                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 9, 2018
                                      PUBLISH                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 SILVAN WARNICK,

             Plaintiff - Appellant,
 v.                                                    No. 17-4065
 BRADFORD COOLEY; ROBIN
 WILKINS; ETHAN RAMPTON;
 MARK KNIGHTON; JEFFREY
 HALL,

             Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                  (D.C. NO. 2:14-CV-00186-JNP)


Mark L. Shurtleff, (Steven A. Christensen, Christensen, Young & Associates,
PLLC, with him on the opening brief), Shurtleff Law Firm, PC, Sandy, Utah, for
Appellant.

Jennifer Bailey, Deputy District Attorney (Sim Gill, Salt Lake County District
Attorney, and David Quealy, Deputy District Attorney, with her on the brief), Salt
Lake County District Attorney’s Office, Salt Lake City, Utah, for Appellees.


Before TYMKOVICH, Chief Judge, LUCERO, and HARTZ, Circuit Judges.


TYMKOVICH, Chief Judge.
      Silvan Warnick brings this 42 U.S.C. § 1983 malicious prosecution case

and a number of state law tort claims against several Salt Lake County

prosecutors and investigators. He claims he was falsely accused of tampering

with evidence that led to the filing of criminal charges against him that were later

dismissed.

      The district court granted the defendants’ motion to dismiss, and Warnick

appealed. We affirm. Like the district court, we find that absolute prosecutorial

immunity precludes Warnick from suing the prosecutors for filing charges, and

that Warnick has failed to plead the rest of his allegations with sufficient factual

specificity.

                                 I. Background

      We take all facts from Warnick’s complaint, accepting them as true for

purposes of our de novo review. Brown v. Montoya, 662 F.3d 1152, 1162 (10th

Cir. 2011).

      Silvan Warnick served as a constable in Salt Lake County. A constable is

the local vernacular for a county peace officer. Daniel Herboldsheimer worked

for Warnick as a deputy constable. On August 24, 2011, Herboldsheimer was

serving as bailiff for the South Salt Lake City Justice Court when a criminal

defendant attempted to flee. Herboldsheimer pursued, and eventually both




                                         -2-
Herboldsheimer and Scott Hansen, another deputy constable, apprehended the

defendant.

      After the fact, Herboldsheimer filed an incident report describing what had

happened. According to the complaint, Warnick told Herboldsheimer that his

report did not comport with county policy because it contained hearsay

observations from others, and not Herboldsheimer’s direct observations. In

particular, Herboldsheimer’s report made incorrect statements about Hansen’s use

of force to subdue the fleeing defendant.

      A. The Charges

      This case concerns what happened next. As Warnick alleges,

Herboldsheimer took offense to Warnick’s rebuke. Soon afterward,

Herboldsheimer contacted the Salt Lake County Attorney’s Office and falsely

complained that Silvan Warnick and his staff member, Alanna Warnick (Silvan

Warnick’s wife), had instructed him to falsify his incident report. In addition,

Herboldsheimer told the prosecutors that Warnick had made changes to his

report—something he took to be falsification.

      Three prosecutors were later tasked with investigating this complaint:

Bradford Cooley, Ethan Rampton, and Jeffrey Hall. Prosecutor Hall also asked

Robin Wilkins and Mark Knighton—investigators for the County—to look into

Herboldsheimer’s complaint. Warnick contends the prosecutors and investigators

together conducted an inadequate investigation even though they had a duty to

                                        -3-
investigate. He also claims they “encourage[d]” Herboldsheimer to provide “false

information.” App. 9 ¶ 26. All the parties involved “knew or should have known

that the information provided by . . . Herboldsheimer was false and that Plaintiff

Silvan Warnick had not committed a crime.” Id.

      All the while knowing of Warnick’s innocence, the prosecutors and

investigators “conspired to file charges” against him. Id. ¶ 27. And, in fact, the

prosecutors did bring charges—twice. Prosecutor Cooley first brought charges

for witness and evidence tampering against both Silvan and Alanna Warnick. At

this first hearing on March 13, 2012, the court dismissed one of the charges

against Silvan Warnick for a reason unrelated to the merits, and Prosecutor

Cooley moved to dismiss the other charge voluntarily. Warnick alleges

Prosecutor Cooley moved to dismiss the charge because he “suspected that the

Judge would dismiss that charge as well, because there was insufficient evidence

to support the State’s burden of proof.” Id. 11 ¶ 33. As for Alanna

Warnick—office manager and wife to Silvan Warnick—the court dismissed the

charges for lack of probable cause.

      Some time later, the prosecutors again brought the same witness and

evidence tampering charges against Silvan Warnick. At the probable cause

hearing for this second round of charges, the court dismissed the charges for lack

of probable cause.



                                         -4-
      Though both charges were ultimately dismissed, Warnick did not go

unscathed. Because of those charges, Warnick contends he lost his position as a

constable and his reputation was damaged within the law enforcement community.

      B. The Lawsuit

      Silvan Warnick then sued Herboldsheimer, the prosecutors, and the

investigators in the District of Utah. 1 He sought relief for (1) malicious

prosecution under § 1983, 2 (2) conspiracy to violate his constitutional rights under

§ 1985, (3) malicious prosecution under state law, (4) negligence, (5) conspiracy,

(6) defamation, (7) negligent or intentional infliction of emotional distress, and

(8) interference with contractual relations.

      The defendants moved to dismiss, but instead of filing a response—and

without leave of court—Warnick simply filed an amended complaint. The

defendants moved to strike. The court agreed Warnick had not complied with the

rules for amending, but let his amended complaint stand. Believing the new

complaint did not sufficiently shore up the prior complaint’s problems, the

defendants renewed their motion to dismiss for substantially the same reasons.




      1
          Herboldsheimer is no longer part of this lawsuit. Aple. Br. at 4 n.1.
      2
        Warnick’s complaint does not call his § 1983 claim a “malicious
prosecution” claim specifically, but it is the natural label for the allegations he
makes.

                                          -5-
      The magistrate judge assigned to this case recommended the district court

dismiss the case, but did not specify whether it recommended the court do so with

or without prejudice. Warnick filed a brief objecting to this recommendation. He

asked the district court to deny the motion to dismiss, and also hedged with an

alternative request: should the district court agree with the magistrate judge and

dismiss his claims, Warnick asked for the court to do so without prejudice so that

he could amend his complaint.

      The district court agreed with most of the magistrate judge’s reasoning and

granted the defendants’ motion to dismiss. 3 The court did not, however, grant

Warnick’s request for leave to amend, instead dismissing his claims with

prejudice.

                                   II. Analysis

      Warnick appeals the district court’s decision granting the defendants’

motion to dismiss. Alternatively, he asks us to instruct the district court to grant

him leave to amend.

      A. The Motion to Dismiss




      3
         The district court only disagreed with the magistrate judge on the
applicability of absolute immunity to a prosecutor’s investigative activities. The
magistrate judge seemed to have assumed immunity applied to such activities, but
the district court explained the investigative activities Warnick complained of
could be outside the scope of prosecutorial immunity, and it was premature to
conclude otherwise at that stage in the case. App. 229.

                                         -6-
      We review a district court’s dismissal for failure to state a claim under Rule

12(b)(6) de novo. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir.

2003). In so doing, we accept all of Warnick’s well-pleaded allegations as true

and view them in the light most favorable to Warnick. See Colby v. Herrick, 849

F.3d 1273, 1279 (10th Cir. 2017).

      But before we accept Warnick’s allegations as true, they must be well-

pleaded allegations. Determining whether a complaint contains well-pleaded

facts sufficient to state a claim is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009). The court must determine whether the

plaintiff has pleaded “enough facts to state a claim to relief that is plausible on its

face,” not just “conceivable.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). Though a complaint need not provide “detailed factual allegations,” it

must give just enough factual detail to provide “fair notice of what the . . . claim

is and the grounds upon which it rests.” Id. at 555 (quoting Conley v. Gibson,

355 U.S. 41, 47 (1957)). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements” do not count as well-pleaded

facts. Id. at 678. If, in the end, a plaintiff’s “well-pleaded facts do not permit the




                                           -7-
court to infer more than the mere possibility of misconduct,” the complaint fails

to state a claim. Iqbal, 556 U.S. at 679. 4

      With this standard in mind, we turn to Warnick’s various claims.

             1. The § 1983 Claims

      Warnick brought § 1983 claims against both the county prosecutors and the

investigators.

      We begin with Warnick’s allegations against the prosecutors. He claims

the prosecutors violated his constitutional rights by (1) filing charges based on

“frivolous, scurrilous, and inaccurate information,” (2) maliciously investigating

and prosecuting him, and (3) “maligning [his] character.” App. 13.

      Warnick’s first allegation fails because the prosecutors are entitled to

absolute immunity from liability for their decision to file charges. A district court

may grant a motion to dismiss “on the basis of an affirmative defense . . . when

the law compels that result.” Caplinger v. Medtronic, Inc., 784 F.3d 1335, 1341

(10th Cir. 2015). And it is well-established law that “[p]rosecutors are entitled to

absolute immunity” for anything they do in their roles as advocates, including

their “decisions to prosecute.” Nielander v. Bd. of Cty. Comm’rs, 582 F.3d 1155,

1164 (10th Cir. 2009); e.g., Snell v. Tunnell, 920 F.2d 673, 693 (10th Cir. 1990)



      4
         Warnick argues the district court failed to apply the correct standard, but
after reviewing its opinion, we conclude the court correctly applied the standard
laid out in Iqbal and other cases. See App. 170, 178.

                                          -8-
(“[A] prosecutor who performs functions within the continuum of initiating and

presenting a criminal case, such as filing charges . . . ordinarily will be entitled to

absolute immunity.” (emphasis added)).

      Warnick argues the prosecutors lost their absolute immunity for filing

charges by engaging in other activities that were not related to their roles as

advocates. But while prosecutors may not enjoy absolute immunity for activities

unrelated to advocacy, that does not mean that engaging in such activities

removes their immunity for activities that are related to advocacy. As the district

court explained, absolute immunity is not “subject to all-or-nothing

application”—it can apply to some of the prosecutor’s actions while not to others

at the same time. App. 228 n.2; see Buckley v. Fitzsimmons, 509 U.S. 259,

273–74 (1993).

      Warnick also contends absolute immunity does not apply to a prosecutor’s

decision to file charges if the prosecutor had no probable cause to do so. He

argues that when a prosecutor did not have probable cause to file charges, only

qualified immunity can apply. This theory would go a long way toward

eliminating absolute prosecutorial immunity altogether, and it is not the law. It is

true that activities undertaken by a prosecutor before probable cause exists often

lie outside the purview of a prosecutor’s role as an advocate. Buckley, 509 U.S.

at 274. But while a lack of probable cause is a good clue a prosecutor is engaging

in activity beyond the scope of advocacy, it is not determinative. Some

                                          -9-
functions—like filing charges—are inherently related to a prosecutor’s role as an

advocate, and therefore protected by absolute immunity whether or not probable

cause exists. Hence the well-settled rule that prosecutors are “entitled to absolute

immunity for the malicious prosecution of someone whom [they] lacked probable

cause to indict.” Id. at 274 n.5. The cases Warnick cites to the contrary are not

applicable, as they concerned the application of qualified immunity to

prosecutors’ activities outside the advocacy function. 5

      In short, Warnick cannot hold the prosecutors liable for their decision to

file charges against him. Absolute immunity shields them from such claims.

      Warnick’s allegations that the prosecutors maliciously investigated him fail

for a different reason: he does not plead specific facts demonstrating why the

investigation violated the Constitution. Warnick alleges the county prosecutors

“encourage[d]” Herboldsheimer to provide “false information.” App. 9 ¶ 26. He

then, perhaps inconsistently, asserts the prosecutors conducted an inadequate



      5
         See Broam v. Bogan, 320 F.3d 1023, 1031 (9th Cir. 2003) (“To determine
whether a state law enforcement officer or a prosecutor is entitled to qualified, as
opposed to absolute, immunity a court must decide whether the alleged
unconstitutional conduct occurred during the performance of an investigative
function,” such as “conducting interrogations to determine . . . whether probable
cause exists.”); Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995)
(“[I]mmunity does not protect those acts a prosecutor performs in administration
or investigation not undertaken in preparation for judicial proceedings. . . .
Before any formal legal proceeding has begun and before there is probable cause
to arrest, it follows that a prosecutor receives only qualified immunity for his
acts.”).

                                         -10-
investigation and “knew or should have known that the information provided by

Defendant Herboldsheimer was false.” Id. ¶¶ 26–28. These comprise the entirety

of Warnick’s allegations about the investigation, aside from further conclusory

statements repeating the same.

      These bare statements do not amount to a plausible claim of a constitutional

violation. The crux of Warnick’s complaint about the investigation is that the

prosecutors encouraged Herboldsheimer to provide false information. Evidence

fabrication could, of course, violate Warnick’s Fourth Amendment rights. See

Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). But Warnick does not

tell us what the fabricated statements were—not in his complaint, nor in his

briefing, nor even when asked at oral argument. Recall that according to

Warnick’s own complaint, it was Herboldsheimer who contacted the prosecutors

alleging that Warnick had falsified the report. That means the prosecutors could

not have fabricated those general allegations. We are thus left to ponder what

false statements Warnick might be referring to. So too, are we left wondering

what specific acts each individual prosecutor engaged in.

      The prosecutors cannot reasonably respond to such a conclusory assertion

of misdeeds. See, e.g., Robbins v. Oklahoma, 519 F.3d 1242, 1247–48 (10th Cir.

2008). And without any specific factual allegations, Warnick’s complaint simply

cannot cross the line from a merely possible claim of evidence fabrication to a

plausible one. See Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th

                                        -11-
Cir. 2011). Indeed, if the prosecutors did fabricate evidence, they either did not

use that evidence against Warnick, or else were surely incapable

fabricators—unable even to convince the judge they crossed the not-so-high bar

of probable cause.

      This brings us to another problem with the allegations. Warnick’s

complaint also leaves us in the dark as to whether the prosecutors used any of that

allegedly concocted evidence against him. That too is fatal to his claim, for, as

the Seventh Circuit explained, if “an officer (or investigating prosecutor)

fabricates evidence and puts that fabricated evidence in a drawer, making no

further use of it, then the officer has not violated due process.” Bianchi v.

McQueen, 818 F.3d 309, 319 (7th Cir. 2016) (quoting Whitlock v. Brueggermann,

682 F.3d 567, 582 (7th Cir. 2012)). We are “aware of[] no authority for the

proposition that the mere preparation of false evidence, as opposed to its use in a

fashion that deprives someone of a fair trial or otherwise harms him, violates the

Constitution.” Buckley, 509 U.S. at 281 (Scalia, J., concurring); Advantageous

Cmty. Servs., LLC v. King, No. 1:17-CV-00525-LF-KK, 2018 WL 1415184, at *8

(D.N.M. Mar. 21, 2018) (“The fabrication of evidence—like the suppression of

exculpatory evidence—only matters if it deprives any person of a fair trial and

thereby deprives the person of liberty or property.”); cf. United States v. Bagley,

473 U.S. 667, 678 (1985) (“[S]uppression of evidence amounts to a constitutional

violation only if it deprives the defendant of a fair trial.”); Becker v. Kroll, 494

                                          -12-
F.3d 904, 924 (10th Cir. 2007) (a plaintiff cannot prevail on a Brady claim

“unless the case goes to trial and the suppression of exculpatory evidence affects

the outcome”).

      In sum, because Warnick does not plead facts showing what false evidence

the prosecutors fabricated, or how they used it, his allegations fail to state a claim

that the prosecutors’ investigation violated his constitutional rights.

      We meet a similar inadequacy in Warnick’s allegation that the prosecutors

violated his rights by “maligning his character” and subjecting him to “public

ridicule and loss of business.” App. 13–14 ¶¶ 41, 47. Putting to one side the fact

that Warnick has not explained in what way these actions violated his

constitutional rights, Warnick once again provides no specifics. He does not tell

us what the prosecutors said about him. If he simply means the prosecutors

maligned his character by bringing charges, we have already explained the

prosecutors cannot be brought to court for such harms. At bottom, Warnick’s

complaint simply does not provide enough detail for us to infer a viable claim.

      Little changes when we turn to Warnick’s claims against the investigators.

Warnick included the investigators in almost all the allegations he made against

the prosecutors. He added no allegations unique to the investigators (except that,

since the investigators cannot and did not bring charges, Warnick only alleges

they caused charges to be filed, though without explaining how). Left again with



                                         -13-
no specific factual allegations from which to infer a plausible claim, we hold

these claims fail to state a claim too. See Iqbal, 556 U.S. at 678–79, 680–81. 6

             2. The § 1985 Claims

      In the same vein as his § 1983 claim, Warnick alleges the prosecutors and

investigators violated § 1985 by conspiring to bring false charges against him.

The district court apparently assumed Warnick was making a claim under section

three of § 1985, and concluded he failed to state a claim because he did not allege

the prosecutors and investigators were motivated by animus against a protected

class of persons. App. 234 (quoting Tilton v. Richardson, 6 F.3d 683, 686 (10th

Cir. 1993)); see Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

      Warnick devotes all of one page to his § 1985 claim in his briefing, and

does not explain why the district court’s rationale was mistaken. Given no reason

to doubt the district court’s conclusion, we consider Warnick’s argument waived.



      6
           Warnick urges us to take into account the transcripts for the probable
cause hearings, claiming these make good the factual holes in his complaint. On
review of a Rule 12(b)(6) motion, we consider the complaint “as well as . . .
documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). The prosecutors and investigators argue Warnick’s
complaint did not incorporate those documents by reference and that we should
not take judicial notice of them. We decline to decide this dispute, as the
transcripts would not change our conclusion. At most, these transcripts only
show the prosecutors did not have probable cause to charge Warnick. That may
be “consistent with” Warnick’s theory of their wrongdoing, but it is “just as much
in line with” lawful conduct. See Twombly, 550 U.S. at 554. The transcripts do
little to flesh out Warnick’s allegations regarding the investigation.

                                        -14-
See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). But even

if we considered the argument, the district court was correct: Warnick failed to

provide any specific allegation of a motive based on racial or class-based

discrimination, and such is required to state a § 1985(3) claim. See Griffin, 403

U.S. at 102. 7

                 3. The State Law Claims

       The district court also dismissed all of Warnick’s state law claims, holding

some barred by the Utah Governmental Immunity Act and the rest insufficiently

pleaded. App. 234–36. Warnick does not challenge the district court’s dismissal

of his state law claims in his opening brief, so he has forfeited any argument on

that point. See United States v. Fisher, 805 F.3d 982, 991 (10th Cir. 2015). 8

       B. Leave to Amend

       Warnick contends that even if his complaint is deficient, the district court

erred by dismissing his claims with prejudice. He claims he should have been

given a chance to amend his complaint a second time.



       7
        We assume the district court was correct that Warnick attempted to state
a claim under section three of § 1985, and Warnick has not argued otherwise.
       8
         In his brief, Warnick also seems to argue the prosecutors and
investigators retaliated against him for engaging in a constitutionally protected
activity. Aplt. Br. at 24. Since Warnick did not raise this claim in his complaint,
we do not address it. See BV Jordanelle, LLC v. Old Republic Nat’l Title Ins.
Co., 830 F.3d 1195, 1204 (10th Cir. 2016). Even if he had, the argument is
inadequately briefed. See Adler, 144 F.3d at 679.

                                           -15-
      We review a district court’s decision denying a plaintiff leave to amend for

abuse of discretion. Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th

Cir. 1994). Courts are supposed to give leave to amend “freely . . . when justice

so requires.” Fed. R. Civ. P. 15(a)(2). Indeed, Rule 15(a)’s purpose is “to

provide litigants ‘the maximum opportunity for each claim to be decided on its

merits rather than on procedural niceties.’” Minter v. Prime Equip. Co., 451 F.3d

1196, 1204 (10th Cir. 2006) (quoting Hardin v. Manitowoc-Forsythe Corp., 691

F.2d 449, 456 (10th Cir. 1982)).

      Yet, as our standard of review demonstrates, the decision still lies within

the district court’s discretion. Id. A district court may deny leave to amend upon

“a showing of undue delay, undue prejudice to the opposing party, bad faith or

dilatory motive, failure to cure deficiencies by amendments previously allowed,

or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.

1993). A court may also deny leave to amend on timeliness grounds, Duncan v.

Manager, Dep’t of Safety, 397 F.3d 1300, 1315 (10th Cir. 2005), or where a

plaintiff fails to file a written motion and instead “merely suggest[s] she should

be allowed to amend if the court conclude[s] her pleadings [a]re infirm.” See

Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010).

      The district court gave several reasons for refusing to allow Warnick to

amend his complaint. Warnick (1) did not file a proper motion, (2) failed to

provide the court with a proposed complaint as local rules required, see DUCivR

                                         -16-
15-1, and (3) requested leave to amend nearly three years after filing his first

amended complaint. App. 237–38. The court also thought it likely that Warnick

could not cure the deficiencies in his complaint. Warnick’s first amendment had

not done the job. And even considering the new facts Warnick mentioned in his

objections to the magistrate judge’s recommendation, the court found those facts

were not sufficient to state a claim either. Id. at 238 n.7. It thus denied Warnick

the opportunity to amend.

      We conclude the district court’s decision was well within its discretion.

Warnick complains the district court should not have taken into account the

tardiness of his request (nearly three years after his first amended complaint).

The delay in his case, Warnick says, could only be laid at the feet of the court’s

own scheduling, not his negligence.

      But even if we eliminate timeliness as a consideration, the district court

still had ample reason to deny Warnick’s request. Warnick did not file a written

motion for leave to amend. Instead, his brief objecting to the magistrate judge’s

recommendation “merely suggested [he] should be allowed to amend if the court

concluded [his] pleadings were infirm.” Garman, 630 F.3d at 986. We have

already held that is not enough. Id. And Warnick also failed to let the district

court know just how he intended to fix his complaint. Contrary to the local rules

of the district court, he did not file a proposed amended complaint—leaving the

district court and the defendants to wonder what the basis of amendment might

                                         -17-
be. Considering all this—and considering too that Warnick had once before

amended without leave of court, and the court had allowed it—we hold the district

court did not abuse its discretion.

                                 III. Conclusion

      We therefore AFFIRM the district court’s dismissal of Warnick’s claims

with prejudice.




                                       -18-
