                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     March 27, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    JA SO N RO BIN SO N ,

                Plaintiff-Appellant,

    v.                                                  No. 06-1170
                                              (D.C. No. 05-cv-1433-REB-PAC)
    ARA PAHOE COUNTY SHERIFF                             (D . Colo.)
    GRAYSON ROBINSON, in his
    official capacity; JO SEPH D EM PSEY,
    in his official and individual
    capacities, JOHN DOES I-X, a series
    of fictitious names,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.


         Jason Robinson appeals from the district court’s order granting summary

judgment in favor of the defendants, Grayson Robinson, Joseph Dempsey, and




*
       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(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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
John Does I–X, on his claims for the violation of his civil rights pursuant to

42 U.S.C. § 1983. W e reverse and remand the case for further proceedings.

                                I. BACKGROUND

      M r. Robinson was formerly employed as a deputy sheriff with the Arapahoe

County Sheriff’s Office in Centennial, Colorado. In late December 2003, he was

suspended pending an investigation of allegations of sexual misconduct leveled

against him by some female inmates. W hile the investigation was still in

progress, he resigned. Shortly thereafter, criminal charges were filed against him.

      According to M r. Robinson, the investigation yielded exculpatory evidence

and the defendants w ithheld it from him and the prosecuting attorney until shortly

before trial. Although the criminal charges were eventually dismissed, he claims

that the case should never have been brought, or that it was unduly prolonged by

the delay in disclosing the exculpatory evidence.

      In his complaint, M r. Robinson characterized his lawsuit as “an action to

address violations of Plaintiff’s federally protected civil rights pursuant to

42 U.S.C. § 1983 (including but not limited to his rights under the First, Fourth

and Fourteenth Amendments to the U.S. Constitution) and/or other law, including

but not limited to, the common law of the State of Colorado.” 1 Aplt. App. at 13

(emphasis added). Specifically, in his claim for the violation of his constitutional

1
      M r. Robinson also asserted state law claims for malicious prosecution,
defamation and outrageous conduct. The district court dismissed them w ithout
prejudice w hen it granted summary judgment on the § 1983 claims.

                                          -2-
rights, M r. Robinson alleged that the defendants “subjected Plaintiff to

deprivation of the rights and privileges secured by the Constitution and laws of

the United States, including but not limited to his right not to be deprived of

liberty and property without due process of law (procedural and substantive), as

well as to be free from unreasonable police conduct.” Id. at 21 (emphasis added).

      In their motion for summary judgment, the defendants characterized

M r. Robinson’s civil rights claim as asserting a violation of his due process

rights, “specifically his alleged property and liberty interests in his employment.”

Id. at 44. In his opposition brief, M r. Robinson described the claims as

“alleg[ing] violations of his civil rights under 42 U.S.C. § 1983, in connection

with Defendants’ investigation and prosecution of alleged sexual misconduct

while he worked for the Arapahoe County Sheriff as a prison guard.” Id. at 117.

In particular, immediately following the underlined heading “M alicious

Prosecution,” M r. Robinson argued the following: “The U.S. Constitution, and the

4 th and 14 th Amendments, prohibit arbitrary police conduct.” Id. at 127 (emphasis

added). Further, M r. Robinson posited that he “can establish a liberty-based

claim for malicious prosecution.” Id. at 130. However, he did not expand on this

theory, because the defendants “ha[ve] not challenged that aspect of this case.”

Id.

      In their reply, the defendants complained that M r. Robinson had

sandbagged them by asserting claims beyond the denial of due process in

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connection with his employment, in particular, his assertion of a malicious

prosecution claim under the Fourth and Fourteenth Amendments. Nonetheless,

they urged the district court to dismiss this claim because M r. Robinson had

failed to plead a violation of his Fourth A mendment rights and could not establish

the elements of a malicious prosecution claim.

      W hile the defendants’ motion for summary judgment was pending, the

magistrate judge conducted a scheduling conference at which the following

exchange with M r. Robinson’s counsel took place:

            The Court: So I’m not clear what the constitutional right is that
      you’re going after for your client.

            The Lawyer: Okay. The unreasonable police conduct being
      alleged and the cases that we’ve cited under 1983 indicate that
      malicious or abusive conduct in the course of prosecuting an
      individual in a criminal action can support a federal 1983 action.
      And that’s essentially –

            The Court: Yeah, but what’s the constitutional right? 1983 is
      the vehicle by which you get here. So unreasonable police conduct
      could be a state tort, but what is it in federal law ? That’s what I’m
      having trouble with.

             The Lawyer: Okay. As I understand it, Your Honor, the line of
      cases and authority that we’re relying on have looked to both
      procedural and substantive due process in terms of analyzing whether
      or not police or prosecutorial misconduct during a criminal case
      gives rise to a cause of action. The argument would be two-fold.
      One, procedural due process w as denied by the delay of the sheriff’s
      department and Sergeant Dempsey in producing under a prosecuting
      district attorney’s office exculpatory information. And that that [sic]
      also rises to the level of a substantive due process violation.

             ....

                                         -4-
             The Court: I’m still having trouble with the constitutional
      right. And the substantive due process is just the fundamental
      unfairness of that.

             The Lawyer: Of prolonging a criminal prosecution and, you
      know, misleading the prosecution and the criminal defendant about
      the existence of exculpatory information.

Id. at 289-90. As part of a minute order, the magistrate judge indicated that the

“Constitutional rights the Plaintiff claims were violated by the D efendants are

procedural and substantive due process.” Id. at 220.

      In its order for summary judgment, the district court cited the minute order

that characterized M r. Robinson’s § 1983 claim as an alleged violation of

“procedural and substantive due process,” id. at 257 & n.3, and refused to address

whether he also was asserting “a constitutional claim of malicious prosecution.”

Id. at n.3. As to the substantive and procedural due process claims, the court

found that because their was no custom or policy of the sheriff’s department at

issue in the case, M r. Robinson could not state a claim against the defendant

Grayson Robinson, who was sued only in his official capacity. As to the

defendants Joseph Dempsey (a sergeant), and John Does I–X, the court held that

M r. Robinson did not have a property interest in his job because he was an at-will

employee, and his decision to resign from the department precluded a procedural

due process claim based upon an alleged deprivation of a liberty interest.

      In a motion for reconsideration, M r. Robinson argued that the district court

mistakenly relied on the minute-order summary for its finding that he had

                                         -5-
withdrawn his claim for malicious prosecution under the Fourth and Fourteenth

Amendments. In response, the court ruled that even if he could state a

constitutional claim for malicious prosecution, any such claim arises exclusively

under the Fourth Amendment, and no such claim was ever pled. Accordingly, the

court denied the motion for reconsideration, and this appeal followed.

                                 II. D ISC USSIO N

      W e conclude that the district court’s order was based on a misreading of

the law and M r. Robinson’s pleadings. In Pierce v. Gilchrist, 359 F.3d 1279

(10th Cir. 2004), this court held that depending upon the underlying facts the

constitutional tort of malicious prosecution may be properly analyzed under either

the Fourth or Fourteenth Amendments. “The initial seizure is governed by the

Fourth Amendment, but at some point after arrest, and certainly by the time of

trial, constitutional analysis shifts to the Due Process Clause.” Id. at 1285-86

(citations omitted). Although it is far from a model of clarity, M r. Robinson’s

complaint expressly refers to the Fourth Amendment as one ground for his

constitutional claims. And, while it is similarly opaque, M r. Robinson’s

opposition brief adequately highlights the fact that his malicious prosecution

claim rests on both the Fourth and the Fourteenth Amendments. Therefore, the

district court erred in its interpretation of the scope and substance of

M r. Robinson’s pleadings.




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      Further, based upon our review of the transcript of the scheduling

conference, we cannot conclude that M r. Robinson waived his malicious

prosecution claim. 2 As a general rule, “[a] party’s w aiver of the right to assert a

claim must be knowing and voluntary.” Stafford v. Crane, 382 F.3d 1175, 1180

(10th Cir. 2004). Consequently, courts have been reluctant to find waiver when a

party’s statements or actions are equivocal or ambiguous, even when they appear

to conflict with the party’s express pleading averments. See id. at 1179-81; see

also Pereira v. Farace, 413 F.3d 330, 341 (2d Cir. 2005), cert. denied, 126 S. Ct.

2286 (2006) (holding that bankruptcy trustee “who sought (and, indeed, properly

alleged in his complaint) compensatory damages” (emphasis added) did not waive

this claim by alleging, in response to the defendants’ request for jury trial, that he

was entitled to equitable restitution instead); cf. United States v. Teague, 443 F.3d

1310, 1317 (10th Cir. 2006) (noting that whether a waiver was knowing and

voluntary “would ordinarily be in doubt when a party is silent or is responding to




2
        Nor, on this record, can we conclude that M r. Robinson forfeited his right
to litigate his malicious prosecution claim by failing to object to the magistrate
judge’s brief minute-order summary, which made no mention of this claim. Cf.
Gargiulo v. Delsole, 769 F.2d 77, 78 (2d Cir. 1985) (“find[ing] no merit” in the
argument that “plaintiffs failed to preserve their right to a jury trial by failing to
object to the court notice that the case was on a nonjury calendar”). See generally
United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006) (discussing the
distinction between “waiver” and “forfeiture”; the latter is “the failure to make
the timely assertion of a right”), cert. denied, 127 S. Ct. 247 (2006).


                                          -7-
a request from another party or the court” (emphasis added)), cert. denied,

127 S. Ct. 247 (2006).

      The record of M r. Robinson’s colloquy with the magistrate judge does not

reflect that he unequivocally and unambiguously indicated his intent to waive his

malicious prosecution claim. In particular, the mere fact that M r. Robinson

stipulated to certain claims does not necessarily mean that he waived his right to

litigate other claims.

      In this regard, our decision in Stafford is instructive. There, in his

complaint, plaintiff sought a declaratory judgment that a trust was void ab initio.

382 F.3d at 1179. He subsequently entered into a stipulation with the defendant

that the trust w as void as of the date of the stipulation, M ay 9, 2002, and that its

assets could be transferred into a trust of plaintiff’s creation. Id. at 1179, 1181.

The district court entered an agreed order based upon the stipulation. Id. at 1179.

The defendant argued unsuccessfully at the commencement of the trial that

plaintiff waived his claim that the trust was void ab initio by entering into the

stipulation, because he did not explicitly reserve the claim. Id.

      W e “disagre[ed]” with defendant’s contention that “stipulating that the

Trust was null and void as of M ay 9, 2002, was inconsistent with or preclusive of

a claim that the Trust was void ab initio. A determination of the former does not

include a determination of the latter.” Id. at 1181. W e also made the following

significant observation: “From the plain language of the stipulation, the only

                                           -8-
issue resolved was that the Trust was null and void; nothing in the stipulation or

the order speaks to the creation of the Trust or its status previous to the

stipulation.” Id. Noting that waivers of the right to assert claims must be

knowing and voluntary, we held that “[i]n the absence of” explicit language in

“the stipulation or the resulting court order” that the parties “have agreed that the

Trust was at any time valid or that it was not void ab initio,” we could not

conclude that plaintiff had w aived the right to litigate his ab initio contention.

Id. at 1180.

      Similarly, in his complaint M r. Robinson alleged, inter alia, a

constitutional claim predicated upon the Fourth Amendment, which partially

encompassed his malicious prosecution claim, and we cannot conclude that

M r. Robinson’s counsel waived this claim simply because he agreed in his

colloquy with the magistrate judge that M r. Robinson was asserting constitutional

procedural and substantive due process claims. Pursuing the latter set of claims

did not naturally preclude him from pursuing the former (i.e., the malicious

prosecution claim). And M r. Robinson’s counsel did not expressly discard his

malicious prosecution claim; he simply was silent about it. Therefore, we hold

that M r. Robinson did not waive his malicious prosecution claim.

      Accordingly, the district court’s judgment is REVERSED, but only insofar

as it effected the dismissal of M r. Robinson’s constitutional claim for malicious

prosecution. The case is REM AND ED to the district court for further

                                           -9-
proceedings consistent with this order and judgment. W e express no opinion

regarding the merits of M r. Robinson’s malicious prosecution claim under either

the Fourth Amendment or the Fourteenth Amendment’s Due Process Clause.


                                                   Entered for the Court



                                                   Jerome A. Holmes
                                                   Circuit Judge




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