                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                   November 13, 2006
                             FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                       Clerk of Court

    LO U IS T. TR UJILLO ,

                Plaintiff-Appellant,

    v.                                                  No. 05-2314
                                               (D.C. No. CIV-04-462 JC/RLP)
    CITY O F ALBU QU ERQ UE,                             (D . N.M .)
    a municipal corporation; M ARTIN
    CHAVEZ, in his capacity as M ayor of
    Albuquerque, New M exico, and
    individually; C APTA IN CO N RAD
    C AN D ELA RIA and D ETEC TIVE
    JOHN W ILLIAM S, Albuquerque
    Police Department, in their official
    capacities and as individuals; ELLEN
    C ON CINI and R OB ER T PIER SON,
    Albuquerque Planning and Zoning
    Commission, in their official
    capacities and as individuals,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before H EN RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




      Louis T. Trujillo appeals from the district court’s decision granting

defendants’ motion for summary judgment and for qualified immunity.

M r. Trujillo’s complaint included claims pursuant to 42 U.S.C. §§ 1983 and 1985,

as w ell as state law claims. M r. Trujillo’s appeal challenges the dismissal of his

claims for defamation, conspiracy and malicious prosecution. 1 W e review

de novo the district court’s summary judgment decision, applying the same

standard as the district court. See Simms v. Okla. ex rel. Dep’t of M ental Health

& Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). W e affirm.

                                    Background

      In 1976, M r. Trujillo began operating an open-air market (“flea market”) on

his property. From 1980-2003, M r. Trujillo was repeatedly cited by the City of

Albuquerque for zoning code violations at his flea market. Finally, in December

2003, the City filed suit in state court seeking injunctive relief on two bases:

(1) violation of the zoning code; and (2) operation of a public nuisance. In M arch

2004, the state court held a hearing and subsequently issued a preliminary

injunction against M r. Trujillo for his zoning code violations. In April 2004,



1
       M r. Trujillo does not challenge the district court’s disposition of his claims
for selective enforcement, unconstitutional taking or substantive due process;
accordingly, any issue with respect to those claims is deemed waived. See State
Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

                                          -2-
M r. Trujillo filed a complaint in federal district court against defendants asserting

claims for defamation, conspiracy, selective enforcement, malicious prosecution,

unconstitutional taking and substantive due process violations. In M ay 2004,

after another hearing, the state court issued a permanent injunction against

M r. Trujillo for his zoning code violations. In August 2005, the federal district

court granted defendants’ motion for summary judgment on all claims.

M r. Trujillo timely appealed.

                                 Defamation Claims

      M r. Trujillo brought claims for defamation under 42 U.S.C. § 1983 and the

New M exico Tort Claims Act. He alleged that defendants Captain Conrad

Candelaria and Detective John W illiams “defamed Plaintiff by casting his

business operation in a false light, by maligning Plaintiff’s business reputation, by

telling reporters and other third parties Plaintiff was engaged in criminal

activity.” Aplt. App. at 20.

      New M exico Defamation Claim

      Under New M exico law, “[t]he elements of defamation include a

defamatory communication published by the defendant, to a third person, of an

asserted fact, of and concerning the plaintiff, and proximately causing actual

injury to the plaintiff.” Clough v. Adventist Health Sys., Inc., 780 P.2d 627, 632

(N.M . 1989). The truth of the statement may be asserted as an affirmative

defense. See id.

                                          -3-
      Although the complaint alleges that both Capt. Candelaria and

Det. W illiams made defamatory statements, there are no factual allegations in the

complaint or in the response to summary judgment attributing any statements to

M r. W illiams. Summary judgment in favor of M r. W illiams on this claim was

therefore appropriate.

      The complaint alleged that the following statement was made by

Capt. Candelaria and was published in a local newspaper: “the criminal activity

at the [flea] market includes fencing, or the selling of stolen items, drug dealing,

pirating of illegally produced compact discs and even prostitution.” Aplt. App.

at 15 (quotation omitted). In defendants’ motion for summary judgment, they

asserted that the statements made by M r. Candelaria were true and that therefore

the defamation claim could not survive. Defendants supported this assertion with

testimony from the state court proceeding against M r. Trujillo for zoning and

nuisance violations. In that proceeding, a homeow ner from the neighborhood

adjacent to the flea market testified that there was prostitution, drug dealing and

the selling of stolen items at the flea market. Id. at 125-27.

      M r. Trujillo argued in his response to summary judgment that “[t]he truth

of that testimony is for the jury to determine,” id. at 139, but that statement is not

accurate. In order to survive summary judgment and reach a jury, M r. Trujillo

must offer evidence showing that there is a genuine issue as to any material fact.

See Fed. R. Civ. P. 56(c). M r. Trujillo failed to offer any evidence to dispute

                                          -4-
defendants’ evidence. M oreover, contrary to the allegation in his complaint that

defendants told “reporters and other third parties Plaintiff was engaged in

criminal activity,” id. at 20, there are no statements identified in the complaint

that speak of M r. Trujillo himself engaging in any criminal activity. Because

M r. Trujillo failed to produce evidence to rebut defendants’ evidence or to

provide support for the allegations in his complaint, summary judgment in favor

of M r. Candelaria on this claim was appropriate.

       Section 1983 Defamation Claim

       The district court, based on its reading of M r. Trujillo’s complaint,

interpreted his defamation claim under 42 U.S.C. § 1983 as intending to allege a

violation of a liberty interest under the Due Process Clause of the Fourteenth

Amendment. Because of this, the district court applied the following four-part

test for determining whether statements made allegedly infringed upon a protected

liberty interest:

       First, to be actionable, the statements must impugn the good name,
       reputation, honor, or integrity of the [plaintiff]. Second, the
       statements must be false. Third, the statements must . . . foreclose
       other employment opportunities . . . . Fourth, the statements must be
       published.

Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1153 (10th Cir.

2001) (quotation and italics omitted) (emphasis added). Because M r. Trujillo

must again offer evidence creating a genuine issue on the falsity of the

statements, see id., this claim fails for the same reason that his state claim failed

                                          -5-
as discussed above. The district court did not err in granting summary judgment

on this claim.

                                  Conspiracy Claim

      M r. Trujillo brought a claim for conspiracy under 42 U.S.C. § 1985,

alleging that “Defendant Candelaria conspired with the M ayor, or those under the

M ayor’s direct supervision and control, including the Strike Force to formulate

for dissemination to the press the defamatory allegations complained of, and to

generate false or misleading statistics to include in the City’s C omplaint.” A plt.

App. at 20. This court has held that a § 1985 conspiracy claim requires

“class-based discriminatory animus.” Lessman v. M cCormick, 591 F.2d 605, 608

(10th Cir. 1979). The complaint must therefore “allege facts showing a

conspiracy against plaintiff because of [his] membership in a class, and that the

criteria defining the class were invidious.” Id. (quotation omitted). M r. Trujillo’s

complaint does not meet this standard. There are no allegations that he is a

member of any class that is defined by invidious criteria nor are there any

allegations that any class membership was the motivating factor in the conspiracy.

The district court properly dismissed this claim as a matter of law. 2

                           M alicious Prosecution Claim



2
       M r. Trujillo asserts for the first time on appeal that his complaint also
states a claim for a 42 U.S.C. § 1983 conspiracy. Generally, this court does not
consider an issue not ruled on by the district court. See In re Walker, 959 F.2d
894, 896 (10th Cir. 1992). Accordingly, we decline to consider this argument.

                                          -6-
      M r. Trujillo brought a claim for malicious prosecution alleging “[t]he

actions of Defendants in prosecuting the City’s C omplaint were made with full

knowledge that no colorable basis existed for prosecuting a claim against Plaintiff

on one or both counts of the City’s Complaint.” Aplt. A pp. at 21 ¶60.

New M exico recognizes a tort of malicious abuse of process. The elements for

the claim are:

      (1) the initiation of judicial proceedings against the plaintiff by
      defendant; (2) an act by the defendant in the use of process other
      than such as would be proper in the regular prosecution of the claim;
      (3) a primary motive by the defendant in misusing the process to
      accom plish an illegitimate end; and (4) damages.

DeVaney v. Thriftway M ktg. Corp., 953 P.2d 277, 283 (N.M . 1997). As the court

explained, “[i]n short, there must be both a misuse of the power of the judiciary

by a litigant and a malicious motive.” Id. M r. Trujillo presented no evidence that

defendants misused the power of the judiciary or that they had a malicious

motive.

      M r. Trujillo asserts that he has a viable claim for malicious prosecution

because the state court found no merit in the public nuisance claim brought

against him by the City. That is not accurate. The City brought claims against

M r. Trujillo for zoning violations and for public nuisance and sought the issuance

of a permanent injunction against the operation of the flea market. Because the

court found in favor of the City on the zoning violations and entered the

injunction against the flea market, the court deferred ruling on the public nuisance

                                         -7-
claim. Aplt. App. at 103-04. There is no support in the record for M r. Trujillo’s

assertion that the court found no merit to the City’s public nuisance claim. The

district court properly dismissed this claim as a matter of law.

                                     Conclusion

      The district court properly granted summary judgment in favor of

defendants. W e find no merit to M r. Trujillo’s argument that the district court

used the wrong standard in analyzing defendants’ motion for summary judgment.

The judgment of the district court is AFFIRMED.

                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge




                                         -8-
