* This order and judgment is not binding precedent, e xcept under the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

### JAN 30 1998 

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

DAVID CRAIG CARLSEN,

Plaintiff-Appellant,

v. TIM G. DURON, BRIAN COY, LEM R. EARL, and KENT HARRIS, individually and in their official capacities as Logan City Police Officers; and SCOTT L. WYATT, in his official capacity as Logan City Prosecutor, Defendants-Appellees. No. 97-4071 (D.C. No. 93-CV-67G) (D. Utah)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff David Craig Carlsen appeals the district court’s grant of summary judgment in favor of defendants on his 42 U.S.C. § 1983 complaint. Defendants are four Logan City police officers sued as individ uals and in their official capacities, and the Logan City prosecutor, sued in his official capacity. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.
I. Background Mr. Carlsen filed two complaints: the first filed against defendants Duron, Coy and Earl, who are Logan City police officers, a nd Wyatt, a Logan City prosecutor; the second filed against defendants Ear l and Harris, also a Logan City police officer. The district court consolidated th ese actions, and defendants filed a motion for summary judgment. Defendants assertedqualified immunity as to all of the police officer defendants, and absolute pros ecutorial immunity as to Wyatt. The district court granted summary judgment in favo r of the defendants.
II. Analysis “We review de novo the district court’s grant of qualified immunity o n summary judgment, viewing the evidence in the lightmost favorable to the nonmoving party.” Davis v. Gracey , 111 F.3d 1472, 1478 (10th Cir. 1997).-3-

In order to prevail against a defense of qualified immunity in a summary judgment motion, a plaintiff must first assert the violation of a constitutional or statutory right. See id. Second, a plaintiff must show that the “‘right wa s clearly established such that a reasonable person i n the defendant’s position would have known that [his] conduct violated the ri ght.’” Id. (quoting Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996)). “Once the plaintiff has sufficiently alleged the conduct violated clear ly established law, then the defendant bears the burden, as a movant for summaryjudgment, of showing no material issues of fact remain that would defeatthe claim of qualified immunity.” Romero v. Fay , 45 F.3d 1472, 1475 (10th Cir. 1995) (quotation omitted). With these principles in mind, we turn t o each of Carlsen’s claims.

A. Driver’s License Check . Mr. Carlsen alleges that on May 15, 1991, Officer Coy ordered him out of his place of employm ent, told him he was suspected of driving on a suspended license, and as ked to see Carlsen’s driver’s license. Once Officer Coy saw Carlsen’s valid driv er’s license, he told him he was free to leave. Mr. Carlsen alleges that Off icer Coy’s conduct constituted a seizure without reasonable suspicion or probable cause in violation of the Fourth and Fourteenth Amendment. He also charges O fficer Earl, who was Coy’s watch commander during this incident, violated his civil rights by failing to stop Coy’s actions.-4-

Officer Coy alleged that he had seen Carlsen drivin g and mistook him for Carlsen’s brother, who he knew had a suspended lice nse. Coy alleged that a radio check indicated the vehicle he saw was registered t o Carlsen’s brother. Officer Earl alleged he was never at the scene and has no p ersonal knowledge of the incident. Mr. Carlsen disputed the reasonableness of mistaking him for his brother and showed that the car identified by Offic er Coy was registered to him, not his brother. These disputes, however, are not material because Officer Coy’s actions did not constitute a “seizure” under the Fo urth Amendment. “The Fourth Amendment protects individuals against ‘unreasonable searches and seizures.’” Latta v. Keryte , 118 F.3d 693, 698 (10th Cir. 1997) (quoting U.S. Const. amend. IV). However: [N]ot all police-citizen encounters implicate the F ourth Amendment. A person has been ‘seized’ within the meaning of th e Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believ ed that he was not free to leave. Thus, mere police questioning d oes not amount to a seizure because law enforcement officers do not v iolate the Fourth Amendment by merely approaching an individual on th e street or in another public place. Id. (internal quotations and citations omitted). “Wit hout any basis for suspecting the criminal involvement of a particular individual , police may communicate and ask questions of that individual.” United States v . Sanchez , 89 F.3d 715, 718 (10th Cir. 1996).-5-

Mr. Carlsen’s allegations that Officer Coy asked hi m to come outside his place of employment, asked him some questions and r equested to see his driver’s license do not demonstrate that he was “seized” wit hin the meaning of the Fourth Amendment. None of the factors we have identified as tending to lead a reasonable innocent person to believe he was not free to ignore the police officer are alleged here. See id. (listing factors, including the threatening presence of several officers; brandishing a weapon; physical touching; use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; prolonged retentio n of a person’s personal effects; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed space; and abs ence of other members of the public.). Because Officer Coy’s brief interact ion with Mr. Carlsen was not a “seizure,” he was not required to have reasonable suspicion or probable cause. See Latta , 118 F.3d at 699. Thus, Mr. Carlsen did not allege facts that constitute a violation of his constitutional rights, and summary judgment on this claim was
proper.

B. Assault at the Car Wash . Four days after the driver’s license incident, on May 19, 1991, Officer Duron, who was off-duty an d not in uniform, attempted to wash his police car at Mr. Carlsen’s parent’s car wash, where Carlsen was working at the time. Mr. Carlsen contends he was w alking near the car wash bay-6-

and refused to allow Duron to clean his vehicle bec ause it was too muddy. Mr. Carlsen alleges that Officer Duron then got outof his vehicle, demanded that he be allowed to wash the car, and then verbally an d physically assaulted Carlsen. Mr. Carlsen states he then broke free from Officer Duron, ran into the car wash office, but Duron followed him inside, threw him to the ground and handcuffed him. Mr. Carlsen’s brother filed an affidavit stat ing that he saw Officer Duron choke Mr. Carlsen and slam his head to the floor inthe car wash office. At some time during this incident, Officer Duron ca lled for police assistance, and Officer Earl arrived on the scene. Mr. Carlsen was put into a police vehicle and taken to jail, where he was ch arged with assault upon a peace officer. After he was released, Mr. Carlse n sought medical treatment for his throat injuries. Mr. Carlsen was later con victed of assault upon a peace officer, but the judge reduced the charge to simple assault, finding that Officer Duron was not acting as a peace officer when he was washing his police vehicle off-duty. Mr. Carlsen alleges that Officer Duron used excessi ve force, and that Officers Duron and Earl arrested him without probab le cause, in violation of the Fourth and Fourteenth Amendment. Officer Duron didnot file an affidavit or otherwise controvert any of Mr. Carlsen’s allegatio ns about the car wash incident.-7-

Mr. Carlsen and Officer Earl dispute whether Earl a rrived in time to prevent the alleged wrongful arrest and use of excessive force. The Fourth Amendment’s guarantee of an individual’s right not to be arrested without probable cause was clearly establi shed well before Mr. Carlsen’s arrest. See Beck v. Ohio , 379 U.S. 89, 91 (1964). It was also clearly esta blished at the time of this incident that citizens have the right under the Fourth Amendment to be free from the use of excessive forc e by government officials. See Graham v. Connor , 490 U.S. 386, 395 (1989); Mick v. Brewer , 76 F.3d 1127, 1135 (10th Cir. 1996). However, “[t]o state a claim under § 1983, a plaint iff must allege that the claimed deprivation was committed by a person actin g under color of state law.” Haines v. Fisher , 82 F.3d 1503, 1508 (10th Cir. 1996). “[I]t is th e plaintiff’s burden to plead, and ultimately establish, the exis tence of ‘a real nexus’ between the defendant’s conduct and the defendant’s ‘badge’ of state authority in order to demonstrate action was taken ‘under color of state law.’” Jojola v. Chavez , 55 F.3d 488, 494 (10th Cir. 1995). “‘[T]he key dete rminant is whether the actor, at the time in question, purposes to act in an offi cial capacity or to exercise official responsibilities pursuant to state law,’ o r ‘whether [the officer’s] actions related in some way to the performance of a police duty.’” David v. City & County of Denver , 101 F.3d 1344, 1353 (10th Cir. 1996) (quoting Martinez v.-8-

Colon , 54 F.3d 980, 986 (1st Cir. 1995) and Gibson v. Ci ty of Chicago , 910 F.2d 1510, 1517 (7th Cir. 1990)). Mr. Carlsen’s assault conviction represents a defen se to his § 1983 claim asserting Officers Duron and Earl arrested him with out probable cause. See Cameron v. Fogarty , 806 F.2d 380, 388-89 (2d Cir. 1986) (conviction f ollowing jury trial); see also Howard v. Dickerson , 34 F.3d 978, 981 n.2 (10th Cir. 1994) (dicta). Moreover, the state court found, in conne ction with Mr. Carlsen’s assault conviction, that there was no evidence Officer Duro n, who was off-duty and not in uniform, was acting within the scope of his auth ority as a peace officer at the time. Appellee’s Answer Brief, Addendum B at 4. W e conclude from our review of the record that Mr. Carlsen has not satisfied hi s burden of demonstrating that Officer Duron’s alleged actions related in some wayto the performance of a police duty. Therefore, because Mr. Carlsen was co nvicted of assault and because he did not demonstrate that Officer Duron’s allegedactions were taken under color of state law, the district court properly gra nted summary judgment in favor of Officers Duron and Earl on the claims related to the car wash incident.

C. DUI Arrest . On September 13, 1992, Officer Harris and Logan City police officer Bryan Low, who is not a defendant, s topped Mr. Carlsen in his automobile at approximately 1:30 in the morning. A ccording to Mr. Carlsen, the officers told him he was being stopped for changing lanes too fast. Mr. Carlsen-9-

alleges that shortly after the stop, Officer Earl a rrived and observed the following interaction from his police vehicle. The officers ordered Mr. Carlsen out of the car. The parties dispute whether Mr. Carlsen was o rdered, or volunteered, to take a field sobriety test. The parties also dispute wh ether Mr. Carlsen successfully completed this test, but do not dispute that at its conclusion, Mr. Carlsen was handcuffed, searched, and arrested for driving unde r the influence of alcohol. Mr. Carlsen was taken to the county jail, where he was given a breathalyser test that indicated he had a blood alcohol level of zero percent. Mr. Carlsen was then released; he was not cited for any traffic citation , nor were any other charges brought against him. Mr. Carlsen alleges that Offi cer Harris stopped his car without reasonable suspicion and arrested him for d riving under the influence of alcohol without probable cause, and that OfficerEarl, who observed the arrest from a nearby police vehicle, is liable for failing to intervene. Officers Harris and Low filed affidavits stating th at they observed Mr. Carlsen make an improper right turn from an ins ide lane. As they followed his car, they stated they observed his brake lights go on twice even though the light was green. The officers pulled Mr. Carlsen o ver and, while checking his driver’s license, detected an odor of cigarettes, w hich Officer Harris indicated on his arrest report prevented him from detecting any odor of alcohol. Both-10-

officers stated Carlsen’s eyes were red, that he lo oked sleepy, and became angry when asked if he had been drinking. The parties dispute the results of the field sobrie ty test. Officers Harris and Low state that during the “alphabet/hand slap” port ion of the test, Mr. Carlsen started before they finished instructing him on howto take the test, that Carlsen’s slap became uncoordinated at “J” and he ultimately did not complete this portion of the test. The officers stated that, in four att empts, Mr. Carlsen was unable to track the movement of a pen without moving his head during the “horizontal gaze nystagmus test.” Further, they alleged Mr. Carlsenstarted to perform the “walk and turn” test before instructions were completed, failed to touch his heel to his toe on all of the steps, and used his arms for bala nce, contrary to their instructions. Officer Earl alleges that he did notarrive on the scene until after the arrest was made. Mr. Carlsen filed verified affidavits in response, disputing the officers’ allegations with respect to the DUI arrest with det ail and specificity. Mr. Carlsen described the movement of his vehicle in detail pri or to the stop, denying that he made any improper right hand turn, and stating thatan improper right turn was not the reason given by the officers for pulling hi m over. He stated that he may have braked to slow down on a steep decline, but wa s not driving erratically. He specifically denied starting the “alphabet/hand” slap test early, did not confuse-11-

the letters during the test, and completed the test . He stated that he successfully completed the “horizontal gaze nystagmus” test to i ts completion and in accordance with Officer Harris’s instructions. He also denied the officers’ assertions that he started the “walk and turn” testearly, that he failed to touch his heel to his toe on all of the steps, and assert ed that he never lost his balance during the test. “Probable cause . . . is present if ‘at the moment the arrest was made . . . the facts and circumstances [within the arresting officers’] knowledge and of which they had reasonably trustworthy inform ation were sufficient to warrant a prudent man in believing that the [suspec t] had committed or was committing an offense.’” Cottrell v. Kaysville City , 994 F.2d 730, 733-34 (10th Cir. 1993) (quoting Adams v. Williams , 407 U.S. 143, 148 (1972) and Beck , 379 U.S. at 91). Thus, the existence of probable cause depends on the reasonableness of Officer Harris’ conduct under the particular circumstances presented. Here, all of the factors articulated by the officer s that led them to determine they had probable cause to arrest Mr. Carlsen are d isputed by Carlsen, with the exception of their observation that he had appeared tired and smelled of cigarettes. We cannot conclude that these latter u ndisputed observations--a tired appearance at 1:30 in the morning and the smell of cigarettes--are sufficient, by-12-

themselves, to provide Officer Harris with probable cause to arrest Mr. Carlsen for driving under the influence of alcohol. Thus, the disputed facts as to whether Mr. Carlsen was driving erratically and how he perf ormed on the field sobriety test are genuine and material issues as to whether Officer Harris had probable cause to arrest Mr. Carlsen. See Cottrell , 994 F.2d at 734 (disputed issues of fact as to plaintiff’s driving and as to results of fiel d sobriety test preclude summary judgment on qualified immunity defense to § 1983 cl aim for wrongful arrest). These disputed issues, along with the dispute as to when Officer Earl arrived at the scene, also resolve whether or not Officer E arl failed to intervene in a wrongful arrest. Thus, it was error to grant sum mary judgment as to Officers Harris and Earl on this claim D. Police Harassment . Mr. Carlsen next complains of three incidents of harassment by Officer Duron. On March 26, 1993, plaintiff was in court on a traffic citation. According to Mr. Carlsen, Offi cer Duron appeared in court but, at Mr. Carlsen’s request, was excluded from the cou rtroom. Mr. Carlsen claims that when he left the courtroom, Officer Duron bega n yelling at him and threatened to strangle Mr. Carlsen again. Mr. Carl sen claims Officer Duron’s actions interfered with his Sixth Amendment right t o access to the court. A few weeks later, on April 14, 1993, Mr. Carlsen alleges he was driving normally when Officer Duron began tailgating him for such a prolonged period that Carlsen-13-

was forced to pull into a post office and call a po lice dispatcher to report Officer Duron’s behavior. A few weeks after that, on April 30, 1993, Mr. Carlsen was parked in his car in front of his work when OfficerDuron drove by, pulled his police vehicle in next to Carlsen and began yelling obscenities at him and hindered his ability to walk from his car into work . Mr. Carlsen claims these actions constituted seizure without reasonable susp icion or probable cause. Officer Duron did not controvert any of Carlsen’s h arassment claims. Although we cannot condone Officer Duron’s alleged actions, claims of verbal harassment are generally insufficient to state a claim under § 1983. See King v. Olmsted County , 117 F.3d 1065, 1067 (8th Cir. 1997); Keenan v. Hall , 83 F.3d 1083, 1092 (9th Cir. 1996) (same conclusi on under Eighth Amendment). There is no evidence indicating Mr. Ca rlsen was not free to leave during each interaction; therefore, we cannot concl ude that he was “seized” within the meaning of the Fourth Amendment. There is also no evidence that Officer Duron’s verbal assault outside the courtroo m in any way interfered with the court proceedings. Thus, summary judgment was properly granted as to these claims.
E. Use of False Testimony . Finally, Mr. Carlsen alleges that Logan City prosecutor Scott Wyatt knowingly used false testimo ny during two trials against him. Wyatt filed an affidavit stating that his onl y participation in these trials was-14-

as a prosecutor, and he denied that he knowingly us ed false testimony, stating that he believed all the witnesses he called to have bee n honest and truthful. We note that allegations of prosecutorial wrongdoin g that arise from the prosecutor’s role as an advocate during the preparation of, and performance of a trial are entitled to absolute prosecutorial immu nity. See Buckley v. Fitzsimmons , 509 U.S. 259, 273 (1993). Moreover, Mr. Carlsen made only conclusory allegations that witnesses gave inconsis tent testimony, and failed to allege facts sufficient to demonstrate that Wyatt knowingly permitted perjured testimony in the two trials. Thus, the district co urt properly granted summary judgment in favor of Wyatt. Accordingly, the judgment of the United States District Court for the District of Utah is AFFIRMED as to defendants Coy, Wyatt and Duron, and REVERSED and REMANDED for further proceedings consi stent with this order and judgment as to defendants Earl and Harris

.

Entered for the Court

Stephen H. Anderson Circuit Judge