## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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Nos. 07-2531/08-1573

___________ Rickey Dukes, *

* Appellant, * * Appeals from the United States v. * District Court for the * District of Minnesota. City of Minneapolis; Officer Kelly * O’Rourke; Officer Jeffrey Imming; * [UNPUBLISHED] Officer Michael Ramsdell, personally * and in their capacity as employees or * agents of the City of Minneapolis, *

* Appellees. *

___________ Submitted: January 16, 2009 Filed: July 30, 2009

___________ Before MURPHY, BYE, and BENTON, Circuit Judges.

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PER CURIAM.

Minnesota prisoner Rickey Dukes brought this civil rights action against the City of Minneapolis and police officers Kelly O’Rourke, Jeffrey Imming, and Michael Ramsdell, asserting that the officers cons pired against him and violated his Fourth Amendment right to be free from illegal searches and seizures as well as his Fourteenth Amendment substantive due pro cess rights. His complaint also included1 The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota, adopting the report and reco mmendations of the Honorable Franklin L. Noel, United States Magistrate Judge for the District of Minnesota.

-2- a state-law defamation claim. On appeal, Dukes challe nges the district court’s 1 grant of summary judgment in favor of the o fficers and its order denying his motion for post-judgment relief under Federal Rule of Civil Procedure 60(b)(3). We affirm.

In support of the motion for summary judgment, Officer O’Rourke attested to the following. After receiving informati on from a confidential reliable informant (CRI) that Dukes was selling narcotics, O’R ourke instructed the CRI to carry out a “controlled buy.” The CRI purchased marijuana from Dukes in Dukes’s apartment, and O’Rourke obtained a search warrant for Dukes’s known address, which was an apartment #113. Following a police briefing, but before leaving to execute the search warrant, O’Rourke received a telephone call from the CRI. The CRI claimed that he had recently been in Dukes’s apartment and saw approximately two pounds of marijuana. He also stated that Dukes was still using apartment #113, but had moved his belongings to apartment #209. Officers executed the search warrant for apartment #113 and discovered that it was vacant. O’ Rourke then applied for and obtained a search warrant for apartment #209. Hi s supporting affidavit mentioned the ongoing narcotics investigation and stated “[w]hilein route to investigate Dukes I received updated CRI information that Dukes is st oring larger quantities of marijuana in apartment #209.” He also st ated that the building management had confirmed that Dukes was renting apartment #209, but still had the keys to apartment #113.

In his opposition to the summary judgment motion, Dukes asserted that O’Rourke’s cellular phone records revealed that he had not recei ved any calls between the end of the police briefing and the execu tion of the second sear ch warrant. The officers responded that Dukes had incorrec tly assumed the CRI had called O’Rourke’s cell phone. As reflected in the police re port dated July 31, 2003, and affidavit in support of the motion for summary judgment, the CRI called O’Rourke’s office-3- telephone line. Finding no genuine issue of material fact, the district court – upon adopting the magistrate judge’s report and recommendation – granted summary judgment in favor of the officers.

Dukes later moved for relief from judgm ent under Rule 60(b)(3). He argued that the officers had engage d in intentional misconduct when they did not produce phone records showing calls made to O’R ourke’s office telephone line, even though he had requested production of such record s. The district court denied the Rule 60(b)(3) motion, noting that Dukes, desp ite being represented by counsel, had not mentioned the officers’ failure to produ ce the office phone records in his opposition to the summary judgment motion or in his obj ections to the magistrate judge’s report and recommendation.

We review de novo the district court’s grant of summary judgment, viewing the record in the light mostfavorable to Dukes. See Ballard v. Heineman , 548 F.3d 1132, 1135 (8th Cir. 2008) (while this court vi ews evidence in light most favorable to nonmoving party, nonmoving party must set forth specific facts showing there is genuine issue of material fact for trial; mere allegations, unsupported by specific facts or evidence beyond nonmoving party’s own conc lusions, are insufficient to withstand motion for summary judgment). Based upon the summary judgment record that was before the district court, there was no ge nuine dispute that O’Rourke had received a phone call from the CRI shortly before he ex ecuted the first search warrant. Without more, O’Rourke’s sworn statement in support of the second search warrant application – that he received the CRI’s telephone call wh ile “in route to investigate Dukes” – was not so obviously inconsistent with his poli ce report dated July 31, 2003, and his sworn affidavit in support of the summary judgment motion – that he received the CRI’s phone call after the briefing, but before he le ft to execute the first search warrant – as to create a genuine issue of material f act. Thus, we hold th at the second search warrant was adequately supported by pr obable cause, and summary judgment was properly granted on Dukes’s Fourth Amendment claim. See United States v.-4- Coleman , 349 F.3d 1077, 1084 (8th Cir. 2003) (“minor discrepancy” in wording of officer’s search warrant affidavit is not sufficient to establish that officer acted deliberately or recklessly in making statement); cf. Turpin v. County of Rock , 262 F.3d 779, 783 (8th Cir. 2001) (affidavit for sear ch warrant containing materially false statements or omissions knowingly or recklessly made in conscious disregard for truth violates Fourth Amendment); Walden v. Carmack , 156 F.3d 861, 871 (8th Cir. 1998) (if search warrant application or affidavit contains errors reflecting deliberate falsehoods or reckless disregard for truth, court must set aside those statements and review remaining portions to see if probable cause is established).

We also hold that the officers were en titled to judgment as a matter of law on the other claims contained in Dukes’s complaint. See Moran v. Clarke , 296 F.3d 638, 646 (8th Cir. 2002) (en banc) (if particul ar Amendment provides explicit textual source of constitutional protection against particular sort of government behavior, that Amendment, not more generalized notions of substantive due process, must be guide for analyzing claims); Kurtz v. City of Shrewsbury , 245 F.3d 753, 758 (8th Cir. 2001) (false-arrest claim under 42 U.S.C. § 1983 fails as matter of law where officer had probable cause to make arrest; in order to succeed in civil-rights-conspiracy claim under 42 U.S.C. § 1985, plaintiff must provide some facts suggesting mutual understanding between defendants to commit unconstitutional acts); Bol v. Cole , 561 N.W.2d 143, 146 (Minn. 1997) (for statement to be defamatory, it must be false).

Finally, we conclude that the districtcourt did not abuse its discretion in denying Dukes’s Rule 60(b)(3) motion. See Smith v. Clarke, 458 F.3d 720, 724-25 (8th Cir. 2006) (district court did not abuse its discretion in denying Rule 60(b) motion where record did not yield any deliberate fraud by state attorney general’s office; without clear and convincing eviden ce that misrepresentation was intentional, district court had no obligation to grant motion); see also United States v. Metro. St.
Louis Sewer Dist. , 440 F.3d 930, 935 (8th Cir. 2006) (s tandard of review). Notably, while Dukes now complains that the offi cers never produced the office phone records,-5- he was obligated to pursue the release of those records prior to the grant of summary judgment. Cf. Ballard , 548 F.3d at 1137 (unless party files affidavit under Federal Rule of Civil Procedure 56(f) showing wh at facts further discovery may uncover, district court generally does not abuse its discretion in granting summary judgment on basis of record before it).

The judgment of the district court is affirmed.

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