* This order and judgment is not binding precedent, e xcept under the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

### AUG 24 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
DANIEL K. JAMES,

Plaintiff-Appellant,
v. KENNETH ROSS GRIECHEN, in his individual capacity,

Defendant-Appellee. No. 98-2245 (D.C. No. CIV-97-488-JP) (D. N.M.)

ORDER AND JUDGMENT *

Before PORFILIO , McKAY , and LUCERO , Circuit Judges.
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) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 James initially named the City and County of Los Al amos, New Mexico as

a defendant; however, he dropped Los Alamos as a de fendant in his first amended complaint. -2- Plaintiff Daniel K. James appeals from the districtcourt’s verdict in favor of defendant Kenneth Ross Griechen on James’s 42 U. S.C. § 1983 civil rights complaint alleging violation of his Fourth and Fourteenth Amendment rights. Officer Griechen obtained a warrant for James’s arr est on a larceny charge after James failed to return a tile saw to a subcontracto r who owed him a debt. Griechen arrested James and held him overnight in j ail. The district attorney declined to prosecute James. After James was relea sed, he brought this action asserting § 1983 and state law claims against Officer Griechen. 1 We affirm. James’s § 1983 claim appears to be based on theorie s of wrongful arrest and malicious prosecution. Lack of probable cause is an essential element of each claim. See Taylor v. Meacham , 82 F.3d 1556, 1562 (10th Cir. 1996) (“[A]n arrest warrant must be supported by probable cause to comp ly with the Fourth Amendment.”); Wolford v. Lasater , 78 F.3d 484, 489 (10th Cir. 1996) (stating lack of probable cause is an essential element of the tort of malicious prosecution in New Mexico). Here, the district court held a be nch trial and entered a verdict in favor of Officer Griechen, finding that Griechen ’s affidavit in support of the arrest warrant was sufficient to support a finding of probable cause. The court further found that, given probable cause for the arrest and the lack of proof of-3-

procedural improprieties, James’s state law claims for false arrest, illegal imprisonment and malicious prosecution must also fa il. James now argues that there was no showing that he had specific intent to permanently deprive the owner of the tile saw at th e time he took it. Therefore, he argues, there was not probable cause to arrest h im for the crime of larceny as that crime is defined under New Mexico law, and no arrest warrant should have been issued. He further asserts that Officer Griec hen should have freed him rather than incarcerating him overnight. He argues that although Griechen was unable to contact the magistrate who approved the w arrant and set the bail amount, Griechen knew that the magistrate planned t o release James on his own recognizance and should therefore have released Jam es rather than jailing him. Following a bench trial, we review the district court’s findings of fact for clear error and its conclusions of law de novo. See EEOC v. WilTel, Inc. , 81 F.3d 1508, 1513 (10th Cir. 1996). Having review ed the parties’ briefs and contentions, the district court’s order, and the re cord on appeal pursuant to these-4-

standards, this court finds no reversible error. T he judgment of the United States District Court for the District of New Mexico is th erefore AFFIRMED for substantially the same reasons set forth in its fin dings of fact and conclusions of law dated August 14, 1998.

Entered for the Court

John C. Porfilio Circuit Judge