                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      February 22, 2007
                                    TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                         Clerk of Court

 CHARLES HOW ,

          Plaintiff - Appellant,
                                                        No. 06-3022
 v.                                              (D.C. No. 04-CV -2256-JW L)
                                                          (D . Kan.)
 CITY OF BA XTER SPRINGS,
 KANSAS; DONNA W IXON, City
 Clerk; ROBERT E. M YERS, City
 Attorney,

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *


Before KELLY, EBEL, and GORSUCH, Circuit Judges.


      Plaintiff-Appellant Charles How appeals from the district court’s grant of

summary judgment in favor of Defendants-Appellees Donna W ixon and Robert E.

M yers on his constitutional tort claims brought pursuant to 42 U.S.C. § 1983.

Generally, M r. How claims that Defendants violated his First A mendment right to

free speech w hen they pursued a criminal defamation claim against him. He

contends that the prosecution was in retaliation for his publication of a political


      *
        This order and judgment is not binding precedent, except under the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.
advertisement in a local newspaper. The district court based its grant of summary

judgment on grounds that M s. W ixon, in filing a criminal defamation complaint,

was not acting “under color of state law,” and that M r. M yers w as entitled to

qualified immunity. O ur jurisdiction arises under 28 U.S.C. § 1291, and we

affirm.



                                     Background

      To say the least, M r. How was an active participant in the political process

in Baxter Springs, Kansas (“the City”). During a period from April 2, 2002 to

February 7, 2003, M r. How authored at least twenty-seven letters to the editor in

the B axter Springs New s, the C ity’s local new spaper. One frequent topic of M r.

How’s letters was the job performance, and often the personal life, of the local

city clerk, and defendant in this action, Donna W ixon. Exemplary of M r. How’s

remarks regarding M s. W ixon are those found in an October 11, 2002 letter to the

editor in which he compares M s. W ixon’s performance with that of female

employees w ho previously worked at city hall:

      They all came in every day and did their job for our town. Never had
      men in the City Hall after hours, never took unnecessary trips, never
      stirred up hate and discontent, never rode around with city male
      employees, never sat in a pickup truck with their feet up on the dash
      for an hour and a half, never drove their vehicle to collect mileage
      from the C ity when the C ity could have provided a vehicle, and never,
      never, said anything disrespectful tow ard our mayors.

4 Aplt. A pp. at 841.

                                         -2-
      Perhaps feeling that his complaints were not being heeded, M r. How

decided to run for a position on Baxter Springs’ city council. During the time of

his campaign, on M arch 11, 2003, M r. How ran an advertisement in the Baxter

Springs News which stated:

      FOR M AYOR? Art Roberts Voted To H ire Donna W ixon & Almost
      Doubled Her Salary Over the Previous Clerks [sic] Pay In Three
      Years— Plus Bonuses. Palzy W alzy W ith Defeated Council M ember
      Bob St. Clair. You Folks W ant Two M ore Years O f This H ateful City
      Clerk?

4 Aplt. App. at 862.

      Following a city council meeting on the evening of M arch 11, M s. W ixon

approached M r. M yers, Baxter Springs’ city attorney, and inquired as to her

ability to file a criminal defamation complaint against M r. How in her capacity as

a private citizen. M r. M yers informed M s. W ixon that, as a private citizen, she

could indeed file a criminal complaint against M r. How. 1 M s. W ixon had no

further discussions on the matter with M r. M yers until after her criminal

complaint had been filed. On the evening of M arch 12, 2003, M s. W ixon, on her

own, prepared a “Voluntary Statement” detailing her allegations of criminal

defamation against M r. How. In the statement, M s. W ixon alleged that M r.

How ’s M arch 11 political advertisement contained statements know n to be false

      1
        In Kansas, a private citizen can file a criminal complaint against another
person in municipal court. See Kan. Stat. Ann. § 12-4202 (2005). Also, Kansas
has criminalized defamation. See Kan. Stat. Ann. § 21-4004 (2004). M r. How
was charged under a city ordinance that reads the same as Kan. Stat. Ann. § 21-
4004.

                                          -3-
and made with actual malice and requested that “charges be filed against . . .

Charles How individual [sic] for criminal defamation as per K.S.A. 21-4004.” 4

Aplt. App. at 864. The next day, M s. W ixon signed the voluntary statement in

front of two witnesses who were also her fellow employees at the city clerk’s

office. On her lunch hour, M s. W ixon gave the written statement to a police

officer and requested that he file charges. Later, the municipal court clerk

delivered a formal criminal complaint to M s. W ixon, which she signed.

      Ultimately, on M arch 13, 2003, the criminal complaint against M r. How

was filed in municipal court. 2 In relevant part, the complaint stated that, on

M arch 11, 2003, M r. How committed criminal defamation against M s. W ixon by

placing a political advertisement in the Baxter Springs News knowing the

information contained therein to be false. See 4 Aplt. App. at 875. Upon the

filing of the complaint, M r. How was served with a notice to appear.

      On April 18, 2003, the municipal court held its first hearing on the case.

Although M r. M yers, in his capacity as city attorney, made an initial appearance

on behalf of the City, he immediately recused himself so as to avoid any potential

conflict of interest (apparently, M r. How had also been critical of M r. M yers in

the past).   After entering M r. How’s not guilty plea, the municipal court

informed M r. M yers that the City had thirty days to obtain a special prosecutor to

      2
         Charges were also filed against Ronald Thomas, another citizen who had
written letters regarding M s. W ixon, and Larry Hiatt, publisher of the Baxter
Springs N ews. Neither M r. Thomas nor M r. Hiatt are parties to this appeal.

                                         -4-
refile the defamation charges.

      Because the City failed to find a special prosecutor within the time allotted,

the municipal court dismissed the complaint without prejudice. On June 11,

2003, an article in the Joplin Globe, another local newspaper, reported that M r.

M yers claimed to have obtained a special prosecutor w illing to refile the charges.

He confesses being accurately quoted as stating, “[T]his [special] prosecutor will

refile the complaints.” The district court assumed that, viewed in the light most

favorable to M r. How, M r. M yers’ statement was false— he had not obtained a

special prosecutor at that time and, in fact, he never obtained one. The charges

against M r. How were never refiled.

      On June 2, 2004, M r. How filed his complaint in federal district court,

seeking damages under 42 U.S.C. § 1983 against M s. W ixon, M r. M yers, and the

City for alleged violations of his First Amendment right to free speech. M r.

How’s complaint also sought relief pursuant to various state law causes of action.

Following extensive discovery, Defendants moved for summary judgment on all

of M r. How’s claims. M r. How also moved for summary judgment arguing that

his political advertisement w as protected speech as a matter of law. On

December 15, 2005, the district court granted D efendants’ motions for summary

judgment as to M r. How’s § 1983 claims and declined to exercise supplemental

jurisdiction over M r. How’s remaining state law claims. See How v. City of

Baxter Springs, No. 04-2256, 2005 W L 3447702, at *1 (D. Kan. Dec. 15, 2005).

                                         -5-
          In so holding, the district court determined that M s. W ixon’s filing of a

defam ation claim, as a private citizen, was not made “under color of state law”

and that she could not be held liable under § 1983. See id. at *5-9. The district

court further determined that M r. M yers was entitled to qualified immunity based

on the absence of a constitutional violation, as well as the law not being clearly

established. See id. at *9-11. Finding no underlying constitutional violation, the

district court apparently determined that M r. How’s § 1983 claim against the City

could not proceed. Finally, the district court denied M r. How’s motion for

summary judgment as moot and dismissed the action in its entirety. See id. at *1

n.1, *12.

          On appeal, M r. How argues that: (1) the district court should have decided

that his political advertisement was protected speech; (2) M s. W ixon’s actions

were taken “under color of state law” because (a) in causing M r. How to be

prosecuted, she abused her power as a public official, and (b) M s. W ixon and M r.

M yers acted jointly to bring about M r. How’s prosecution; and (3) M r. M yers is

not entitled to qualified immunity because (a) in lying to the Joplin Globe, M r.

M yers kept “the threat of future prosecutions alive” in order to prevent him from

exercising his First Amendment free speech rights, and (b) the law was clearly

established, at the time, that M r. M yers’ actions violated M r. How’s constitutional

rights.




                                             -6-
                                     Discussion

      W e review the district court’s grant of summary judgment de novo,

employing the same legal standard as the district court. Green v. Bd. of County

Commr’s, 472 F.3d 794, 797 (10th Cir. 2007). That is, summary judgment is

appropriate w here no genuine issue of material fact exists, and the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In his first

issue, M r. How requests that we revisit the district court’s decision on the denial

of his motion for summary judgment on whether his political advertisement was

protected speech. The district court denied the motion on the grounds that, given

its resolution of other issues, it was moot and because genuine issues of material

fact remained. Of course, we lack jurisdiction over the denial of summary

judgment based on remaining issues of fact, Smith v. Diffee Ford-Lincoln,

M ercury, Inc., 298 F.3d 955, 966 (10th Cir. 2002), but we too conclude that the

first issue is moot based on our resolution of the other issues.

I.    M r. How’s § 1983 Claim Against M s. W ixon

      M s. W ixon contends that she may not be held liable for filing criminal

defamation charges against M r. How because, in so doing, she was acting in a

private capacity and not “under color of state law.” Because it is a mixed

question of law and fact, we review the district court’s state action determination

de novo. Duke v. Smith, 13 F.3d 388, 392 (11th Cir. 1994) (citing Albright v.

Longview Police Dept., 884 F.2d 835, 838 (5th Cir. 1989)); see also Van Scoten

                                         -7-
v. C.I.R., 439 F.3d 1243, 1252 (10th Cir. 2006).

      To state a claim under 42 U.S.C. § 1983, a plaintiff must show that he was

deprived of a right “secured by the Constitution or laws of the United States” and

that the deprivation was committed by an individual acting “under color of state

law.” Am. M frs. M ut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). “Like the

state-action requirement of the Fourteenth Amendment, the under-color-of-state-

law element of § 1983 excludes from its reach merely private conduct, no matter

how discriminatory or wrongful.” Id. at 50 (quoting Blum v. Yaretsky, 457 U.S.

991, 1002 (1982)) (internal quotations omitted).

      In most circumstances, including the one present in this case, 3 the concepts

of state action and under the color of state law are coterminous. See Lugar v.

Edmondson Oil Co., 457 U.S. 922, 929 (1982) (“[I]n a § 1983 action brought



      3
          In Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the Supreme Court
explained that where state action is present there is also necessarily action taken
under color of state law for purposes of § 1983 liability. See id. at 935. The
Court also explained that the converse is not always necessarily true. See id. at
935 n.18. In other words, there may be instances where state action is not present
but an individual nonetheless acts under color of state law for purposes of
liability under § 1983. This phenomenon derives from the fact that “§ 1983 is
applicable to other constitutional provisions and statutory provisions that contain
no state-action requirement.” Id. The First A mendment, however, requires state
action, see Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“It is, of course, a
commonplace that the constitutional guarantee of free speech is a guarantee only
against abridgement by government, federal or state.”), and M r. How may not
circumvent that requirement by bringing an action under § 1983. Thus, in order
to determine whether M s. W ixon acted “under color of state law” such that she
may be held personally liable under § 1983, we must determine whether her
actions may “be fairly attributed to the State.” Lugar, 457 U.S. at 937.

                                        -8-
against a state official, the statutory requirement of action ‘under color of state

law’ and the ‘state action’ requirement . . . are identical.”); Georgia v. M cCollum,

505 U.S. 42, 53 n.9 (1992). W hile the dichotomy between private conduct and

state action “is well established and easily stated, the question whether particular

conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently

admits of no easy answer.” Jackson v. M etro. Edison Co., 419 U.S. 345, 349-50

(1974). To occur under color of state law, the deprivation of a federal right “must

be caused by the exercise of some right or privilege created by the State or by a

rule of conduct imposed by the state or by a person for whom the State is

responsible” and “the party charged with the deprivation must be a person who

may fairly be said to be a state actor . . . because he is a state official, because he

has acted together with or has obtained significant aid from state officials, or

because his conduct is otherwise chargeable to the State.” Lugar, 457 U.S. at

937; see also Y anaki v. Iomed, Inc., 415 F.3d 1204, 1207-08 (10th Cir. 2005).

      The primary dispute in this case revolves around whether M s. W ixon, in

filing a criminal defamation complaint, was “a person who may fairly be said to

be a state actor.” The Supreme Court has explained that “in determining whether

a particular action or course of conduct is governmental in character, it is relevant

to examine . . . the extent to which the actor relies on governmental assistance

and benefits, whether the actor is performing a traditional governmental function,

and whether the injury caused is aggravated in a unique way by the incidents of

                                           -9-
governmental authority.” Edmonson v. Leesville Concrete Co., 500 U.S. 614,

621-22 (1991) (internal citations omitted). M r. How contends that M s. W ixon’s

actions were governmental in character because, in filing the criminal defamation

complaint against him, M s. W ixon abused her authority as city clerk and,

alternatively, because M s. W ixon and M r. M yers, a city official, acted jointly to

bring about M r. H ow’s prosecution and threaten him with future prosecutions.

Both of M r. How’s arguments will be considered, and ultimately rejected, in turn.

      A. Badge of Authority

      M r. How first argues that M s. W ixon, in filing a criminal defamation

complaint against him, abused her authority as city clerk and thus her action may

fairly be attributed to the State. The district court held that M s. W ixon’s filing of

a criminal defamation complaint was done in her personal capacity and was not

related to her official duties as city clerk. The district court reasoned that the fact

that M s. W ixon was criticized primarily for the performance of her duties as city

clerk did not imbue her criminal complaint with state action. W e agree.

      Traditionally, in order to act under color of state law, a defendant must

have “exercised power ‘possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.’” W est v.

Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,

326 (1941)). Although “state employment is generally sufficient to render the

defendant a state actor,” Lugar, 457 U.S. at 935, “that a tort was committed by an

                                          - 10 -
individual employed by the state does not, ipso facto, warrant attributing all of

the employee’s actions to the state,” Jojola v. Chavez, 55 F.3d 488, 493 (10th Cir.

1995). Thus, “it is the plaintiff’s burden to plead, and ultimately establish, the

existence of a ‘real nexus’ between the defendant’s conduct and the defendant’s

‘badge’ of state authority in order to demonstrate action was taken ‘under color of

state law.’” Id. at 494.

      In this case, M r. How has failed to establish a “real nexus” between M s.

W ixon’s filing of her criminal defamation complaint and her position as city

clerk. Rather, the evidence, viewed in the light most favorable to M r. How,

indicates that M s. W ixon filed her criminal defamation complaint as a private

citizen. As noted in the recitation of facts, nothing suggests that the process M s.

W ixon undertook in filing her complaint differed from that of an ordinary citizen.

      In attempting to establish state action, M r. How first points to the fact that

the publication for which M r. How was prosecuted exclusively concerned M s.

W ixon’s conduct as city clerk. 4 Although the content of the publication may have

some bearing on the question of whether a particular reaction to the publication

constitutes state action, see Rossignol v. Voorhaar, 316 F.3d 516, 524 (4th Cir.

2003), we do not think that is the dispositive inquiry. The fact that M r. How’s

publication concerned M s. W ixon’s duties as city clerk would have undoubtedly



      4
        W e have some doubt whether this is even true, but for argument’s sake
we will assume it is.

                                         - 11 -
affected the State’s ability to hold M r. How liable for the publication. See New

York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). For purposes of

determining the existence of state action, however, the nature of her actions in

response to the publication, rather than the content of the publication itself, is the

critical inquiry. In other words, whether M s. W ixon acted under color of state

law turns on whether her reaction to the publication was undertaken in the

capacity of a private citizen or w as undertaken with a badge of state authority.

And, as previously discussed, M r. How has not shown that M s. W ixon wore a

badge of state authority when she filed her criminal complaint against him. 5

      M r. How next maintains that state action was present because M s. W ixon

chose to employ “the weight of the state” against him. Aplt. Br. at 19. According

to M r. How, M s. W ixon did so by causing the City to prosecute him and serve a

complaint and notice to appear upon him. The same can be said, though, for any

criminal complaint filed by a private party against another individual in Kansas.

Congress did not, in using the term “under the color of state law,” intend to

subject private citizens, acting as private citizens, to a federal lawsuit whenever

they seek to initiate a prosecution or seek a remedy involving the judicial system.

      5
         This fact, then, distinguishes this case from Rossignol, upon which M r.
How heavily relies. In that case, sheriff’s deputies not only retaliated against a
newspaper publisher because it was highly critical of the Sheriff’s fitness for
office, but they also used their positions as deputies to carry out their scheme and
to avoid prosecution. See Rossignol, 316 F.3d at 525-26. There is no evidence in
this case that M s. W ixon similarly used her position as city clerk to gain an
advantage in the filing of her complaint.

                                         - 12 -
To hold otherwise would significantly disregard one purpose of the state action

requirement, which is to “preserve[] an area of individual freedom by limiting the

reach of federal law and federal judicial power.” Lugar, 457 U.S. at 936.

Instead, in enacting § 1983, Congress intended to provide a federal cause of

action primarily when the actions of private individuals are undertaken with state

authority. See id. at 934. Thus, absent more, causing the state, or an arm of the

state, to initiate a prosecution or serve process is insufficient to give rise to state

action. 6

       M r. How also claims that state action was present because M s. W ixon’s

alleged purpose for filing her criminal complaint was “solely to silence him, to

deprive him of his First Amendment rights.” Aplt. Br. at 19. The record is

controverted on that point. See 3 Aplt. App. at 501 (“I was w illing to try

anything if they would just stop or at least have to answer and write the truth.”),

id. at 534 (“I just wanted them to stop writing the personal things about me. If

they wanted to write about work, I had no problemwith that.”). Regardless, this

point, while perhaps relevant to the merits of M r. How’s First Amendment claim,

       6
         M r. How cites our decision in Yanaki, 415 F.3d at 1210 n.11, for the
proposition that state action is present when one employs “the weight of the
state.” Aplt. Br. at 19. W e used that language, however, only in the context of
distinguishing the facts in Yanaki from those in the Ninth Circuit’s decision in
Howerton v. Gabica, 708 F.2d 380 (9th Cir. 1983). The facts of this case are
similarly distinguishable from those found in Howerton. See 708 F.2d at 384 &
n.9 (noting that “[p]olice were on the scene at each step of the eviction” and
“actively intervened” at the request of the private defendants and on the initiative
of one of the officers).

                                          - 13 -
has no bearing on whether M s. W ixon’s filing of a criminal complaint is fairly

attributable to the State.

      M r. How also makes much of the fact that the two witnesses who signed

M s. W ixon’s voluntary statement were employees of the city clerk’s office. W e

fail to see, and M r. How fails to explain, how the fact that M s. W ixon had her

coworkers serve as witnesses suddenly transforms her filing of a criminal

complaint into state action. Having one’s co-workers witness the signing of a

legal document is not a rare occurrence. M oreover, there is no evidence that the

signatures were even needed to file a formal criminal complaint or that M s.

W ixon, being unable to find other individuals to serve as witnesses, used her

power as city clerk to conscript two subordinates into being witnesses. As a

result, the fact that two employees of the city clerk’s office signed M s. W ixon’s

voluntary statement does not give rise to state action.

      Next, M r. How maintains that M s. W ixon’s statement to the Joplin Globe,

after the charges against M r. How had been dropped, that “the city will have to

pay a special prosecutor . . .,” and the fact that the City reimbursed M s. W ixon

for travel expenses to attend a deposition in this litigation, both demonstrate state

action. W e disagree. W here state action is concerned, the proper inquiry is

whether, at the time of the alleged constitutional violation, the defendant was a

state actor. See Kottmyer v. M aas, 436 F.3d 684, 688 (6th Cir. 2006) (“These

allegations are insufficient to establish that [defendants] were state actors at the

                                         - 14 -
time of the alleged constitutional violations.”) (emphasis added). Here, M s.

W ixon is alleged to have violated M r. How’s constitutional rights when she filed

a criminal defamation complaint, causing the City to pursue criminal charges

against him. M s. W ixon’s statement to the Joplin Globe and her reimbursement,

however, both occurred after she filed her criminal complaint (in fact, after her

complaint was dismissed), and those occurrences therefore have no effect on

whether she was a state actor at the time her criminal complaint was filed and

acted upon— in other words, at the time the alleged constitutional violation is to

have taken place.

      Finally, M r. How argues that Kansas law requires the city attorney to issue

a notice to appear and the fact that M r. M yers denies issuing such a notice in this

case is strong circumstantial evidence that M s. W ixon “abused the authority of

her public office by causing the M unicipal Court Clerk to issue the Notice to

Appear and by causing the police to serve that Notice with the Complaint upon

plaintiff.” A plt. Br. at 22. The Kansas statute to which M r. How refers provides:

      A copy of the complaint shall be served, together with a notice to
      appear or a warrant, by a law enforcement officer upon the accused
      person, and forthwith, the complaint shall be filed with the municipal
      court, except that a complaint may be filed initially with the
      municipal court, and if so filed, a copy of the complaint shall
      forthwith be delivered to the city attorney. The city attorney shall
      cause a notice to appear to be issued, unless he or she has good reason
      to believe that the accused person will not appear in response to a
      notice to appear, in which case the city attorney may request that a
      warrant be issued.



                                         - 15 -
Kan. Stat. Ann. § 12-4203(a) (2003). This provision contemplates that, in most

circumstances, a law enforcement officer serves the complaint and notice to

appear upon the defendant and, simultaneously or thereafter, the complaint is

filed with the municipal court. An exception is made where the complaint is

initially filed with the municipal court, and in such a case, a copy of the

complaint is delivered to the city attorney. In all cases, the city attorney causes a

notice to appear to issue.

       The problem for M r. How is that he cites to no evidence whatsoever

indicating that M s. W ixon had any role in drafting the official complaint against

him or that she “caused” the municipal court clerk, instead of M r. M yers, to issue

the notice to appear. Indeed, the only evidence in the record is that M s. W ixon

had no knowledge regarding either the inner-workings of the municipal court

clerk’s office or the identity of the individual responsible for filling out the

official complaint against M r. H ow. See 4 Aplt. A pp. at 668-69, 695.

Additionally, even assuming M r. How was able to show that M s. W ixon’s official

complaint should have been delivered to M r. M yers and that a copy never was

delivered and that someone other than M r. M yers caused the notice to appear to

issue, M r. How has cited to no evidence from which a reasonable jury could find

that these irregularities came about because M s. W ixon acted under color of state

law . Consequently, M r. How’s attempt to rely on an abuse of authority theory to

establish state action fails.

                                         - 16 -
      B. Joint Action

      M r. How alternatively relies on a joint action theory to establish state

action. He argues abundant evidence, circumstantial or otherwise, tends to show

that M s. W ixon and M r. M yers together engaged in a particular course of action

to violate M r. How’s constitutional rights. He claims that, at the very least, M r.

M yers acquiesced in M s. W ixon’s use of his prosecutorial power and that, alone,

is enough to establish state action.

      M r. How is correct that private parties may be considered state actors

where they are “willful participant[s] in joint action with the State or its agents.”

Dennis v. Sparks, 449 U.S. 24, 27 (1980). Nevertheless, we may not find joint

action based alone on “the mere acquiescence of a state official in the actions of a

private party,” see Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453

(10th Cir. 1995) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164 (1978));

instead, we “examine whether state officials and private parties have acted in

concert in effecting a particular deprivation of constitutional rights,” Id. In

applying this test, courts have taken two approaches. Some courts employ a

“conspiracy approach” pursuant to which “state action may be found if a state

actor has participated in or influenced the challenged decision or action.” Id. at

1454. Other courts “hold that, if there is a substantial degree of cooperative

action between state and private officials, or if there is overt and significant state

participation in carrying out the deprivation of the plaintiff’s constitutional rights,

                                         - 17 -
state action is present.” Id. M r. How cannot prevail under either approach.

       M r. How contends that M s. W ixon should be deemed to have acted under

color of state law because “M s. W ixon and [M r.] M yers acted jointly to bring

about [M r. H ow ’s criminal defamation] prosecutions and to threaten [M r. How]

with future prosecutions on those and possibly other charges . . . .” Aplt. Br. at

17-18. M r. How has failed to adduce any evidence, however, that M r. M yers

participated in M s. W ixon’s decision to file charges against M r. How or that the

two acted in concert to threaten M r. How with future prosecution.

       First, there is absolutely no evidence that M r. M yers played any role in M s.

W ixon’s ultimate decision to file a criminal complaint against M r. How. The

evidence instead demonstrates that M s. W ixon simply inquired of M r. M yers

whether, despite the fact that she was city clerk, she had the ability to file a

criminal defamation complaint against M r. How in her personal capacity. M r.

M yers simply informed her that she did have that ability. After that, M r. M yers

had no role in the case until after the formal complaint had been filed. As the

district court correctly noted, “M r. M yers did not draft the complaint, file the

complaint, pursue the complaint, establish probable cause for the complaint, or do

anything with M s. W ixon’s criminal complaint other than recuse himself at the

first chance he could do so.” H ow, 2005 W L 3447702, at *8. And despite M r.

How ’s contention otherwise, M r. M yers’ mere acquiescence in M s. W ixon’s “use

of his prosecutorial authority,” A plt. Br. at 27, is insufficient to give rise to state

                                           - 18 -
action. The evidence relied upon by M r. How does not even remotely support a

conclusion that M s. W ixon and M r. M yers shared a specific goal of stopping M r.

How from criticizing them. 7 M r. How also latches on to the fact that the district

court stated, in its order, that “M s. W ixon and M r. M yers shared a common goal .

. . .” H ow, 2005 W L 3447702, at *8. View ed in context, the common goal to

which the district court refers is the same common goal shared between a private

citizen and a prosecutor whenever a private citizen presses criminal charges

against another— the goal of successfully prosecuting the accused. But that

comm on goal is insufficient for a private citizen, here M s. W ixon, to be

considered a state actor.

      There is also insufficient evidence to show that M r. M yers’ statements to

the press regarding his effort to locate another special prosecutor were part of a

concerted effort to violate M r. How’s constitutional rights. M r. How has

presented no evidence that M s. W ixon had any role whatsoever in M r. M yers’

statement to the Joplin Globe to the effect that he had found a special prosecutor

who would be refiling charges. Also, the fact that, in the same newspaper article,

both M r. M yers and M s. W ixon discussed a possible civil lawsuit against M r.

How is not enough, in and of itself, to show joint action. In sum, the evidence

      7
         The only evidence relied upon that even involves or mentions M r. M yers
is M r. M yers’ own deposition testimony in which he states that the conduct of the
three individuals who were prosecuted “was always related.” 6 Aplt. App. at
1375. This vague statement is insufficient to prove that M r. M yers had a goal of
stopping M r. How from criticizing him.

                                        - 19 -
does not support joint action. See Hammond v. Bales, 843 F.2d 1320, 1323 (10th

Cir. 1988) (conclusory allegations will not suffice to establish conspiracy

involving state action). Because M r. How cannot establish that M s. W ixon acted

under color of state law, the district court correctly granted summary judgement

in her favor.

II.   M r. How’s § 1983 Claim Against M r. M yers

      M r. How also asserts a claim under § 1983 against M r. M yers, alleging that

he took actions in his role as city attorney that were solely intended to stifle the

exercise of M r. How’s First Amendment rights and to intimidate him from

exercising his First Amendment rights in the future. M r. M yers responds that

none of his actions were in violation of M r. How’s First Amendment rights and

that nonetheless he is entitled to qualified immunity.

      W hile it is somewhat unclear which of M r. M yers’ actions are alleged to

have violated M r. How’s constitutional rights, to the extent that M r. How is

seeking to impose liability upon M r. M yers for the filing of the complaint against

him or any other activity M r. M yers undertook in connection with the

presentation of the State’s case, M r. M yers is shielded by absolute prosecutorial

immunity. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (“W e hold . . . that

in initiating a prosecution and in presenting the State’s case, the prosecutor is

immune from a civil suit for damages under § 1983.”). It appears, however, that

M r. How primarily takes issue with M r. M yers’ statements to the Joplin Globe,

                                         - 20 -
which appeared in an article published on June 11, 2003. That article stated:

            M yers said he is certain the attorney he has found will take the
     case. He declined to identify the attorney by name. “This prosecutor
     will refile the complaints,” M yers said.
            ...
            “There could be additional charges filed, based on other acts and
     other things said and done,” M yers said.
            M yers said the defendants also may appear in civil court.

4 Aplt. A pp. at 909.

      Although the actions of prosecutors taken within the scope of prosecutorial

duties are entitled to absolute immunity, “a prosecutor is only entitled to qualified

immunity when acting in an administrative or investigative capacity.” England v.

Hendricks, 880 F.2d 281, 285 (10th Cir. 1989). A prosecutor’s statements to the

press, not made as an advocate, are considered an administrative function

entitling the prosecutor to, at most, qualified immunity. Id. Because M r. M yers’

statements to the Joplin Globe were not made as an advocate, we must determine

whether he is entitled to qualified immunity.

      “The doctrine of qualified immunity shields public officials . . . from

damage actions unless their conduct was unreasonable in light of clearly

established law.” Elder v. Holloway, 510 U.S. 510, 512 (1994). Once a

government official asserts qualified immunity as a defense, the plaintiff must

show: (1) that the defendant’s actions violated a constitutional or statutory right,

and (2) that the rights alleged to be violated were clearly established at the time

of the conduct at issue. Saucier v. Katz, 533 U.S. 194, 201 (2001); Anderson v.

                                         - 21 -
Blake, 469 F.3d 910, 913 (10th Cir. 2006). As a result, if the plaintiff fails to

demonstrate the government official’s conduct violated federal law , the court

need not determine whether the law was clearly established. Hinton v. City of

Elw ood, 997 F.2d 774, 782 (10th Cir. 1993).

      Government retaliation, though not expressly mentioned in the

Constitution, is nonetheless actionable in as much as retaliatory actions tend to

chill individuals’ exercise of constitutional rights. Perez v. Ellington, 421 F.3d

1128, 1131 (10th Cir. 2005); see also Perry v. Sindermann, 408 U.S. 593, 597

(1972). In the First Amendment context, “any form of official retaliation for

exercising one’s freedom of speech, including prosecution, threatened

prosecution, bad faith investigation, and legal harassment, constitutes an

infringement of that freedom.” W orrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.

2000). A successful claim for First Amendment retaliation requires proof of the

following elements: (1) that the plaintiff was engaged in constitutionally

protected activity; (2) that the defendant’s actions caused the plaintiff to suffer an

injury that would chill a person of ordinary firmness from continuing to engage in

that activity; and (3) that the defendant’s adverse action was substantially

motivated as a response to the plaintiff’s exercise of constitutionally protected

conduct. Id.

      W hether the defendant’s actions caused the plaintiff to suffer an injury that

would chill a person of ordinary firmness from continuing to engage in that

                                         - 22 -
activity is an objective standard. See Eaton v. M eneley, 379 F.3d 949, 954 (10th

Cir. 2004). A dditionally, the standard is a rigorous one to satisfy. Id. at 955.

“Thus, although the objective standard permits a plaintiff who perseveres despite

governmental interference to bring suit, ‘a trivial or de minimis injury will not

support a retaliatory prosecution claim.’” Id. at 954-55 (quoting Poole v. County

of O tero, 271 F.3d 955, 960 (10th Cir. 2001)).

      Here, M r. M yers is entitled to qualified immunity because M r. How has not

produced evidence that the complained of statement caused him to suffer an

injury, let alone one that would chill a person of ordinary firmness from

continuing to exercise his constitutional rights. See Laird v. Tatum, 408 U.S. 1,

13 (1972). M r. M yers’ statements claiming both to have found another attorney

willing to try the case and that there was the possibility of additional charges

being filed, is insufficient, standing alone, to show any injury. Because the

complaint against him was dismissed without prejudice, at the time M r. M yers’

statements were made, M r. How was already well aware that the City, at any time,

could find a special prosecutor to again pursue the criminal defamation complaint

against him. Any additional injury caused by M r. M yers’ acknowledgment that

he had located a special prosecutor, even if assumed false, was marginal at best.

As noted, however, de minimis injuries are not actionable. See Eaton, 379 F.3d at

954-55. The evidence suggests that M r. M yers’ statements had no effect on M r.

How’s continuing ability to express his views publicly or to further criticize

                                         - 23 -
either M s. W ixon or M r. M yers. See Phelan v. Laramie County Cmty. Coll. Bd.

of Trs., 235 F.3d 1243, 1248 (10th Cir. 2000). And, finally, in determining

whether M r. How suffered injury, we simply cannot ignore the fact that he made

light of the criminal charges filed against him, 4 Aplt. App. 883, and continued to

exercise his First Amendment rights thereafter by publishing two more political

advertisements criticizing M s. W ixon, id. at 885, 890, and running a general

political advertisement in support of his campaign for city councilman, id. at 892.

See Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) (explaining that the fact

the plaintiff persisted in the face of allegedly retaliatory actions offered some

evidence that the defendant’s action did not infringe upon speech). Given that

M r. How has failed to show that he suffered more than a de minimis injury at the

hands of M r. M yers, he also cannot show that his constitutional rights were

violated, 8 and thus the district court was correct in holding that M r. M yers is

entitled to qualified immunity. Thus, we need not decide whether the law was




      8
          Because M s. W ixon was not a state actor and M r. M yers did not violate
M r. How’s constitutional rights, there is no basis with which to hold the City
liable under M onell v. Department of Social Services, 436 U.S. 658 (1978). See
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (in the
absence of a constitutional violation by the individual defendants, municipal
liability claim is foreclosed); Jiron v. City of Lakewood, 392 F.3d 410, 419 n.8
(10th Cir. 2004).

                                         - 24 -
clearly established. See Hinton, 997 F.2d at 782.

      A FFIR ME D.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       - 25 -
