* This order and judgment is not binding precedent, e xcept under the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

### MAY 9 1997 

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

HAROLD ALVIN SCHILDT,

Plaintiff-Appellant,

v. FEDERAL BUREAU OF INVESTIGATION; UTAH STATE DEPARTMENT OF SOCIAL SERVICES; MONTANA STATE SOCIAL SERVICES, GLACIER COUNTY; FRANCIS ONSTAD, Blackfeet ICWA Director; ROBERT M. CARLSON; HARRY SOUVALL, 8th District Prosecutor; JOHN LAURSEN, Uintah County Sheriff Deputy; UINTAH COUNTY SHERIFF’S DEPARTMENT,

Defendants-Appellees. Nos. 96-4114, 96-4149 (D.C. No. 93-CV-1082) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.1 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. 34.1.9. Th e case is therefore ordered submitted without oral argument. -2- Plaintiff Harold Alvin Schildt appeals the order of the district court granting summary judgment to all defendants on plai ntiff’s claims brought pursuant to 42 U.S.C. § 1983. Because we agree wit h the district court that all defendants in this action were entitled to immunity or were otherwise appropriately dismissed, we affirm. 1 Plaintiff and his former wife were engaged in a cus tody dispute involving their daughter, Sammi. On November 3, 1992, a Utah state court awarded temporary physical custody of Sammi to plaintiff. When, by December 3, 1992, the child’s mother had not relinquished custody, th e mother was arrested. At a hearing following the mother’s arrest, the court mo dified the November 3 custody order to prohibit plaintiff from removing Sammi fro m the state of Utah and to provide for visitation for the mother. Plaintiff’s attorney was present at this hearing. A few days later, plaintiff himself appeared before the court and was orally informed by the judge of the modification of the cu stody order preventing him from removing Sammi from Utah. Neither this order nor the November 3 order2 18 U.S.C. § 1073 provides, in pertinent part: Whoever moves or travels in interstate or foreign c ommerce with intent . . . to avoid prosecution . . . under the laws of the place from which he flees, for a crime . . . which is a f elony under the laws of the place from which the fugitive flees . . . sh all be fined under this title or imprisoned not more than five years, or both. -3- had been reduced to written form when, shortly befo re Christmas, plaintiff took his daughter to visit his family in Browning, Montana. Upon learning that plaintiff had taken his daughterout of the State of Utah, Harry Souvall, the county prosecutor for Uintah Cou nty, Utah, instructed the county sheriff, John Laursen, to draft an affidavitof probable cause for custodial interference. Sheriff Laursen did so after conduct ing an investigation of the matter. Mr. Souvall then obtained a warrant for pl aintiff’s arrest and contacted the FBI for help in arresting plaintiff, who by the n was on the Blackfeet Indian Reservation in Montana. An FBI agent, Robert Carls on, secured a warrant for plaintiff’s arrest under 18 U.S.C. § 1073. 2 Plaintiff was arrested and returned to Browning, Montana, where a federal magistrate judge determined that plaintiff was not a fugitive from justice. The federal charg es against plaintiff were dismissed, but he spent thirty-seven days in jail i n Montana awaiting his return to Utah. Once in Utah, the charges pending there agai nst plaintiff were also dismissed because of a defect in the information.3 Plaintiff filed a premature appeal in this matter, case No. 96-4114. That

appeal has been consolidated with case No. 96-4149. -4- Plaintiff brought this action under § 1983 alleging that his civil rights had been violated by various defendants including county attorney Souvall, Sheriff Laursen, the Sheriff’s Department of Uintah County, the FBI, and FBI agent Carlson. The district court determined that Mr. So uvall was absolutely immune from prosecution because he had been acting within the scope of his prosecutorial duties. Sheriff Laursen was later granted qualifie d immunity, and the Sheriff’s Department was dismissed. With regard to the latte r, the court held that no factual allegations had been made against the Sheri ff’s Department per se, and that no respondeat superior liability would lie aga inst the department. Finally, agent Carlson was granted qualified immunity, and t he FBI was also dismissed. On appeal, plaintiff argues that the district courtprematurely dismissed his claims, thereby precluding his ability to establish defendants’ liability under § 1983. 3 We disagree. At the heart of plaintiff’s lawsuit is his theory t hat an oral order from a court of competent jurisdiction is somehow legally ineffective until it is reduced to writing, thus making defendants’ efforts at enfo rcing the order against him wrongful. Under the circumstances presented here, this is incorrect. As the Supreme Court has noted,-5-

[t]he orderly and expeditious administration of jus tice by the courts requires that an order issued by a court with juris diction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This p rinciple is especially applicable to orders issued during trial

. Maness v. Meyers , 419 U.S. 449, 459 (1975) (quotation and citation omitted). Because plaintiff’s attorney was present when the c ourt initially modified the custody order to prohibit the removal of Sammi fromUtah, and because plaintiff himself was present when the court later reiterated this restriction, he cannot now argue that he was free to disobey the order until i t had been reduced to writing. As the Supreme Court has instructed: If a person to whom a court directs an order believ es that order is incorrect the remedy is to appeal, but, absent a st ay, he must comply promptly with the order pending appeal. Persons wh o make private determinations of the law and refuse to obey an ord er generally risk criminal contempt even if the order is ultimately r uled incorrect. Id. , at 458. The fact that the court’s order in this case was or al does not diminish its force. We recognize that the eventual entry on a d ocket of a written order is important for many procedural reasons, not the leas t of which is to determine when, for purposes of appellate review, there is a final appealable judgment. See Fed. R. Civ. P. 58; Fed. R. App. P. 4. Plaintiff, however, did not appeal the court’s order or attempt any other judicial remedy that may have depended on the existence of a written order.-6-

We view the court’s order as akin to the grant of atemporary restraining order or a preliminary injunction, the purpose of w hich is to prohibit specific actions. See Bethlehem Mines Corp. v. United Mine Workers , 476 F.2d 860, 862- 64 (3d Cir. 1973) (affirming a finding of contempt against a party which had disobeyed an orally entered temporary restraining o rder); see also In re LaMarre , 494 F.2d 753, 758 (6th Cir. 1974) (noting that an o rder “entered in open court in the presence of the person concerned or with his kn owledge clearly proved” can be enforced by criminal contempt proceedings). Whi le there may be instances in which an oral order should not be enforceable until reduced to writing, this case is not one of them. “[T]his case involves an order th at forbids certain actions rather than one that allows those actions. The former is meaningless if of no effect until written.” In re Nail , 195 B.R. 922, 930 (Bankr. N.D. Ala. 1996). Plain tiff’s argument that defendants all acted illegally becaus e they proceeded without the auspices of an enforceable order, therefore, is wit hout merit. As noted above, the district court determined that county attorney Souvall was entitled to absolute immunity because his invol vement in this case was in his role as a prosecutor exercising his prosecutorial d uties. “Absolute immunity defeats a suit at the outset, so long as the offici al’s actions were within the scope of the immunity.” Roberts v. Kling , 104 F.3d 316, 318 (10th Cir. 1997), petition for cert. filed , (U.S. April 1, 1997) (No. 96-1602) (quotation andcitation-7-

omitted). Plaintiff’s complaint charged that Mr. S ouvall “had Uintah County Deputy Sheriff, John Laursen draft an Affidavit of Probable Cause,” Appellant’s App. at 18, and that he eventually charged plaintif f with the third degree felony of custodial interference. Plaintiff also alleged that Mr. Souvall violated his constitutional rights by contacting the FBI for hel p in apprehending him. This court has recently examined the issue of absol ute immunity in a prosecutorial setting where the defendant was an in vestigator in a district attorney’s office. See Roberts , 104 F.3d at 318. There, we concluded that the defendant’s actions in swearing out a complaint andobtaining an arrest warrant were prosecutorial in nature, as part of the initiation of a judicial proceeding, and thus deserving of absolute immunity. See id. at 319-20. Defendant Souvall’s actions in this case in directing the Uintah County Sheriff’s Department to investigate rumors relative to plaintiff’s whereabo uts was simply an attempt to establish the probable cause necessary before a cri minal complaint could be filed. Once the facts reported to defendant Souvall were v erified by the Sheriff’s Department, it was incumbent upon him to charge pla intiff and to take steps to secure his appearance. Defendant’s acts of verifyi ng probable cause and ultimately filing a complaint were clearly a part o f the initiation of prosecution,

see Imbler v. Pachtman , 424 U.S. 409, 431 (1976), and thus deserving of absolute immunity, see Roberts , 104 F.3d at 319-20.-8-

As mentioned above, the district court granted qual ified immunity to Sheriff Laursen. We review de novo the district court’s grant of qualified immunity on summary judgment, viewing the evidence in the lightmost favorable to the nonmoving party. We analyze assertions of q ualified immunity under a two-part framework: first we determine whe ther the plaintiff has asserted a violation of a constitutional or statutory right, and then we decide whether that right was clearly establishe d such that a reasonable person in the defendant’s position wouldhave known that [his or] her conduct violated the right. The plain tiff must articulate the clearly established constitutional right and th e defendant’s conduct which violated the right with specificity. Once the plaintiffs have met this initial burden, the defendant must de monstrate that no material issues of fact remain as to whether his orher actions were objectively reasonable in light of the law and the information he or she possessed at the time. If we determine that pl aintiffs have failed to show the officers’ conduct constituted a violati on of a constitutional or statutory right, we need not addr ess the other elements of the qualified immunity inquiry. Davis v. Gracey , No. 95-6245, 1997 WL 192018, slip op at *3 (10th Cir. Apr. 21, 1997) (quotations and citations omitted). As long as a defendant pleads it as an affirmative defense, qualified immunity acts as a s hield for defendant from the burdens of discovery and trial as well as for liabi lity. See Mitchell v. Maynard , 80 F.3d 1433, 1447 (10th Cir. 1996). Plaintiff’s complaint alleged only that Sheriff Lau rsen’s probable cause affidavit “was fatally defective because it did notarticulate facts that alleged the elements of Custodial Interference.” Appellant’s App. at 20. Nothing in the complaint implicates the Uintah County Sheriff’s De partment. Under these4 On appeal, plaintiff discards his argument based onthe allegedly defective

probable cause affidavit and, instead, argues that Sheriff Laursen violated plaintiff’s constitutional rights by allowing Mr. S ouvall, the county attorney, to act as the complainant. Even if we could determine that this argument had been raised in the district court, we would reject it as meritless. -9- circumstances, we agree with the district court that plaintiff has not stated a claim that can overcome Sheriff Laursen’s qualified immun ity and has not stated a claim at all against the Sheriff’s Department. Plaintiff did not contest the veracity of Sheriff L aursen’s affidavit. See id. at 44. In order to establish that Sheriff Laursen violated his due process rights, plaintiff would have to prove that the affidavit fi led by the Sheriff was untruthful.
See St. John v. Justmann , 771 F.2d 445, 448 (10th Cir. 1985). Because plai ntiff concedes that the facts in the affidavit were true, he cannot show that Sheriff Laursen’s conduct constituted a violation of a cons titutional right. Sheriff Laursen is thus entitled to qualified immunity. Se e Davis , 1997 WL 192018, at *3. Because we agree with the district court th at Sheriff Laursen committed no constitutional violation, and because plaintiff all eged no specific claims implicating the Uintah County Sheriff’s Department, the claim against the department was also properly dismissed. See Taylor v. Meacham , 82 F.3d 1556, 1564 (10th Cir.), cert. denied , 117 S. Ct. 186 (1996). 4 Finally, we also affirm the dismissal of the FBI an d its agent, Robert Carlson. When county attorney Souvall wrote to the FBI requesting help in-10-

apprehending plaintiff, he included in his correspo ndence a copy of the information, the warrant of arrest, the affidavit o f probable cause, and a petition filed in juvenile court for custody of plaintiff’s daughter to social services. See Appellant’s App. at 33. The arrest warrant charged plaintiff with custodial interference, a third degree felony; plaintiff does not argue that the warrant appeared facially invalid. As the district court noted, “[g]overnment official s, including FBI agents, are protected by the defense of qualified immunity for civil liability for objectively reasonable official actions.” Id. at 46 (citing Anderson v. Creighton , 483 U.S. 635, 636 (1987)). Plaintiff has pointed t o no authority establishing his right to have the FBI re-investigate and verify the facts underlying state process before proceeding under 18 U.S.C. § 1073. Even if plaintiff has identified a more general constitutional right to be free from false arrest, however, Agent Carlson would not lose his qualified immunity unless it was clear that, on an objective basis, no reasonably competent officer would have conclude d that a warrant should issue; but if officers of reasonable compete nce could disagree on this issue, immunity should be recognized.

. . . . Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable . . . will the shield of immunity be l ost.-11-

Malley v. Briggs , 475 U.S. 335, 341, 344-45 (1986). We agree with the district court that Agent Carlson was entitled to rely on th e documentation he received from the Utah county attorney for purposes of 18 U. S.C. § 1073. Because Agent Carlson committed no constitutional violation, and because plaintiff made no specific charges in his complaint against the FBI, the latter was also appropriately dismissed as a defendant.
AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge