UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

WILLARD JACKSON, 

 Plaintiff - Appellant, 

v. 

SHARON HOGAN; CITY OF 

BETHANY, 

 Defendants - Appellees. 

No. 16-6042 

(D.C. No. 5:14-CV-00277-R) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges. 

_________________________________ 

Mr. Jackson appeals the district court’s grant of summary judgment for the 

defendants on his complaint alleging malicious prosecution, which he brought under 

42 U.S.C. § 1983. In his complaint he asserted that defendant Sharon Hogan, a 

police officer in the city of Bethany, Oklahoma, prepared and signed an arrest 

warrant affidavit containing false statements and omissions. The affidavit concluded 

there was probable cause to believe that Mr. Jackson had violated title 21, § 1123 of 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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 

December 7, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

the Oklahoma Statutes, which criminalizes making a lewd or indecent proposal to a 

child under the age of sixteen. The district court dismissed the claims against the 

City and granted qualified immunity to Ms. Hogan. We affirm. 

After Mr. Jackson was charged and arrested, and after a first trial ended in a 

hung jury, a second Oklahoma jury convicted him of making a lewd or indecent 

proposal. He was sentenced to life imprisonment without parole. 

The Oklahoma Court of Criminal Appeals (OCCA) overturned his conviction, 

holding there was no evidence to show Mr. Jackson met the statutory element that he 

proposed “for the child to have unlawful sexual relations or sexual intercourse with 

any person.” Id. § 1123(A)(1). But a majority of the OCCA ruled that the evidence 

was sufficient to find him guilty of a different crime: solicitation of a minor to 

perform or prepare obscene material or child pornography. See Okla. Stat. tit. 21, 

§ 1021(B). It therefore remanded to the trial court to enter a new judgment of 

conviction and to resentence Mr. Jackson. 

Before resentencing could take place, Mr. Jackson sought federal habeas relief. 

The Western District of Oklahoma denied his petition, concluding that Younger

abstention applied. See Younger v. Harris, 401 U.S. 37 (1971). He appealed. In an 

unpublished decision, we determined that Younger abstention was inappropriate, and 

that the OCCA’s actions in convicting Mr. Jackson of the uncharged solicitation 

offense violated his Sixth Amendment rights. Accordingly, we reversed and 

remanded with instructions to grant the writ. Jackson v. Whetsel, 388 F. App’x 795, 

800, 803 (10th Cir. 2010). Mr. Jackson was released, and he was not retried. 
3 

He then brought this action under 42 U.S.C. § 1983 and Oklahoma state law 

against Sharon Hogan, the officer who investigated him, and her employer, the City 

of Bethany, Oklahoma. His complaint charged that they had unreasonably seized and 

prosecuted him in violation of the Fourth and Fourteenth Amendments and the 

Oklahoma Constitution. 

The defendants moved for summary judgment. In response, Mr. Jackson 

conceded his claims against the City and his claim against Ms. Hogan under the 

Oklahoma Constitution.1

 This left only his § 1983 claim against Ms. Hogan. 

In support of his malicious-prosecution claim against Ms. Hogan, Mr. Jackson 

argued that she had signed an affidavit of probable cause for his arrest with reckless 

disregard for its truthfulness. In her affidavit, Ms. Hogan stated:2

 

I am a Police Sergeant employed by the Bethany Police Department, City 

of Bethany, County of Oklahoma County, assigned to the Investigations 

Division. 

That the DEFENDANT is living in Shawnee, OK and the victim is a 15 yr 

old female living in Bethany, OK. DEFENDANT called victim using her 

personal phone line and started a conversation. That over a three month 

time period, DEFENDANT called victim about 8 times. Victim told 

DEFENDANT how old she was during the first phone call. DEFENDANT 

told victim his screen name over the internet is “catman4545”. 

DEFENDANT told victim he visits bars in OKC periodically and they all 

know him as “catman”. DEFENDANT’s conversation during the phone 

calls started becoming sexual in nature. The calls from DEFENDANT 

would come in from his cell phone, home phone or pay phones. 

 1

 Mr. Jackson makes no argument in this appeal that the City should not 

have been granted summary judgment. Accordingly, we consider only whether 

summary judgment was properly granted in favor of Ms. Hogan. 

2

 At the time she prepared the affidavit, Ms. Hogan was known as 

Ms. Cadle. 
4 

DEFENDANT told victim she had a “sexy voice”. DEFENDANT told 

victim he was a light skinned black guy and had a black wife. 

DEFENDANT offered victim $6000 for pictures of herself. 

DEFENDANT, during one phone call, asked victim to “finger herself” 

while he listened and that he liked to hear girls over the phone touching 

themselves. She told him “No”. 

DEFENDANT asked victim to “hook up” with one of her friends who was 

a lesbian and get them on video cam “doing stuff”. DEFENDANT also 

told her about another female (Amber) who she could “hook up” with who 

has a video cam and lives in McAlester, OK. DEFENDANT wanted victim 

to drive to McAlester to meet with this female. She told him she was not 

interested. 

DEFENDANT had been conversing over instant messenger with Amber 

(adult female) in McAlester. DEFENDANT told Amber, that the victim in 

OKC was older and wanted to “hook up” with her and that he wanted them 

to do “something” together using her web cam. That DEFENDANT gave 

Amber the victim’s phone number. When Amber called the victim, she 

found out her real age and apologized for calling her. DEFENDANT had 

also asked Amber to play with herself on the web cam so he could watch. 

DEFENDANT had asked Amber that when she got together with the 

victim, if he could stand in the doorway and “jack off” while he watched 

them mess around. Amber said DEFENDANT also asked if he could join 

in. 

Amber stated that DEFENDANT told her he was getting a divorce from his 

wife because she caught him looking at naked young girls on the computer 

and talking to them on the phone. DEFENDANT also told Amber that he 

goes by “catman”. 

On 10/02/02 at 5:23pm, the victim received another call from 

DEFENDANT. This call was traced through Southwestern Bell Call Trace. 

The call was made from a pay phone in the break room at Al-Ko Kober 

Corp in Shawnee, OK. Det Cadle contacted the company and found that 

only one black male was working during this time, DEFENDANT. 

Det Cadle went to DEFENDANT’s address to interview him and 

DEFENDANT came to the door. Det Cadle asked DEFENDANT if he 

ever uses the screen name of “catman” and DEFENDANT stated he uses it 

sometimes. DEFENDANT refused an interview. 

That Det Cadle found out from various other police depts around the state 

that DEFENDANT’s modus operandi is breaking into homes of young 
5 

single females or female roommates and threatening them to sexually 

assault themselves or make them have sex with each other while he 

watched. That DEFENDANT is a Registered Sex Offender. 

Based on my investigation I believe the DEFENDANT to be guilty of 

LEWD, INDECENT PROPOSALS OR ACTS AGAINST CHILD UNDER 

16 and in violation of Title 21 section 1123. 

R., Vol. 1 at 111-12. 

The district court determined that under the undisputed facts Ms. Hogan had 

probable cause to believe that it was Mr. Jackson who placed the phone calls to the 

victim. Accordingly, the affidavit did not violate his constitutional rights. 

Ms. Hogan was therefore entitled to qualified immunity, or alternatively, to summary 

judgment on the ground that Mr. Jackson failed to prove causation to support his 

§ 1983 claim. The district court entered judgment in favor of the defendants, from 

which Mr. Jackson appeals. 

1. Standard of Review

We review de novo the district court’s grant of summary judgment on the basis 

of qualified immunity, viewing the evidence in the light most favorable to the 

nonmoving party. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). When a 

defendant asserts qualified immunity, the burden shifts to the plaintiff to show that 

(1) the defendant violated his constitutional rights; and (2) it was clearly established 

at the time of the violation that such actions violated that right. Id. Once “a plaintiff 

meets this heavy burden, the burden shifts back to the defendant to prove that there 

are no genuine disputes of material fact and that he is entitled to judgment as a matter 

of law.” Id.; see also Fed. R. Civ. P. 56(a) (stating summary-judgment standard). 
6 

Within these parameters, we may affirm summary judgment on any basis that is 

supported by the record. Sanchez v. Vilsack, 695 F.3d 1174, 1180 (10th Cir. 2012). 

2. Malicious-Prosecution Standard

“[W]e have . . . recognized a cause of action under § 1983 for malicious 

prosecution under the Fourth Amendment.” Sanchez v. Hartley, 810 F.3d 750, 755 

(10th Cir.), petition for cert. filed (U.S. Jan. 11, 2016) (No. 15-1281). The elements 

of such a claim include the following: “(1) the defendant caused the plaintiff’s 

continued confinement or prosecution; (2) the original action terminated in favor of 

the plaintiff; (3) no probable cause supported the original arrest, continued 

confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff 

sustained damages.” Id. at 754 n.1 (internal quotation marks omitted). The argument 

here centers primarily on the third element: the presence or absence of probable 

cause. 

“Affiants seeking arrest warrants violate the Fourth Amendment when they 

knowingly, or with reckless disregard for the truth, include false statements in an 

affidavit, or knowingly or recklessly omit from it information which, if included, 

would vitiate probable cause.” Puller, 781 F.3d at 1197. “In such a situation, we 

measure probable cause by (1) removing any false information from the affidavit, 

(2) including any omitted material information, and then (3) inquiring whether the 

modified affidavit establishes probable cause for the warrant.” Id. 

In addressing the second element of the qualified immunity inquiry, whether 

the officer violated clearly established law, we ask whether there was “arguable 
7 

probable cause” to support the challenged conduct. Culver v. Armstrong, 832 F.3d 

1213, 1217-18 (10th Cir. 2016) (internal quotation marks omitted). “Arguable 

probable cause is another way of saying that the officers’ conclusions rest on an 

objectively reasonable, even if mistaken, belief that probable cause exists.” Id. at 

1218 (internal quotation marks omitted). 

3. Mr. Jackson’s Argument

Mr. Jackson contends that Ms. Hogan’s affidavit lacked probable cause for two 

reasons: (1) it identified him as the perpetrator, even though Ms. Hogan did not have 

probable cause to name him as the caller described by the victim; and (2) it falsely 

alleged that he proposed to the under-aged victim that she engage in sexual acts with 

another woman, a fact the victim later denied in her preliminary hearing testimony. 

In district court, Mr. Jackson developed only the first of these arguments in his 

response to summary judgment. His summary-judgment brief contained only passing 

reference to whether the “unlawful sexual relations or sexual intercourse with any 

person” element was satisfied. These came mostly in the context of discussing the 

OCCA’s decision vacating his conviction and whether it was entitled to 

collateral-estoppel effect. In sum, he did not adequately present his second argument 

to the district court. See R., Vol. 1 at 83-104. Additionally, the district court only 

addressed his argument concerning whether the affidavit contained facts sufficient to 

show that he was the perpetrator. We therefore deem his second argument forfeited 

for purposes of appeal, and we decline to address it. See BV Jordanelle, LLC v. Old 
8 

Republic Nat’l Title Ins. Co., 830 F.3d 1195, 1206 (10th Cir. 2016) (declining to 

consider forfeited arguments where no plain-error argument has been made). 

Turning to the issue of whether the affidavit’s identification of Mr. Hogan as 

the perpetrator was supported by probable cause, we note that in his response to the 

defendants’ motion for summary judgment, Mr. Jackson admitted the truth of nearly 

every fact contained in Ms. Hogan’s affidavit, including several underlying facts that 

supported identifying him as the perpetrator. See R., Vol. 1 at 92-94, 111-12; Vol. 2 

at 13-26. He nevertheless argues that her affidavit included false statements and 

omissions showing a reckless disregard for the truth concerning the true perpetrator’s 

identity. 

Mr. Jackson complains that the affidavit referred to him repeatedly as 

“DEFENDANT,” when he had not yet been charged with a crime. Assuming the use 

of the term “DEFENDANT” constitutes “false information,” removing it or 

substituting “Mr. Jackson” would not have affected the probable cause determination. 

Mr. Jackson next complains that the affidavit contained false and immaterial 

information about his prior criminal conduct involving other women and the fact that 

he is a registered sex offender. But even if information about his past crimes were 

subtracted, the remaining allegations of the affidavit were sufficient to establish 

probable cause to believe that it was Mr. Jackson who made the incriminating phone 

calls. 

Mr. Jackson next argues that “[t]here is no allegation found in [the] affidavit 

that the same caller placed all [eight] calls.” Aplt. Opening Br. at 18. To the 
9 

contrary, the affidavit recited that Mr. Jackson “called [the] victim about 8 times.” 

R., Vol. 1 at 111. Furthermore, in his response to the defendants’ motion for 

summary judgment, Mr. Jackson admitted that a person identifying himself as 

“Michael” called the victim seven or eight times over a three-month period. He 

denies that he is “Michael,” but he has cited no evidence creating a genuine factual 

issue concerning whether a different person was responsible for any of the calls. 

In a related argument, Mr. Jackson contends that at most, he was linked to the 

last phone call, the one traced to his workplace, and there is no evidence that he made 

any illegal proposition to the victim during that phone call. Again, however, 

Ms. Hogan’s affidavit recited, and Mr. Jackson admitted in district court, that the 

same caller made all of the calls, including the earlier calls involving sexual 

propositions. He cites no evidence to the contrary. 

Mr. Jackson also complains that Ms. Hogan improperly centered her 

investigation on finding a black defendant—prematurely excluding suspects of any 

other race—because the victim said the caller told her he was black. He argues that 

there is no showing the fifteen-year-old victim possessed the expertise to identify an 

African-American voice (assuming that such a voice even exists). But the victim did 

not merely identify the caller as black by the sound of his voice; he told her he was 

black. Mr. Jackson’s argument thus rests on the proposition that the caller 

deliberately misidentified himself as a black person. But he cites no evidence to 

support that speculative proposition. 
10 

Finally, Mr. Jackson argues that Ms. Hogan omitted from her affidavit (and 

failed to investigate) the possibility that other black people who worked for Al-Ko 

Kober Corp might have been in the break room before or after their shift, and 

therefore have had the opportunity to place the final, traced call to the victim. In his 

summary-judgment response, Mr. Jackson admitted that he was the only black male 

working on the shift at the time the call was made, and that the call occurred during 

one of his ten-minute breaks. Giving this timing and the other evidence of his 

involvement detailed in the affidavit, the omission of the speculative possibility that 

some other black male employee could have made the call did not rob the affidavit of 

probable cause. 

In sum, even if we exclude all the allegedly false information Mr. Jackson has 

identified, the affidavit contained facts showing probable cause to believe that he was 

the perpetrator of the offense charged. He has therefore failed to demonstrate that 

Ms. Hogan or the City violated his constitutional rights, and the district court 

therefore properly granted summary judgment in favor of the defendants. We affirm 

the district court’s judgment. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge