                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                            February 28, 2017
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
CORNELIUS A. HARTZ,

      Plaintiff - Appellant,

v.                                                             No. 16-3127
                                                  (D.C. No. 5:15-CV-03068-SAC-DJW)
DARREN CAMPBELL, Law Enforcement                                (D. Kan.)
Officer/Security Guard, in his individual
and official capacity; JOSHUA SMITH,
District Attorney, in his individual and
official capacity; DAVID B.
DEBENHAM, District Court Judge, in his
individual and official capacity; TOPEKA
POLICE DEPARTMENT; SHAWNEE
COUNTY; STATE OF KANSAS,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

       Cornelius A. Hartz, a pro se prisoner, appeals from a district court order that sua

sponte dismissed his civil-rights complaint for failure to state a claim. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                      BACKGROUND

       On May 20, 2014, a theft occurred at a Topeka, Kansas Walgreen’s store.

Specifically, a black male walked up to a clerk and asked for a carton of cigarettes and to

look at a Bluetooth speaker. When the clerk placed the items on the counter, the man

took them and left the store without paying.

       The next day, the manager notified the store’s security guard, Darren Campbell,

about the theft. Campbell was an off-duty police officer from the Topeka Police

Department. Campbell viewed surveillance video of the theft and interviewed the clerk.

       On May 22, the clerk notified Campbell that the suspect had returned, and he

pointed at Plaintiff Hartz. Campbell, who was in uniform, called dispatch and requested

back up.

       Campbell then approached Hartz, who was standing in a checkout line. Campbell

directed him to come along to the manager’s office and inquired whether he had stolen

from the store two days earlier. Hartz denied any wrongdoing and expressed concern

about his unguarded bicycle outside, urging Campbell to go outside with him. Hartz

turned around, looked toward the front door, and bumped into Campbell several times.

When it appeared that Hartz was trying to get to the front door, Campbell attempted to

restrain him. This, Hartz agrees, “[c]aus[ed] [him] to become combative.” R., Vol. I at

17.

       A physical struggle ensued, and both men fell to the floor. Officer Campbell drew

his Taser and pointed it at Hartz. Fearing that he might be tased, Hartz ran toward the

front door, but again encountered Officer Campbell. Still fearful, Hartz retreated to the

                                               2
back of the store and jumped out the pharmacy’s drive-thru window. He was soon

apprehended outside by police officers who had been dispatched to the scene based on

Campbell’s request for assistance.

       Campbell later completed an arrest report for the incident, charging Hartz with

battery against a police officer (a Class A misdemeanor), felony theft (based on prior

theft convictions),1 obstruction (a Class A misdemeanor), and criminal damage to

property (a Class B misdemeanor). After several continuances, Hartz went to trial in

December 2014. At the close of evidence, District Attorney Joshua Smith dismissed the

obstruction charge and amended the battery charge to simple battery (a Class B

misdemeanor). A jury found Hartz not guilty on the theft and criminal-damage charges,

but guilty of battery. State District Judge David Debenham sentenced him to six months

in the Shawnee County Jail.

       Based on the Walgreen’s encounter, Hartz filed a 42 U.S.C. § 1983 suit in federal

court, naming six defendants: Campbell; District Attorney Smith; District Judge

Debenham; the Topeka Police Department; Shawnee County; and the State of Kansas.

Hartz alleged that he was detained and arrested based only on “probable cause to believe

[he] had committed a misdemeanor theft,” R., Vol. I at 4; prosecuted without “the video

evidence of the alleged theft,” id. at 5; and tried with “deliberate indifference to

[Campbell's] unconstitutional actions,” id. at 6. For relief, Hartz sought monetary

damages exceeding five million dollars.

       1
        Without the prior convictions, theft of the cigarettes and speaker would have
been a Class A misdemeanor. See Kan. Stat. Ann. § 21-5801(b)(4) (“property . . . of
the value of less than $1,500”).
                                              3
       A magistrate judge screened Hartz’s complaint and ordered him to show cause

why the case should not be summarily dismissed for failure to state a claim. When Hartz

failed to respond, a district judge “reviewed the findings and rulings of [the magistrate

judge] together with the file,” concluded that Hartz had failed to plead a plausible claim,

and dismissed the case. Id. at 68.

       Hartz appeals.2

                                         DISCUSSION

       We review de novo the district court’s dismissal for failure to state a claim. Young

v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). In doing so, “we accept as true the well

pleaded factual allegations and then determine if the plaintiff has provided enough facts

to state a claim to relief that is plausible on its face.” Hogan v. Winder, 762 F.3d 1096,

1104 (10th Cir. 2014). Because Hartz is proceeding pro se, we construe his filings

liberally. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

       On appeal, Hartz first addresses his seizure by Campbell. He contends that

Campbell “acted on speculative information” and “allow[ed] his emotions to overcome

his responsibilities as a police officer.” Aplt. Br. at 3.

       “The Fourth Amendment protects against unreasonable seizures.” Maresca v.

Bernalillo Cty., 804 F.3d 1301, 1308 (10th Cir. 2015). “[I]nvestigative detentions[,]


       2
         In addition to filing a notice of appeal challenging the dismissal, Hartz filed
two motions to reopen. Both motions were denied and were not followed by an
amended notice of appeal. Consequently, Hartz has perfected an appeal only from
the district court’s dismissal order. See Fed. R. App. P. 4(a)(4)(B)(ii) (providing that
a party intending to challenge a prescribed post-judgment order must timely file a
notice of appeal or an amended notice of appeal designating that order).
                                               4
which are Fourth Amendment seizures of limited scope and duration[,] . . . must be

supported by a reasonable suspicion of criminal activity,” whereas arrests, which are “the

most intrusive of Fourth Amendment seizures,” are “reasonable only if supported by

probable cause.” United States v. Madden, 682 F.3d 920, 925 (10th Cir. 2012) (internal

quotation marks omitted). Even assuming that Campbell’s seizure of Hartz for the May

20 theft constituted an arrest, we conclude there was probable cause.

       “Probable cause exists if facts and circumstances within the arresting officer’s

knowledge and of which he or she has reasonably trustworthy information are sufficient

to lead a prudent person to believe that the arrestee has committed or is committing an

offense.” Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008) (internal

quotation marks omitted). “[T]he mere fact that the suspect is later acquitted of the

offense for which he is arrested is irrelevant to the validity of the arrest.” Michigan v.

DeFillippo, 443 U.S. 31, 36 (1979).

       Before approaching Hartz, Officer Campbell had viewed the videotape of the

theft. Further, the clerk—who had directly interacted with the thief—identified Hartz as

the thief. Based on these circumstances, a prudent person could conclude that Hartz had

committed the theft. See Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012)

(“Identification by a single eyewitness who lacks an apparent grudge against the accused

person supplies probable cause for arrest.”); Curley v. Village of Suffern, 268 F.3d 65, 70

(2d Cir. 2001) (“When information is received from a putative victim or an eyewitness,

probable cause exists, unless the circumstances raise doubt as to the person’s veracity[.]”

(citation omitted)); Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir.1999) (“A law

                                              5
enforcement officer is entitled to rely on an eyewitness identification to establish

adequate probable cause with which to sustain an arrest.”); cf. Easton v. City of Boulder,

776 F.2d 1441, 1449 (10th Cir. 1985) (stating that “when examining informant evidence

used to support a claim of probable cause for . . . a warrantless arrest, the skepticism and

careful scrutiny usually found in cases involving informants, sometimes anonymous,

from the criminal milieu, is appropriately relaxed if the informant is an identified victim

or ordinary citizen witness”).

       Hartz next argues that Campbell had no authority to seize him until “an on duty

officer” arrived and investigated the matter. Aplt. Br. at 3. But if Campbell lacked such

authority, we fail to see how he acted under color of state law for purposes of § 1983

liability. See Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir. 1996) (noting that § 1983

liability requires an “exercise[ ] [of] power possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law” (internal

quotation marks omitted)).

       To the extent Hartz complains he was arrested in violation of Kansas law for a

misdemeanor completed outside of Campbell’s presence,3 “Fourth Amendment

       3
         Kansas law permits a warrantless arrest for a misdemeanor completed
outside an officer’s “view” if there is probable cause to believe that the person
committed the crime and

       (A) The person will not be apprehended or evidence of the crime will be
       irretrievably lost unless the person is immediately arrested;
       (B) the person may cause injury to self or others or damage to property
       unless immediately arrested; or
       (C) the person has intentionally inflicted bodily harm to another person.
                                              6
protections [are not linked] to state law.” Virginia v. Moore, 553 U.S. 164, 176 (2008).

And neither the Supreme Court nor the Tenth Circuit has definitively declared that “the

Fourth Amendment entails an ‘in the presence’ requirement for purposes of misdemeanor

arrests,” Atwater v. City of Lago Vista, 532 U.S. 318, 340 n.11 (2001); see also Chimera

v. Lockhart, 511 F. App’x 785, 793 n.9 (10th Cir. 2013) (stating in dicta “that the circuits

to have addressed the [in-presence] issue have consistently held that it does not” “give

rise to § 1983 liability”). Indeed, it is widely recognized that the Fourth Amendment

does not impose an in-presence requirement. See Graves v. Mahoning City, 821 F.3d

772, 778-79 (6th Cir. 2016) (collecting cases); 3 W. LaFave, Search & Seizure § 5.1(c)

(2013) (stating that the in-presence requirement “is not mandated by the Fourth

Amendment”).

       As for the dismissal of Hartz’s claim against District Attorney Smith, Hartz states

that he withheld “potentially exculpatory impeachment evidence” by not “produc[ing] the

video evidence of the alleged theft.” Aplt. Br. at 3. But a prosecutor has absolute

immunity from a civil damages suit, even if he “deliberately withholds exculpatory

information.” Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007).

       Hartz’s claim against Judge Debenham is likewise barred by the doctrine of

absolute immunity. See Dennis v. Sparks, 449 U.S. 24, 27 (1980) (observing that “judges

defending against § 1983 actions enjoy absolute immunity from damages liability for acts

performed in their judicial capacities” (internal quotation marks omitted)).



       Kan. Stat. Ann. § 22-2401(c)(2).
                                             7
       Hartz does not argue that the district court erred in dismissing his claims against

the State of Kansas, Shawnee County, or the Topeka Police Department. Nor could he.

See Coleman v. Court of Appeals of Md., 566 U.S. 30, 35 (2012) (“A foundational

premise of the federal system is that States, as sovereigns, are immune from suits for

damages, save as they elect to waive that defense.”); Bd. of Cty. Comm’rs v. Brown, 520

U.S. 397, 403 (1997) (explaining that a municipality is not subject to § 1983 liability

absent “a municipal ‘policy' or ‘custom' that caused the plaintiff's injury”). Moreover,

“[t]he failure to raise an issue in an opening brief waives that issue.” Silverton

Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (internal

quotation marks omitted).

                                       CONCLUSION

       The judgment of the district court is affirmed. Hartz is thus eligible for a strike

under the Prison Litigation Reform Act. See Hafed v. Fed. Bureau of Prisons, 635 F.3d

1172, 1176, 1177 (10th Cir. 2011). Hartz’s motion for leave to proceed without

prepayment of costs and fees is granted, and he is reminded of his continuing obligation

to make partial payments until the fees are paid in full.

                                               Entered for the Court



                                              Gregory A. Phillips
                                              Circuit Judge




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