                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           FEB 28 2005
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    GARY KOVERMAN,

                  Plaintiff-Appellant,
                                                         No. 04-1109
    v.                                            (D.C. No. 02-N-2177 (CBS))
                                                           (D. Colo.)
    ROBERT CANTWELL; PETER
    MANG; DENNIS MOONEY; KEVIN
    HUMPHRIES; ROBERT SEXTON,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, HENRY , and O’BRIEN , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Gary Koverman appeals from the district court’s grant of

summary judgment to appellees in this civil rights suit under 42 U.S.C. § 1983.

We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      Appellant formerly worked for the Colorado Bureau of Investigation, where

his job duties included analyzing narcotics. For reasons the parties dispute, he

was “set up” on the afternoon of March 20, 2000, with a controlled, rush

assignment to analyze ninety-nine Ecstasy pills. Appellant completed the

analysis, returning only ninety-one pills to the evidence room. As he was leaving

work at the end of the day, he was confronted about the eight missing Ecstasy

pills. Appellant said the missing pills were consumed during testing. He

submitted to a strip search to prove they were not on his person. A short time

later, however, the missing drugs were found in a search of his desk drawer. He

then said that he had withheld the pills as “standards” of the drug. He was

arrested without a warrant and later charged with several felonies and one

misdemeanor. He apparently was never confined. He was fired on March 31,

2000, after an administrative hearing. His termination was upheld by an

administrative law judge (ALJ) on September 22, 2000. Appellant did not appeal

from the ALJ’s decision. Appellant later was tried on the outstanding criminal

charges, and was acquitted on July 30, 2002.




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       Appellant filed this suit on November 4, 2002, alleging in his first claim for

relief that:

       Mooney, Humphries, Mang, and Sexton, acting under color of state
       law, conspired to procure groundless charges based upon fabricated
       evidence and presented false distorted perjurious testimony to
       official bodies in order to bring about termination of [his]
       employment and his trial on criminal charges without due process of
       law in violation of 42 U.S.C. § 1983.

Aplt. App., Vol. I at 13, ¶ 28. Appellant also asserted a second claim for relief,

alleging that appellee Cantwell supervised the other appellees and was

responsible for their violations of his rights.     Id. at 13-14, ¶¶ 32-36.

       On cross-motions for summary judgment, the district court read appellant’s

first claim for relief as stating two claims, one for malicious prosecution under

§ 1983 and the other for a violation of appellant’s due process rights in

employment termination. Aplt. App., Vol. III at 818-19. Because appellant’s

explicit second claim for relief made the same allegations against Cantwell, the

district court analyzed a claim for § 1983 malicious prosecution and a claim for

violation of due process in terminating appellant’s employment.         Id. at 819.

       The district court held that appellant failed to state a colorable claim for

malicious prosecution under § 1983 because Tenth Circuit law required him to set

forth facts alleging a Fourth Amendment violation, and appellant had neither

discussed nor provided a factual predicate for his claim that appellees violated his

Fourth Amendment rights.        Id. at 821-24 (discussing Taylor v. Meacham , 82 F.3d

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1556 (10th Cir. 1996) in light of       Albright v. Oliver , 510 U.S. 266 (1994) and

circuit split). The court further held that appellant’s warrantless arrest did not

qualify as a Fourth Amendment violation as a matter of law, and having to appear

for his trial did not qualify either.    Id. at 822-23 & n.8 (citing cases). Because

appellant had not identified facts showing a Fourth Amendment violation, the

court rejected his § 1983 malicious prosecution claim. The court further held that

appellant’s due process claim failed because he had filed his suit outside the

applicable two-year statute of limitations, based on the date his termination was

upheld by the ALJ, September 22, 2000. Appellant argued that his due process

claim was preserved by the later date of his acquittal, July 30, 2002, under the

continuing violation theory applied in       Robinson v. Maruffi , 895 F.2d 649, 654-56

(10th Cir. 1990). The court distinguished        Robinson , however, because it involved

a valid malicious prosecution claim, and appellant had not stated a colorable

malicious prosecution claim. Aplt. App., Vol. III at 825-26. Having rejected

both of appellant’s claims, the court denied appellant’s motion for partial

summary judgment and granted summary judgment to appellees.

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

applying the same legal standard used by the district court.”       Sandoval v. City of

Boulder , 388 F.3d 1312, 1320 (10th Cir. 2004) (quotation omitted). Summary

judgment is appropriate “if . . . there is no genuine issue as to any material fact


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and . . . 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 in the light most favorable to the nonmoving

party.” Sandoval , 388 F.3d at 1320 (quotations omitted). This court, however, is

not obligated to “comb the record” and make appellant’s case for him by locating

facts he did not specifically reference in his motion materials.        Adler v. Wal-Mart

Stores, Inc. , 144 F.3d 664, 672 (10th Cir. 1998).

       Appellant inconsistently argues on appeal that: (1) the district court erred

in dividing his first claim for relief in two; (2) none of his claims accrued until

his acquittal and therefore none are barred by the statute of limitations; and

(3) his claim based upon prosecution of the criminal charges should be remanded

for trial even if his challenge to his termination from employment is time-barred.

He relies primarily on Pierce v. Gilchrist , 359 F.3d 1279 (10th Cir. 2004) and

Robinson , 895 F.2d 649. Appellant’s reliance on these cases is misplaced.

       Appellant makes clear in his briefs on appeal that if his claim is viewed as

a single claim, it is a Fourteenth Amendment challenge to his termination from

employment, not a challenge to his criminal prosecution.           E.g. , Aplt. Opening Br.

at 25 (“Koverman was deprived of his position as an agent of the Colorado

Bureau of Investigation through two sham administrative proceedings and a

criminal prosecution, all of which were inextricably related and designed for the


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ultimate purpose of getting rid of Koverman.”);         id. at 29 (“[P]laintiff’s arguments

[were] founded upon [defendants’] conspiracy to utilize a series of events in order

to deprive plaintiff of his property without due process of law . . . .”);        id. at 31

(“[T]he most appropriate Amendment under which to analyze this case is the

Fourteenth. It is Koverman’s position . . . that there was a continuous course of

conduct by the defendants designed to deprive him of his property, i.e., his job.”).

Thus, Pierce provides appellant no support. Although           Pierce does refer to

Fourteenth Amendment rights in connection with a § 1983 malicious prosecution

claim, that reference is to a criminal defendant’s liberty interest in being free

from confinement without due process. 359 F.3d at 1285-86. This court did not

refer to Fourteenth Amendment property rights at all in         Pierce , nor did that case

involve a challenge to the loss of a job.     See id.

       Robinson also provides appellant no support.         Robinson involved claims

brought under 42 U.S.C. §§ 1983, 1985, and 1986 of false arrest, false

imprisonment, and malicious prosecution, which this court held were all part of

an alleged conspiracy to frame the plaintiff for a murder. 895 F.2d at 650, 654.

This court held that the plaintiff’s claims for violations of his liberty interest

under the Fourteenth Amendment and his right to a fair trial under the Sixth

Amendment were therefore related to each other and continued through the

plaintiff’s second criminal trial, where he was finally acquitted.           Id. at 654-56.


                                              -6-
The reversal of that plaintiff’s first conviction did not cause his malicious

prosecution claim to accrue because he was still subject to being retried, and was

in fact retried, on the same false evidence.          Id. at 655. All of his claims were

directed at aspects of his criminal proceedings.          See id. Again, there was no job

loss or property rights involved in the case.         See id. Appellant has not cited any

case that links the allegedly unfair loss of a job to an allegedly malicious criminal

prosecution for the purposes of determining when a due process claim accrues

under § 1983. We are therefore unpersuaded that appellant’s acquittal on criminal

charges was necessary to his claim that his job termination hearing was unfair.

       Appellant’s reliance on    Garrity v. New Jersey , 385 U.S. 493 (1967), is also

misplaced. He asserts that he was unable to put on a defense in his termination

proceeding due to the pending criminal charges against him. But             Garrity deals

with compelled self-incrimination in violation of the Fifth Amendment, and

applies to immunize a party who has been forced to make an incriminating

statement under the threat of losing his job if he remains silent.         Grand Jury

Subpoenas Dated Dec. 7 & 8 v. United States            , 40 F.3d 1096, 1101-1102 (10th Cir.

1994) (discussing Garrity ). Here, appellant made no statement in defense of his

job, and he does not allege that he was threatened with termination simply for

remaining silent. Further, he testified at his criminal trial, giving an       innocent

explanation for his actions which persuaded the jury to acquit. Although he


                                                -7-
makes a conclusory reference to the “Hobson’s Choice” of giving up his “Fifth

Amendment rights” or presenting no defense at the termination hearing, Aplt.

Opening Br. at 33, he never identifies any     incriminating statement that he used, or

would have used, in defense of his job, if the criminal charges had not been

pending at that time.   See id. at 26, 33, 35. We are convinced that, as the district

court held, appellant’s due process challenge to his termination from employment

accrued, at the latest, when the ALJ upheld it on September 22, 2000. Because

appellant did not file suit until November 4, 2002, his claim is time-barred.

       Appellant makes a conclusory argument that his challenge to his criminal

prosecution should nevertheless go forward. However, as        Taylor and Pierce

indicate, he has not asserted the required constitutional injury under the Fourth or

Fourteenth Amendments necessary to support a claim for malicious prosecution

under § 1983.

       The judgment of the district court is AFFIRMED.



                                                        Entered for the Court



                                                        Deanell Reece Tacha
                                                        Chief Judge




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