FILED

United States Court of Appeals

Tenth Circuit

February 2, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WILLIAM MARTIN; SHELLEY

MARTIN,

Plaintiffs-Appellants,

v.

STAN HILKEY, as Sheriff of Mesa

County; TIM HENDERSON,

Defendants-Appellees.

No. 11-1148

(D.C. No. 1:09-CV-02574-MSK-CBS)

(D. Colo.)

ORDER AND JUDGMENT*

Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit

Judge.

William and Shelley Martin appeal from a district court order dismissing

their 42 U.S.C. § 1983 counseled civil-rights complaint against Sheriff Stan

Hilkey and Deputy Tim Henderson of the Mesa County, Colorado, Sheriff’s

* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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. 
Department. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM for

substantially the same reasons given by the district court.

BACKGROUND

In 1991, Mr. Martin was convicted in Colorado state court of felony

vehicular assault. In 2007, Deputy Henderson learned of Mr. Martin’s conviction

and discovered that he had over 100 firearms in his residence. Citing Colorado’s

law prohibiting felons from possessing firearms, Colo. Rev. Stat. § 18-12-108(1),1

Deputy Henderson prepared an affidavit to obtain a no-knock search warrant. A

warrant was issued and executed.

According to the Martins’ first amended complaint, “members of the

Sheriff’s Department and [the Bureau of Alcohol, Tobacco, and Firearms] held

[them] at gunpoint for nearly eight hours as they rummaged through the home,”

seizing over a hundred firearms. Aplee. Supp. App. at 3. Throughout that

1 Under the statute,

[a] person commits the crime of possession of a weapon by a

previous offender if the person knowingly possesses, uses, or carries

upon his or her person a firearm as described in section

18-1-901(3)(h) or any other weapon that is subject to the provisions

of this article subsequent to the person’s conviction for a felony, or

subsequent to the person’s conviction for attempt or conspiracy to

commit a felony, under Colorado or any other state’s law or under

federal law.

Colo. Rev. Stat. § 18-12-108(1).

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process, Mrs. Martin “was kept outside at gunpoint for approximately forty-five

minutes dressed only in her nightgown,” and “one of the officers threatened to

shoot the family pet.” Id. at 6. The Martins further alleged that Deputy

Henderson had “no basis to believe that [Mr. Martin] was in violation of C.R.S.

§ 18-12-108(1), as his rights to own and possess the firearms had been restored

once he completed his sentence.” Id. at 4. Additionally, they claimed that

“[e]ven after it had been made clear to Defendants that [Mr. Martin’s]

constitutional rights to possess the firearms had been restored[,] . . . Defendants

refused to return the firearms.” Id. at 4-5. Based on these allegations, the

Martins asserted violations of their federal “constitutional rights under the

Second, Fourth, Fifth, and Eighth Amendments.” Id. at 6.

The district court dismissed the amended complaint in its entirety. As to

Deputy Henderson, the court concluded that he was entitled to qualified immunity

because his affidavit statement that Mr. Martin could not legally possess a firearm

was not contrary to clearly established Colorado law. Indeed, the court noted that

when Deputy Henderson drafted the affidavit in 2007, § 18-12-108(1) absolutely

and permanently banned felons from possessing firearms. The court recognized

that before 1994, the statute banned possession only in cases of felonies

“involving the use of force or violence” and only for ten years following release

from incarceration. Colo. Rev. Stat. § 18-12-108(1) (1993), repealed and

re-enacted by Colo. S.B. 94-89 § 6 (effective July 1, 1994). But the Martins

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failed to identify any legal authority that would have suggested to Deputy

Henderson that Mr. Martin was exempt from the current version of the statute. 

Thus, qualified immunity applied.

The court further noted that there were no allegations that Deputy

Henderson personally participated in any of the other claimed constitutional

violations. Regarding Sheriff Hilkey, the court noted that there were no

allegations showing either the sheriff’s personal involvement or a departmental

custom or policy that led to a constitutional violation.

The Martins appeal.

DISCUSSION

We review a Rule 12(b)(6) dismissal de novo, accepting as true all

well-pleaded factual allegations in the complaint and viewing them in the light

most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098

(10th Cir. 2009). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation

omitted). When the dismissal is based on qualified immunity, the “plaintiffs must

allege facts sufficient to show (assuming they are true) that the defendants

plausibly violated their constitutional rights, and that those rights were clearly

established at the time.” Robbins v. Okla., 519 F.3d 1242, 1249 (10th Cir. 2008). 

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The Martins argue that United States v. Hall, 20 F.3d 1066 (10th Cir.

1994), would have put Deputy Henderson on notice that he was not barred by

Colo. Rev. Stat. § 18-12-108(1) from possessing firearms. But Hall did not

involve the current version of that statute. Indeed, Hall was decided before the

statute was amended to make the firearms ban absolute and permanent. Thus,

Hall would have given Deputy Henderson no guidance as to whether the current

statute covers Mr. Martin’s possession of firearms. We agree with the district

court that when Deputy Henderson submitted his search-warrant affidavit, the law

was not clearly established that Mr. Martin was exempt from Colorado’s current

felon-in-possession-of-a-firearm statute.2

2 The defendants point out that roughly five months before the Martins filed

their civil-rights suit, the Colorado Court of Appeals affirmed a trial court’s

decision denying the Martins’ “motion for return of property and suppression of

evidence.” Aplt. App. at 51. In doing so, the Colorado Court of Appeals held

that the restoration of Mr. Martin’s civil rights under the former version of

Colo. Rev. Stat. § 18-12-108(1) did not survive the statute’s 1994 amendment. 

The court further rejected the Martins’ claim that the 1994 amendment raised

ex-post-facto concerns. Martin v. Colo., No. 08CA1363 (Colo. App. Ct. June 11,

2009), cert. denied, No. 2009SC630 (Colo. Oct. 19, 2009). See Aplt. App. at

50-55.

It is unclear whether the defendants contend that the Colorado Court of

Appeals’ decision collaterally estops the Martins in this federal civil rights case

from contesting the effect of amended § 18-12-108(1). See Allen v. McCurry,

449 U.S. 90, 104 (1980) (holding that a federal civil rights plaintiff may be

collaterally estopped from litigating a § 1983 claim by a state court criminal

judgment in which the same issue has already been litigated). In any event, we

need not reach the preclusion issue given the Martins’ failure to identify clearly

established law in their favor.

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The Martins next argue that Deputy Henderson violated their Fourth

Amendment rights by seeking a no-knock warrant. The district court did not

expressly discuss the warrant-procurement aspect of the Martins’ Fourth

Amendment claim. Nevertheless, we note that the Martins’ first amended

complaint does not adequately plead such a claim. It merely alleges in conclusory

fashion that “[t]he procurement and execution of the no-knock search warrant on

November 15, 2007, violated Plaintiffs’ constitutional rights.” Aplee. Supp. App.

at 3. “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.

Finally, the Martins summarily assert that “it was an abuse of discretion by

the District Court not to allow [Mr. Martin] to amend his pleadings to correct

deficiencies found by the District Court.” Aplt. Br. at 9. This assertion fails for

two reasons. First, we generally do not consider arguments unsupported by legal

authority or discussion. See Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir.

1992). Second, the Martins made no formal request for amendment. Rather, they

merely stated in the middle of their opposition to dismissal that “in the event . . .

this Court finds that Plaintiffs’ Complaint is somehow deficient, Plaintiffs’ [sic]

would simply ask for leave to file an amended complaint which cures any

deficiencies.” Aplee. Supp. App. at 39. Because a motion for leave to amend

was never properly before the district court, no abuse of discretion was possible. 

See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1187

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(10th Cir. 1999) (concluding that the plaintiff’s “single sentence [request for

amendment], lacking a statement for the grounds for amendment and dangling at

the end of her memorandum, did not rise to the level of a motion for leave to

amend”); see, e.g., Garmen v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 986

(10th Cir. 2010) (concluding that plaintiff’s suggestion for amendment made in

opposition to dismissal was insufficient).

CONCLUSION

The judgment of the district court is AFFIRMED for substantially the same

reasons identified by the district court in its March 10, 2011, dismissal order.

Entered for the Court

Monroe G. McKay

Circuit Judge

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