE OF UTAH; UNITED STATES OF AMERICA; FEDERAL BUREAU OF INVESTIGATION, Utah District,

Defendants-Appellees. No. 01-4039 (D.C. No. 98-CV-133-ST) (D. Utah)

ORDER AND JUDGMENT *

Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.1 Mr. Khan has declined to pursue his claims against any of the federal

defendants on appeal. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellant Nasrulla Khan, appearing pro se, challeng es district court rulings dismissing his civil rights claims against the county and state defendants, and granting summary judgment on his civil rights claim s in favor of the city defendants. 1 We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Background For purposes of reviewing the district court’s deci sion on the motions to dismiss, we accept all of Mr. Khan’s well-pleaded allegations as true. See Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). In reviewing the grant of summary judgment, we viewthe evidence and reasonable inferences drawn from the evidence in th e light most favorable to Mr. Khan. See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse
Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). The facts are set forth below in accordance with these principles.-3-

Mr. Khan complained to Ogden City police that he wa s receiving repeated harassing phone calls, that he was being stalked, and that on at least one occasion another automobile had forced him off the road. Th e police did not investigate these complaints to Mr. Khan’s satisfaction. Mr. K han further alleges, among other things, that police officers made false state ments and omissions in their reports of his complaints, and that the police ente red his apartment without his consent when he was not home to search for “bugs” o n his telephone line. Mr. Khan lodged complaints with officials at the co unty, state, and federal level about the conduct of the city officials. Non e of these efforts resulted in a response acceptable to Mr. Khan. On November 24, 1 998, Mr. Khan filed this action in the United States District Court for the District of Utah, naming as defendants the various officials he had approached. In his complaint, Mr. Khan sets forth numerous causes of action revolving arou nd the failure of the city officials to investigate the crimes against him andthe subsequent failure of the county, state, and federal officials to address the alleged violations by city officials. Mr. Khan contends that all of the defen dants conspired to violate his constitutional rights. The county and state defendants moved to dismiss, and the district court granted their motion. Next, the city defendants mo ved for summary judgment on all claims, and the district court granted this mot ion as well.2 Mr. Khan argues that any immunity is defeated by fa lse statements made by

Mr. DeCaria. We need not address this argument bec ause Mr. Khan has failed to allege facts demonstrating false statements by Mr. DeCaria. -4- II. Discussion A. The county defendants “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, b ut to assess whether the plaintiff’s complaint alone is legally sufficient t o state a claim for which relief may be granted.” Sutton , 173 F.3d at 1236 (quotation marks omitted). The legal sufficiency of a complaint is a question of law that we review de novo. See id. Here, the core of Mr. Khan’s allegations against th e county is that Mr. Khan requested the County Attorney, Mark DeCari a, take some corrective action in light of the alleged rights violations bythe city defendants, and that Mr. DeCaria failed to do so. In granting the motio n to dismiss, the district court, citing Wilson v. Meeks , 52 F.3d 1547, 1557 (10th Cir. 1995) , reasoned that Mr. Khan failed to state a claim because he provide d no authority establishing a federal right to have his complaints investigated. Further , the district court concluded that, to the extent Mr. DeCaria’s prosecu torial decisions were impugned, he was protected by absolute prosecutoria l immunity, citing Imbler v. Pachtman , 424 U.S. 409 (1976). 23 This argument misses the point that Mr. Khan’s factual allegations must

ultimately resolve into a theory of liability impli cating particular defendants for particular actions resulting in violation of an ide ntified constitutional right. -5- On appeal, Mr. Khan argues that whether a federal r ight to an investigation exists is irrelevant, because he did not ask Mr. De Caria to undertake any investigation on his behalf. He argues that he didnot assert failure to investigate as a cause of action, but merely as a fact supporti ng an overarching claim of civil rights violation. 3 This admission does not strengthen Mr. Khan’s pos ition because he fails to identify any other action that Mr. DeCaria was obligated to take on Mr. Khan’s behalf. We need not address the issue of prosecutorial immunity because we conclude that Mr. Khan has fail ed to allege any set of facts that could result in liability for Mr. DeCaria or t he county for violation of a federal right. B. The state defendants With respect to the state defendants, the district court concluded that Mr. Khan had sued the named individuals in their of ficial capacity and that their actions were therefore protected by Eleventh Amendm ent immunity. Mr. Khan argues the official nature of these individuals’ ac tions does not mandate the conclusion that they were sued in their official capacities. We are free to affirm the district court on any bas is supported by the record. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994).-6-

Even if we were to accept that Mr. Khan sued the st ate defendants in their individual capacities, they would still be entitled to qualified immunity. Qualified immunity shields government officials performing di scretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates “clearly established statutory or constitutional rights of w hich a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). As a threshold inquiry, this court must first determine whether th e facts alleged, taken in the light most favorable to the nonmoving party, show that the defendants’ conduct violated a constitutional right. See Saucier v. Katz , 121 S. Ct. 2151, 2156 (2001). Again, as with the county defendants, Mr. Khan at m ost alleges that the state defendants failed to remedy the alleged violations of the city defendants, and points to no duty of the state defendants to do so. Thus, his allegations do not support the conclusion that the state defendants vi olated any constitutional right. C. The city defendants We review the district court’s grant of summary jud gment de novo, applying the same standard as the district court: summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Simms , 165 F.3d at 1326. Here, the district court concluded that Mr. Khan’s equal protection claims against the city defendants failed in light of the absence of any allegation or4 Mr. Khan argues that he was not relying on theories of special relationship

or danger creation. Mr. Khan fails to recognize th at, by alleging that the police failed to prevent third parties from harassing and stalking him, he is required to proceed under one of these theories to prove that the city defendants owed him any duty at all. See Radecki v. Barela , 146 F.3d 1227, 1230 (10th Cir. 1998).

5 It should be noted that while Mr. Khan repeatedly a sserts that the defendants committed “many conscience-shocking acts ,” he does not recite any acts that meet that standard. His most serious all egation is that the police officers made false statements in their reports and covered up evidence of the crimes against Mr. Khan. These allegations are not backedby evidence. At most, Mr. Khan has shown that police officers failed to m ake a verbatim record of his statements in their reports. Contrary to Mr. Khan’ s contentions, this does not imply that those reports are false, that they conce al evidence, or even that they are inaccurate. This merely reveals that the police di ffered in their opinion of the significance of the evidence provided by Mr. Khan and whether it warranted further investigation. -7- evidence that Mr. Khan was treated differently thanother, similarly situated individuals, or that animus played a part in the tr eatment of his complaints. The district court further concluded that Mr. Khan’s su bstantive due process claims failed because he had provided no evidence (1) of aspecial relationship between the city defendants and himself, (2) that defendant s created a danger or increased Mr. Khan’s vulnerability in any way, 4or (3) of conduct that shocks the conscience. 5 Regarding Mr. Khan’s intentional tort claims, the court concluded that he at best alleged intentional infliction of e motional distress and that there was no evidence of outrageous and intolerable condu ct supporting that claim. We conclude that the district court’s reasoning on these points is sound.-8-

Regarding Mr. Khan’s Fourth Amendment claim, the di strict court concluded that Mr. Khan had failed to provide suffi cient evidence to allow a reasonable jury to find that Ogden City police of ficers had illegally entered his apartment. “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue that party must go beyond the p leadings and designate specific facts so as to make a showing sufficient to establi sh the existence of an element essential to that party’s case in order to survive summary judgment.” McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998) (quotation m arks omitted). Here, the only evidence on this point is Mr. Khan’s assertion that a detective told him that police officers went “into” his apartment to search for “bugs” on his telephone line. The detective assert s he told Mr. Khan that a police officer went “to” his apartment and visually inspec ted the telephone line from the outside. Mr. Khan admitted in his deposition testi mony that he had no personal knowledge of officers entering his apartment unauth orized. He does not claim, for instance, that his belongings were out of order , nor does he point to evidence suggesting how the officers would have gained acces s to the apartment or even what day they were supposedly there. Thus, even viewing the evidence in the light most f avorable to Mr. Khan, these conflicting assertions at best create a fact issue as to whether or not the-9-

detective stated to Mr. Khan that police went “into ,” rather than merely “to,” Mr. Khan’s apartment. Such a statement would not c onstitute a Fourth Amendment violation. In the absence of any evidenc e or allegation that the police actually did enter Mr. Khan’s apartment, the detective’s alleged statement alone does not create a genuine issue of material f act sufficient to defeat summary judgment on this claim. D. Conspiracy claim Mr. Khan makes an overarching allegation of a consp iracy among the various defendants to deprive him of his rights. T o prove such a conspiracy, a plaintiff must show a meeting of the minds among various defendants to violate his constitutional rights. See Tonkovich v. Kan. Bd. of Regents , 159 F.3d 504, 533 (10th Cir. 1998) (a plaintiff must allege speci fic facts showing an agreement and concerted action amongst the defendants; conclu sory allegations of conspiracy are insufficient). Here, there is no al legation or evidence, circumstantial or otherwise, indicating that there was any agreement among the various defendants. E. Motion to amend complaint Mr. Khan alleges it was error for the district court to deny his motion to amend his complaint on grounds of futility. We rev iew the district court’s denial of a motion to amend a complaint for abuse of discretion, see Ramirez v.-10-

Okla. Dep’t of Mental Health , 41 F.3d 584, 596 n.9 (10th Cir. 1994), and find n o abuse of discretion here. F. Access to the courts Finally, Mr. Khan alleges that the defendants have denied him access to the courts. This argument is presented for the first t ime in Mr. Khan’s reply brief; therefore, we need not consider it. See Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000).

III. Conclusion The judgment of the United States District Court fo r the District of Utah is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge