PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

TSUTOMU SHIMOMURA, 

 Plaintiff - Appellant, 

v. 

KENDRA CARLSON, an agent of 

the Transportation Security 

Administration, in her individual 

capacity; WADE DAVIS, a Denver 

Police Department officer, in his 

individual capacity, 

 Defendants - Appellees, 

and 

TERRY CATES, an agent of the 

Transportation Security 

Administration, in her individual 

capacity; PATTI ZELLER, an agent 

of the Transportation Security 

Administration, in her individual 

capacity, 

 Defendants. 

No. 14-1418 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:13-CV-00462-RBJ-MJW)

_________________________________ 

Ty Gee, Haddon, (Laura G. Kastetter, with him on the briefs) Haddon, 

Morgan, and Foreman, P.C., Denver, Colorado, for Plaintiff-Appellant. 

FILED 

United States Court of 

Appeals 

Tenth Circuit 

December 29, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 1 
2 

Paul Farley, Assistant United States Attorney, (John F. Walsh, United 

States Attorney, with him on the brief) Office of the United States 

Attorney, Denver, Colorado, for Kendra Carlson, Defendant-Appellee. 

Andrew J. Carafelli, Pryor Johnson Carney Karr Nixon, P.C., Denver, 

Colorado, for Wade Davis, Defendant-Appellee. 

_________________________________ 

Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH, 

Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

 Mr. Tsutomu Shimomura claims that an officer with the Denver 

Police Department (Wade Davis) and an agent with the Transportation 

Security Administration (Kendra Carlson) made an arrest without probable 

cause and conspired to fabricate grounds for the arrest. For these claims, 

Mr. Shimomura invoked 42 U.S.C. § 1983 and Bivens v. Six Unknown 

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 

alleging that Officer Davis and Agent Carlson violated the Fourth, Fifth, 

and Fourteenth Amendments.1

 On the Fourth Amendment claims, the 

district court granted two motions: (1) Officer Davis’s motion for summary 

judgment based on qualified immunity and (2) Agent Carlson’s motion to 

dismiss based on failure to state a valid claim. On the causes of action 

involving the Fifth and Fourteenth Amendments, the court granted the 

 

1

 In the complaint, Mr. Shimomura also invoked the First Amendment. 

But the First Amendment claim is not involved in this appeal. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 2 
3 

defendants’ motions to dismiss for failure to state a valid claim. Mr. 

Shimomura appeals; to decide his appeal, we address four issues: 

1. Did Officer Davis have qualified immunity (arguable 

probable cause) for the arrest? Officer Davis arrested Mr. 

Shimomura for assault after seeing him push his roller bag 

toward Agent Carlson. Mr. Shimomura contends that Officer 

Davis lacked qualified immunity in determining that probable 

cause existed. Thus, we must decide whether Officer Davis 

enjoys qualified immunity.

We conclude he does. Even if probable cause had been absent, 

Officer Davis would enjoy qualified immunity if probable 

cause had been at least arguable. In our view, probable cause 

was arguable because Officer Davis saw Mr. Shimomura push 

his roller bag toward Agent Carlson, observed her reaction by 

trying to avoid contact, and watched Mr. Shimomura move 

rapidly away. These observations could reasonably lead Officer 

Davis to believe there was probable cause involving an assault 

under a Denver city ordinance. Thus, Officer Davis enjoys 

qualified immunity on the claim of unlawful arrest.

2. Did Mr. Shimomura plead a plausible claim against Agent 

Carlson for fabrication and withholding of evidence to 

justify the arrest? Mr. Shimomura claims that Agent Carlson 

violated the Fourth Amendment by fabricating evidence and 

withholding exculpatory evidence to justify the arrest. On these 

claims, we must decide whether the allegations plausibly 

implicate Agent Carlson in the decision to arrest Mr. 

Shimomura. 

We conclude they do not. Agent Carlson’s conduct could not 

have caused the arrest because it would have taken place after 

the arrest. Accordingly, we conclude that Agent Carlson is 

entitled to dismissal of the unlawful arrest claim. 

3. Did Mr. Shimomura plead a plausible claim of a conspiracy 

preceding the arrest? According to Mr. Shimomura, Officer 

Davis and Agent Carlson conspired to violate the Fourth 

Amendment by making the arrest without probable cause. We 

must decide whether this claim was plausible based on the 

factual allegations in the complaint. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 3 
4 

In our view, the claim fails under this test because Officer 

Davis arrested Mr. Shimomura within seconds of the alleged 

assault. Mr. Shimomura has not pleaded facts showing a 

plausible opportunity for Officer Davis and Agent Carlson to 

conspire in those few seconds. 

4. Did Mr. Shimomura plead a plausible claim involving 

deprivation of procedural due process? Mr. Shimomura 

claims that the false arrest, initiation of false charges, and 

conspiracy deprived him of procedural due process under the 

Fifth and Fourteenth Amendments. We must decide whether the 

allegations in the complaint state a viable claim. 

In our view, they do not. The Fourth Amendment—not the Fifth 

or Fourteenth Amendment’s protection of procedural due 

process—generally governs pre-trial deprivations of liberty. 

Because the sole source of protection is the Fourth Amendment, 

we uphold dismissal of the claim involving deprivation of 

procedural due process. 

I. Officer Davis arrested Mr. Shimomura after seeing him push his 

roller bag toward Agent Carlson.

In February 2011, Mr. Shimomura was going through security at the 

Denver International Airport, trying to catch a flight. At the security 

checkpoint, Mr. Shimomura presented his belongings for screening. When 

he did, a TSA agent conducted a test on Mr. Shimomura’s medication, 

using a sampling strip. Mr. Shimomura was afraid that the test would 

contaminate his medication. Based on this fear, Mr. Shimomura asked 

about the sterility and toxicity of the sampling strip. The TSA agent’s 

response did not satisfy Mr. Shimomura. So he asked for the agent’s 

supervisor. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 4 
5 

 Agent Carlson was the TSA supervisor who responded. She stated 

that the sampling strips were sterile for screening purposes. But Mr. 

Shimomura remained unsatisfied, and the conversation grew heated while 

Officer Davis watched from nearby. 

 Eventually, Mr. Shimomura was told to leave the screening area. He 

complied and began walking away with his roller bag, with Agent Carlson 

and Officer Davis following closely behind. After taking a few steps, Mr. 

Shimomura stopped, and Officer Davis believed that the roller bag had hit 

Agent Carlson. A few seconds later, Officer Davis arrested Mr. 

Shimomura. Following Mr. Shimomura’s arrest, Officer Davis, Agent 

Carlson, and other TSA agents conferred for approximately 90 minutes. 

Officer Davis then served Mr. Shimomura with a summons and complaint, 

charging him with assault for pushing his roller bag into Agent Carlson. 

See Rev. Mun. Code of Denver § 38-93. After reviewing the evidence, the 

prosecutor dismissed the criminal complaint against Mr. Shimomura. 

This suit followed. 

II. Officer Davis was entitled to qualified immunity on the Fourth 

Amendment claim because he had arguable probable cause for the 

arrest. 

 Mr. Shimomura claims that he was arrested without probable cause. 

On this claim, the district court granted summary judgment to Officer 

Davis based on qualified immunity. This ruling was correct. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 5 
6 

A. We engage in de novo review based on our two-part test for 

qualified immunity. 

 We review de novo the district court’s grant of summary judgment. 

Christiansen v. City of Tulsa, 332 F.3d 1270, 1278 (10th Cir. 2003). The 

court must grant summary judgment “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 apply this standard against the backdrop of our case law on 

qualified immunity. This immunity protects all government employees 

except those who are “plainly incompetent or those who knowingly violate 

the law.” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (quoting 

Malley v. Briggs, 475 U.S. 335, 341 (1986)). To overcome this assertion of 

qualified immunity, Mr. Shimomura must show that (1) Officer Davis 

violated a federal statute or the U.S. Constitution and (2) the underlying 

rights were “clearly established at the time of their alleged violation.” Id. 

To decide whether Mr. Shimomura made this showing, we view all 

evidence in the light most favorable to him as the nonmoving party. Estate 

of B.I.C. v. Gillen, 710 F.3d 1168, 1172 (10th Cir. 2013). 

 Framed under these standards, “the salient Fourth Amendment 

questions presented are (1) whether [Officer Davis] possessed probable 

cause to arrest [Mr. Shimomura for assault]; and (2) whether extant clearly 

established law in [February 2011] would have placed a reasonable, 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 6 
7 

similarly situated police officer on notice that no probable cause existed.” 

Quinn v. Young, 780 F.3d 998, 1007 (10th Cir. 2015) (emphasis in 

original). 

B. Probable cause was at least arguable based on Officer 

Davis’s observation of the events. 

 For the sake of argument, we can assume that probable cause was 

lacking. Even with this assumption, however, Officer Davis would enjoy 

qualified immunity if probable cause had been at least “arguable.” 

Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). In our view, 

probable cause would have been at least arguable. 

To determine whether probable cause was arguable, we must begin 

with the standard for “probable cause.” Under this standard, probable cause 

would exist if Officer Davis had reasonably trustworthy information that 

would lead a prudent person to believe that Mr. Shimomura had committed 

an offense. Jones v. City & Cnty. of Denver, 854 F.2d 1206, 1210 (10th 

Cir. 1988). 

The threshold question involves identification of the alleged offense. 

On this question, Officer Davis identified Mr. Shimomura’s conduct as a 

third-degree assault under the Denver Municipal Code. Thus, we must 

determine what constituted a third-degree assault in February 2011. 

The municipal code defined third-degree assault to include the 

intentional or reckless commission of an assault. Rev. Mun. Code of 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 7 
8 

Denver, § 38-93. Rather than define the word “assault,” the municipal code 

referred to Colorado law. Under that law, third-degree assault required 

“bodily injury.” Colo. Rev. Stat. Ann. § 18-3-204(1)(a) (2011). The term 

“bodily injury” referred to physical pain, illness, or any impairment of 

physical or mental condition. Colo. Rev. Stat. Ann. § 18-1-901(3)(c) 

(2011). This definition was “broadly inclusive” and included physical 

injuries even when they might have been considered only “slight.” People 

v. Hines, 572 P.2d 467, 470 (Colo. 1977) (“broadly inclusive”); United 

States v. Paxton, 422 F.3d 1203, 1206 (10th Cir. 2005) (“slight”). 

In applying the municipal ordinance for assault, a reasonable police 

officer could have viewed probable cause as arguable. Mr. Shimomura 

relies largely on a video of the incident. The parties agree that this video is 

accurate, and Officer Davis acknowledged that it was consistent with what 

he had seen.2

 But we also note that Officer Davis’s vantage point of the 

incident differs from ours as we watch the video. From our vantage point, 

we can see that Officer Davis walked behind both Agent Carlson and Mr. 

Shimomura. Officer Davis saw the same events from a different angle. See 

Appellant’s App’x at 116 (TSA surveillance video at 2:03-2:06). Thus, 

when we watch the video, we see the events from in front of Mr. 

 

2

 Mr. Shimomura points out that the video does not show the earlier 

argument in the TSA screening area, does not contain audio, does not show 

Mr. Shimomura’s or Agent Carlson’s face, and Officer Davis is “barely 

visible.” But Mr. Shimomura does not contest the accuracy of the video. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 8 
9 

Shimomura; Officer Davis saw the events more closely from only a few 

feet behind Agent Carlson: 

Though our vantage point differs from Officer Davis’s, we can 

identify at least four facts that Officer Davis would have known: 

1. Mr. Shimomura was pulling his roller bag, which was between 

Mr. Shimomura and Agent Carlson. 

2. Mr. Shimomura stopped and moved his roller bag in Agent 

 Carlson’s direction. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 9 
10 

3. Agent Carlson moved suddenly after the roller bag was pushed 

 in her direction. 

4. Mr. Shimomura walked away more rapidly after he pushed the 

roller bag in Agent Carlson’s direction. 

Mr. Shimomura suggests we add a fifth undisputed fact: that he and Agent 

Carlson had engaged in a heated disagreement. 

Based on these five facts, Officer Davis could reasonably believe 

that Mr. Shimomura had intentionally or recklessly pushed his roller bag 

into Agent Carlson and caused her at least some slight physical injury. 

From our vantage point in watching the video, we cannot see the actual 

contact between Agent Carlson and the roller bag. But our view of the 

contact is impeded by the camera angle. Officer Davis had a different 

angle. See Bogie v. Rosenberg, 705 F.3d 603, 611 (7th Cir. 2013) (stating 

that “any . . . film shows only one perspective on a scene, so that 

additional perspectives, such as eyewitness testimony . . . , might reveal 

additional facts that would change the legal analysis”). And from his angle, 

Officer Davis had only a momentary opportunity to see what had taken 

place. (We have the luxury of watching the video repeatedly.) Officer 

Davis could then see Mr. Shimomura walking away more quickly after 

Agent Carlson had made a sudden movement. In these circumstances, a 

reasonable officer could believe that Mr. Shimomura had intentionally or 

recklessly caused at least some slight physical injury to Agent Carlson. As 

a result, probable cause was at least arguable. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 10 
11 

C. Probable cause would have remained arguable 

notwithstanding Mr. Shimomura’s explanation for his 

quickened pace and challenges to Agent Carlson’s 

credibility. 

Mr. Shimomura argues that his quickened pace did not suggest guilt, 

for he might simply have had to hurry to catch his flight. But probable 

cause could have existed even if his conduct might also be interpreted as 

innocent. See United States v. Muñoz-Nava, 524 F.3d 1137, 1144 (10th Cir. 

2008) (“[S]imply because an activity has an innocent connotation does not 

mean that it is excluded from the court’s totality of the circumstances 

analysis.”). 

Mr. Shimomura also argues that Officer Davis should have 

discounted Agent Carlson’s description of the events, giving three reasons: 

1. A heated argument had just taken place between Agent Carlson 

and Mr. Shimomura. 

2. Mr. Shimomura denied pushing his roller bag into Agent 

Carlson. 

3. Other witnesses did not say that Agent Carlson had been 

injured. 

But these arguments would not preclude Officer Davis from reasonably 

believing that probable cause existed. 

Agent Carlson and the other witnesses made their statements after 

Mr. Shimomura’s arrest; thus, these statements could not have affected the 

decision to arrest. And Officer Davis could see for himself what had taken 

place when Mr. Shimomura pushed his roller bag toward Agent Carlson. In 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 11 
12 

observing the incident and Mr. Shimomura accelerating his pace afterward, 

Officer Davis could reasonably conclude that Mr. Shimomura had 

intentionally or recklessly pushed his roller bag into Agent Carlson to 

create at least some slight physical injury. 

That push might not have created probable cause for third-degree 

assault. But probable cause would have been at least arguable even if (1) 

Mr. Shimomura had an innocent explanation for walking away more 

quickly and (2) Officer Davis had discounted Agent Carlson’s description 

of events. 

D. Mr. Shimomura’s characterization of the video recording 

does not create a fact issue on arguable probable cause. 

 Mr. Shimomura argues that Officer Davis is not entitled to qualified 

immunity because the video recording is inconsistent with the defendants’ 

statements regarding the alleged assault. According to Mr. Shimomura, the 

video recording shows that Mr. Shimomura did not push his roller bag into 

Agent Carlson. But from where Officer Davis was positioned, he could 

reasonably believe that (1) he had seen Mr. Shimomura push his roller bag 

into Agent Carlson and (2) the contact resulted in at least slight physical 

injury.3

 The reasonableness of that belief made probable cause at least 

 

3

 Mr. Shimomura relies on Baptiste v. J.C. Penney Co., 147 F.3d 1252 

(10th Cir. 1998), to oppose qualified immunity for Officer Davis. In 

Baptiste, a police officer searched the plaintiff for stolen merchandise after 

watching surveillance video of a suspected theft. Baptiste, 147 F.3d at 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 12 
13 

arguable. Thus, even when we consider the evidence in the light most 

favorable to Mr. Shimomura, we conclude that Officer Davis is entitled to 

qualified immunity on the Fourth Amendment claim of unlawful arrest. 

E. Probable cause would have remained arguable 

 notwithstanding Mr. Shimomura’s allegations in the 

 complaint and uncertainty about what Officer Davis could 

 see. 

 In reaching a contrary conclusion, the partial dissent points to 

 Mr. Shimomura’s allegation in the complaint “that [Officer 

Davis] could not reasonably perceive evidence of bodily injury, 

such as pain” and 

 uncertainty about what Officer Davis would have seen from his 

angle. 

Dissent at 1-2. In our view, these two points do not create a genuine factissue on whether probable cause was at least arguable. 

 Because the issue involves summary judgment, we must rely on the 

summary judgment record rather than Mr. Shimomura’s allegations in the 

complaint. In support of the summary judgment motion, Officer Davis 

stated under oath that he had seen the roller bag strike Agent Carlson in 

the legs. Appellant’s App’x at 112. Mr. Shimomura responded to the 

motion, presenting affidavits by himself and Agent Carlson. Agent 

 

1254-55. We concluded that the police officer was not entitled to qualified 

immunity because the video did not suggest that a theft had occurred. Id. at 

1259-60. Mr. Shimomura’s circumstances are different, for the video 

recording does not preclude a reasonable belief that a crime (assault) had 

been committed. Thus, Baptiste does not preclude qualified immunity for 

Officer Davis. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 13 
14 

Carlson’s affidavit said that Officer Davis had seen the contact between 

the roller bag and Agent Carlson. Id. at 176. Mr. Shimomura’s affidavit 

was silent about what Officer Davis could see. Thus, for purposes of 

summary judgment, we have undisputed evidence that Officer Davis was 

able to see the contact between Agent Carlson and Mr. Shimomura’s roller 

bag. 

 Mr. Shimomura denies that Agent Carlson was physically injured, 

and Officer Davis believed there was physical injury. Neither individual 

could know for certain, but the sole issue on qualified immunity is whether 

Officer Davis could reasonably believe the contact resulted in at least some 

slight physical injury to Agent Carlson. Even if Officer Davis’s belief was 

wrong, he would have enjoyed qualified immunity as long as his belief was 

reasonable. See Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir.) 

(“Arguable probable cause is another way of saying the officers’ 

conclusions rest on an objectively reasonable, even if mistaken, belief that 

probable cause exists.”), cert. denied, __ U.S. __, 135 S. Ct. 881 (2014). 

 In our view, Officer Davis’s belief was reasonable notwithstanding 

Mr. Shimomura’s contrary allegations in his complaint. In Mr. 

Shimomura’s affidavit, there is nothing casting doubt on Officer Davis’s 

belief that Agent Carlson had suffered at least some slight injury. As a 

result, Officer Davis would enjoy qualified immunity even if we fully 

credit everything in Mr. Shimomura’s affidavit. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 14 
15 

III. Agent Carlson could not incur liability under the Fourth 

Amendment for an unlawful arrest because her alleged 

misconduct would have taken place after the arrest. 

Mr. Shimomura argues that Agent Carlson violated the Fourth 

Amendment by withholding and fabricating evidence to justify the arrest.4

The district court dismissed this claim, concluding that Mr. Shimomura had 

not adequately pleaded causation between Agent Carlson’s conduct and the 

arrest. In a later order, the district court declined to vacate this dismissal. 

In our view, the court did not err in dismissing the claim against Agent 

Carlson. 

 We review de novo the district court’s grant of a motion to dismiss 

for failure to state a claim. Christensen v. Park City Mun. Corp., 554 F.3d 

1271, 1275 (10th Cir. 2009). Like the district court, we must determine 

whether the complaint contains sufficient facts, accepted as true, to state a 

plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A 

claim is plausible “when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. In determining whether the claim is plausible, we 

view all factual allegations in the light most favorable to Mr. Shimomura 

 

4

 Mr. Shimomura also contends that Agent Carlson incurred liability as 

an arresting officer because she had “acted in concert with Officer Davis to 

effect the illegal arrest lacking in probable cause.” Appellant’s Opening 

Br. at 35. This argument is identical to Mr. Shimomura’s argument 

underlying his conspiracy claim, which we reject below in Part IV. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 15 
16 

as the nonmoving party. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 

510 (10th Cir. 1998). 

 As was previously stated, a warrantless arrest without probable cause 

violates the Fourth Amendment. Keylon v. City of Albuquerque, 535 F.3d 

1210, 1216 (10th Cir. 2008). But nothing in the complaint would plausibly 

suggest Agent Carlson’s participation in the arrest. 

 Mr. Shimomura disagrees, arguing that Agent Carlson caused the 

arrest by withholding exculpatory evidence and fabricating a sworn 

statement that she had suffered pain from her contact with the roller bag. 

Officer Davis allegedly relied on Agent Carlson’s fabricated account. 

 This contention fails as a matter of law because Agent Carlson’s 

alleged misdeeds would have taken place after Officer Davis had already 

arrested Mr. Shimomura. Agent Carlson allegedly withheld exculpatory 

evidence and fabricated a sworn statement, but only after Officer Davis 

had already initiated Mr. Shimomura’s 90-minute detention. That detention 

constituted an arrest as a matter of law. See Manzanares v. Higdon, 575 

F.3d 1135, 1148 (10th Cir. 2009)5

; see also Appellant’s App’x at 152-53 

(Mr. Shimomura’s argument that Officer Davis made an arrest by detaining 

 

5

 In Manzanares we stated: “As the Supreme Court has noted, it has 

never held a detention of 90 minutes or longer to be anything short of an 

arrest. [The defendant] points us to no case, and our independent research 

reveals none, construing a detention of 90 minutes or longer as an 

investigative detention.” Manzanares, 575 F.3d at 1148 (citation omitted). 

 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 16 
17 

Mr. Shimomura in the screening area). Thus, Agent Carlson’s misconduct 

could not have caused the arrest. In these circumstances, we conclude that 

Agent Carlson is entitled to dismissal on the unlawful arrest claim.6

IV. Mr. Shimomura has not pleaded a plausible conspiracy claim 

based on the Fourth Amendment. 

Invoking 42 U.S.C. § 1983, Mr. Shimomura also claims that Officer 

Davis and Agent Carlson violated the Fourth Amendment by conspiring 

(1) to make the arrest without probable cause and (2) to fabricate their 

accounts for the initiation of criminal charges. We affirm the district 

court’s dismissal of these causes of action for failure to state a claim upon 

which relief can be granted.7

A. We engage in de novo review, considering the plausibility of 

the allegations in the complaint. 

 In reviewing the dismissal, we engage in de novo review. See p. 15, 

above. The ultimate question is whether Mr. Shimomura had alleged 

specific facts showing (1) an agreement and concerted action between 

 

6

 On the cause of action under the Fourth Amendment for unlawful 

arrest, Agent Carlson also asserts qualified immunity and unavailability of 

a Bivens claim. We need not reach these contentions. 

7

 On the conspiracy claim, Agent Carlson denies the availability of a 

Bivens cause of action and invokes qualified immunity. We need not 

address these arguments. The conspiracy claim against Officer Davis and 

Agent Carlson was brought under 42 U.S.C. § 1983, not Bivens. Therefore, 

we need not reach Agent Carlson’s Bivens argument. And because the 

conspiracy claim is facially deficient, we need not decide whether Agent 

Carlson is entitled to qualified immunity on this claim. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 17 
18 

Officer Davis and Agent Carlson and (2) an actual deprivation of 

constitutional rights. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 

(10th Cir. 1998); Snell v. Tunnell, 920 F.2d 673, 701 (10th Cir. 1990). 

Conclusory allegations of conspiracy would not suffice. Tonkovich, 159 

F.3d at 534. 

B. For the arrest, Mr. Shimomura has not pleaded facts 

creating a plausible claim of conspiracy prior to the arrest.

 The conspiracy allegations in the complaint involve conduct before 

the arrest. Thus, on the claims involving conspiracy to justify the arrest, 

we confine our review to the allegations involving conduct preceding the 

arrest. These allegations involve six facts8

: 

1. Officer Davis saw Agent Carlson communicate with Mr. 

Shimomura in an “increasingly hostile and intimidating 

manner.” This conduct included Agent Carlson’s refusal to 

contact her supervisor or provide her supervisor’s name, angry 

threats to remove Mr. Shimomura from the airport, order for 

Mr. Shimomura to “get the hell out” of the TSA screening area, 

and statement that Mr. Shimomura had accused Agent Carlson 

of stealing. Appellant’s App’x at 11-12 ¶¶ 18-20. 

2. Officer Davis refused to put Mr. Shimomura in contact with 

Agent Carlson’s supervisor. Id. at 12 ¶ 21. 

 

8

 In his appeal briefs, Mr. Shimomura alleges that Officer Davis failed 

to deescalate the increasingly hostile situation. But we decline to consider 

this argument because it had not been raised in district court. See United 

Steelworkers of Am. v. Or. Steel Mills, Inc., 322 F.3d 1222, 1228 (10th Cir. 

2003) (noting that we will decline to consider factual arguments that had 

not been raised in district court). 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 18 
19 

3. Officer Davis and Agent Carlson threatened to have Mr. 

Shimomura arrested if he did not leave the screening area “in 

two seconds.” Id.

4. Officer Davis and Agent Carlson “crowded Mr. Shimomura in a 

threatening manner” and followed him “closely and 

aggressively” as he left the screening area. Id. at 12 ¶¶ 21-22. 

5. Officer Davis and Agent Carlson “knew” that (1) Mr. 

Shimomura had not committed a crime, (2) there was no 

probable cause for Mr. Shimomura’s arrest, (3) Agent Carlson 

had been following Mr. Shimomura “too closely,” and 

(4) Agent Carlson had become even “further enraged” when she 

walked into the roller bag. Id. at 14 ¶ 28. 

6. Officer Davis and Agent Carlson believed that Mr. Shimomura 

should be criminally punished for questioning TSA screening 

procedures. As a result, Officer Davis and Agent Carlson took 

“joint and concerted action” to arrest Mr. Shimomura. Id. at 15 

¶ 29; Id. at 13 ¶ 24. 

 For the sake of argument, we can assume that Mr. Shimomura has 

pleaded facts reflecting an agreement and concerted action by Officer 

Davis and Agent Carlson. But the alleged agreement could not plausibly 

have preceded Mr. Shimomura’s arrest. The video reflects the incident, 

which unfolded only a few seconds before Officer Davis detained Mr. 

Shimomura (constituting an arrest). 

 It might have been theoretically possible for Officer Davis and Agent 

Carlson to conspire to arrest Mr. Shimomura without probable cause. 

Perhaps Officer Davis and Agent Carlson decided to arrest Mr. Shimomura 

even before his belongings were screened; or maybe Officer Davis and 

Agent Carlson conspired in the few seconds between the roller bag contact 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 19 
20 

and Mr. Shimomura’s arrest; or perhaps Officer Davis and Agent Carlson 

knew and understood one another so well that they immediately formed an 

unspoken agreement to unlawfully arrest Mr. Shimomura. But Mr. 

Shimomura does not allege facts that could plausibly explain how Officer 

Davis and Agent Carlson might have conspired in the moments preceding 

the arrest. 

 Accordingly, Mr. Shimomura has not pleaded a plausible § 1983 

claim for conspiracy to arrest without probable cause in violation of the 

Fourth Amendment. We affirm the dismissal of this claim. 

 C. The district court did not err in disallowing amendment of 

 the Fourth Amendment claim. 

 In responding to Agent Carlson’s motion to dismiss, Mr. Shimomura 

included a footnote requesting “leave to amend should the Court find his 

Complaint deficient.” Id. at 121 n.1. Though the district court suggested 

that Mr. Shimomura might amend the complaint, the court ultimately 

prevented amendment by making the dismissal with prejudice. Id. at 218, 

229. 

Mr. Shimomura alleges that the district court abused its discretion by 

preventing amendment of the complaint. We disagree. Mr. Shimomura 

alleges in the complaint that he was taken into custody by Officer Davis, 

not Agent Carlson. See id. at 12. Thus, amendment of the complaint would 

have been futile. In these circumstances, we conclude that the district court 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 20 
21 

had discretion to make the dismissal with prejudice. See Brereton v. 

Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal 

with prejudice is appropriate where a complaint fails to state a claim under 

Rule 12(b)(6) and granting leave to amend would be futile.”). 

V. Mr. Shimomura has not pleaded a viable claim for deprivation of 

procedural due process. 

 Finally, Mr. Shimomura claims deprivation of procedural due process 

under the Fifth and Fourteenth Amendments. The Fifth Amendment 

prohibits the federal government from depriving a person of “life, liberty, 

or property, without due process of law,” and the Fourteenth Amendment 

extends this prohibition to the states. U.S. Const. amend. V; Id. amend. 

XIV, § 1. 

 On these claims, Mr. Shimomura alleges that Officer Davis and 

Agent Carlson withheld exculpatory evidence, fabricated inculpatory 

evidence, and engaged in a conspiracy. The district court dismissed these 

claims, reasoning that they “effectively mirror[]” Mr. Shimomura’s claims 

under the Fourth Amendment. Appellant’s App’x at 220. For this ruling, 

we engage in de novo review. See p. 15, above. In exercising de novo 

review, we uphold the district court’s dismissal because the Fourth 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 21 
22 

Amendment applies rather than the Fifth and Fourteenth Amendments’ Due 

Process Clauses.9

 Mr. Shimomura is correct in asserting the constitutional requirement 

for probable cause before he could be arrested or charged. Wilkins v. 

DeReyes, 528 F.3d 790, 805 (10th Cir. 2008). But this right is protected by 

the Fourth Amendment, not by the Fifth or Fourteenth Amendments’ rights 

to procedural due process. The Supreme Court has held that “[b]ecause the 

Fourth Amendment provides an explicit textual source of constitutional 

protection against . . . physically intrusive governmental conduct, that 

Amendment, not the more generalized notion of ‘substantive due process,’ 

must be the guide for analyzing these claims.” Graham v. Connor, 490 U.S. 

386, 395 (1989); see Albright v. Oliver, 510 U.S. 266, 274-75 (1994) 

(plurality opinion) (stating that the right to be free of arrest and 

prosecution without probable cause is governed by the Fourth Amendment, 

not the constitutional protections for substantive due process). We have 

applied this holding when the alleged denial of due process is procedural 

rather than substantive. See Becker v. Kroll, 494 F.3d 904, 919 (10th Cir. 

 

9

 Agent Carlson also makes four other arguments: (1) an adequate 

post-deprivation remedy exists; (2) Agent Carlson is not subject to the 

Fourteenth Amendment because she is not a state actor; (3) a Bivens action 

does not exist for claims involving airport screening or violation of the 

Fourteenth Amendment; and (4) Agent Carlson is entitled to qualified 

immunity. We need not address these arguments because the claim against 

Agent Carlson is deficient on other grounds. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 22 
23 

2007) (“[W]e find Albright’s reasoning regarding substantive due process 

equally persuasive with regard to the Fourteenth Amendment’s procedural 

component. . . . The more general due process considerations of the 

Fourteenth Amendment are not a fallback to protect interests more 

specifically addressed by the Fourth Amendment . . . .”). 

 It is true that “at some point in the prosecutorial process, due process 

concerns can be sufficient to support claim under § 1983.” Id. at 920; see 

also Pierce v. Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir. 2004) (“[A]t 

some point after arrest, and certainly by the time of trial, constitutional 

analysis shifts to the Due Process Clause.”). But Mr. Shimomura’s factual 

allegations do not cross into the due-process realm. 

 In Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007), we 

“acknowledge[d] that the Fourteenth Amendment’s protections encompass 

harms to liberty outside the scope of the Fourth Amendment’s concern with 

freedom from restraint.” Becker, 494 F.3d at 920. But Mr. Shimomura has 

confined his allegation of injury to the deprivation of his physical liberty. 

Thus, his claim is governed by the Fourth Amendment rather than the Due 

Process Clauses. 

Because the Fourth Amendment provides the sole source of 

constitutional protection, Mr. Shimomura has not asserted a valid claim of 

procedural due process. As a result, the district court properly dismissed 

the claims involving procedural due process. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 23 
24 

VI. Conclusion 

 The district court’s judgment is affirmed. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 24 
No. 14-1418, Shimomura v. Carlson

TYMKOVICH, Chief Judge, concurring in part and dissenting in part:

I join the majority except as to its holding that Officer Davis is entitled to

qualified immunity.

In concluding that a reasonable officer with Officer Davis’s vantage point

could have thought there was probable cause, the majority decides a factual

dispute that should be submitted to a jury. Shimomura alleges that Officer Davis

could not reasonably perceive evidence of intent or recklessness. He also alleges

that the officer could not reasonably perceive evidence of bodily injury, such as

pain. If that version of the facts is true, then there was neither actual nor arguable

probable cause to believe Shimomura had committed assault within the agreedupon meaning of the ordinance. That satisfies Shimomura’s initial burden to

allege a clearly established violation of a constitutional right. See Fogarty v.

Gallegos, 523 F.3d 1147, 1158–59 (10th Cir. 2008) (“In the context of an

unlawful arrest our analysis is simple, for the law was and is unambiguous: a

government official must have probable cause to arrest an individual.” (brackets

and internal quotation marks omitted)). It also places a new burden on Officer

Davis, on his motion for summary judgment based on qualified immunity, to show

that Shimomura’s version of the facts is wrong—that is, that an officer could have

reasonably perceived evidence of bodily injury and intent or recklessness. 

Officer Davis has not met that burden. 

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 25 
The majority concludes that a person standing at Officer Davis’s vantage

point could have perceived the requisite evidence, but that is not beyond dispute. 

Recently, in Tolan v. Cotton, 134 S. Ct. 1861 (2014), the Supreme Court reversed

a finding of qualified immunity because the appellate court had resolved disputed

factual propositions in favor of the moving officer. Most notably, the Court

indicated that disputed questions about what facts an officer should have

perceived are appropriate for a jury: 

The court noted, and the parties agree, that while Cotton

was grabbing the arm of his mother, Tolan told Cotton,

“[G]et your [f***ing] hands off my mom.” But Tolan

testified that he “was not screaming.” And a jury could

reasonably infer that his words, in context, did not amount

to a statement of intent to inflict harm. 

Id. at 1867 (emphasis added) (citations omitted). This illustrates the divide

between determining whether there was probable (or arguable probable) cause and

determining the facts that support probable cause. Just as a jury in Tolan should

have decided whether the undisputed words, in context, seemed threatening, a

jury here should decide whether the undisputed contact, in context, seemed

intentional or capable of causing bodily injury.

We do not know what Officer Davis saw from his angle. All we have is the

video, Shimomura’s complaint, and affidavits presented on summary judgment. 

Those materials do not definitively settle the facts in Officer Davis’s favor. A

jury could find that even given his angle and how little time he had to process

2

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 26 
what had happened, it was unreasonable to think the contact was intentional or

reckless. And a jury most certainly could find that there was no evidence of

bodily injury. Having watched the video, I find it dubious that anyone viewing

the contact from any angle could have reasonably thought that Agent Carlson felt

pain. Although she later reported pain, it appears that this was not until after

Shimomura’s arrest. 

For those reasons, I respectfully dissent as to the conclusion that Officer

Davis is entitled to qualified immunity.

3

Appellate Case: 14-1418 Document: 01019545962 Date Filed: 12/29/2015 Page: 27