* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 27, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

LEWIS AARON COOK,

Plaintiff-Appellant,

v. ANTONIA R. HILL, Tulsa Police Officer; DAVID MOSS CRIMINAL JUSTICE CENTER, Sued as: David L. Moss C.C.A.,

Defendants-Appellees. No. 05-5061 (D.C. No. 04-CV-412-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before HENRY , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff-appellant Lewis Aaron Cook, appearing pro se, appeals from a judgment granted in favor of defendants Officer Ant onia Hill and the David Moss Criminal Justice Center (hereinafter “C.C.A.”). Mr . Cook’s suit alleges violation of 42 U.S.C. § 1983. He claims that Officer Hill u nlawfully searched and arrested him, illegally towed his car, and then lied about w here she found the evidence used to incriminate and prosecute him. He asserts that defendant C.C.A. illegally confined him because he was innocent of the charges . Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part and r everse in part.
I

. Mr. Cook was arrested in a motel room in August 200 0 after police received a call about a disturbance. An alleged ey ewitness stated that Mr. Cook and a minor female were selling and smoking crack c ocaine in Mr. Cook’s motel room. Officer Hill and another officer knocked on Mr. Cook’s door and, according to Officer Hill’s arrest report and trial testimony, obtained his consent to search the room. Officer Hill reported that she found a glass pipe and other items commonly used to smoke crack cocaine in plain view. She arrested Mr. Cook and had his car towed away at the request of the motel manager. Mr. Cook was confined at C.C.A. pending trial on a charge of possession of drug paraphernalia.1 We do not know whether these rulings were challenge d in Mr. Cook’s

direct appeal because the criminal proceedings are not part of the record in this case. -3- The state trial court apparently rejected Mr. Cook’ s pre-trial contentions that the evidence against him was illegally obtaine d without a warrant and without
consent. 1 After a jury trial, Mr. Cook was convicted and se ntenced to one year in prison. His sentence has been served. According t o the district court, the Oklahoma Court of Criminal Appeals specifically rej ected Mr. Cook’s contention on direct appeal that the evidence was insufficientto prove that he possessed drug paraphernalia. But the Court of Criminal Appeals r eversed Mr. Cook’s conviction after concluding that the trial court had improperl y denied Mr. Cook the right to represent himself in his criminal proceedings. App arently because he had already served the sentence, the State ultimately dismissed the criminal case in 2004 instead of conducting a new trial. Mr. Cook filed the instant suit in federal court in 2004, alleging violation of his constitutional rights. Adopting and affirmi ng the magistrate judge’s report and recommendations, the district court granted def endant C.C.A.’s motion for summary judgment. The court held that Mr. Hill did not allege any facts in his complaint or other pleadings indicating that C.C.A. ’s actions, policies, procedures, or customs violated his rights.-4-

The district court also dismissed Mr. Cook’s claims against Officer Hill for illegal arrest and search and for illegal seizure a nd towing of his car, holding they were barred by a two-year statute of limitations. Mr. Cook does not challenge these rulings on appeal. The district court granted summary judgment to Offi cer Hill on Mr. Cook’s remaining claim that Officer Hill purposefully lied in order to establish probable cause for his arrest and prosecution. The districtcourt concluded that Mr. Cook failed to “come forward with any facts to support h is claim that Officer Hill knowingly supplied false information which lead to the filing of false charges against him.” R. Doc. 30 at 10.
II. Mr. Cook initially raises three issues in his appel late brief: whether the district court treated him unfairly by (1) “staying ” the proceedings; (2) denying his request for an expedited hearing; and (3) refus ing to consider the notarized statement of a witness to the conduct charged in hi s state criminal proceedings. Aplt. Br. at 1. But he did not brief or further di scuss either of the first two issues, so they are deemed waived. See Fed. R. App. P. 28(a)(5), (9) (requiring that appellate brief contain a statement of the issues p resented for review as well as an argument containing “the appellant’s contentions an d the reasons for them, with citations to the authorities and parts of the recor d on which the appellant relies”);-5-

Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 679 (10th Cir. 1998) (“[a]rguments inadequately briefed in the opening brief are waive d”); Wilburn v. Mid-South Health Dev., Inc. , 343 F.3d 1274, 1281 (10th Cir. 2003) (“We . . . w ill not consider issues that are raised on appeal but not a dequately addressed.”). In the body of Mr. Cook’s appellate brief, he asserts that the district court erred in granting both defendants’ motions for summ ary judgment. We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court. Summary judgment is appropriate “if the pleadings, depositi ons, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this standard , we view the evidence and draw reasonable inferences therefrom i n the light most favorable to the nonmoving party. Simms v. Okla. ex rel. Dep’t of Mental Health & Sub stance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999) (citation omitted).
A. C.C.A. Mr. Cook alleges error in granting judgment in favo r of C.C.A. solely on his assertion that C.C.A. illegally confined him. See Aplt. Br. at 12-13. A review of the record shows that Mr. Cook has made allegati ons of “fact” in his appellate brief that were never made in any pleadings before the district court. For example, he now claims that he made bail on the pos session of drug paraphernalia charge, but that C.C.A. illegally continued holding him on charges that were-6-

never filed. Because Mr. Cook did not make this cl aim before the district court, we will not consider it here. See Parker v. Scott , 394 F.3d 1302, 1307 (10th Cir. 2005). Further, Mr. Cook does not address any alle ged error in the district court’s legal reasoning for granting summary judgment to C. C.A. We therefore affirm the district court’s judgment in favor of C.C.A.
B. Officer Hill Mr. Cook next asserts that the district court erredby granting Officer Hill’s motion for summary judgment on the issue of qualifi ed immunity. Under the framework enunciated by the Supreme Courtin Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L. Ed. 2d 272 (2001), courts are to conduct two distinct inquiries when e ncountering a defense of qualified immunity. First, the court mu st determine whether the facts, as pled by the plaintiff, set fo rth a constitutional violation. Id. Second, assuming that a violation has been proper ly alleged, the court is to determine whether such vio lation was clearly established as of the time of the conduct. Id. Pierce v. Gilchrist , 359 F.3d 1279, 1284 (10th Cir. 2004). Mr. Cook complains that Officer Hill forced her wayinto his hotel room, illegally searched it and “found nothing,” then unl awfully arrested him and filed false charges against him. Aplt. Br. at 13. In hi s complaint, Mr. Cook also asserted that Officer Hill lied about finding the c rack pipe in his motel room, insisting that she took it from the alleged eyewitn ess who was at the scene.
R. Doc. 1 at 6.2 Officer Hill apparently never filed an answer to Mr . Cook’s complaint.

Instead, Officer Hill filed a motion to dismiss by the answer deadline. Almost six months later, she filed a motion for summary judgme nt. The magistrate judge did not file his report and recommendations on the moti ons until a week before the trial was originally set to commence. The districtcourt reset the trial date the same day the report was filed. -7- In her motions to dismiss and for summary judgment and in her appellate brief, Officer Hill did not address Mr. Cook’s alle gations that she lied about where she obtained the crack pipe. 2 She addressed only probable cause for Mr. Cook’s arrest and search, raising only the undi sputed facts that police were called to investigate a disturbance and that the al leged eyewitness claimed Mr. Cook was engaged in criminal activity. Thus, M r. Cook’s claims based upon his assertion that Officer Hill lied about where sh e found the crack pipe were never properly before the district court on summaryjudgment. While the facts Officer Hill did address may have b een enough to give Officer Hill reasonable suspicion to investigate an d probable cause to search Mr. Cook’s motel room, they are not sufficient to e stablish probable cause for his arrest and prosecution on a possession-of-drug-paraphernalia charge. That charge rested solely on Officer Hill’s testimony about whe re she found the crack pipe. As mentioned above, the magistrate judge stated that Mr. Cook had not come forward with any facts to support his claim th at Officer Hill knowingly supplied false information that led to the filing o f false charges against him. The3 We agree with the district court that Ms. Overstree t’s age is irrelevant to

the charge on which Mr. Cook was arrested and prose cuted.

4 The affidavit was timely submitted to the district court because Officer Hill’s summary judgment motion did not indicate that Officer Hill challenged Mr. Cook’s allegations regarding where Officer Hill found the crack pipe. Therefore, Mr. Cook had no notice that the magistrate judge would recommend granting summary judgment in favor of Officer Hill without discussing all of the allegations in Mr. Cook’s complaint. Given OfficerHill’s failure to challenge the claims, perhaps it is not surprising that neither the magistrate judge nor the district court discussed them in their respective o rders. -8- magistrate judge discussed only Mr. Cook’s claims that Officer Hill lied about the age of the female, Ms. Overstreet, who was in Mr. C ook’s motel room at the time of Mr. Cook’s arrest. 3 See R. Doc. 30 at 9. In his objections to the magistrate judge’s report, Mr. Cook supported his assertions in his complaint with Ms. Overstreet ’s affidavit. 4 There, Ms. Overstreet swore that she and Mr. Cook had cleaned the room before they went to bed, that there was no drug paraphernalia i n the room, and that Officer Hill refused to show Mr. Cook the crack pipe that O fficer Hill claimed she found during her search of his motel room. R. Doc. 33 at6-8. The district court, in conducting its de novo review, did not discuss thes e allegations. Although the magistrate judge couched Mr. Cook’s cl aims against Officer Hill as a “filing of false charges/malicious prosec ution” claim, R. Doc. 30 at 9, we have clarified that a complaint alleging that an officer knowingly gave false information in order to obtain an arrest and convic tion independently states a-9-

Fourth Amendment violation, Pierce , 359 F.3d at 1296 (“it is a violation of the Fourth Amendment . . . for an arrest warrant affian t to include false statements in the affidavit”), as well as a violation of the Due Process Clause, id. at 1299 (“a defendant’s due process rights are implicated w hen the state knowingly uses false testimony to obtain a conviction”). We noted that “the prohibition on falsification or omission of evidence, knowingly orwith reckless disregard for the truth, was firmly established as of 1986, in the co ntext of information supplied to support a warrant for arrest.” Id. at 1298. Thus, an officer who has engaged in such behavior is not entitled to qualified immunity

. See Robinson v. Maruffi , 895 F.2d 649, 655-56 (10th Cir. 1990) (noting that if a police officer purposefully misrepresents material facts to prosecuting attorne y, the officer is not insulated by the prosecutor’s subsequent actions). Further, an initial finding of probable cause at th e trial-court level is not conclusive. See Pierce , 359 F.3d at 1295-96; cf. Danner v. Dillard Dep’t Stores,
Inc. , 949 P.2d 680, 683 (Okla. 1997) (holding that, bec ause the plaintiffs had shown in their criminal trial that false testimony supported the probable cause determination, the “false testimony should not prov ide the basis for both a determination of probable cause for an arrest and p reclusion of relitigation of that issue in a civil suit”); Ames v. Strain , 301 P.2d 641, 643-44 (Okla. 1956) (recognizing that question of probable cause resolv ed by magistrate at preliminary-10-

hearing precludes civil prosecution for false arres t except when the arresting officer “is shown to have presented the facts to th e justice dishonestly, or to have . . . acted without probable cause”) (quotatio n marks and italics omitted). If, as Mr. Cook claims, Officer Hill lied about whe re she obtained the crack pipe, Mr. Cook could establish a constitutional vio lation and Officer Hill would not be entitled to qualified immunity. Cf. Pierce , 359 F.3d at 1296-98. Because the district court did not discuss all of Mr. Cook’ s allegations that present a genuine issue of material fact on the issue of prob able cause for his prosecution, and Officer Hill did not provide the complete recor d of the criminal proceedings to the district court, we conclude that the distric t court erred in granting summary judgment to Officer Hill. See Simms , 165 F.3d at 1326; Salazar v. City of Okla. City , 976 P.2d 1056, 1062 (Okla. 1999) (noting that fai lure to submit the entire judgment roll from the previous litigation to the c ourt in the subsequent civil case “is fatal to [an] issue-preclusion defense” on summ ary judgment).-11-

The judgment of the district court is AFFIRMED in p art and REVERSED in part and REMANDED for further proceedings consis tent with this order and judgment.

Entered for the Court

Michael R. Murphy Circuit Judge