                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        MAY 19 1999
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    RODNEY POWELL,

               Plaintiff-Appellant,

    v.                                                  No. 98-2225
                                                  (D.C. No. CIV-97-1178)
    DANNY RAY CARTER, individually                       (D. N.M.)
    and as a member of the Hobbs Police
    Department; CITY OF HOBBS,

               Defendants-Appellees,

         and

    HOBBS POLICE DEPARTMENT;
    JOHN DOES, I-V; KEELING
    PETROLEUM, doing business as
    Fina Truck Stop,

               Defendants.




                             ORDER AND JUDGMENT         *




Before TACHA , BARRETT , and MURPHY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Rodney Powell, an inmate appearing pro se, appeals from

the district court’s grant of summary judgment to defendants-appellees on his

42 U.S.C. § 1983 civil rights complaint for malicious prosecution and false arrest

and false imprisonment in violation of the Fourth Amendment. Mr. Powell was

arrested by Detective Danny Carter on a New Mexico robbery charge. He was

found not guilty following a jury trial, and he is presently incarcerated on an

unrelated matter. He sued the City of Hobbs and Detective Carter in his

individual and official capacities.   1
                                          We affirm.

       “[T]he common law elements of malicious prosecution [are] the ‘starting

point’ for the analysis of a § 1983 malicious prosecution claim.”     Taylor v.

Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996). In order to establish a malicious

prosecution claim under § 1983, the plaintiff must also prove a Fourth

Amendment constitutional violation.         See id. “Under New Mexico state tort law,

lack of probable cause to initiate criminal proceedings is an essential element



1
      Mr. Powell’s complaint named various other parties, but those parties have
been dismissed by the district court and are not the subject of this appeal.

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of the tort of malicious prosecution.”    Wolford v. Lasater , 78 F.3d 484, 489

(10th Cir. 1996). “Probable cause for an arrest warrant is established by

demonstrating a substantial probability that a crime has been committed and that

a specific individual committed the crime.”         Id. Here, the district court granted

defendants’ motion for summary judgment, finding that, on the undisputed facts

before it, probable cause to arrest Mr. Powell existed as a matter of law, thereby

eliminating any constitutional basis for his false arrest, false imprisonment, and

malicious prosecution claims.

       We review de novo the district court’s grant of summary judgment, viewing

the record in the light most favorable to the party opposing summary judgment.

See McKnight v. Kimberly Clark Corp.      , 149 F.3d 1125, 1128 (10th Cir. 1998).

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.        See Celotex Corp. v.

Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).

       After a de novo review of the parties’ briefs and contentions, the district

court’s order, and the entire record on appeal, this court finds no reversible error.

We agree with the district court’s conclusion that defendants had probable cause

to arrest Mr. Powell for the robbery and that Mr. Powell failed to establish that

defendants knowingly or recklessly omitted from the arrest warrant information




                                              -3-
which was critical to the showing of probable cause.    See Beard v. City of

Northglenn , 24 F.3d 110, 114 (10th Cir. 1994).

      Mr. Powell contends on appeal that the district court erred in ruling on

the summary judgment motion without reviewing a videotape of the robbery and

other evidence he asserts are relevant to his claim. Defendants presented an

affidavit demonstrating that they conducted a diligent search, but were unable to

locate the videotape. There was no evidence that the videotape was lost or

destroyed in bad faith. In light of the defendants’ diligent, but ultimately

unsuccessful search, it was proper for the district court to consider the evidence

offered by the parties concerning the contents of the videotape, viewed in the

light most favorable to Mr. Powell.    See Fed. R. Evid. 1004. As to the trial

transcripts and other materials Mr. Powell now argues on appeal should have been

considered by the district court, we note that Mr. Powell failed to file an affidavit

before the district court under Fed. R. Civ. P. 56(f) explaining why he could not

respond to the summary judgment motion without additional discovery. Because

Mr. Powell failed “to take advantage of the shelter provided by Rule 56(f) by

filing an affidavit, there [was] no abuse of discretion in granting summary

judgment” since it was otherwise appropriate.     Pasternak v. Lear Petroleum

Exploration, Inc. , 790 F.2d 828, 832-33 (10th Cir. 1986).




                                           -4-
      Mr. Powell’s motion for the appointment of counsel is DENIED. His

motions to present on appeal additional evidence which was not presented to the

district court are DENIED. The judgment of the United States District Court for

the District of New Mexico is AFFIRMED for substantially the same reasons set

forth in its order granting summary judgment dated July 17, 1998.



                                                  Entered for the Court



                                                  Michael R. Murphy
                                                  Circuit Judge




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