FILED

United States Court of Appeals

Tenth Circuit

December 14, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DESIREE HERRERA, 

Plaintiff-Appellant,

v. No. 09-2010

CITY OF ALBUQUERQUE;

OFFICER M. L. O’BRIEN, in her

individual capacity; JOHN DOES I

through V, in their individual

capacities,

 Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 2:CIV-07-01128-LAM)

David Meilleur, (Nancy L. Simmons, Law Offices of Nancy L. Simmons, P.C.,

Albuquerque, New Mexico, on the briefs), Albuquerque, New Mexico, for

Plaintiff-Appellant.

Erika E. Anderson of Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, for

Defendants-Appellees Officer M. L. O’Brien and City of Albuquerque.

Before BRISCOE, McKAY, and HARTZ, Circuit Judges.

BRISCOE, Circuit Judge.
2

Plaintiff Desiree Herrera appeals from the district court’s grant of qualified

immunity in favor of defendant Maureen O’Brien, and from the district court’s

entry of final judgment in favor of defendants on her claims pursuant to 42 U.S.C.

§ 1983. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Factual background

On October 5, 2005, Albuquerque police officer Maureen O’Brien

responded to a call of domestic violence at Herrera’s apartment. When O’Brien

arrived at the apartment, she encountered Herrera, who at the time was sixteen

years old. Herrera stated that she and her boyfriend, Tomas Jaramillo, had been

arguing and that Jaramillo struck her. Herrera further stated that Jaramillo left

the apartment after the incident, leaving her and her then-three-year-old son, who

was asleep in the bedroom, as the only occupants. Herrera also admitted that she

had been drinking alcohol. 

O’Brien walked through the apartment and observed that it was “filthy,”

with “razors, food, cigarette butts, and clothes on the floor.” App. at 46. O’Brien

noticed that “the bathtub was full of black water and had a foul odor.” Id.

O’Brien also observed “a vicious pit bull chained up in the backyard that had

access into the kitchen” of the apartment. Id. at 58. When O’Brien commented

on the condition of the apartment, Herrera “responded by stating that she was in

the process of moving out.” Id. at 31. When O’Brien questioned Herrera about
1

 At her deposition, Herrera conceded that her son had been in the bathroom

on the day of the domestic violence call and had dropped a diaper into the

bathtub. Id. at 156. Herrera also conceded at her deposition that her son had a

scratch from playing with the pit bull. Id. at 157. There is no indication in the

record, however, that O’Brien was aware of these facts at the time she arrested

Herrera.

3

the “state of the tub,” Herrera “informed [O’Brien] that the tub had been backing

up and that they had spoken to the landlord about the situation.” Id. at 32. 

Herrera also claimed to have “been using someone else’s bathroom to bathe her

child.”1

 Id.

O’Brien decided, based upon the unsanitary conditions of the apartment, to

contact New Mexico’s Child, Youth & Families Department (CYFD). A CYFD

worker arrived on the scene and paramedic services were contacted in order to

check the health of Herrera’s son. The paramedic examination indicated that the

child was in good health. O’Brien also contacted the City of Albuquerque’s

nuisance abatement officials based on her concerns that the apartment complex

was not up to city code.

Ultimately, O’Brien arrested Herrera for violating New Mexico’s child

abuse statute, N. M. Stat. § 30-6-1. O’Brien did so because she was concerned

that Herrera’s son “could hurt himself by picking up the razor blades that were on

the floor, ingesting the cigarette butts on the floor, being attacked by the pitbull

in the kitchen or drowning in the sewage that was in the bathtub.” Id. at 153. 

O’Brien was also concerned “that the child could have sustained an infection due
4

to the sewage in the bathtub.” Id. at 154. Lastly, O’Brien “had concerns because

. . . Herrera had disclosed . . . that she had been drinking alcohol . . . that

evening.” Id.

Herrera spent one day in jail as a result of the arrest. Apparently, the

criminal charges against her were dismissed.

Procedural background

In 2007, Herrera filed suit in New Mexico state court against the

Albuquerque Police Department (APD), the City of Albuquerque (City), O’Brien,

and John Does I through V, whom she alleged “were involved in hiring, training,

supervising or disciplining” O’Brien. Id. at 15. Herrera’s complaint summarized

the events leading to her arrest on October 5, 2005, and asserted causes of action

under the New Mexico Tort Claims Act (Count I) and 42 U.S.C. § 1983 (Counts

II and III). Herrera’s § 1983 claims were based on her assertion that O’Brien

violated her Fourth Amendment rights by arresting her without probable cause.

On November 8, 2007, defendants removed the case to federal district

court, noting that Herrera’s “right to bring an action for the alleged violation of

h[er] constitutional rights was created by federal law, specifically 42 U.S.C. §

1983,” and that the federal district court thus “ha[d] federal question jurisdiction”

over the action. Id. at 13. Shortly after the removal, Herrera voluntarily

dismissed her claims against APD. 

On August 21, 2008, Herrera filed a motion for summary judgment on the
5

issue of defendant O’Brien’s individual liability on her § 1983 and tort claims. In

that motion, Herrera argued “that her arrest was not supported by probable cause .

. . .” Id. at 33. The City and O’Brien filed a response in opposition to Herrera’s

motion, arguing that the question of whether O’Brien had probable cause to arrest

Herrera involved genuine issues of material fact and could not be resolved as a

matter of law. 

On November 24, 2008, the district court issued an order granting Herrera’s

motion for summary judgment on the issue of defendant O’Brien’s individual

liability. In that order, the district court first concluded that Herrera had “met her

initial burden of establishing that no genuine issue exist[ed] as to any material

fact, and that Defendants ha[d] failed to set forth specific facts showing that there

[wa]s a genuine issue for trial.” Id. at 89. In turn, the district court concluded

“that a reasonable officer with the same facts before him or her [as O’Brien]

would not have arrested [Herrera] without a warrant.” Id. at 95. In other words,

the district court concluded, as a matter of law, “that . . . O’Brien arrested

[Herrera] without probable cause.” Id. at 96. Accordingly, the district court

concluded that “O’Brien [wa]s liable under the New Mexico Tort Claims Act and

42 U.S.C. § 1983 for arresting [Herrera] under N.M.S.A. § 30-6-1 without

probable cause.” Id. at 97.

On December 1, 2008, the City and O’Brien filed a motion for

reconsideration of the district court’s order granting summary judgment in favor
6

of Herrera on the issue of O’Brien’s individual liability. The City and O’Brien

asserted that they “[we]re not taking issue with the Court’s reasoning, but [we]re

asking that, as a matter of law, the Court find that . . . O’Brien [wa]s entitled to

qualified immunity and [thus was] immune from suit.” Id. at 120. Although

defendants conceded “the issue of qualified immunity was not raised in [their]

Response to [Herrera’s] Motion for Summary Judgment,” they noted “it was

raised as an affirmative defense in [their] Answer to the Complaint as well as in

the Pretrial Order,” and, under Tenth Circuit law, could be raised at any time. Id.

at 121. As for the merits of the qualified immunity issue, defendants argued that

the district court “ha[ving] determined that there was a constitutional violation

based upon the facts presented to the Court,” “must now consider whether . . .

O’Brien’s conduct violated clearly established law.” Id. at 122. On that issue,

defendants argued, the district court expressly noted in its order granting

summary judgment for Herrera “that whether . . . O’Brien had probable cause to

arrest [Herrera] was a ‘close case,’” and “[b]ecause th[e] case [wa]s a ‘close case’

it would not have been clear to a reasonable officer what the law required.” Id.

In her response to defendants’ motion for reconsideration, Herrera argued,

in pertinent part, that 

because the existence of probable cause [wa]s the determinative

factor in both an unlawful arrest analysis as well as a qualified

immunity analysis, and . . . because th[e] Court ha[d] already

thoroughly examined the probable cause issue and found probable

cause to be lacking such that a reasonable officer would realize that
2

 Shortly after filing her response, Herrera voluntarily dismissed her § 1983

claim against the City, her claims for punitive damages against O’Brien, and all

claims asserted against John Does I through V. App. at 124. 

7

the effectuation of an arrest under the circumstances would be

unlawful and in violation of both federal and state law, . . . there

[wa]s no further analysis that need[ed] to be performed by th[e]

Court.

Id. at 139.2

On December 19, 2008, the district court issued a memorandum opinion

and order granting in part and denying in part defendants’ motion for

reconsideration. The district court denied the motion to the extent defendants

were seeking reconsideration of the court’s order under Fed. R. Civ. P. 59(e)

because, in the court’s view, defendants were “clearly attempting to use Rule

59(e) to raise legal arguments that they could have and should have raised prior to

judgment.” App. at 179 (internal quotation marks and brackets omitted). The

district court granted the motion, however, to the extent it sought a determination

that O’Brien was entitled to qualified immunity and was thus immune from

liability. Focusing on whether the constitutional right at issue was clearly

established at the time of Herrera’s arrest, the district court concluded that the

case law “interpreting New Mexico’s child abuse statute,” N.M. Stat. § 30-6-1,

was not clearly established at the time of Herrera’s arrest, and that, in turn, an

officer could have, based upon the circumstances encountered at Herrera’s

apartment, reasonably but mistakenly concluded that Herrera had violated the
8

child abuse statute by placing her son “in a zone of danger.” Id. at 182. In other

words, the district court concluded that “[a]n officer’s mistaken belief that he or

she could arrest on these undisputed facts [wa]s not objectively unreasonable

given that [the] New Mexico courts ha[d] continued to clarify what constitute[d] a

crime under N.M.S.A. § 30-6-1 since the time of [Herrera’s] arrest.” Id. The

district court in turn concluded that O’Brien was “entitled to qualified immunity.” 

Id. at 186. Lastly, the district court concluded that, “[b]ecause there [we]re no

federal claims remaining after finding qualified immunity for . . . O’Brien,” “the

best course of action would be to decline to exercise its supplemental jurisdiction

and allow the New Mexico state courts to decide the issues of state law that

remain[ed].” Id. at 187.

 On December 19, 2008, the district court entered final judgment against

Herrera “on all federal claims” and remanded “all state claims” to New Mexico

state court “for further proceedings . . . .” Id. at 189.

II

Herrera raises two issues on appeal. First, she argues that the district court

“erred in granting qualified immunity to” O’Brien. Aplt. Br. at 1. In support of

this argument, Herrera asserts that “New Mexico’s criminal law with respect to

the crime that [she] was arrested for is, and was, clearly established such that a

reasonable officer would have been on notice of what would constitute probable

cause for an arrest under the circumstances” presented here. Id. Second, Herrera
9

argues that, “irrespective of whether qualified immunity shields [O’Brien] from a

suit seeking damages,” id. at 2, she is entitled to a resolution of her requests for

equitable relief, which included “both a declaratory judgment that her arrest and

subsequent detention was unlawful, and injunctive relief in the form of

expungement of her arrest record with respect to the incident” in question. Id. at

1. We conclude, for the reasons outlined below, that both of these issues lack

merit.

Qualified immunity

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two

important interests–the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Id. “The

protection of qualified immunity applies regardless of whether the government

official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed

questions of law and fact.” Id. (internal quotation marks omitted); see Hunter v.

Bryant, 502 U.S. 224, 229 (1991) (“The qualified immunity standard gives ample

room for mistaken judgments by protecting all but the plainly incompetent or
10

those who knowingly violate the law.” (internal quotation marks omitted)).

Resolution of a dispositive motion based on qualified immunity involves a

two-pronged inquiry. “First, a court must decide whether the facts that a plaintiff

has alleged or shown make out a violation of a constitutional right.” Pearson, 129

S. Ct. at 815-16 (internal citations omitted). “Second, . . . the court must decide

whether the right at issue was ‘clearly established’ at the time of the defendant’s

alleged misconduct.” Id. at 816. “With regard to this second [prong], the

relevant, dispositive inquiry in determining whether a right is clearly established

is whether it would be clear to a reasonable officer that his conduct was unlawful

under the circumstances presented.” Fogarty v. Gallegos, 523 F.3d 1147, 1155

(10th Cir. 2008) (internal quotation marks and brackets omitted). A reviewing

court may “exercise [its] sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 129 S. Ct. at 818. 

“Qualified immunity is applicable unless” the plaintiff can satisfy both prongs of

the inquiry. Id. at 816. We review de novo a district court’s qualified immunity

ruling. Weigel v. Broad, 544 F.3d 1143, 1150 (10th Cir. 2008).

Here, Herrera alleged that O’Brien violated her Fourth Amendment rights

by arresting her, without probable cause, for violating N.M. Stat. Ann. § 30-6-1. 

In considering O’Brien’s qualified immunity defense, the district court resolved

the first prong of the qualified immunity inquiry in favor of Herrera by
11

concluding, based upon the uncontroverted facts leading up to Herrera’s arrest,

combined with the New Mexico case law existing at the time of its decision, that

O’Brien lacked probable cause to arrest Herrera for violating § 30-6-1. The

district court, however, resolved the second prong of the inquiry in favor of

O’Brien, concluding that, based upon New Mexico law existing at the time of the

arrest, an officer in O’Brien’s position could have reasonably (but mistakenly)

concluded that probable cause existed to arrest Herrera for violating § 30-6-1. 

Herrera challenges this second determination. More specifically, Herrera asserts

that the district court’s conclusion on the first prong of the inquiry should have

been controlling as to the second prong of the inquiry.

Herrera is mistaken on this point. “One purpose of qualified immunity is

that we do not force public officials to guess how the law will have developed by

the time their actions are scrutinized in federal court.” Swanson v. Town of

Mountain View, 577 F.3d 1196, 1200 (10th Cir. 2009). “Instead, we look to the

relevant precedents at the time of the challenged actions and the obviousness of

the violation in light of them.” Id. Thus, even though it may now be clear that

probable cause was lacking for Herrera’s arrest (as the district court determined in

assessing the first prong of the qualified immunity inquiry), the critical question

under the second prong of the qualified immunity inquiry is whether, at the time

of the arrest, O’Brien could have reasonably concluded that probable cause

existed for the arrest. See Anderson v. Creighton, 483 U.S. 635, 641 (1987)
12

(holding that, under the doctrine of qualified immunity, “law enforcement

officials will in some cases reasonably but mistakenly conclude that probable

cause is present, and . . . in such cases those officials . . . should not be held

personally liable.”). Necessarily, resolution of this second prong inquiry is

governed by “cases published before” Herrera’s arrest. Swanson, 577 F.3d at

1200. We may “also examine cases published after the [arrest] to the extent they

shed light on the fact that the law was not clearly established at the relevant

time.” Id.

From a general standpoint, it was clearly established, at the time of

Herrera’s arrest, that “a government official must have probable cause to arrest an

individual.” Fogarty, 523 F.3d at 1158-59 (internal quotation marks omitted). 

Further, it was clearly established at the time of Herrera’s arrest that “[t]he

principal components of a determination of . . . probable cause” include “the

events which occurred leading up to the” arrest, “and then the decision whether

these historical facts, viewed from the standpoint of an objectively reasonable

police officer, amount to . . . probable cause.” Ornelas v. United States, 517 U.S.

690, 696 (1996). It was also clearly established that “[t]he first part of th[is]

analysis involves only a determination of historical facts, but the second is a

mixed question of law and fact . . . .” Id. In other words, the second part of the

analysis hinges on “‘whether the [applicable] rule of [criminal] law as applied to

the established facts [wa]s or [wa]s not violated.’” Id. at 697 (quoting Pullman-
13

Standard v. Swint, 456 U.S. 273, 289, n.19 (1982)). 

Because the historical facts leading up to Herrera’s arrest are

uncontroverted, the focus of the second prong of the qualified immunity analysis

in this case hinges on the state of applicable New Mexico criminal law at the time

of Herrera’s arrest. As noted, O’Brien arrested Herrera for violating N.M. Stat.

Ann. § 30-6-1. That statute, entitled “Abandonment or abuse of a child,”

provides, in pertinent part:

A. As used in this section:

(1) “child” means a person who is less than eighteen years of

age; 

(2) “neglect” means that a child is without proper parental care

and control of subsistence, education, medical or other care or

control necessary for the child's well-being because of the

faults or habits of the child’s parents, guardian or custodian or

their neglect or refusal, when able to do so, to provide them;

and 

(3) “negligently” refers to criminal negligence and means that

a person knew or should have known of the danger involved

and acted with a reckless disregard for the safety or health of

the child. 

* * *

D. Abuse of a child consists of a person knowingly, intentionally or

negligently, and without justifiable cause, causing or permitting a

child to be:

(1) placed in a situation that may endanger the child’s life or

health; 

(2) tortured, cruelly confined or cruelly punished; or 
14

(3) exposed to the inclemency of the weather. 

E. A person who commits abuse of a child that does not result in the

child’s death or great bodily harm is, for a first offense, guilty of a

third degree felony and for second and subsequent offenses is guilty

of a second degree felony. If the abuse results in great bodily harm

to the child, the person is guilty of a first degree felony.

N.M. Stat. Ann. § 30-6-1 (emphasis added). Although O’Brien’s police report

detailing Herrera’s arrest did not specify the particular subsection of § 30-6-1 that

she believed had been violated, O’Brien now asserts, and the record on appeal

confirms, that she believed that Herrera had violated subsection (D)(1) of the

statute by knowingly, intentionally or negligently, and without justifiable cause,

causing or permitting her son to be placed in a situation that might endanger his

life or health.

Significantly, at the time of Herrera’s arrest, there was ambiguity in New

Mexico case law regarding how much risk a child had to be exposed to in order to

result in a violation of § 30-6-1(D)(1). The crime alleged in § 30-6-1(D)(1) has

generally been classified by the New Mexico courts as “[c]hild abuse by

endangerment,” a “special classification designed to address situations where an

accused’s conduct exposes a child to a significant risk of harm, ‘even though the

child does not suffer a physical injury.’” State v. Chavez, 211 P.3d 891, 896

(N.M. 2009) (italics in original; quoting State v. Ungarten, 856 P.2d 569, 571

(N.M. Ct. App. 1993)). Between 1993 and 2009, the New Mexico courts

“interpreted the phrase ‘may endanger,’” as used in § 30-6-1, “to require a
15

‘reasonable probability or possibility that the child will be endangered.’” Id.

(italics in original; quoting Ungarten, 856 P.2d at 571). “In application, however,

this standard . . . created uncertainty in child endangerment cases because

‘probability’ and ‘possibility’ connote two different levels of risk.” Id.

“‘Probability’ conveys a certain likelihood that a result will occur, whereas

‘possibility’ means that something is merely capable of occurring.” Id. “As an

unintended consequence,” the New Mexico courts’ “use of both terms to define

endangerment . . . left unclear the amount or degree of risk necessary to support a

conviction.” Id. 

To rectify this problem, the New Mexico Supreme Court (NMSC), in June

of 2009, “t[ook] th[e] opportunity to examine whether [it] should employ a more

precise terminology in describing the degree of risk to which a child must be

exposed before it can constitute criminal child endangerment.” Id. In doing so,

the NMSC first concluded that, out of “concerns for adequate notice and fairness

to the accused,” “the relevant conduct must create more than a ‘possibility’ of

harm before it may be punished as a felony” under § 30-1-6(D)(1). Id. In turn,

the NMSC concluded that “a standard that requires proof of a strict probability

under all circumstances poses too rigid a bar in its application.” Id. at 897. 

Accordingly, the NMSC “look[ed] to the Uniform Jury Instruction on child

endangerment for guidance on the endangerment standard,” and held that the

appropriate standard was whether the “defendant’s conduct created a substantial
16

and foreseeable risk of harm.” Id. (internal quotation marks omitted). 

After “clarif[ying] the appropriate endangerment standard,” the NMSC

proceeded to address “the sufficiency of the evidence necessary to prove a

criminal violation” of § 30-6-1(D)(1). Id. at 898. In doing so, the NMSC noted

that it had never before addressed the question of “whether a filthy home

environment [wa]s sufficient on its own to support a felony endangerment

conviction.” Id. at 899. Instead, the NMSC noted, its prior cases had involved

combinations of filthy home conditions and criminal conduct on the part of the

defendant (e.g., allowing the minor child to ingest alcohol; allowing the minor

child to look at adult pornographic websites). Id. The NMSC ultimately

concluded “that particularly egregious living conditions c[ould] conceivably fall

within the ambit of criminal child endangerment.” Id. The court emphasized,

however, that when filthy living conditions provide the exclusive basis for

charging a defendant with child endangerment, the State must establish that there

was a substantial and foreseeable risk that those filthy living conditions

endangered the child. Id. at 900.

Chavez thus establishes that, at the time of Herrera’s arrest in October of

2005, an officer in O’Brien’s position could reasonably have concluded that it

was sufficient to give rise to a violation of § 30-6-1(D)(1) if the conditions found

in Herrera’s apartment created the mere “possibility” of harm occurring to

Herrera’s son. In turn, an officer in O’Brien’s position could have reasonably
17

concluded that several of the conditions found to exist in the apartment actually

created such a possibility. Specifically, an officer could have reasonably

concluded that: (1) the razor blades found on the floor created the possibility of

the child cutting himself; (2) the standing waste found in the bathtub created the

possibility of the child sustaining an infection or, worse yet, drowning; (3) the

cigarette butts on the floor posed a possible risk of the child picking them up and

ingesting them; and (4) the pitbull in the yard, which had access to the kitchen,

posed a possible risk of harm to the child. A reasonable officer in O’Brien’s

position could also have taken into account Herrera’s illegal act, as a minor, of

ingesting alcohol, and could have concluded that this act, at a minimum,

heightened the possibility of the child being harmed from one or more of the other

factors outlined above. 

Because an officer in O’Brien’s position could have reasonably concluded

that probable cause existed to arrest Herrera for violating N.M. Stat. Ann. § 30-6-

1(D)(1), the district court properly held that O’Brien was entitled to qualified

immunity from Herrera’s § 1983 claims.

Equitable relief

In her second issue on appeal, Herrera contends that the district court erred

in dismissing her action without addressing her claims for equitable relief. In

support of this contention, Herrera asserts that she “requested both a declaratory

judgment that her arrest and subsequent detention was unlawful, and injunctive
18

relief in the form of expungement of her arrest record with respect to the incident

complained of.” Aplt. Br. at 1-2. In turn, Herrera asserts she “is entitled to a

resolution of those claims, irrespective of whether qualified immunity shields

[O’Brien] from a suit seeking damages.” Id. at 2. 

In order to determine whether this issue was properly preserved and, in

turn, what standard of review we should apply to this issue, we begin by outlining

the procedural history of the issue in the district court. Herrera correctly notes

that her first amended complaint included a request “for a declaratory judgment

that [her] arrest was without probable cause and for injunctive relief expunging

all record of her arrest . . . .” App. at 18. According to the record, however,

Herrera made no further mention of her request for declaratory relief. At the

pretrial conference on November 26, 2008, Herrera’s counsel advised the district

court that Herrera’s “request for expungement of [her] arrest record [wa]s . . . still

at issue,” but was silent with respect to the possibility of declaratory relief. Id. at

99. The district court’s pretrial order, issued immediately after the pretrial

conference, in turn made no mention of the original request for declaratory relief. 

Lastly, Herrera made no mention of the possibility of declaratory relief in any of

her dispositive pleadings.

In light of this procedural history, we conclude that Herrera abandoned her

request for declaratory relief during the course of the district court proceedings. 

Therefore, we need not address her arguments to the extent they concern
19

declaratory relief. See generally North Am. Specialty Ins. Co. v. Britt Paulk Ins.

Agency, Inc., 579 F.3d 1106, 1112 n.5 (10th Cir. 2009) (declining to address

argument not raised below).

As for Herrera’s request for injunctive relief, the district court asked the

parties during the pretrial conference whether it “ha[d] authority to expunge a

juvenile’s arrest record in state court, especially if the record ha[d] been entered

in the NCIC database?” App. at 99. Defense counsel argued, in response to the

district court’s question, that “[e]xpungement [wa]s governed by state law and

there [wa]s a high standard.” Id. Defense counsel further argued that “[u]sually,

requests such as these are handled by agreeing to seal the record if the juvenile

does not have any arrests for two years.” Id. Ultimately, “[t]he parties agreed to

attempt to resolve this issue by stipulation as to a motion to seal [Herrera’s]

juvenile arrest record, and [to] notify the [district court] of the status of this issue

by Wednesday, December 10, 2008.” Id. (emphasis in original). 

On December 1, 2008, defendants moved for reconsideration of the district

court’s order granting summary judgment in favor of Herrera on the issue of

O’Brien’s individual liability (which, as noted, the district court construed as both

a motion for reconsideration and a motion for qualified immunity). On December

4, 2008, Herrera voluntarily dismissed her § 1983 claims against the City and the

John Does listed in her first amended complaint. On December 5, 2008, Herrera

filed a response to the defendants’ motion for reconsideration. According to the
20

record, however, no further pleadings were filed by either side regarding the issue

of expungement of Herrera’s arrest records. On December 19, 2008, the district

court granted in part and denied in part defendants’ motion for reconsideration. 

The district court then, on that same date, entered final judgment in favor of

defendants and remanded the case and all remaining state law claims to state

district court. Herrera did not file a motion for reconsideration or any other type

of pleading asking the district court to rule on her request for expungement of her

arrest records. Instead, she simply filed a notice of appeal.

Given this procedural history, we conclude that Herrera “did not preserve

th[e] issue for appeal.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497

F.3d 1135, 1142 (10th Cir. 2007). From the district court’s perspective, it was

informed by the parties at the time of the November 26, 2008 pretrial conference

that they would attempt to resolve the issue “by stipulation as to a motion to seal

[Herrera’s] juvenile arrest record.” App. at 99. At no point after that time did

either side file a pleading addressing the expungement issue. Most notably,

Herrera did not mention the request for expungement either in her response to the

defendants’ motion for reconsideration, or by filing her own motion for relief

from judgment after the district court granted O’Brien’s motion for qualified

immunity and entered final judgment. In short, Herrera never presented to the

district court the arguments she now asserts on appeal.

Defendants, in their appellate response brief, mention the plain error
21

standard, but argue that Herrera cannot satisfy it. Aplee. Br. at 18. Notably,

Herrera makes no mention of the plain error standard, either in her opening

appellate brief or in her appellate reply brief. For that reason alone, we conclude

she has failed to carry the “nearly insurmountable burden,” Quigley v. Rosenthal,

327 F.3d 1044, 1063 (10th Cir. 2003) (internal quotation marks omitted), that the

plain error standard imposes.

Even were we to overlook Herrera’s failure to address the plain error

standard in her appellate pleadings, it is clear that she cannot satisfy that

standard. “To show plain error,” Herrera “would have to show (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.” Duffield v.

Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) (internal quotation marks omitted). 

In light of Herrera’s own failure to properly raise the expungement issue before or

after the entry of final judgment, the district court did not err in dismissing her §

1983 claims without addressing whether or not she was entitled to expungement

of her arrest record. Indeed, the district court had every right to assume that the

parties had effectively resolved the expungement issue by agreeing to seal

Herrera’s juvenile arrest record. Further, given Herrera’s voluntary dismissal of

her § 1983 claims against both the City and the APD, the district court could

reasonably have concluded that the request for injunctive relief in connection with

Herrera’s § 1983 claims had been rendered moot, as the only remaining
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defendant, O’Brien, could not provide the remedy sought. Moreover, it is

doubtful that Herrera could establish that any error on the part of the district court

affected her substantial rights. Pursuant to the district court’s final judgment,

Herrera’s remaining state law claims were returned to state district court, where

she could presumably seek, if necessary, to have her arrest record sealed or

expunged. And, for that same reason, any error on the part of the district court

did not result in a miscarriage of justice that seriously affected the fairness,

integrity or public reputation of judicial proceedings.

AFFIRMED.