                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                    PUBLISH
                                                                      MAY 20 1998
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                           Clerk
                               TENTH CIRCUIT



 SUSAN LYNN ROBERTS,

             Plaintiff-Appellant,

 v.                                                   No. 95-2272

 CHARLES TIMOTHY KLING,

             Defendant-Appellee.


               ON REMAND FROM THE SUPREME COURT

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW MEXICO
                      (D.C. No. CIV-94-1318-LH)


Submitted on the briefs:

William L. Lutz and Hugh T. Brower of Martin, Lutz & Brower, P.C., Las
Cruces, New Mexico, for Plaintiff-Appellant.

Mark D. Jarmie of Sharp, Jarmie, & Scholl P.A., Albuquerque, New Mexico, for
Defendant-Appellee.



Before PORFILIO, ALARCON, * and LUCERO, Circuit Judges.



      *
            Honorable Arthur L. Alarcon, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
PER CURIAM



      In Roberts v. Kling, 104 F.3d 316 (10th Cir. 1997), we affirmed the district

court’s grant of summary judgment to defendant Charles Timothy Kling based on

absolute immunity. 1 We reasoned that Kling’s conduct in signing and filing a

criminal complaint against plaintiff Susan Lynn Roberts, and in seeking a warrant

for her arrest, was entitled to absolute immunity because those acts are a

functional part of initiating a prosecution. See id. at 319-20. Roberts sought a

writ of certiorari, and the Supreme Court granted the writ, vacated our judgment,

and remanded this matter to us for further consideration in light of Kalina v.

Fletcher, 118 S. Ct. 502 (1997). See Roberts v. Kling, 118 S. Ct. 623 (1997).

      In Kalina, the Supreme Court held that a state prosecutor was absolutely

immune for her actions in preparing and filing two charging documents, including

a motion for an arrest warrant, but was not entitled to absolute immunity

protection of her conduct in executing, under penalty of perjury, a certification

for determination of probable cause. The court reasoned that this conduct was

more akin to that of a complaining witness than a lawyer. See 118 S. Ct. at 509.


      1
              After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
is therefore ordered submitted without oral argument.

                                         -2-
      As in Kalina, defendant Kling signed a charging document, here a criminal

complaint, against Roberts under penalty of perjury. Roberts contended, on

appeal from the district court’s ruling, that the complaint contained

misrepresentations and omissions of material fact. Assuming without deciding

that Kling acted as a complaining witness in testifying to the truth of the

statements contained within the criminal complaint, a role which would deny his

conduct the protection of absolute immunity under Kalina, we nonetheless

reaffirm our earlier decision that summary judgment was properly granted to

Kling in this case.

      First, Kalina leaves untouched our affirmance of the district court’s

conclusion that Kling was entitled to absolute immunity for his actions in

preparing a criminal complaint against Roberts and in seeking a warrant for her

arrest. See id. The only remaining issue is whether Kling is entitled to qualified

immunity for his execution of the criminal complaint, by which he affirmed the

truth of the facts set forth in that document to the best of his information and

belief. See Appellant’s App. at 145 (Criminal Complaint). The district court had

concluded, in an alternative analysis, that Kling was entitled to qualified

immunity. We did not address that conclusion on appeal, relying instead on the

court’s grant of absolute immunity. See 104 F.3d at 322.




                                          -3-
      “We review the district court’s grant of summary judgment based on

qualified immunity de novo, applying the same standard used by the district

court.” Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th Cir. 1997). Alongside the

traditional summary judgment standards, see id. at 1346-47, we apply a two-part

framework once a defendant raises the defense of qualified immunity. See id. at

1347. “First, the plaintiff must show the defendant’s conduct violated a

constitutional or statutory right; second, the plaintiff must show the right the

defendant’s conduct violated was clearly established such that a reasonable person

in the defendant’s position would have known the conduct violated the right.

Unless the plaintiff makes such a showing, the defendant prevails.” Id. (citations

omitted).

      We outlined the relevant facts on appeal:

      Defendant, then an investigator for the District Attorney’s office in
      the Third Judicial District of New Mexico, investigated allegations
      that plaintiff had failed to return her children to the custody of their
      father in violation of a court order. Defendant subsequently signed
      and filed a criminal complaint against plaintiff before a magistrate in
      Dona Ana County, New Mexico, and obtained a warrant for
      plaintiff’s arrest. Plaintiff was arrested in Oregon and extradited to
      New Mexico for trial. Five months after her preliminary hearing,
      plaintiff moved to dismiss the charges against her on jurisdictional
      grounds. The state trial judge dismissed the case and his decision
      was affirmed on appeal.

Roberts, 104 F.3d at 318. Before the district court, as on appeal, Roberts

contended that Kling knowingly and willfully misrepresented the facts and


                                          -4-
omitted information from the criminal complaint that was critical to the probable

cause determination. Specifically, Roberts asserted that Kling misrepresented her

whereabouts on or about August 17, 1992, as in New Mexico, and represented

under oath to a magistrate that the crime charged occurred in Dona Ana County,

New Mexico. Further, Roberts stated that Kling omitted information about a

parenting plan between her and the children’s father, information that would

support her contention that she was not required to return the children until the

20th of August, 1992.

        The district court determined that “[n]o material information was withheld

by Defendant from the magistrate.” Appellant’s App. at 88 (Memorandum

Opinion). Looking at the criminal complaint as a whole, the court held that the

supporting statement of facts “clearly discloses” that Roberts was not in New

Mexico on or about August 17, 1992. Id. at 87. The court concluded that the

opening statement in the complaint, indicating that Roberts committed a crime in

Dona Ana County, New Mexico, was “jurisdictional, not factual.” Id. Similarly,

the court rejected plaintiff’s argument about the parenting plan information. It

found that the information could be inferred from the statement of facts

supporting the complaint, and also ruled that the information was irrelevant to the

probable cause determination because the complaint was sworn out on August 21,

1992.


                                         -5-
      On appeal of the court’s qualified immunity ruling, Roberts argued that the

district court exceeded its role under applicable summary judgment standards by

making credibility determinations, weighing the evidence and deciding issues in

Kling’s favor. Appellant’s Br. at 22. While acknowledging that qualified

immunity is a question of law, she also contends that whether Kling acted as a

reasonably competent law enforcement officer is an issue for the jury. Id. at 23.

Roberts attempts to cast this determination as factual and also seeks to

demonstrate factual disputes on point; however, we agree with the district court

that Roberts has not demonstrated that Kling violated clearly established law. In

making the case-by-case determinations required in the highly fact-driven area of

qualified immunity, our job is to “evaluate the totality of the circumstances to

determine, as a matter of law, whether the plaintiff has stated sufficient facts to

show the defendant[] violated . . . her constitutional rights.” Lawmaster, 125 F.3d

at 1349. The district court correctly analyzed Robert’s claims in light of all of the

facts presented to the magistrate in support of probable cause. It correctly

concluded that Roberts failed to allege facts demonstrating that Kling

intentionally executed the criminal complaint knowing that New Mexico lacked

jurisdiction over her. Appellant’s App. at 89-90.

      We reaffirm our earlier opinion affirming the district court’s grant of

absolute immunity to Kling for his conduct in preparing the criminal complaint


                                          -6-
against Roberts and in seeking a warrant for her arrest. We affirm the district

court’s judgment granting Kling qualified immunity for his conduct in executing

the criminal complaint. The judgment of the United States District Court for the

District of New Mexico is AFFIRMED.




                                         -7-
