* This order and judgment is not binding precedent, e xcept under the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 (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 21 2001 

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

MARK ALAN STREPKA,

Plaintiff-Appellant,

v. GREG MILLER, So. Metro Task; OFFICER COLLINS, So. Metro Task; CHRISTOPHER CROSS, Arap. Cty. J.; GREG NOZUM,

Defendants-Appellees, SCOTT JONES, So. Metro Task; KELLY MARTIN, So. Metro Task; C. KLOPPENBERG, So. Metro Task; J. GORDANIER, So. Metro Task; RONALD BEATTY, Arap. Cty. S.O.; PATRICK J. SULLIVAN, JR., Sheriff; JERRY ROSENBAUGH, C.B.I.; J. FORSTER, Denver Dist. D.E.A.; DIRECTOR OF C.B.I.; DIRECTOR DENVER DIST. D.E.A.; NAT’L ADMIN. D.E.A.; EXECUTIVE DIRECTOR OF PUBLIC SAFETY,

Defendants. No. 00-1294 and 00-1389 (D.C. No. 99-D-902) (D. Colo.)

ORDER AND JUDGMENT ** (...continued)

and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- Before HENRY , PORFILIO , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument. Plaintiff sued the federal and local officers who a rrested him, and the state judge who later issued an order to detain him, for violating his constitutional right to a prompt judicial determination of probable caus e following his warrantless arrest. The district court dismissed the complaintand denied leave to amend. We must decide if plaintiff’s allegations, either with or without amendment, are sufficient to establish that any of the defendants are liable for the alleged constitutional violation. In assessing the sufficiency of plaintiff’s allegat ions, we must “accept the well-pleaded allegations of the complaint as true a nd construe them in the light most favorable to the plaintiff.” Benefield v. McDowall , 241 F.3d 1267, 1270 (10th Cir. 2001) (quotation omitted). Because plai ntiff is proceeding pro se, we1 This is a local multi-jurisdictional task force. A lthough members of the

task force, Officers Miller and Collins were actual ly policemen for the City of Sheridan.

2 Plaintiff originally sued ten arresting officers an d various supervisors, but later filed a motion dismissing all but these three officers. For purposes of this appeal, we refer only to these three defendants as the arresting officers. -3- also must liberally construe the allegations of his complaint. See Haines v.
Kerner , 404 U.S. 519, 520 (1972). This liberal construct ion, however, does not obligate us either to “supply additional factual al legations to round out a plaintiff’s complaint or [to] construct a legal the ory on a plaintiff’s behalf.” Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997). Plaintiff alleged that Officers Miller and Collins of the South Metro Task
Force 1 and Agent Nozum of the federal Drug Enforcement Ag ency arrested him without a warrant in Blackhawk, Colorado. 2Following his arrest, plaintiff was transported to the Gilpin County Jail, where he was held for three days. Gilpin County officers then transported plaintiff to a det ention facility in Jefferson County, where he was held for one day. Finally, Ar apahoe County officers transported plaintiff to a detention facility in Ar apahoe County. Plaintiff was not taken before a judge during any of this time. It w as not until the fifth day following his arrest that he appeared before Arapah oe County Judge Cross, who advised him of his rights. Several hours before th at, Judge Cross made a finding of probable cause and signed an order to detain pla intiff.3 The form provided by the District of Colorado for p risoner civil rights

cases directs prisoners to choose between either 42 U.S.C. § 1983 or Bivens (and 28 U.S.C. § 1331) as the basis for the court’s juri sdiction, and states that the former is for use by state prisoners and the latteris for use by federal prisoners. As a state prisoner, plaintiff understandably check ed the line for § 1983, but not the line for Bivens. -4- Plaintiff alleged that being held in excess of forty-eight hours without being released on bail or taken before a neutral ma gistrate for a determination of probable cause violated his constitutional rights. He further alleged that Judge Cross acted outside his authority when he made the probable cause determination more than forty-eight hours after plaintiff’s arres t, and he violated plaintiff’s rights when he made the determination before plaint iff appeared in court. Plaintiff purported to bring his claims pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 (and, presumably pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971) 3 ). He sought money damages from the three arresting officers and injunctive re lief against Judge Cross. Each defendant moved to dismiss plaintiff’s complai nt, arguing, among other things, that he was entitled to qualified imm unity. In addition, Agent Nozum argued that sovereign immunity barred any cla im against him in his official capacity, and Judge Cross argued both thatabsolute immunity barred any claim against him for money damages and that Eleventh Amendment immunity barred any claim against him in his official capaci ty. Without distinguishing-5-

between official and individual capacity claims, th e district court applied a qualified immunity analysis to all plaintiff’s clai ms, granted the motions to dismiss on that basis, and dismissed the case with prejudice. Thereafter, plaintiff filed a motion challenging th e dismissal and seeking leave to amend his complaint to add further allegat ions against defendants. Plaintiff submitted a proposed amended complaint wi th his motion. The district court construed the motion as one under Federal Rul e of Civil Procedure 59(e) and denied it. Plaintiff now appeals, challenging both the dismissal of his complaint and the denial of his motion to amend. At the outset, we must determine in what capacity p laintiff intended to sue defendants. Plaintiff did not clearly indicate his intent in his complaint, so we must review “the course of proceedings” to find the answer. Houston v. Reich , 932 F.2d 883, 885 (10th Cir.1991). Our review reve als that plaintiff intended to sue defendants in both their individual and officia l capacities, and we will liberally construe plaintiff’s complaint as asserti ng both types of claims. Turning first to the individual capacity claims, th e Supreme Court has recognized a qualified immunity defense both for § 1983 claims against state officials and Bivens claims against federal officials. See Johnson v. Fankell , 520 U.S. 911, 914 (1997). “In both situations, officia ls performing discretionary function[s], generally are shielded from liability for civil damages insofar as their4 In reviewing plaintiff’s allegations, we are mindfu l that we no longer apply

a heightened pleading standard to plaintiff’s compl aint, despite defendants’ assertion of a qualified immunity defense. See Currier , 242 F.3d at 916. Rather, we review the complaint under the traditional stand ards applicable to a motion to dismiss. Id. at 917. -6- conduct does not violate clearly established statut ory or constitutional rights of which a reasonable person would have known.” Id. at 914-15 (quotation omitted; alteration in original). “Once a defendant raises the defense of qualified immunity in the context of a motion to dismiss, a c ourt must first determine whether the plaintiff has asserted a violation of federal law.” Currier v. Doran , 242 F.3d 905, 917 (10th Cir. 2001), cert. denied , 70 U.S.L.W. 3163 (U.S. Nov. 13, 2001) (No. 01-382), and cert. denied , 70 U.S.L.W. 3270 (U.S. Nov. 13, 2001) (No. 01-551). 4 “[T]he Fourth Amendment requires a judicial determi nation of probable cause as a prerequisite to extended restraint of liberty following arrest.” Gerstein v. Pugh , 420 U.S. 103, 114 (1975). “[T]his determination must be made by a judicial officer either before or promptly after arrest.” Id. at 125. “[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply w ith the promptness requirement of Gerstein .” County of Riverside v. McLaughlin , 500 U.S. 44, 56 (1991). “Where an arrested individual does not receive a pr obable cause determination within 48 hours, the calculus changes. In such a c ase, the arrested individual does-7-

not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of abona fide emergency or other extraordinary circumstance.” Id. at 57. Even if an arrested individual receives a probable cause determination within forty-eight hou rs of arrest, [s]uch hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable del ay are delays for the purposes of gathering additional evidence t o justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. Id. at 56. The determination of probable cause can be made “re liably without an adversary hearing. The standard is the same as that for arrest. That standard–probable cause to believe the suspect has committed a crime–traditionally has been decided by a magistrat e in a nonadversary proceeding on hearsay and written testimony . . . .” Gerstein , 420 U.S. at 120 (footnote omitted). Thus, the determination can be made ex parte, without the presence of the arrestee. See Garcia v. City of Chicago , 24 F.3d 966, 969 (7th Cir. 1994); King v. Jones , 824 F.2d 324, 327 (4th Cir. 1987). Plaintiff had a constitutional right to a prompt ju dicial determination of probable cause following his warrantless arrest. P laintiff’s allegations, taken as5 In their brief on appeal, Officers Miller and Colli ns state that they have

discovered that a Jefferson County judge actually m ade an ex parte probable cause determination within forty-eight hours of pla intiff’s arrest. Because this fact was not raised in the district court, and the officers do not provide us with sufficient information to enable us to take judicia l notice of this fact on appeal, we will not consider it in our analysis. -8- true, established that he was deprived of that right by someone. 5 To state a claim for violation of a constitutional right against the se particular defendants, however, plaintiff had to allege facts showing that each def endant personally participated in or caused the constitutional violation. Foote v. Spiegel , 118 F.3d 1416, 1423 (10th Cir. 1997) (“Individual liability under § 198 3 must be based on personal involvement in the alleged constitutional violation.”); Kite v. Kelley , 546 F.2d 334, 338 (10th Cir. 1976) (holding same as to Bivens claim). Even under the most liberal construction, plaintiff’s complaint was devoid of any allegations showing that any of the arrestin g officers caused or participated in the delay in providing plaintiff a prompt probab le cause determination. Likewise, the complaint contained no allegations sh owing Judge Cross caused or contributed to that delay. Judge Cross made a dete rmination of probable cause promptly after plaintiff was delivered into the cus tody of Arapahoe County. Because plaintiff had no constitutional right to be present for that probable cause determination, Judge Cross did not violate plaintif f’s constitutional rights by making the determination in advance of plaintiff’s first appearance before him.-9-

In the absence of any facts showing that defendants violated his constitutional rights, the district court properly dismissed plaintiff’s claims against the individual defendants on qualified immunity grounds

. Although the district court did not separately anal yze plaintiff’s claims against defendants in their official capacities, it s dismissal of those claims also was correct. An official capacity claim against a government officer is really a claim against the government that employs that officer. See Myers v. Okla. County Bd. of County Comm’rs , 151 F.3d 1313, 1316 n.2 (10th Cir. 1998). Plaintiff’s official capacity claims against Agent Nozum, therefore, were really claims against the United States, and were barred b y sovereign immunity in the absence of a waiver. See Pleasant v. Lovell , 876 F.2d 787, 793 (10th Cir. 1989). Plaintiff did not identify any waiver of sovereign immunity for the type of claims he asserted, and we know of none. Therefore, plaintiff’s official capacity claims against Agent Nozum were barred. Plaintiff’s official capacity claims against Judge Cross were really claims against the State of Colorado. The Eleventh Amendm ent “generally bars suits brought by individuals against state officials acti ng in their official capacities. This bar does not apply, however, if the state waiv es its sovereign immunity, if Congress validly abrogates the state’s immunity, orif the suit falls within the legal fiction of Ex parte Young , 209 U.S. 123 . . . (1908).” Harris v. Owens ,-10-

264 F.3d 1282, 1289-90 (10th Cir. 2001). Plaintiff did not identify any waiver of immunity by the State or any abrogation of that immunity by Congress. Ex parte Young creates an exception to Eleventh Amendment immunity for a suit against a state official that “seeks prospective relief for t he official[’s] ongoing violation of federal law.” Id. at 1290. But “the doctrine [does] not go so far a s to allow federal jurisdiction over a suit that seeks to redr ess past wrongs–only ongoing violations are covered.” ANR Pipeline Co. v. LaFaver , 150 F.3d 1178, 1189 (10th Cir. 1998). Plaintiff’s official capacity claims a gainst Judge Cross sought only to redress past wrongs and alleged no ongoing violatio ns of federal law. Therefore, those claims were barred by the Eleventh Amendment. Plaintiff’s official capacity claims against Office rs Miller and Collins were really claims against the local government that emp loyed them. Under 42 U.S.C. § 1983, a local government may be h eld liable for the constitutional violation of its employees only when employee action pursuant to official municipal policy . . . caused a constitutional tort. Therefore, to establish munic ipal liability a plaintiff must show (1) the existence of a municipa l custom or policy and (2) a direct causal link between the custom or policy and the violation alleged. Hollingsworth v. Hill , 110 F.3d 733, 742 (10th Cir. 1997) (citation and quotations omitted; alteration in original). Plaintiff did no t allege any municipal custom or policy in his complaint, much less a link between that custom or policy and the-11-

violation. Therefore, the district court properly dismissed the claims against Officers Miller and Collins in their official capac ities. Likewise, although the district court did not separ ately analyze plaintiff’s § 1985(3) and § 1986 claims, it properly dismissed those claims as well. To state a claim under § 1985(3), plaintiff had to allege th at defendants conspired to deprive him of equal protection or equal privileges and immunities. Not only did plaintiff fail to sufficiently allege any conspirac y among defendants, but he did not allege any race or class-based animus on their part. In the absence of these allegations, plaintiff’s complaint failed to state a claim for relief under § 1985(3). Bisbee v. Bey , 39 F.3d 1096, 1102 (10th Cir. 1994). By definiti on, plaintiff’s § 1986 claim fell with his § 1985 claim. After the district court dismissed his complaint, p laintiff filed a Rule 59(e) motion objecting to the dismissal and seeking leave to amend. Plaintiff also filed a proposed amended complaint. “[O]nce judgment is entered, the filing of an amended complaint is not permissible until judgmentis set aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b).” Seymour v. Thornton , 79 F.3d 980, 987 (10th Cir. 1996) (quotation omitted; alterationin original). The district court denied the Rule 59 motion without specifically comm enting on the request for leave to amend. We review the district court’s den ial of the Rule 59 motion and its implicit denial of the motion for leave to amen d under an abuse of discretion6 In their motion to dismiss, Officers Miller and Col lins explained that

plaintiff was transported to the Gilpin County jail by Blackhawk police officers because the arresting officers, being undercover, w ere in vehicles that did not have cages, and municipal policy prohibited them fr om transporting a prisoner in (continued...) -12- standard. See Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir. 1997) (Rule 59 motion); Cooper v. Shumway , 780 F.2d 27, 29 (10th Cir. 1985) (post-judgment motion to amend). The only ground for relief plaintiff asserted in hi s Rule 59 motion was that he should be given an opportunity to amend his comp laint to cure the deficiencies brought to light in the district court’s dismissal order. Plaintiff proposed amending his complaint to include the following all egations. Officer Miller arrested him without a warrant in a “foreign” county and neither released him when no evidence was discovered at the time of his arrest nor ensured that he was taken before a judge for a probable cause determination. Instead, Officer Miller had plaintiff held in jail in a county that had no prosecutorial interest in him and, by inference, no interest in providing him a promptprobable cause determination, while he obtained and executed a search warrant of plaintiff’s temporary residence in the hope of finding some evidence to s upport the arrest. Officer Miller also acted in furtherance of a county policynot to transport prisoners in a car without a cage, which delayed plaintiff’s trans port to a detention facility in Arapahoe County, which did have a prosecutorial interest in him. 6Plaintiff made6 (...continued)

a car without a cage. -13- similar allegations against Officer Collins and Age nt Nozum, except that he did not allege any involvement by Officer Collins in th e search warrant. These proposed allegations, together with all reasonable inferences, described conduct on the part of the officers that plaintiff might have been able to prove contributed to an unreasonable delay. Although the proposed allegations were probably suf ficient to state a claim for relief against at least Officer Miller and Agen t Nozum, the interests of judicial economy counsel against remanding the action to all ow plaintiff to proceed on those allegations. If we were to remand, the offic ers would undoubtedly reassert their claim that they are entitled to qualified imm unity because the law was not clearly established that an arresting officer had aconstitutional duty to ensure that an arrested individual received a prompt probable c ause determination. “Ordinarily, in order for the law to be clearly est ablished, there must be a Supreme Court or Tenth Circuit decision on point, o r the clearly established weight of authority from other courts must have fou nd the law to be as the plaintiff maintains.” Currier , 242 F.3d at 923 (quotation omitted). Although Supreme Court opinions have clearly established the right to a prompt probable cause determination, they have not established thatthe duty to ensure that right-14-

rests with the arresting officer. Nor have any Tenth Circuit cases–or the majority of cases from other circuits–so held. Because remanding the action to the district court to proceed on plaintiff’s amended complaint w ould serve no useful purpose and would disserve the interests of judicial economy, we will uphold the district court’s denial of plaintiff’s post-judgment motion to amend his complaint. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. Plaintiff’s motion to exceedthe line count on his reply brief is GRANTED. Plaintiff’s objection to Officer s Miller and Collins filing a separate appellees’ brief is DENIED. Plaintiff’s m otion to strike a reference in those officers’ brief to facts not raised in the di strict court is DENIED as moot. Plaintiff is reminded of his continuing obligation to make partial payments of his filing fee until that fee is paid in full.

Entered for the Court

John C. Porfilio Circuit Judge