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

                             FOR THE TENTH CIRCUIT                         October 13, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
THE ESTATE OF DAVID PAPADAKOS,
deceased; MICHAEL PAPADAKOS and
CATHERINE PAPADAKOS, the heirs of
David Papadakos,

      Plaintiffs - Appellants,

v.                                                         No. 15-4172
                                                  (D.C. No. 2:14-CV-00774-RJS)
L. VANCE NORTON, in his official and                         (D. Utah)
individual capacity; LISA JORGENSEN,
in her official and individual capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      David Papadakos committed suicide after he was arrested for and charged with

the alleged sexual abuse of his adopted son, B.P. After Papadakos’ death, his estate

and his parents (collectively, the Estate) brought this action under 42 U.S.C. § 1983

against L. Vance Norton (a detective with the Vernal, Utah Police Department) and

Lisa Jorgensen (a social worker with the Utah Division of Child and Family



      *
        This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
Services), alleging that they coerced B.P. into making false allegations against

Papadakos. The district court granted Jorgensen’s motion for judgment on the

pleadings and Norton’s motion for summary judgment. The Estate appeals. Because

we agree with the district court that (1) the Estate’s malicious-prosecution claim fails

as a matter of law; and (2) the defendants are entitled to qualified immunity on the

Estate’s Fourth and Fourteenth Amendment claims, we affirm.

                                    BACKGROUND

      Papadakos adopted B.P. in 2010. At the time, B.P. was twelve years old and

had been in and out of foster care for more than half of his life. B.P. had also been

the victim of repeated sexual abuse and suffered from numerous mental health

problems.

      In October 2012, B.P. ran away and went to a classmate’s home after

Papadakos threatened to ground him. B.P. told his classmate that Papadakos had

sexually abused him. When Norton learned of this allegation, he attempted to

interview B.P. at his classmate’s home. But B.P. refused to speak with Norton.

      The next day, Jorgensen interviewed B.P. at B.P.’s school. After the interview,

Norton arranged for B.P.’s transport to the Children’s Justice Center. Despite B.P.’s

protests, defendants questioned B.P. there for several hours over the course of

multiple days. According to the Estate, both Jorgensen and Norton (collectively, the

defendants) coerced and intimidated B.P. during these interviews and supplied him

with the information that they wanted to hear until B.P. finally alleged that



                                           2
Papadakos sexually abused him on multiple occasions. For instance, B.P. alleged that

while camping with Papadakos, B.P. awoke in their shared tent to find Papadakos’

hand on B.P.’s penis.

      Based on these allegations, Norton questioned Papadakos. Papadakos told

Norton that he remembered the camping incident. But he maintained that any contact

with B.P.’s penis was accidental and must have occurred while Papadakos was

asleep. Papadakos also admitted that he and B.P. often slept together in Papadakos’

bed at home and that Papadakos once awoke to find B.P. rubbing B.P.’s erect penis

on Papadakos’ hand. Papadakos reported that on at least 30 different occasions, B.P.

removed Papadakos’ underwear while Papadakos slept. Finally, when Norton asked

Papadakos if it was possible that Papadakos was playing with B.P.’s penis while

Papadakos was asleep, Papadakos replied that he wasn’t sure.

      Norton arrested Papadakos without a warrant on October 25, 2012. That same

day, Utah charged Papadakos with two counts of aggravated sexual abuse of a child

and ten counts of forcible sexual abuse. As a result, Papadakos lost his job as the vice

principal of a middle school, was expelled from a university graduate program, and

was no longer allowed to participate in the Boy Scouts of America. Shortly before his

preliminary hearing date, Papadakos committed suicide.

      The Estate then sued the defendants under 42 U.S.C. § 1983, alleging that they




                                           3
violated Papadakos’ Fourth, Fifth,1 and Fourteenth Amendment rights by coercing

B.P. into making false allegations of sexual abuse and by using those false

allegations to arrest and charge Papadakos. The Estate also brought a malicious

prosecution claim against both the defendants.2

      Jorgensen filed a motion for judgment on the pleadings under Fed. R. Civ. P.

12(c). In support, Jorgensen argued that she was entitled to qualified immunity on the

Estate’s constitutional claims. And she asserted that the Estate’s malicious-

prosecution claim failed as a matter of law because the criminal prosecution against

Papadakos didn’t terminate in his favor.

      Similarly, Norton filed a motion for summary judgment under Fed. R. Civ.

P. 56. Like Jorgensen, Norton maintained that (1) he was entitled to qualified

immunity on the Estate’s constitutional claims, and (2) the Estate’s malicious-

prosecution claim failed as a matter of law.

      The district court granted both motions and dismissed the Estate’s action with



      1
         As the district court pointed out below, the Estate failed to cite any authority
that might support its Fifth Amendment claim. Because the Estate neither disputes
the district court’s characterization of its Fifth Amendment claim below nor attempts
to fully develop that claim on appeal, we confine our analysis to its Fourth and
Fourteenth Amendment claims. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
679 (10th Cir. 1998) (noting that “[a]rguments inadequately briefed in the opening
brief are waived”).
       2
         To the extent that the Estate also asserted any state-law claims against
Norton, the district court concluded that the Estate abandoned those claims below.
And the Estate doesn’t challenge that ruling in its opening brief. Accordingly, the
Estate has waived any challenge to the district court’s ruling. See Adler, 144 F.3d at
679.


                                            4
prejudice. The Estate appeals.

                                     DISCUSSION

      We review the district court’s decision granting Norton’s motion for summary

judgment de novo, applying the same legal standard as the district court and viewing

the evidence in the light most favorable to the Estate. See Zisumbo v. Ogden Reg’l

Med. Ctr., 801 F.3d 1185, 1196 (10th Cir. 2015). “Summary judgment is appropriate

when ‘there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

      Likewise, we review the district court’s decision granting Jorgensen’s motion

for judgment on the pleadings de novo, “‘accept[ing] all facts pleaded by the non-

moving party as true and grant[ing] all reasonable inferences from the pleadings’ in

that party’s favor.” Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141

(10th Cir. 2012) (quoting Park Univ. Enters. v. Am. Cas. Co., 442 F.3d 1239, 1244

(10th Cir. 2006)). “Judgment on the pleadings is appropriate only when ‘the moving

party has clearly established that no material issue of fact remains to be resolved and

the party is entitled to judgment as a matter of law.’” Id. (quoting Park Univ. Enters.,

442 F.3d at 1244).

I.    We decline to consider the Estate’s assertion that we should adopt and
      apply an exception to the favorable-termination requirement to save its
      malicious-prosecution claim.

      We begin with the Estate’s malicious-prosecution claim. The district court

concluded that this claim failed as a matter of law as to both the defendants because



                                           5
the underlying criminal prosecution didn’t “terminate[] in favor of” Papadakos.

Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007) (listing “elements

of the common law tort of malicious prosecution, as applicable in a § 1983 claim”).

Instead, Utah dismissed the case against Papadakos based on Papadakos’ death—a

decision that, as the district court pointed out, didn’t resolve the question of

Papadakos’ guilt or innocence. See M.G. v. Young, 826 F.3d 1259, 1262 (10th Cir.

2016) (“Where the case is disposed of in a manner that leaves the question of the

accused’s innocence unresolved, there generally can be no malicious prosecution

claim by the accused.” (quoting Dobiecki v. Palacios, 829 F. Supp. 229, 235 (N.D.

Ill. 1993))).

       On appeal, the Estate doesn’t dispute that a plaintiff must generally satisfy the

favorable-termination requirement in order to succeed on a malicious-prosecution

claim under § 1983. Nor does it assert that a plaintiff’s death typically satisfies that

requirement, let alone cite any authority that would support such an assertion.

Instead, the Estate urges us to carve out an exception to the favorable-termination

rule for circumstances in which a defendant’s wrongful conduct allegedly caused the

plaintiff’s death “before a favorable termination could take place.” Aplt. Br. 31.

Without such an exception, the Estate explains, defendants might “benefit from their

wrongful conduct,” thus undermining § 1983’s goal of “preventi[ng] . . . abuses of

power by those acting under the color of state law and compensat[ing] . . . persons

injured by deprivation of federal rights.” Id.



                                            6
        But the only authorities the Estate offers to support this argument are Berry v.

City of Muskogee, 900 F.2d 1489 (10th Cir. 1990), and Robertson v. Wegmann, 436

U.S. 584 (1978). And while we agree that these cases support the Estate’s

characterization of § 1983’s underlying goals, see Wegmann, 436 U.S. at 590–91,

Berry, 900 F.2d at 1503, the Estate doesn’t explain how these authorities—or any

others, for that matter—might establish that applying the favorable-termination

requirement in this case would be so contrary to § 1983’s goals as to warrant an

exception to the general favorable-termination rule as articulated in M.G., 826 F.3d at

1262.

        Accordingly, we find this argument insufficiently briefed and decline to

address it. See Fed. R. App. P. 28(a)(8)(A) (requiring argument section of appellant’s

brief to contain “appellant’s contentions and the reasons for them, with citations to

the authorities . . . on which the appellant relies”); Bronson v. Swensen, 500 F.3d

1099, 1104 (10th Cir. 2007) (explaining that court routinely declines to consider

inadequately briefed arguments).

II.     The defendants are entitled to qualified immunity on the Estate’s Fourth
        Amendment claim because Norton had arguable probable cause to arrest
        Papadakos.

        In response to the Estate’s allegation that the defendants violated Papadakos’

clearly established Fourth Amendment rights, both the defendants asserted that they

were entitled to qualified immunity. To defeat that assertion, the Estate must

demonstrate that (1) the defendants violated Papadakos’ Fourth Amendment rights;



                                            7
and (2) those rights were clearly established at the time that the defendants allegedly

violated them. See Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).

      According to the Estate, Norton relied on B.P.’s coerced statements—which

Jorgensen allegedly helped to obtain—to arrest Papadakos. The Estate implies that

the defendants knew those statements were false. And it points out “that false

evidence cannot contribute to a finding of probable cause.” Wilkins v. DeReyes, 528

F.3d 790, 805 (10th Cir. 2008). Thus, it concludes, Norton lacked probable cause to

arrest Papadakos, and Papadakos’ arrest therefore violated his clearly established

Fourth Amendment rights. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th

Cir. 2002) (“A police officer violates an arrestee’s clearly established Fourth

Amendment right to be free of unreasonable seizure if the officer makes a warrantless

arrest without probable cause.”).3

      But the Estate acknowledges that “[w]here false statements have been relied

on to establish probable cause, ‘the existence of probable cause [for § 1983 purposes]

is determined by setting aside the false information.’” Wilkins, 528 F.3d at 805

(alteration in original) (quoting Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir.



      3
         Because we ultimately conclude that Papadakos’ arrest didn’t violate his
clearly established Fourth Amendment rights, we find it unnecessary to determine
whether Jorgensen’s alleged contribution to that arrest—i.e., her participation in
obtaining B.P.’s allegedly false statements—is sufficient to support a Fourth
Amendment claim against her under § 1983. Cf. Pierce v. Gilchrist, 359 F.3d 1279,
1293 (10th Cir. 2004) (concluding that forensic analyst who “distort[ed] evidence to
convince the prosecuting authorities to press charges” couldn’t “‘hide behind’ the
fact that she neither initiated nor filed the charges against” plaintiff).


                                           8
1996)). Thus, even assuming that Norton knowingly relied in part on false statements

to arrest Papadakos, the Estate appears to recognize that the defendants only violated

Papadakos’ Fourth Amendment rights if, after “setting aside” those allegedly false

statements, see id., Norton lacked probable cause to arrest Papadakos.

      Moreover, the Estate must do more than show that Norton lacked probable

cause to arrest Papadakos to succeed on its Fourth Amendment claim. To defeat the

defendants’ assertion of qualified immunity, the Estate must show that Norton lacked

even arguable probable cause to arrest Papadakos. See Stonecipher v. Valles, 759

F.3d 1134, 1141 (10th Cir. 2014) (“In the context of a qualified immunity defense on

an unlawful search or arrest claim, we ascertain whether a defendant violated clearly

established law ‘by asking whether there was “arguable probable cause”’ for the

challenged conduct.” (quoting Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir.

2012))). And “[a]rguable probable cause” exists so long as an officer’s “conclusions

rest on an objectively reasonable, even if mistaken, belief that probable cause exists.”

Id. Thus, the defendants are entitled to qualified immunity on the Estate’s Fourth

Amendment claim if, after removing B.P.’s allegedly false statements from the

calculation, “a reasonable officer could have believed that probable cause existed to

arrest or detain” Papadakos. Id. (quoting Cortez v. McCauley, 478 F.3d 1108, 1120

(10th Cir. 2007)).

      We conclude that arguable probable cause existed here.

      In addition to B.P.’s allegedly false statements, Norton also relied on



                                           9
(1) B.P.’s classmate’s statement that B.P. said he ran away from home because

Papadakos sexually abused him; and (2) Papadakos’ own statements to Norton. For

instance, Papadakos verified that he and B.P. often slept together in the same bed.

Papadakos remembered the camping trip during which B.P. accused Papadakos of

touching B.P.’s penis, but maintained that Papadakos could have only initiated the

contact while he was asleep. He described an incident in which he awoke to find B.P.

rubbing his erect penis on Papadakos’ hand. And he reported that on at least 30

occasions, he awoke to find that B.P. had removed Papadakos’ underwear while

Papadakos slept. Finally, when Norton asked Papadakos if it was possible that

Papadakos played with B.P.’s penis, Papadakos didn’t deny that it was possible; he

merely maintained that he couldn’t be sure what he did in his sleep.

       Even assuming that B.P.’s classmate’s statement and Papadakos’ own

statements were insufficient to provide Norton with actual probable cause to arrest

Papadakos, we conclude that those statements were sufficient to provide Norton with

arguable probable cause to believe that Papadakos committed the offense of sexual

abuse of a child. See Utah Code. Ann. § 76-5-404.1(2) (“A person commits sexual

abuse of a child if . . . the actor touches the . . . genitalia of any child . . . with the

intent to arouse or gratify the sexual desire of any person . . . .”); Kerns v. Bader, 663

F.3d 1173, 1188 (10th Cir. 2011) (explaining that probable-cause evaluation doesn’t

“require the suspect’s guilt to be ‘more likely true than false,’” but rather asks only

“whether a ‘substantial probability’ existed that the suspect committed the crime”



                                              10
(first quoting Texas v. Brown, 460 U.S. 730, 742 (1983); then quoting Taylor v.

Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996))).

       In other words, we conclude that after removing B.P.’s allegedly false and

coerced statements from the probable-cause calculation, “a reasonable officer could

have believed that probable cause existed to arrest or detain” Papadakos for violating

§ 76-5-404.1(2). Stonecipher, 759 F.3d at 1141 (quoting Cortez, 478 F.3d at 1120).

Thus, Papadakos’ arrest didn’t violate his clearly established Fourth Amendment

rights, and the defendants are entitled to qualified immunity on the Estate’s Fourth

Amendment claim. See id.

III.   The defendants are entitled to qualified immunity on the Estate’s
       Fourteenth Amendment claim because the Fourth Amendment—rather
       than the Fourteenth Amendment—governs pretrial liberty deprivations.

       Finally, we turn to the Estate’s assertion that the defendants violated

Papadakos’ clearly established Fourteenth Amendment rights.

       First, the Estate suggests that the defendants violated Papadakos’ clearly

established Fourteenth Amendment rights by violating Utah Code Ann. § 62A-4a-

202.1(1)(a). But even assuming that the defendants violated § 62A-4a-202.1(1)(a), “a

state’s violation of its own laws does not create a claim under § 1983.” Rector v. City

& Cnty. of Denver, 348 F.3d 935, 947 (10th Cir. 2003).4



       4
         True, “state statutes may create liberty interests that are entitled to the
procedural protections of the Due Process Clause of the Fourteenth Amendment.”
Vitek v. Jones, 445 U.S. 480, 488 (1980). But whether a state statute creates such a
liberty interest turns on multiple factors, none of which the Estate even attempts to


                                           11
      Next, citing Clanton v. Cooper, 129 F.3d 1147 (10th Cir. 1997), the Estate

asserts that the defendants violated Papadakos’ clearly established Fourteenth

Amendment rights by using B.P.’s allegedly coerced statements to arrest Papadakos

and to initiate criminal charges against him.

      In Clanton, we held that a government actor violated the plaintiff’s clearly

established due process rights under the Fourteenth Amendment by obtaining a third

party’s involuntary confession and then using that involuntary confession to arrest

and imprison the plaintiff. Id. at 1152, 1159. But we reached that conclusion without

evaluating whether such a substantive due process claim could survive the Supreme

Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994) (plurality opinion). And

when we explicitly analyzed that question a decade after deciding Clanton, see

Becker v. Kroll, 494 F.3d 904, 917–19, 922–24 (10th Cir. 2007), we implicitly

overruled Clanton to the extent it suggests that a plaintiff may bring a Fourteenth

Amendment claim under these circumstances.5



address here. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 464–65 (1989)
(concluding that certain regulations didn’t “establish a liberty interest entitled to the
protections of the Due Process Clause” because they “lack[ed] the requisite relevant
mandatory language”). Because we find the single sentence that the Estate dedicates
to this argument insufficient to adequately brief the issue, we decline to consider it.
See Fed. R. App. P. 28(a)(8)(A); Bronson, 500 F.3d at 1104.
        5
          A panel of this court lacks authority to overrule a previous panel’s holding
absent en banc rehearing or an intervening Supreme Court decision. United States v.
Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014). But this general rule doesn’t apply to
“[q]uestions which merely lurk in the record,” and are “neither brought to the
attention of the [previous panel] nor ruled upon.” See United Food & Commercial
Workers Union, Local 1564 v. Albertson’s, Inc., 207 F.3d 1193, 1199 (10th Cir.


                                            12
      In Becker, we concluded that “the unavoidable construction of Albright is that

no § 1983 claim will arise from filing criminal charges without probable cause under

the substantive due process protections of the Fourteenth Amendment.” Id. at 918.

Instead, “the Fourth Amendment govern[s] ‘pretrial deprivations of liberty.’” Taylor

v. Meacham, 82 F.3d 1556, 1560 (10th Cir. 1996) (quoting Albright, 510 U.S. at

274). And while we recognized that exceptions to this general rule might exist—e.g.,

“where some quantum of harm occurs in the interim period after groundless criminal

charges are filed but before any Fourth Amendment seizure,” Becker, 494 F.3d at 922

(quoting Albright, 510 U.S. at 291 (Souter, J., concurring)), such an exception

wouldn’t apply here because Papadakos was arrested and charged on the same day.

      In light of the Supreme Court’s holding in Albright and our opinions in Becker

and Taylor, we conclude that Papadakos had no substantive due process right under

the Fourteenth Amendment to remain free from being arrested for, or charged with, a

crime based on the allegedly coerced statements of a third party. See Taylor, 82 F.3d

at 1560 (concluding that “Fourteenth Amendment substantive due process standards

ha[d] no applicability” to plaintiff’s allegation “that his wrongful arrest and seven-

week detention constituted an unreasonable seizure and deprivation of his liberty, in

violation of the Fourth, Fifth and Fourteenth Amendments,” and proceeding to

address plaintiff’s claim solely under Fourth Amendment framework). Thus, the


2000) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Because we didn’t
explicitly address Albright’s impact in Clanton, “there [was] no holding on th[at]
particular . . . issue to which” the Becker court had to “defer.” Id.


                                           13
defendants didn’t violate Papadakos’ Fourteenth Amendment rights by obtaining and

using B.P.’s allegedly coerced statements to arrest Papadakos and initiate a criminal

prosecution against him. And because the defendants didn’t violate Papadakos’

Fourteenth Amendment rights, they are entitled to qualified immunity on the Estate’s

Fourteenth Amendment claim. See Mayfield, 826 F.3d at 1255.

                                    CONCLUSION

      Viewed from any angle, this case is a tragic one. But that fact cannot inform

our legal analysis. The defendants are entitled to qualified immunity on the Estate’s

constitutional claims because they didn’t violate Papadakos’ constitutional rights.

And the district court correctly granted judgment in the defendants’ favor on the

Estate’s malicious-prosecution claim because the underlying criminal prosecution

didn’t terminate in Papadakos’ favor. Accordingly, we affirm the district court’s

orders granting Jorgensen’s motion for judgment on the pleadings and Norton’s

motion for summary judgment. As a final matter, we grant Norton’s motion to

maintain the seal on the video recordings of B.P.’s interviews.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




                                          14
