* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 18 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PETE GARCIA,

Plaintiff-Appellant,

v.

ANTHONY DATILLO, JAMES BRAD

JOHNSON, KEVIN CARTICA, JON

NOTH, GARY GRAINGER, FRANK

GREENBERG, RANDY WEST,

INVESTIGATOR ROBERT VETTE,

B. WILLIAMS and DOUGLAS MOORE,

individually and as Deputy Sheriffs in the

Jefferson County Sheriff’s Department,

Defendants-Appellees.

No. 96-1135

(D.C. Civil Action No. 93-N-2110)

(D. Colorado)

ORDER AND JUDGMENT*

Before BRORBY, LOGAN, and BRISCOE, Circuit Judges.**
1

 Officials had targeted plaintiff’s brother in a drug investigation and obtained an

arrest warrant for the brother and a search warrant for plaintiff’s mother’s home where

both plaintiff and his brother were staying the night of the raid. Defendant alleged that

the defendant deputies attempted to execute the warrant without an adequate plan or

training. The deputies shot barking dogs at the residence, and used a “stun” or flash

grenade, prompting plaintiff’s brother to shoot and injure two of the deputies. The

deputies then allegedly beat plaintiff before they arrested him.

- 2 -

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

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Plaintiff Pete Garcia appeals the district court’s denial of his motion to file a third

amended complaint in his 42 U.S C. § 1983 action. Plaintiff asserted that on March 26,

1987, Jefferson County, Colorado, Sheriff’s officers beat him, arrested and imprisoned

him without probable cause, and conspired to deprive him of his constitutional rights.1

The first amended complaint named as defendants several Jefferson County

Sheriff’s officers in their official and individual capacities, as well as the Jefferson

County Board of Commissioners. In April 1994, plaintiff obtained leave to file a second

amended complaint, deleting the Board of County Commissioners and adding the
2

 The second amended complaint included the facts that plaintiff had pleaded

guilty to charges arising from the raid; after the state court refused his request to

withdraw his guilty plea, he appealed to the Colorado Court of Appeals, which held that

plaintiff might have received ineffective assistance of counsel in entering a guilty plea,

and remanded for factual resolutions, see People v. Garcia, 815 P.2d 937 (Colo. 1991),

cert. denied, 502 U.S. 1121 (1992); on remand, the state district court granted plaintiff’s

request to withdraw his guilty plea; and then the state moved to dismiss all charges.

3

 A panel of this court upheld the district court’s finding that the individual

plaintiffs were not entitled to qualified or absolute immunity. Garcia v. Johnson, No. 94-

1360, 1995 WL 492879 (10th Cir. Aug. 18, 1995). That opinion contains a full recitation

of the facts; we do not restate them here because they are not dispositive of this appeal.

- 3 -

Sheriff’s Department as a defendant.2 In that complaint, plaintiff alleged a conspiracy to

maliciously prosecute him, malicious prosecution, and false arrest.

The individual defendants asserted defenses of absolute and/or qualified immunity

which the district court rejected. Those defendants pursued an unsuccessful interlocutory

appeal.3 The magistrate judge then denied the Sheriff’s Department request for a stay

pending the appeal. The case proceeded, and the Sheriff’s Department filed a motion for

summary judgment. Plaintiff failed to timely respond, and in February 1995 stipulated to

the dismissal with prejudice of the Sheriff’s Department. In October 1995 plaintiff

sought permission to file a third amended complaint adding the Board of County

Commissioners as a defendant. The district court denied the motion. On March 25,

1996, plaintiff accepted the defendants’ offer of judgment but reserved the right to appeal

the denial of his motion to file a third amended complaint.

We review the denial of a motion to amend for an abuse of discretion. Lambertsen

v. Utah Dep’t of Corrections, 79 F.3d 1024, 1029 (10th Cir. 1996). “We are free to
4

 Although plaintiff points out that the district court made several scheduling

orders after this, plaintiff does not argue that the district court extended the deadline to

join parties nor has our review of the record revealed any order doing so.

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affirm a district court decision on any grounds for which there is a record sufficient to

permit conclusions of law, even grounds not relied upon by the district court.” United

States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994).

We first note that the motion to amend was filed more than one year following the

October 1, 1994 deadline the district court set for joinder of parties and amended

pleadings.4

 A district court does not abuse its discretion in denying leave to amend when

the plaintiff did not comply with the Fed. R. Civ. P. 16(b) scheduling order. See Johnson

v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992).

Further, the district court denied leave to file the third amended complaint for

sound reasons. Plaintiff alleged that Major Anthony Datillo of the Sheriff’s Department

was the final policy maker for the Board of County Commissioners. In Colorado,

however, the county commissioners and county sheriffs are separate entities. See Wigger

v. McKee, 809 P.2d 999, 1003-04 (Colo. App. 1990). Plaintiff did not allege that

Jefferson County Commissioners were responsible for policy making for the Sheriff’s

Department. Although the county, through its commissioners, might ultimately have the

authority to pay a judgment against the Sheriff’s Department, that does not establish that a

sheriff’s officer is a policy maker of the Board of County Commissioners. See Pembaur

v. City of Cincinnati, 475 U.S. 469, 482-83 & n.12 (1986).
- 5 -

AFFIRMED. We deny plaintiff’s motion to take judicial notice that the Drug

Enforcement Agency was not involved in the raid that was the basis for plaintiff’s suit.

Entered for the Court

James K. Logan

Circuit Judge