UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ALMA RUBI CHAVEZ-TORRES, Plaintiff - Appellant,

v. THE CITY OF GREELEY; ERIN GOOCH, Defendants - Appellees. No. 15-1447 (D.C. No. 1:14-CV-01187-RBJ) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, BACHARACH and MORITZ , Circuit Judges.

________________ _________________ Plaintiff Alma Rubi Chavez-Torres appeal s the district court’s order granting summary judgment in favor of defendant s, the City of Gr eeley, Colorado, and Greeley Police Officer Erin Gooch, in her 42 U.S.C. § 1983 complaint alleging malicious prosecution. Exer cising jurisdiction under 28 U. S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 30, 2016
Elisabeth A. Shumaker Clerk of Court2 I. B ACKGROUND On February 8, 2012, a woman attempte d to cash a fraudulent check at a bank but quickly left when a bank employee bega n to investigate, leaving behind the forged check and a driver’s license. The forged check was made payable to Alma Rubi Chavez-Torres, and the dr iver’s license belonged to Chavez-Torres. The next day, Officer Gooch went to Chavez-Torres’ s home and arrested her for forgery and possession of a forged instrument. Chav ez-Torres, who spoke little or no English, denied any involvement in th e check forgery. However, at a hearing on February 10, 2012, a judge found probable cause to char ge her. Chavez-Torre s remained in jail until March 28, 2012, when the prosecutor di smissed the charges against her, citing an inability to pr ove her guilt. Chavez-Torres then brought this § 1983 action against the defendants alleging malicious prosecution. To prevail on a Fourth Amendment § 1983 malicious prosecution claim, a plaintiff must show the following five elements: “(1) the defendant caused the plain tiff’s continued confinemen t or prosecution; (2) the original action terminated in favor of the pl aintiff; (3) there was no probable cause to support the original arrest, continued conf inement, or prosecuti on; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.” Novitsky v. City of
Aurora , 491 F.3d 1244, 1258 (10th Cir. 2007) . The defendants first moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failu re to state a claim. The3 district court dism issed some claims, 1 but concluded the comp laint plausibly alleged a malicious prosecution claim. Defendants then moved for summary j udgment, asserting Officer Gooch had probable cause to arrest Chavez-Torres. O fficer Gooch’s affidavit noted that both of the two items left at the bank were linked to Chavez-To rres and that when Officer Gooch interviewed Chavez-Torres, Chavez-T orres avoided eye contact and her hair appeared newly colored, possibly to chan ge her appearance. Officer Gooch had previously reviewed the video from the ba nk’s camera, which, though grainy and of low resolution, led her to conclude the perp etrator shared the same gender, race, hair color and length, and approxima te size as Chavez-Torres. In response, Chavez-Torres alleged there were signifi cant physical differences between her and the description of the perp etrator. Further, she alleged Officer Gooch failed to review still photos from the video or arrange a line-up for bank employees, and didn’t arrange for a Spanish- English interpreter, thus, she couldn’t answer Officer Gooch’s questions or provi de the names of a libi witnesses. The district court granted summar y judgment to defendants because Chavez-Torres failed to meet her burden to demonstrate either that Officer Gooch lacked probable cause to arre st her or that Officer Gooc h acted with malice, two of the required elements of a malicious pr osecution claim. Ch avez-Torres moved for

1 Chavez-Torres does not appeal the distri ct court’s Rule 12(b)(6) dismissal of those claims.4 relief from judgment under Fed. R. Civ. P. 60(b), which the dist rict court denied. She now appeals.
II. D ISCUSSION “We review a district court’s grant of summary judgment de novo, applying the same legal standard as the district court.” Twigg v. Hawker Beechcraft Corp ., 659 F.3d 987, 997 (10th Ci r. 2011). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Ci v. P. 56(a). We review a district court’s denial of a Rule 60(b) motion for abuse of discretion. ClearOne Commc’ns, Inc. v. Bowers , 643 F.3d 735, 754 (10th Cir. 2011). On appeal, Chavez-Torres fi rst argues that genuine is sues of material fact remain as to whether Officer Gooch had pr obable cause to arrest her. She also challenges the district cour t’s malice ruling, arguing that she relied on the district court’s earlier Rule 12(b)(6) ruling in not presenting any evidence that Officer Gooch acted with malice. We have held that malice, in the context of mali cious prosecution, requires evidence of intent, not mere negligence. See Novitsky , 491 F.3d at 1258-59 (ruling evidence of misstatement in arrest report was insufficie nt evidence of malice when plaintiff failed to show mi sstatement was intentional rather than negligent or inadvertent); Fletcher v. Burkhalter , 605 F.3d 1091, 1095 (10th Cir. 2010) (stating malice in § 1983 malicious prosecution clai ms “requires intentional or reckless disregard of the truth”). We have also said that “we us e the common law elements of5 malicious prosecution as the starting point” for the analys is of a § 1983 malicious prosecution claim. Novitsky , 491 F.3d at 1257 (internal quotation marks omitted). Colorado, where this inci dent occurred, defines “m alice” in state malicious prosecution claims as “any motive other than a desire to bring an o ffender to justice.” Suchey v. Stiles , 394 P.2d 739, 74 1 (Colo. 1964). Chavez-Torres argues she didn’t present any evidence of ma lice because the district court had previously ruled in its Rule 12(b)(6) order that her complaint plausibly alleged malice. But Chavez- Torres fundamentally misunderstands the distinction between a Rule 12(b)(6) motion and a Rule 56 summary judgment motion. The court’s role at the Rule 12(b)(6) stage is “not to we igh potential evidence that the parties might present at trial, but to assess whether the pl aintiff’s complaint alone is legally sufficient to stat e a claim for which reli ef may be granted.” Smith v. United
States , 561 F.3d 1090, 1098 (10th Cir. 2009) (internal quotati on marks omitted). In contrast, at the summary judgment stage, “[f]or dispositive issues on which the plaintiff will bear the burden of proof at trial, [s]he must go beyond the pleadings and designate specific facts so as to make a showing sufficien t to establish the existence of an element essential to [her] case in order to su rvive summary judgment.” Cardoso v. Calbone , 490 F.3d 1194, 1197 (10th Cir. 2007) (internal quotation marks omitted). In short, the Rule 12(b)(6) ruling didn’t relieve Chavez-Torres of her burden to present evidence that O fficer Gooch acted with malice. We note that the defendants didn’t raise any argument related to malice in their motion for summary judgment. The rules do permit a court to grant a summary6 judgment “motion on grounds not raised by a party,” but only “[a ]fter [first] giving notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f)(2). Here, nothing in the record indicates the dist rict court gave Chavez-Torres this required notice. But Chavez-Torres doesn’t assert this Rule 56( f)(2) error as a ba sis for reversal on appeal; her opening brief makes no menti on of Rule 56(f)(2) and she makes only a passing reference to Fed. R. Civ. P. 56 (f)(3) in her reply brief. Appellants are required to identify their app eal arguments in their opening brief, Fed. R. App. P. 28(a)(8)(a), and consistent wi th this requirement, we rou tinely decline to consider arguments not raised, or inad equately presented, in an appellant’s opening brief.
Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007). 2 Significantly, given the district court’s sua sponte malice ruling, Chavez-Torres didn’t use her Rule 60(b) mo tion to lodge any Rule 56(f)(2) objection to the lack of notice. 3 There, as here, Chavez-Torre s argued only that she didn’t

2 Because Chavez-Torres is re presented by counsel, her appellate briefs are not afforded a liberal construction.

3 In any event, we note that we will not reverse based on a lack of notice under Rule 56(f) “if the losing party suffered no prejudice from the lack of notice.” Johnson v. Weld Cty. , 594 F.3d 1202, 1214 (10th Cir. 2010). Further, unlike a situation in which no motion for summary ju dgment has been filed and the court sua sponte grants judgment, we are less incl ined to find prejudice when a motion for summary judgment has been filed. Cf. Jones v. State Farm Mut. Auto. Ins. Co . __ F. App’x __, 2016 WL 3457619 at *9 (noti ng when a motion has been filed, “‘ the judge already is engaged in determining whether a genuine issue of material fact exists and the parties have been given the opportunity to present evidence designed either to support or refute the request for entry of su mmary judgment.’” (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998).)7 present evidence of malice because she beli eved she could rely on the Rule 12(b)(6) ruling that she had plausibly a lleged malice in her complaint. 4 Thus, even if the district court erred by granting summar y judgment on the malice element without giving Chavez-Torres notice and an opportun ity to respond, Chavez-Torres waived this argument by failing to pursue it before the district court or raise it on appeal prior to her reply brief. See McKenzie v. U.S. Citiz enship & Immigration Servs ., 761 F.3d 1149, 1154-55 (10th Cir. 2014) (refus ing to consider arguments not raised in the district court or firs t raised in a reply brief). Regarding the malice element, Chav ez-Torres has made only conclusory, unsupported allegations that Officer Gooc h was motivated primarily by a desire to finish her investigation qui ckly and that the Greeley Police Department created a culture that stressed clearing a case and making an arrest rather than charging the right person. But these conclusory allega tions are insufficient at summary judgment stage. Rather, evidence “must be based on more than mere speculation, conjecture, or surmise[, and u]nsubstantiated allegations carry no probative weight in summary judgment proceedings.” Cardoso , 490 F.3d at 1197 (bracket omitted). Chavez-Torres also repeats her allegations that Officer Gooch conducted a flawed investigation and used Chavez- Torres’s children as interpre ters. To the extent she

4 Chavez-Torres attached to her Rule 60(b) motion an amended affidavit, adding new allegations, none of which was newly-discovered evidence and most of which were simply conclusory, unsupported allegations. We do not consider these new allegations, as a Rule 60( b) motion is not an appropria te vehicle to advance new supporting facts that were av ailable but not raised at the time of the original argument. Cashner v. Freedom Stores, Inc ., 98 F.3d 572, 577 (10th Cir. 1996).8 may be arguing that malice can be inferred from a lack of probable cause, we agree with the district court for the reasons it specified that Chavez-Torres failed to present evidence from which a reasonable jury could conclude Officer Gooch lacked probable cause to arrest her. Given the absence of any evidence that Officer Gooch acted with malice, we affirm the district court’s grant of summary judgment to the defendants.

Entered for the Court
Nancy L. Moritz Circuit Judge