* This order and judgment is not binding precedent, e xcept under the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

### JUL 9 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JAMES W. EDEN,

Plaintiff-Appellant,

v. LANCE VOSS; PETER MAGGIORE; ANA MARIE ORTIZ; EBERLINE ANALYTICAL CORPORATION; RINCHEM COMPANY INC. and UNKNOWN DOES 1-10,

Defendants-Appellees. No. 03-2030 (D.C. No. CIV-02-423-JP/LFG)

(D. N.M.)

ORDER AND JUDGMENT *

Before EBEL , HENRY , 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 of1 Mr. Eden also named Lance Voss, an Environment Spec ialist with NMED,

and Does 1-10 as defendants. The district court di smissed Mr. Voss without prejudice, because he was never properly served. T he court also dismissed Does 1-10 without prejudice, because Mr. Eden had not id entified them and all claims against the other defendants had been dismissed. -2- 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. Plaintiff James W. Eden, proceeding pro se, broughta civil rights action under 42 U.S.C. § 1983 against defendants Peter Mag giore, the Secretary of the New Mexico Environment Department (NMED); Ana Marie Ortiz, an attorney with NMED; and two private corporations, Eberline A nalytical Corp. and Rinchem Co., Inc. 1 based upon an application for an administrative se arch warrant to search Mr. Eden’s property for hazardous waste m aterials and the subsequent search of the property. Mr. Eden asserted that Mr. Maggiore and Ms. Ortiz conspired to violate his civil rights, Ms. Ortiz pr epared the application for the administrative search warrant in violation of his c ivil rights, and Eberline and Rinchem unreasonably searched and seized his property without due process and engaged in trespass and conversion. The district c ourt granted Eberline’s, Ms. Ortiz’s and Mr. Maggiore’s motions to dismiss f or failure to state claims for relief under Fed. R. Civ. P. 12(b)(6) and granted R inchem’s motion for summary judgment under Fed. R. Civ. P. 56.-3-

The primary questions we address in this appeal are (1) did the district court err in taking judicial notice of matters of p ublic record when granting Eberline’s motion to dismiss; (2) did the district court err in holding that Rinchem, a private party, is entitled to qualified immunity for its search and seizure of Mr. Eden’s property; (3) did the distric t court err in holding that Ms. Ortiz is entitled to absolute immunity for fili ng the application for the administrative search warrant; (4) did the districtcourt err in holding Mr. Eden failed to plead sufficient facts to set forth supervisor liability and conspiracy claims against Mr. Maggiore; (5) should Mr. Eden be allowed to amend his complaint; and (6) did the district court err in aw arding attorney’s fees and costs under Fed. R. Civ. P. 16(f), after specifically dec lining to award a sanction. We liberally construe Mr. Eden’s pro se pleadings. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). In doing so, we affirm in partand vacate in part the dismissal of Mr. Maggiore, affirm in part and vacat e in part the grant of summary judgment in favor of Rinchem, reverse the dismissal of Eberline, reverse the dismissal of Ms. Ortiz, and vacate the award of cos ts and attorney’s fees under Rule 16(f). We remand for further proceedings conc erning Eberline, Rinchem, Mr. Maggiore, Ms. Ortiz, and the award of costs andattorney’s fees.2 The warrant was attached to Mr. Eden’s complaint, a long with the

application, the supporting affidavits, the invento ry compiled after Rinchem observed the property at the City of Albuquerque’s request, and the letter NMED sent to Mr. Eden requesting permission to inspect the property. -4- I. FACTS Our review of the district court’s rulings as to th e specific defendants requires us to view the allegations and evidence in the light most favorable to Mr. Eden. See Witt v. Roadway Express , 136 F.3d 1424, 1428 (10th Cir. 1998). Therefore, we present the facts in the light most f avorable to him, drawing all reasonable inferences in his favor. See id. Mr. Eden owns two parcels of property in Albuquerqu e, New Mexico. The City of Albuquerque attempted to work with Mr. Eden to help him clean up the trash on his property. While doing so, City employ ees found possible hazardous waste on the property and contacted NMED. After Mr . Eden failed to respond to NMED’s request to inspect the property for hazardou s waste, Ms. Ortiz prepared an application for an administrative warrant to sea rch the property in order to determine if Mr. Eden was storing or transporting h azardous waste. Mr. Voss signed the application and submitted it to a state court judge. The judge issued an inspection and seizure order and an administrative search warrant. The warrant 2 permitted NMED and its agents, accompanied by law e nforcement officers, to inspect Mr. Eden’s property to determine if hazardo us waste was being stored,-5-

transported or managed on the premises in violationof N.M. Stat. Ann. §§ 74-4-1 through 74-4-14, the New Mexico Hazardous Waste Act , and, if so, whether the waste posed a hazard to public health, safety and t he environment. The warrant also permitted the inspectors to sample unknown mat erials and to seize any hazardous waste likely to pose an imminent hazard t o human health and safety. Pursuant to the warrant, Mr. Voss, representatives of Eberline and Rinchem, and Does 1-10 entered Mr. Eden’s property. While there, they seized and destroyed property. Rinchem remains in possess ion of the seized property. Following the administrative search and seizure, Mr . Eden filed his complaint in district court denying having any conn ection to hazardous waste. In his first cause of action, the conspiracy claim aga inst Ms. Ortiz and Mr. Maggiore, Mr. Eden alleged that Ms. Ortiz shoul d not have prepared the application for the inspection warrant because she either knew or should have known there was no basis for any hazardous waste cl aim made by Mr. Voss, NMED had no jurisdiction, the warrant application w as based on improper standards and the state court had no jurisdiction t o issue a search warrant broader than permitted by the Hazardous Waste Act. He also alleged that defendants either knew or should have known that “entering, se arching, and seizing [his] property through obtaining a bogus search warrant w ould violate [his] rights under the Fourth and Fourteenth Amendments.” R. do c. 1 at 3. Mr. Eden3 In his fourth cause of action, Mr. Eden sought spec ial damages for

attorney’s fees for his efforts in bringing this lawsuit. -6- contended that Mr. Maggiore “approved and ratified” Mr. Voss’ signing of the affidavit for the administrative search warrant, Ms . Ortiz’s preparation of the application, and both of their use of an improper legal standard. Id. In his second cause of action, Mr. Eden asserted Eberline and Rin chem violated his Fourth, Fifth and Fourteenth Amendment rights by unreasonab ly searching, destroying and/or seizing his property and depriving him of hi s property without due process. He maintained that the warrant was issued without p robable cause and was invalid, because it was general and gave those exec uting it complete discretion to search and seize. He further complained that defen dants destroyed his property while executing the warrant and mostly seized ordin ary items available for purchase at grocery, hardware, automotive parts and home improvement stores. In his third cause of action, Mr. Eden alleged stat e-law claims that Eberline and Rinchem trespassed on and converted his property without his consent. 3 The district court granted (1) Eberline’s motion to dismiss with prejudice on the ground that Eberline was not involved in the search and, therefore, was improperly joined as a party under Fed. R. Civ. P. 21; (2) Rinchem’s motion for summary judgment determining that Rinchem was entit led to qualified immunity; (3) Ms. Ortiz’s motion to dismiss concluding she wa s entitled to absolute4 Support for this is provided by a document attached to Rinchem’s

alternative motion to dismiss or for summary judgme nt. Mr. Eden does not object to the information contained in this document. -7- immunity; and (3) Mr. Maggiore’s motion to dismiss because the doctrine of respondeat superior did not apply and the conspirac y claim lacked specificity.
II. ANALYSIS
A. EBERLINE Mr. Eden argues that the district court erred in di smissing Eberline pursuant to Rule 12(b)(6). Specifically, he contends that t he district court did not accept the allegations of his complaint that Eberline part icipated in the search of his property and that the district court improperly con sidered matters outside the complaint by taking judicial notice of matters of p ublic record. Rinchem and Benchmark Environmental Corp. had enter ed into a teaming agreement under which Benchmark, as contractor, and Rinchem, as subcontractor, bid on a contract with NMED to help remediate hazar dous waste environmental conditions. 4 Apparently, Benchmark and Rinchem obtained the co ntract. In its motion to dismiss, Eberline asserted that it was a separate corporation distinct from either Benchmark or Rinchem and had no connect ion to the search and seizure. To support the assertion, Eberline attach ed to its motion Corporate Information Inquiry reports from the New Mexico Pub lic Regulation Commission indicating that Eberline, Rinchem and Benchmark are separate corporations.5 Although Eberline maintains it is a separate and di stinct legal entity from

Benchmark, an affidavit provided by Rinchem indicat es Eberline was formerly known as Benchmark. R. doc. 5, ex. A. Mr. Eden in dicates that he could present evidence from a state government record of Eberline ’s “involvement.” Aplt. Br. at 11. -8- Taking judicial notice of the New Mexico Public Reg ulation Commission’s records, the district court granted Eberline’s Rule 12(b)(6) motion and dismissed Eberline from the action with prejudice, holding th at Eberline was mistakenly named as a defendant. We review the Rule 12(b)(6) dismissal de novo. Duran v. Carris , 238 F.3d 1268, 1270 (10th Cir. 2001). Even assuming the dis trict court properly took judicial notice of the existence of the public reco rd, nothing specifically proved Eberline was not involved in the search, as Mr. Ede n asserted. The public record merely stated that Eberline was a separate corporat ion with no legal connection to Benchmark or Rinchem. We do not accept the facts s et forth in the public record

as true. See Oxford Asset Mgmt. , Ltd. v. Jaharis , 297 F.3d 1182, 1188 (11th Cir. 2002), cert. denied , 124 S. Ct. 205 (2003); Lee v. City of Los Angeles , 250 F.3d 668, 689-90 (9th Cir. 2001); Bryant v. Avado Brands, Inc. , 187 F.3d 1271, 1278 (11th Cir. 1999); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipp ing Group Ltd. , 181 F.3d 410, 426-27 & n.7 (3d Cir. 1999); Kramer v. Time Warner Inc. , 937 F.2d 767, 774 (2d Cir. 1991). 5 Therefore, we remand to the district court for6 Mr. Eden makes two preliminary assertions. We reje ct his first assertion

that he did not receive notice that the district co urt would treat Rinchem’s motion to dismiss as a motion for summary judgment. Rinch em’s motion was pled in the alternative, and Mr. Eden acknowledged this in his district court and appellate court filings. See R. doc. 10; Aplt. Opening Br. at 2. (continued...) -9- further proceedings on the complaint allegations. See Mihos v. Swift , 358 F.3d 91, 101 (1st Cir. 2004) (recognizing facts in compl aint still control).
B. RINCHEM Mr. Eden argues the district court erred in grantin g summary judgment to Rinchem and in deciding Rinchem was entitled to qua lified immunity even though Rinchem is a private party. Mr. Eden asserts the d istrict court erred by applying qualified immunity to Rinchem, because Rinchem pres ented no evidence showing entitlement to qualified immunity and the district court did not address whether qualified immunity would apply under the limited ci rcumstances set forth in Richardson v. McKnight , 521 U.S. 399 (1997).

We review a grant of summary judgment de novo , applying the same legal standard as the trial court. Summary ju dgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a m atter of law. Fed. R. Civ. P. 56(c). We view the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Eagon ex rel. Eagon v. City of Elk City , 72 F.3d 1480, 1484 (10th Cir. 1996) (citation omitted). 66 (...continued)

Next, Mr. Eden challenges the district court’s cons ideration of the complaint in a separate state-court case filed by N MED against Mr. Eden. In that case, NMED sought injunctive relief requiring Mr. E den to stop disposing of or storing hazardous waste on his property, costs for its activity concerning the hazardous waste, and civil and punitive damages forviolating hazardous waste statutes and regulations. In a summary judgment co ntext, it is appropriate for the district court to take judicial notice of pleadings in another case. See, e.g. , St. Louis Baptist Temple, Inc. v. FDIC , 605 F.2d 1169, 1171-72 (10th Cir. 1979). However, no pleadings the district court consideredfrom this separate case appear in the record before us for review. Through our ow n efforts, we learned that the state case was dismissed on June 6, 2003, for lack of prosecution. This occurred after the district court entered its order granting summary judgment to Rinchem, so it was not error for the district court to consi der the separate state-court action at the time it ruled.

7 In resolving qualified immunity cases, courts firstconsider whether the plaintiff alleged a deprivation of an actual consti tutional right and, if so, whether the plaintiff showed the right was clearly establis hed at the time of the alleged violation. See Conn v. Gabbert , 526 U.S. 286, 290 (1999). Because the district court concluded Mr. Eden did not prove a violation of his constitutional rights, the court found it unnecessary to reach the second inquiry. -10- In resolving the qualified immunity issue, the dist rict court first considered whether Mr. Eden alleged a deprivation of an actual constitutional right and concluded that Mr. Eden failed to do so. 7In reaching this conclusion, the court first decided that ample evidence established proba ble cause to issue the search warrant. The court found that (1) the facts listed in the warrant application were sufficient to enable the state court judge to concl ude that a violation of the New Mexico Hazardous Waste Law may be occurring, (2) th e application included the sources for this information, (3) Mr. Voss indicate d how he and NMED had verified the information received from the Albuquer que Police Department and-11-

Rinchem, and (4) the application and warrant specif ied the scope of the search, the time for the warrant’s execution, and the perso ns allowed to access the property. See R. doc. 29 at 11-12 (citing Marshall v. Horn Seed Co. , 647 F.2d 96, 102-03 (10th Cir. 1981)). Also, the district courtdecided that there was no constitutional violation because the administrative warrant was not overbroad and, under the circumstances, described with sufficient particularity the items that could be seized. Additionally, the court determine d the warrant was lawful in that the New Mexico Hazardous Waste Act authorizes the a cts specified in the warrant to be carried out by NMED officers and agents. Bec ause Rinchem acted pursuant to a lawful and constitutional warrant, the distric t court held that Rinchem did not violate Mr. Eden’s constitutional rights and was th erefore entitled to qualified immunity. We agree for substantially the same reasons stated by the district court that Mr. Eden has failed to prove a constitutional violation for which § 1983 provides a remedy with respect to his claims of lack of prob able cause and an overbroad warrant. Without a constitutional violation, Rinch em cannot be liable under § 1983 regardless of whether Rinchem, a private company, may assert a qualified immunity defense. See Parratt v. Taylor , 451 U.S. 527, 535 (1981) (requiring plaintiff seeking § 1983 relief to prove both that conduct complained of was8 There is no dispute that Rinchem’s conduct constituted state action. See

Scott v. Hern , 216 F.3d 897, 906 (10th Cir. 2000); see also R., doc. 1 at 4 (complaint assertion that Rinchem was acting under color of state law).

-12- committed by person acting under color of state law 8 and that conduct deprived person of constitutional right), overruled on other grounds by Daniels v. Williams , 474 U.S. 327 (1986). With no constitutional viol ation, we need not address Richardson ’s applicability to these claims. Mr. Eden made other assertions against Rinchem. He also contended that the warrant was not reasonably executed and that he was denied due process during the deprivation of his property. The distri ct court did not address these issues. We remand to the district court to allow t hat court to consider these claims in the first instance. In remanding, we note that contrary to the districtcourt’s conclusion, not all private contractors acting under color of state law are engaged in governmental functions eligible for qualified immunity. In Richardson v. McKnight , the Supreme Court addressed whether prison guards employed by a private prison management firm were entitled to qua lified immunity and held they were not. 521 U.S. at 401. The Court limited its holding in Richardson to “a private firm, systematically organized to assume a major lengthy administrative task . . . with limited direct supervision by the g overnment, [which] undertakes-13-

that task for profit and potentially in competition with other firms.” Richardson , 521 U.S. at 413. The Court specifically noted thatits holding “d[id] not involve a private individual briefly associated with a govern ment body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision.” Id. ; see also Bartell v. Lohiser , 215 F.3d 550, 557 (6th Cir. 2000) (recognizing private party closely supervisedby state may assert qualified immunity). The record here provides no relevant facts to disce rn whether Rinchem was closely supervised by NMED and, therefore, entitled to assert qualified immunity. At best, the record indicates that NMED representat ives were present when the warrant was executed. Thus, there is a genuine iss ue of fact whether Rinchem acted autonomously or under the close supervision and control of NMED. If, on remand, the district court concludes that Mr. Eden stated a constitutional violation with respect to his warrant execution and due proce ss claims, the court must consider whether Rinchem is protected by qualified immunity under the test set forth in Richardson

. Lastly, Mr. Eden asserts state-law conversion and trespass claims against Rinchem. “Conversion is the unlawful exercise of d ominion and control over property belonging to another in defiance of the ow ner’s rights, or acts constituting an unauthorized and injurious use of another’s property, or a9 Even Mr. Eden suggests the warrant may “possibly” b e valid and the

validity of the warrant is “irrelevant,” because mo st items Rinchem seized were not listed in the warrant. Aplt. Reply Br. at 3. -14- wrongful detention after demand has been made.” Sec. Pac. Fin. Servs. v. Signfilled Corp. , 956 P.2d 837, 842 (N.M. Ct. App. 1998). Trespass is the “unauthorized entry upon the land of another.” North v. Pub. Serv. Co. of N.M. , 608 P.2d 1128, 1129 (N.M. Ct. App. 1980). The district court granted summary judgment on these claims because all alleged activi ties by Rinchem occurred during the execution of a lawful warrant. We agree with the district court that Rinchem acted pursuant to a valid administrative search and seizure warrant. 9 The affidavits supporting the application for the w arrant set forth probable cause for issuance of the warrant. And the Hazardous Was te Act permitted seizure of hazardous wastes. See N.M. Stat. Ann. § 74-4-4.3. Thus, there was no conversion or trespass by Rinchem. In summary, we affirm the district court’s conclusi ons that Mr. Eden failed to present a constitutional claim concerning probab le cause to issue the search warrant and the lawfulness of the warrant. We also affirm the court’s decision that there was no trespass or conversion. We reman d to the district court to consider Mr. Eden’s claims that the warrant was unc onstitutionally executed and he was denied due process during the deprivation of his property.-15-

C. MS. ORTIZ
1. ABSOLUTE IMMUNITY Mr. Eden argues the district court improperly grant ed absolute immunity to Ms. Ortiz for her application for the search warran t. In granting Ms. Ortiz’s motion to dismiss, the district court held that heractions were within the prosecutorial duties of initiating an agency enforc ement action and therefore entitled to absolute immunity. We conclude that th e district court erred in granting Ms. Ortiz’s motion to dismiss on the groun d of absolute immunity. We review the district court’s dismissal and its ab solute immunity determination de novo. See Duran , 238 F.3d at 1270 (Rule 12(b)(6) dismissal);
Scott , 216 F.3d at 908 (absolute immunity). To decide w hether Ms. Ortiz’s actions are entitled to absolute immunity, we apply a functional approach, looking at the type of function she performed; we do not consider her identity. See Kalina v. Fletcher , 522 U.S. 118, 127 (1997); Buckley v. Fitzsimmons , 509 U.S. 259, 269 (1993). Ms. Ortiz “bears the burden of showing that such immunity is justified for the function in question.” Burns v. Reed , 500 U.S. 478, 486 (1991).

“[S]tate attorneys and agency officials who perform functions analogous to those of a prosecutor in initiating an d pursuing civil and administrative enforcement proceedings” are “absolu tely immune from suit under section 1983 concerning activities ‘intimately associated with the judicial . . . process.’” Pfeiffer v. Hartford Fire Ins. Co. , 929 F.2d 1484, 1490 (10th Cir. 1991) (quoting Imbler v. Pachtman , 424 U.S. 409, 430-31 . . . (1976)). Absolute imm unity does not extend to actions “that are primarily inve stigative or-16-

administrative in nature,” though it “may attach ev en to such administrative or investigative activities ‘when th ese functions are necessary so that a prosecutor may fulfill his func tion as an officer of the court.’” Id. (quoting Snell v. Tunnell , 920 F.2d 673, 693 (10th Cir. 1990)). . . . “The more distant a func tion is from the judicial process and the initiation and presentatio n of the state’s case, the less likely it is that absolute immunity will attach.” Id. (citing Snell , 920 F.2d at 687).
Scott , 216 F.3d at 908-09. It is not always easy to ide ntify acts entitled to absolute immunity; advocacy, however, is the determinative factor. Rex v. Teeples , 753 F.2d 840, 843 (10th Cir. 1985); see also Imbler , 424 U.S. at 431 n.33 (recognizing it will be difficult to draw line between advocacy and other functions); Prince v. Hicks , 198 F.3d 607, 612 (6th Cir. 1999) (whether prosecutor acts as investigator or as advocate depe nds on specific circumstances of case). In this case, we must decide whether Ms. Ortiz’s co nduct was administrative or investigative in nature or whethe r she engaged in conduct of an advocate. Relying on the holding in Burns v. Reed , 500 U.S. 478, Ms. Ortiz argues she acted as an advocate and was entitled to absolute immunity. In Burns , the Court held that a prosecuting attorney’s partic ipation in a probable cause hearing, which was held after an arrest, by appeari ng before the judge and presenting evidence to support an application for asearch warrant, was entitled to absolute immunity. The Court reasoned that the pro secutor acted as an advocate, the judge’s issuance of a search warrant was a judi cial act, and the prosecutor’s10 Just as the Supreme Court has not clarified whetherpreparation of an

application for an administrative warrant is prosec utorial or investigative activity, other courts also have not definitively decided the issue. See generally Annotation, Immunity of Prosecutor from Suit, 67 A. L.R. Fed. 640, 652-57 (1984 & Supp. 2003). -17- appearance at the probable cause hearing was “intim ately associated with the judicial phase of the criminal process.” 500 U.S. at 491-92 (quotation omitted). Notably, however, the Burns decision concerned only the prosecutor’s “participation in the hearing and not . . . his con duct outside of the courtroom relating to the warrant.” Id. at 487. 10 In this case, Ms. Ortiz did not participate in the hearing. R. doc. 1, ex. A (indicating Mr. Voss submitted application for warr ant to state-court judge). Rather, only at issue is her preparation and signin g of the application for the administrative search warrant. We are convinced th at absolute immunity is unavailable under the specific circumstances presen ted here. While we agree with Ms. Ortiz’s assertion that obta ining an administrative search warrant was a preliminary step before initiating civil proceedings under the New Mexico Hazardous Waste Act, Aplee. Br. at 29, t he step was so preliminary as to be an investigatory and not an advocacy step. There is a difference between evaluating evidence in order to prepare for trial a nd searching for evidence that might give probable cause to bring an action. See Buckley , 509 U.S. at 273; see also Burns , 500 U.S. at 495 (rejecting notion that absolute i mmunity is expansive-18-

enough to include any action by prosecutor that rel ates to ultimate decision to prosecute); Smith v. Garretto , 147 F.3d 91, 94 (2d Cir. 1998) (“Although all investigative activity could be considered in some sense to be ‘preparing for the initiation of judicial proceedings,’ the Supreme Co urt has sought to draw a line between those preparatory steps that a prosecutor t akes to be an effective advocate of a case already assembled and those inve stigative steps taken to gather evidence.”) (quoting Buckley , 509 U.S. at 273). An attorney engages in an investigatory function if the attorney makes a “pre liminary gathering of evidence that might ripen into a potential prosecution.” Snell , 920 F.2d at 692 (quotation omitted). Ms. Ortiz’s conduct occurred before she could possi bly claim to be acting as an advocate. See Buckley , 509 U.S. at 275; see also Milstein v. Cooley , 257 F.3d 1004, 1011 (9th Cir. 2001) (investigating done as detective, after filing crime report and before empaneling grand jury, rath er than as advocate, is not protected by absolute immunity); Prince , 198 F.3d at 612-13 (holding prosecutor was not entitled to absolute immunity because inves tigation was not intimately associated with judicial phase of criminal process) . She was not evaluating evidence already assembled. See Buckley , 509 U.S. at 273. At most, she was engaged in the preliminary gathering of evidence th at potentially could result in further NMED action against Mr. Eden. Cf. Malley v. Briggs , 475 U.S. 335,-19-

340-43, 344 n.6 (1986) (holding that police officerwho applies for warrant is not absolutely immune from suit because applying for wa rrant precedes first phase of criminal proceedings, which is seeking indictment); Rex , 753 F.2d at 844 (holding prosecutor’s interrogation of suspect was type of p olice work and therefore not subject to absolute immunity). Thus, she did not a ct as an advocate in preparing and submitting the application. Ms. Ortiz does not contend that she had cause to in itiate an action against Mr. Eden before the investigation. And her later i nitiation of an action did not retroactively transform the investigative work into prosecution. See Buckley , 509 U.S. at 275-76. Additionally, Ms. Ortiz’s actions are not absolutel y immune because she is an agency attorney. See id. at 273. Her title as a Special Assistant Attorney General and Assistant General Counsel to NMED is no t dispositive to a consideration of whether she acted as an advocate. See id. at 269. Absolute prosecutorial immunity is justified “only for actions that are connected with the prosecutor’s role in judicial pr oceedings, not for every litigation-inducing conduct.” Burns , 500 U.S. at 494. We therefore hold that absolute immunity is unavailable to Ms. Ortiz’s act ivity of applying for an administrative search warrant, because she was acti ng in an investigative and not-20-

a prosecutorial capacity at the time of application . Accordingly, we reverse the district court’s grant of absolute immunity to Ms. Ortiz.

2. QUALIFIED IMMUNITY Ms. Ortiz argues that if she is not entitled to abs olute immunity, she is entitled to qualified immunity. An attorney acting in an investigative capacity may be entitled to qualified immunity. See Buckley , 509 U.S. at 273; Scott , 216 F.3d at 908-09. Once a defendant asserts quali fied immunity, the plaintiff bears the burden of showing that the defendant’s co nduct violated a constitutional right and that the right was clearly established. Snell , 920 F.2d at 696. Because the district court decided Ms. Ortiz was en titled to absolute immunity, the court did not reach her alternative a rgument that she was entitled to qualified immunity. Mr. Eden did not address quali fied immunity in either the district court or on appeal. Qualified immunity is sues should “be resolved in the first instance by the trial court,” because qualifi ed immunity is an “objective legal inquiry,” which is “fact-specific.” Id. Accordingly, we remand to the district court to address the qualified immunity issue in th e first instance.
D. MR. MAGGIORE Mr. Eden argues the district court wrongly conclude d the allegations of conspiracy against Mr. Maggiore were insufficient. He also argues that his allegation that Mr. Maggiore “approved and ratified ” Ms. Ortiz’s and Mr. Voss’-21-

actions sufficiently alleged both a conspiracy by M r. Maggiore with Mr. Voss and Ms. Ortiz to violate his rights and supervisory liability because Mr. Maggiore was in a supervisory position over Mr. Voss and Ms. Ort iz. The district court decided that the doctrine of respondeat superior did not ap ply, that Mr. Eden did not allege that Mr. Maggiore caused Ms. Ortiz to violat e Mr. Eden’s constitutional rights, and that the bare allegation that Mr. Maggi ore approved Ms. Ortiz’s actions failed to state a claim upon which relief c ould be granted under Rule 12(b)(6). Also, the court dismissed the conspiracyclaim because it lacked the requisite specificity to state a claim. As we noted before, we review the district court’s Rule 12(b)(6) dismissal de novo. Duran , 238 F.3d at 1270. “The court’s function on a Rul e 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alo ne is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation omitted), cert. denied , 124 S. Ct. 1411 (2004). “Dismissal is inappropriate ‘unless it app ears beyond doubt that the plaintiff can prove no set of facts in support of [ his] claim which would entitle [him] to relief.’” Murrell v. Sch. Dist. No. 1 , 186 F.3d 1238, 1244 (10th Cir. 1999) (quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957)). In making this review, courts take the complaint’s factual allegations as true. Zinermon v.-22-

Burch , 494 U.S. 113, 118 (1990). “The issue in reviewin g the sufficiency of a complaint is not whether the plaintiff will prevail , but whether the plaintiff is entitled to offer evidence to support [his] claims.” Ruiz v. McDonnell , 299 F.3d 1173, 1181 (10th Cir. 2002), cert. denied , 123 S. Ct. 1908 (2003). Supervisor liability “requires allegations of perso nal direction or of actual knowledge and acquiescence.” Woodward v. City of Worland , 977 F.2d 1392, 1400 (10th Cir. 1992) (quotation omitted). Mr. Ede n “must demonstrate an affirmative link between [Mr. Maggiore’s] conduct a nd the constitutional deprivation; liability based upon respondeat superior will not do.” Snell , 920 F.2d at 700. Mr. Eden must show that Mr. Maggiore “expr essly, or otherwise, authorized, supervised, or participated in conduct which caused the constitutional deprivation.” Id. Mr. Eden asserted that Mr. Maggiore “approved and ratified” the actions of Ms. Ortiz and Mr. Voss. Under the l iberal standards afforded to pro se litigants, the assertion is legally sufficie nt to state a claim for relief under Rule 12(b)(6). We therefore vacate the district co urt’s dismissal of Mr. Maggiore based on supervisory liability. For a conspiracy claim, a plaintiff “must allege sp ecific facts showing an agreement and concerted action among the defendants.” Tonkovich v. Kan. Bd. of Regents , 159 F.3d 504, 533 (10th Cir. 1998); see also Salehpoor v. Shahinpoor , 358 F.3d 782, 789 (10th Cir. 2004) (requiring plaintiff to allege by direct or-23-

circumstantial evidence that defendants had meeting of minds or agreement). “Conclusory allegations of conspiracy are insuffici ent to state a valid § 1983 claim.” Tonkovich , 159 F.3d at 533 (quotation omitted); see also Steele v. Fed. Bureau of Prisons , 355 F.3d 1204, 1214 (10th Cir. 2003) (holding con clusory conspiracy allegations are not sufficient to state a constitutional claim). Although we recognize that the nature of conspiracy is such that it is often impossible to provide details at the pleading stage, Brever v. Rockwell Int’l Corp. , 40 F.3d 1119, 1128 (10th Cir. 1994), read liberally, the co mplaint here states only conclusory allegations of conspiracy, which are ins ufficient to state a claim for relief. Accordingly, we affirm the district court’ s determination that the conspiracy allegations failed to state a claim upon which relief could be granted.
E. DISMISSAL WITH PREJUDGE WITHOUT LEAVE TO AMEND THE COMPLAINT Mr. Eden argues the district court erred in dismiss ing his complaint with prejudice without considering granting him leave to amend. Apart from a one line request in his response to Mr. Maggiore’s motion to dismiss, Mr. Eden never requested the district court’s permission to amend his complaint. This court has held that the district court does not abuse its dis cretion in failing to grant a plaintiff leave to amend if the plaintiff never pro perly sought leave to amend.
See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs. , 181 F.3d 1180, 1186-87 (10th Cir. 1999) (normally, district court need notgrant leave to amend when-24-

plaintiff fails to make formal motion; informal req uest to amend in response to motion to dismiss is insufficient if it fails to gi ve grounds for proposed amendment and merely “dangl[es]” at end of response ). Mr. Eden’s first suggestion that he should be granted leave to amend his complaint in the entirety was made to this court. Yet he does not indicate h ow he would amend his complaint. Accordingly, we reject Mr. Eden’s assertion that the district court erred in failing to grant him leave to amend his co mplaint.
F. UNKNOWN DOES 1-10 Mr. Eden argues the district court’s dismissal with out prejudice of the unknown Does 1-10 should be reversed with the direc tion that he be allowed to conduct sufficient discovery to determine their ide ntities and to allow time to amend the complaint once he discovers their identit ies. In light of our remand on other issues, we conclude Mr. Eden will have an opp ortunity to conduct discovery.
G. FAILURE TO APPEAR AT PRETRIAL CONFERENCE Mr. Eden argues the district court erred in awardin g defense counsel attorney’s fees and costs under Fed. R. Civ. P. 16( f) when the court specifically stated it would not impose sanctions against him. Mr. Eden did not appear for a Rule 16 scheduling conference due to car trouble. Accepting that Mr. Eden’s failure to attend was a matter outside his control, the district court declined to11 Rule 16(f) provides in pertinent part:

Sanctions . If . . . no appearance is made on behalf of a pa rty at a scheduling . . . conference, . . . the judge . . . may make such orders with regard thereto as are just, and among others a ny of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of . . . any other sanction , the judge shall require the party . . . to pay th e reasonable expenses incurred because of any noncompliance withthis rule, including attorney’s fees, unless the judge finds t hat the noncompliance was substantially justified or that o ther circumstances make an award of expenses unjust. Fed. R. Civ. P. 16(f) (emphasis added). -25- impose sanctions against him under Rule 16(f). Ins tead, the court ordered, pursuant to Rule 16(f), that Mr. Eden reimburse opp osing counsel for one hour of attorney time at the rate of $150.00 per hour and travel costs of $42.34. An award of attorney’s fees and expenses is part of a broad range of sanctions available to a district court under Rule 16(f) 11 to impose on a party for that party’s failure to appear at a scheduling conf erence. 3 James Wm. Moore et al., Moore’s Federal Practice ¶ 16.15[1] (3rd ed. 2003); see Comcoa, Inc. v. NEC Tels., Inc. , 931 F.2d 655, 667 (10th Cir. 1991) (referring to award of attorney’s fees and expenses as sanction); see also Olcott v. Del. Flood Co. , 76 F.3d 1538, 1555 (10th Cir. 1996) (recognizing punitive purpose of Rule 16(f)). Thus, under Rule 16, the district court had authori ty to impose attorney’s fees and expenses as a sanction. It was therefore inconsistent for the district court to impose attorney’s fees and expenses agains t Mr. Eden and to declare it-26-

was not imposing a sanction. Accordingly, on de no vo review, we vacate the award of attorney’s fees and expenses. See Utah Women’s Clinic, Inc. v. Leavitt , 136 F.3d 707, 709 (10th Cir. 1998) (reviewing de no vo legal analysis underlying sanction imposition). We remand to the district co urt for further proceedings.
III. CONCLUSION We reverse the district court’s dismissal of Eberli ne, affirm in part and vacate in part the dismissal of Rinchem after grant ing Rinchem summary judgment, reverse the dismissal of Ms. Ortiz, affir m in part and vacate in part the dismissal of Mr. Maggiore, and vacate the award of attorney’s fees and costs. We remand for further proceedings concerning Eberline, Rinchem, Ms. Ortiz, Mr. Maggiore, and the award of attorney’s fees and costs. In remanding, we make no comment upon the merits of any of Mr. Eden’ s claims. On remand, the district court may take any necessary steps to cons ider Mr. Eden’s claims. The judgment of the district court is AFFIRMED in p art, REVERSED in part and VACATED in part, and the action is REMANDE D to the district court for further proceedings. The mandate shall issue f orthwith.

Entered for the Court

David M. Ebel Circuit Judge