UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

FRANCISCO FRANCO, 

 Plaintiff-Appellant, 

v. 

THE BOARD OF COUNTY 

COMMISSIONERS FOR THE COUNTY 

OF ROOSEVELT, in its official capacity; 

CHARLENE WEBB, in her individual 

and official capacities; DAVID 

CASANOVA, in his individual and 

official capacities; TAMARA PEEL, in 

her individual and official capacities, 

 Defendants-Appellees. 

No. 14-2134

(D.C. No. 2:13-CV-00714-LH-GBW) 

(D.N.M.)

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges. 

 

 After pleading guilty to two misdemeanor charges in New Mexico state court, 

Francisco Franco was sentenced to two consecutive terms of supervised probation: 

 

* 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. 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 14, 2015

Elisabeth A. Shumaker 

Clerk of Court
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(1) an initial 364-day term that (2) was to be followed by a second, six-month term. 

Tamara Peel was assigned to supervise his probation. On March 7, 2013, the last day 

of the first term, Ms. Peel filed a motion for discharge with the state court indicating 

that Mr. Franco had been “given 364 days supervised probation” and “ha[d] 

completed the period of probation without revocation.” App. 101. That same day, 

the court ordered that Mr. Franco “be discharged from the terms of probation.” Id. 

But following this March 7 order, Mr. Franco continued to report to Ms. Peel and to 

submit to drug screening, presumably in accord with the second probationary period 

the court mandated. Several months later, Mr. Franco allegedly failed a drug test and 

was found intoxicated by a local police officer. Ms. Peel filed a motion in state court 

arguing that Mr. Franco violated the terms of his probation and asking the court to 

issue a bench warrant for his arrest. The court issued the warrant and Mr. Franco was 

arrested and held for about three weeks.

 Some time after his release, Mr. Franco filed this action against Ms. Peel, 

County Manager Charlene Webb, jail administrator David Casinova, and the 

Roosevelt County Board of Commissioners. Among other things, he alleged that 

Ms. Peel had him arrested without probable cause, and that the Board and Mr. 

Casinova are liable for false imprisonment under state law. Underlying all of his 

claims is this argument: that the state court’s March 7 order fully discharged him 

from both of his terms of probation. 
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Even if this is true, however, we agree with the district court that the 

defendants are still entitled to summary judgment as a matter of law. Turning first to 

Ms. Peel, we conclude she is entitled to qualified immunity. “Qualified immunity is 

an affirmative defense that protects government officials from personal liability 

unless their actions violate clearly established law of which a reasonable person 

would have known.” Coen v. Runner, 854 F.2d 374, 377 (10th Cir. 1988). Mr. 

Franco claims that Ms. Peel violated clearly established law by seeking a bench 

warrant for his arrest without probable cause and subjecting him to probation 

conditions after the state court had fully discharged him from probation. But 

qualified immunity protects a government officer who has made a reasonable mistake 

of fact. See Stonecipher v. Valles, 759 F.3d 1134, 1141-42 (10th Cir.), cert. denied, 

135 S. Ct. 881 (2014). And while we admit there’s ambiguity in the state court’s 

March 7 order — even the state prosecutor and a different state judge have at times 

suggested that it discharged both terms of probation — the relevant question is 

whether Ms. Peel could have reasonably concluded otherwise. On that dispositive 

score, we just don’t see room for dispute. The March 7 order explicitly referenced 

the length of the first term of probation only (364 days), and Mr. Franco continued to 

report to Ms. Peel after the order issued. Neither does he argue that he ever 

suggested to Ms. Peel that he was freed from the second term of probation. Given 

these facts, it was reasonable for her to have believed that the order discharged only 

the initial 364-day term. 
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 Mr. Franco replies that Ms. Peel is not entitled to qualified immunity because 

she is an independent contractor rather than a county employee. He maintains that 

her position with the county is like the position of the private prison guards in 

Richardson v. McKnight, 521 U.S. 399 (1997). But in holding that the guards in that 

case could not assert qualified immunity, Richardson emphasized the peculiar facts 

before it, a situation “in which a private firm, systematically organized to assume a 

major lengthy administrative task (managing an institution) with limited direct 

supervision by the government, undertakes that task for profit and potentially in 

competition with other firms.” Id. at 413. The Court itself later distinguished 

Richardson in Filarsky v. Delia, 132 S. Ct. 1657 (2012), noting that Richardson was 

based on the “various incentives characteristic of the private market in that case.” Id.

at 1667. In particular, Filarsky held that a private attorney hired by a city to assist in 

conducting an official investigation was entitled to qualified immunity, reasoning 

that “immunity under § 1983 should not vary depending on whether an individual 

working for the government does so as a full-time employee, or on some other basis.” 

Id. at 1665. We agree with the district court that Ms. Peel’s position as an 

independently contracted probation officer is a good deal more like the one in 

Filarsky than Richardson, especially given the Court’s express admonition that the 

“typical case of an individual hired by the government to assist in carrying out its 

work” will fall outside Richardson’s exception. Id. at 1667. 
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 We also affirm the grant of summary judgment on the individual capacity 

claims against Mr. Casinova and Ms. Webb. Even assuming they were personally 

involved in Mr. Franco’s detention after the state court issued the arrest warrant as 

Mr. Franco alleges, it’s long since settled that “an official charged with the duty of 

executing a facially valid court order enjoys absolute immunity from liability for 

damages in a suit challenging conduct prescribed by that order.” Valdez v. City & 

County of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989). And as we’ve seen, the 

warrant was at least that, appearing valid on its face. 

 To be sure, Mr. Franco also argues that the jail in which he was detained has a 

“policy or custom” of holding individuals without valid charges. Bryson v. 

Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Hinton v. City of 

Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). But Mr. Franco’s only evidence of 

such a policy or custom is an affidavit from George Rowan, a former jail employee. 

And we agree with the district court that this affidavit is insufficient to suggest a 

triable question of fact. Mr. Rowan does not describe his job responsibilities at the 

jail, does not indicate how he might have personal knowledge of relevant policies and 

procedures at the jail, and does not identify any facts that would allow a rational juror 

to conclude that the county had a practice of unconstitutional incarceration “so 

permanent and well settled as to constitute a custom or usage with the force of law.” 

Bryson, 627 F.3d at 791 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 

(1988)).
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Finally, Mr. Franco points us to his state law false-imprisonment claim. Under 

New Mexico law, “[f]alse imprisonment consists of intentionally confining or 

restraining another person without his consent and with knowledge that he has no 

lawful authority to do so.” N.M. Stat. Ann. § 30-4-3 (emphasis added). And before 

this court Mr. Franco fails to address the district court’s holding that there was no 

evidence in this record that any defendant acted with this level of mens rea. So it is 

we are left without any basis on which to say the district court erred in dismissing 

this claim either. 

 Affirmed. 

 ENTERED FOR THE COURT 

 Neil M. Gorsuch 

 Circuit Judge