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 appeals the district court’s order granting 

summary judgment in favor of defendants, the City of Greeley, Colorado, and 

Greeley Police Officer Erin Gooch, in her 42 U.S.C. § 1983 complaint alleging 

malicious prosecution. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 *

 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 

August 30, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

I. BACKGROUND

On February 8, 2012, a woman attempted to cash a fraudulent check at a bank 

but quickly left when a bank employee began 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 driver’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. Chavez-Torres, who spoke little or no English, 

denied any involvement in the check forgery. However, at a hearing on February 10, 

2012, a judge found probable cause to charge her. Chavez-Torres remained in jail 

until March 28, 2012, when the prosecutor dismissed the charges against her, citing 

an inability to prove 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 plaintiff’s continued confinement or prosecution; (2) the 

original action terminated in favor of the plaintiff; (3) there was no probable cause to 

support the original arrest, continued confinement, or prosecution; (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 failure to state a claim. The 
3 

district court dismissed some claims,1

 but concluded the complaint plausibly alleged 

a malicious prosecution claim. 

Defendants then moved for summary judgment, asserting Officer Gooch had 

probable cause to arrest Chavez-Torres. Officer Gooch’s affidavit noted that both of 

the two items left at the bank were linked to Chavez-Torres and that when Officer 

Gooch interviewed Chavez-Torres, Chavez-Torres avoided eye contact and her hair 

appeared newly colored, possibly to change her appearance. Officer Gooch had 

previously reviewed the video from the bank’s camera, which, though grainy and of 

low resolution, led her to conclude the perpetrator shared the same gender, race, hair 

color and length, and approximate size as Chavez-Torres. 

In response, Chavez-Torres alleged there were significant physical differences 

between her and the description of the perpetrator. 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 provide the names of alibi witnesses. 

The district court granted summary judgment to defendants because 

Chavez-Torres failed to meet her burden to demonstrate either that Officer Gooch 

lacked probable cause to arrest her or that Officer Gooch acted with malice, two of 

the required elements of a malicious prosecution claim. Chavez-Torres moved for 

 1

 Chavez-Torres does not appeal the district court’s Rule 12(b)(6) dismissal of 

those claims. 
4 

relief from judgment under Fed. R. Civ. P. 60(b), which the district court denied. 

She now appeals. 

II. DISCUSSION

“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 Cir. 2011). Summary judgment is appropriate “if the 

movant shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. 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 first argues that genuine issues of material fact 

remain as to whether Officer Gooch had probable cause to arrest her. She also 

challenges the district court’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 malicious prosecution, requires 

evidence of intent, not mere negligence. See Novitsky, 491 F.3d at 1258-59 (ruling 

evidence of misstatement in arrest report was insufficient evidence of malice when 

plaintiff failed to show misstatement was intentional rather than negligent or 

inadvertent); Fletcher v. Burkhalter, 605 F.3d 1091, 1095 (10th Cir. 2010) (stating 

malice in § 1983 malicious prosecution claims “requires intentional or reckless 

disregard of the truth”). We have also said that “we use the common law elements of 
5 

malicious prosecution as the starting point” for the analysis of a § 1983 malicious 

prosecution claim. Novitsky, 491 F.3d at 1257 (internal quotation marks omitted). 

Colorado, where this incident occurred, defines “malice” in state malicious 

prosecution claims as “any motive other than a desire to bring an offender to justice.” 

Suchey v. Stiles, 394 P.2d 739, 741 (Colo. 1964). 

Chavez-Torres argues she didn’t present any evidence of malice 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 weigh potential evidence that the 

parties might present at trial, but to assess whether the plaintiff’s complaint alone is 

legally sufficient to state a claim for which relief may be granted.” Smith v. United 

States, 561 F.3d 1090, 1098 (10th Cir. 2009) (internal quotation 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 sufficient to establish the existence 

of an element essential to [her] case in order to survive 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 Officer 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 summary 
6 

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 district court gave Chavez-Torres this required notice. But 

Chavez-Torres doesn’t assert this Rule 56(f)(2) error as a basis for reversal on 

appeal; her opening brief makes no mention 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 appeal arguments in their opening brief, Fed. R. App. P. 

28(a)(8)(a), and consistent with this requirement, we routinely decline to consider 

arguments not raised, or inadequately 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) motion to lodge any Rule 56(f)(2) objection 

to the lack of notice.3

 There, as here, Chavez-Torres argued only that she didn’t 

 2

 Because Chavez-Torres is represented 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 judgment has been filed and the court sua 

sponte grants judgment, we are less inclined 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 (noting 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 summary 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 believed she could rely on the Rule 12(b)(6) 

ruling that she had plausibly alleged malice in her complaint.4

 Thus, even if the 

district court erred by granting summary judgment on the malice element without 

giving Chavez-Torres notice and an opportunity 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. Citizenship & Immigration Servs., 

761 F.3d 1149, 1154-55 (10th Cir. 2014) (refusing to consider arguments not raised 

in the district court or first raised in a reply brief). 

Regarding the malice element, Chavez-Torres has made only conclusory, 

unsupported allegations that Officer Gooch was motivated primarily by a desire to 

finish her investigation quickly 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 allegations 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 interpreters. 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 appropriate vehicle to advance new 

supporting facts that were available 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