                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           June 5, 2012
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                       TENTH CIRCUIT


 PHILLIP CHARLES BARHAM,

                Plaintiff–Appellant,

           v.                                                  No. 11-8058
                                                     (D.C. No. 1:10-CV-00261-SWS)
 TOWN OF GREYBULL WYOMING;                                      (D. Wyo.)
 GREYBULL POLICE DEPARTMENT;
 BILL BRENNER, Police Chief;
 MATTHEW MILLER, Police Officer, in
 his individual capacity; BEN
 MAYLAND, Police Officer, in his
 individual capacity,

                Defendants–Appellees.


                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HARTZ, Circuit Judges.


       Plaintiff was arrested and detained in a county detention center for 224 days on a

$750,000 bond based on sexual assault allegations made against him by a thirteen-year-

old girl and two adult women. After all of the charges against him were dismissed,

Plaintiff filed this § 1983 action against the officer who swore out the affidavits for his

arrest and search warrants, two other police officers who were involved in executing these


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
warrants, the town police department, and the town itself. In his complaint, Plaintiff

raised claims of unlawful arrest and detention, unlawful search and seizure, excessive

force, and “embarrassment, ridicule, and loss of enjoyment of life.” (Appellant’s App. at

44.) The district court granted summary judgment to all Defendants on all claims except

for Plaintiff’s excessive force claim against the arresting officer. We have appellate

jurisdiction over this appeal pursuant to the district court’s certification of partial final

judgment under Rule 54(b).

         As an initial matter, we hold that the district court appropriately decided to convert

Defendants’ motions to dismiss into motions for summary judgment. In accordance with

Rule 12(d), the district court gave the parties notice of its intent to do so and provided

them with ten days to submit any additional exhibits. We see no error in this decision,

and we therefore reject Plaintiff’s argument that some other standard of review should

apply. The district court applied the correct summary judgment standards to this case,

and we will apply these same standards in our de novo review of the district court’s grant

of summary judgment. See Koch v. City of Del City, 660 F.3d 1228, 1237-38 (10th Cir.

2011).

         We first consider Plaintiff’s claims relating to his arrest and the first search of his

residence based on the alleged minor victim’s allegations. Plaintiff does not contend the

preparing officer knowingly included any false information in the affidavits in support of

the arrest and search warrants. Rather, he argues the officer failed to conduct an adequate

investigation into the minor’s claims before preparing the affidavits. To support this

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argument, Plaintiff focuses mainly on two facts: (1) the fact he has a prosthesis on his

lower left leg; and (2) the fact he had a radical retropubic prostatectomy in 2006 that

made him incapable of ejaculating semen. As for the first fact, Plaintiff argues the

minor’s story was called into doubt when the police asked her to describe Plaintiff’s legs

and she simply stated that he had hairy calves. Plaintiff argues the police should have

followed up on this reply and should have asked further questions regarding the

prosthesis. He also argues the officers should have included this information in the

affidavits. As for his inability to ejaculate semen, Plaintiff alleges the officer who

prepared the affidavit was aware of Plaintiff’s prostate surgery based on a conversation

they had in 2006, and Plaintiff contends a reasonable police officer would have (1)

remembered this information, (2) realized that prostate surgery might make a man

incapable of ejaculating semen, (3) conducted a further investigation to determine

whether Plaintiff’s prostate surgery had this result, and (4) asked the minor whether

Plaintiff ejaculated semen during the alleged sexual assaults.

       “[I]n the context of an unlawful arrest, not only must the plaintiff demonstrate that

the officer arrested h[im] without probable cause (that is, that he violated a constitutional

right), but also that it would have been clear to a reasonable officer that probable cause

was lacking under the circumstances (that is, that the right was clearly established in the

specific situation).” Koch, 660 F.3d at 1241. Similarly, the individual officers will be

entitled to qualified immunity on Plaintiff’s unlawful-search claim unless Plaintiff can

show both that the search was without probable cause and that it would have been clear to

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a reasonable officer that probable cause was lacking.

       After reviewing the record, we conclude that the officers had probable cause to

arrest Plaintiff and search his residence. The minor gave specific details regarding

several alleged sexual assaults, including some that allegedly occurred at Plaintiff’s

residence, and the officer who prepared the affidavit knew from personal observation that

the minor’s description of Plaintiff’s residence was accurate. The state judge concluded,

and we agree, that the minor’s allegations were sufficient to establish probable cause. Cf.

Easton v. City of Boulder, 776 F.2d 1441, 1449-50 (10th Cir. 1985); see also

Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (“Where the alleged Fourth

Amendment violation involves a search or seizure pursuant to a warrant, the fact that a

neutral magistrate has issued a warrant is the clearest indication that the officers acted in

an objectively reasonable manner . . . .”). We are not persuaded that the minor’s failure to

mention the lower-leg prosthesis was sufficient to vitiate probable cause, which “does not

require certainty of guilt or even a preponderance of evidence of guilt, but rather only

reasonably trustworthy information that would lead a reasonable person to believe an

offense was committed.” United States v. Patane, 304 F.3d 1013, 1018 (10th Cir. 2002),

reversed on other grounds, 542 U.S. 630 (2004). Even if this fact had been mentioned in

the affidavit, the affidavit still contained more than enough reasonably trustworthy

information to give rise to probable cause. Nor can the police officers be found

constitutionally liable based simply on their failure to ask the minor any questions about

the prosthesis or about ejaculation. The officers’ failure to ask these questions did not

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rise to the level of reckless disregard for the truth. At most, Plaintiff’s arguments allege

the investigation was negligent, but this is insufficient to establish a constitutional

violation under Romero v. Fay, 45 F.3d 1472, 1477-78 (10th Cir. 1995). See also Ricciuti

v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). (“Once a police officer has a

reasonable basis for believing there is probable cause, he is not required to explore and

eliminate every theoretically plausible claim of innocence before making an arrest.”).

       We turn next to Plaintiff’s claim that Defendants violated his constitutional rights

by obtaining and executing two subsequent search warrants based on the stories of the

two alleged adult victims. Again, Plaintiff does not contend Defendants knowingly

included any false information in the affidavits in support of these warrants. Rather, he

argues the officers failed to conduct an adequate investigation. He points for support to

later-discovered evidence that shows several flaws in the alleged victims’ stories. Again,

however, we conclude that any inadequacies in the investigation did not rise to the level

of recklessness and thus fail to establish a constitutional violation under Romero v. Fay,

45 F.3d at 1479. And, like the state court judge, we conclude that the officers had

probable cause at the time the warrants were obtained and executed.

       At oral argument, Plaintiff contended his constitutional rights were also violated

by Defendants’ execution of the search warrant, in that the officers failed to properly

mark or identify property they seized, with the result that not all of his property was

returned to him. The district court concluded that this allegation should be treated as a

state law claim for conversion, which the court declined to exercise supplemental

                                              -5-
jurisdiction over. In his opening brief, Plaintiff did not dispute this characterization of his

claim or the district court’s decision not to exercise supplemental jurisdiction over it, and

we therefore decline to consider any arguments regarding this claim. See United States v.

Osterlund, 671 F.2d 1267, 1267 n.2 (10th Cir. 1982) (“Because this issue was raised for

the first time during oral argument, we need not reach this issue on appeal.”).

       Plaintiff suggests his constitutional rights were also violated by the filing of

charges against him. However, Plaintiff has not asserted any legal basis on which

Defendants could be found liable for the prosecutor’s decision to file charges. He does

not allege or show that Defendants exerted any pressure or influence or made any

knowing misstatements to the prosecutor, and thus the chain of causation was broken by

the prosecutor’s decision to file charges as well as by the state court’s decision to bind

Plaintiff over at the preliminary hearing. See Taylor v. Meacham, 82 F.3d 1556, 1564

(10th Cir. 1996).

       We turn next to Plaintiff’s argument that his constitutional rights were violated by

his 224-day detention on charges that were later dismissed. He contends there were

problems with the alleged victims’ stories, particularly relating to Plaintiff’s inability to

ejaculate semen, and he argues a reasonable law enforcement officer would have

investigated these problems and attempted to obtain Plaintiff’s release earlier. As we

stated in Romero, it is not clear that individuals have a constitutional right to a reasonable

post-arrest investigation. See Romero, 45 F.3d at 1478. To the extent there is such a

right, it must be based on “facts that, at a minimum, demonstrate Defendants acted with

                                              -6-
deliberate or reckless intent.” Id. After thoroughly reviewing the record, we conclude

that the officers’ post-arrest investigation was, at most, negligent. Thus, Plaintiff has not

shown the officers’ conduct during his detention violated any potential constitutional

right to a reasonable post-arrest investigation.

       Finally, we hold that the district court appropriately granted summary judgment to

Defendants on Plaintiff’s claims of public embarrassment and loss of enjoyment of life on

the basis that these alleged injuries can only serve as the basis for damages and do not

constitute a constitutional violation in themselves. We also affirm the district court’s

entry of summary judgment in favor of the police department and town on the basis that

Plaintiff did not identify any policy, practice, or custom that would give rise to municipal

liability. We further affirm the district court’s entry of summary judgment on Plaintiff’s

excessive force claim as to all Defendants except the arresting officer.

       Thus, for the foregoing reasons and for substantially the same reasons given by the

district court, we AFFIRM the district court’s entry of summary judgment as to all

claims and all Defendants except Plaintiff’s excessive force claim against the arresting

officer.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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