                                                                       FILED
                                                           United States Court of Appeals
                                PUBLISH                            Tenth Circuit

               UNITED STATES COURT OF APPEALS                     April 24, 2018

                                                              Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                       Clerk of Court
                      _________________________________

MARIANO MOYA, LONNIE
PETRY, on behalf of themselves and
all others similarly situated,

      Plaintiffs-Appellants,

v.                                                  No. 17-2037

ROBERT GARCIA, Santa Fe County
Sheriff; MARK CALDWELL,
Warden of Santa Fe County Adult
Correctional Facility; MARK
GALLEGOS, former Warden of
Santa Fe County Adult Correctional
Facility, in their individual
capacities; BOARD OF
COMMISSIONERS OF SANTA FE
COUNTY,

      Defendants-Appellees.
                    _________________________________

             Appeal from the United States District Court
                    for the District of New Mexico
                (D.C. No. 1:16-CV-01022-WJ-KBM)
                     _________________________________

A. Nathaniel Chakeres (Todd A. Coberly with him on the briefs), of
Coberly & Martinez, LLLP, Santa Fe, New Mexico, for Plaintiffs-
Appellants.

Brandon Huss of The New Mexico Association of Counties, Santa Fe, New
Mexico, for Defendants-Appellees.
                      _________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
                         _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

      This appeal involves claims of overdetention by Mr. Mariano Moya

and Mr. Lonnie Petry. Both men were arrested based on outstanding

warrants and detained in a county jail for 30 days or more prior to their

arraignments. These arraignment delays violated New Mexico law, which

requires arraignment of a defendant within 15 days of arrest. N.M. Stat.

Ann. § 31-1-3; Rule 5-303(A) NMRA.

      The arraignment delays led Mr. Moya and Mr. Petry to sue under 42

U.S.C. § 1983 for deprivation of due process, alleging claims against

           Sheriff Robert Garcia, Warden Mark Caldwell, and former
            Warden Mark Gallegos in their individual capacities under
            theories of personal participation and supervisory liability and

           the Board of Commissioners of Santa Fe County under a theory
            of municipal liability.

The district court granted the defendants’ motion to dismiss for failure to

state a valid claim. We affirm because Mr. Moya and Mr. Petry failed to

plausibly allege a factual basis for liability. 1




1
     The complaint contains claims based on both substantive and
procedural due process. Based on our disposition, we need not distinguish
between the claims involving procedural and substantive due process.

                                         2
I.    Standard of Review

      We engage in de novo review of the dismissal under Federal Rule of

Civil Procedure 12(b)(6). Albers v. Bd. of Cty. Comm’rs, 771 F.3d 697, 700

(10th Cir. 2014). In engaging in this review, we credit the well-pleaded

allegations in the complaint and construe them favorably to the plaintiffs.

Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014). To withstand

dismissal, the plaintiffs’ allegations must “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). The claim is plausible only if it contains sufficient factual

allegations to allow the court to reasonably infer liability. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

II.   Supervisory Liability

      The individual defendants served as the sheriff and wardens of the

jail where Mr. Moya and Mr. Petry were detained. These defendants could

potentially incur liability under § 1983 if they had acted under color of

state law. 42 U.S.C. § 1983. But § 1983 is not always available against

individual officials because they enjoy qualified immunity when their

conduct does not violate “‘clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Cordova v. City

of Albuquerque, 816 F.3d 645, 655 (10th Cir. 2016) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)).



                                       3
      To avoid qualified immunity at the motion-to-dismiss stage, a

plaintiff must show that

              “‘the defendant’s [alleged conduct] violated a constitutional or
               statutory right’” and

              “the right was ‘clearly established at the time of the
               [violation].’”

Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (quoting Archuleta

v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)). There are two questions

at the first step:

          1.   whether the plaintiff has adequately alleged the violation of a
               constitutional or statutory right and

          2.   whether the defendant’s alleged conduct deprived the plaintiff
               of that right.

See Dodds v. Richardson, 614 F.3d 1185, 1192-94 (10th Cir. 2010)

(engaging in this two-part analysis of the first step of qualified immunity).

      The first question is whether Mr. Moya and Mr. Petry have

adequately alleged a deprivation of due process. We need not decide this

question because of our answer to the second question: in our view, the

complaint does not plausibly allege facts attributing the potential

constitutional violation to the sheriff or wardens. 2


2
      Even if the defendants had not asserted qualified immunity, Mr.
Moya and Mr. Petry would have needed to adequately allege facts showing
causation. See 42 U.S.C. § 1983 (“Every person who, under color of [state
law], subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any

                                         4
      To prevail, Mr. Moya and Mr. Petry must have alleged facts showing

that the sheriff and wardens had been personally involved in the underlying

violations through their own participation or supervisory control. Dodds v.

Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010); see also Brown v.

Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (“A § 1983 defendant sued

in an individual capacity may be subject to personal liability and/or

supervisory liability.”). The district court rejected both theories of

liability. Here, though, Mr. Moya and Mr. Petry rely only on their theory

of supervisory liability. For this theory, Mr. Moya and Mr. Petry blame the

sheriff and wardens for the delays in the arraignments. In our view,

however, the sheriff and wardens did not cause the arraignment delays. 3

      A plaintiff may succeed on a § 1983 supervisory-liability claim by

showing that the defendant

           “promulgated, created, implemented or possessed responsibility
            for the continued operation of a policy that . . . caused the
            complained of constitutional harm” and

           “acted with the state of mind required to establish the alleged
            constitutional deprivation.”


[federal right], shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.”); see also Martin A.
Schwartz, Section 1983 Litigation 91 (3d ed. 2014) (“The proximate cause
requirement applies to all § 1983 claims.”).
3
      The dissent disagrees with our causation analysis. In our view,
however, the dissent stretches both the plaintiffs’ theory of liability and
the standard of causation applicable to § 1983 claims.

                                       5
Dodds, 614 F.3d at 1199. But the arraignments could not be scheduled by

anyone working for the sheriff or wardens; scheduling of the arraignments

lay solely with the state trial court.

      Mr. Moya and Mr. Petry disagree, relying on Wilson v. Montano, 715

F.3d 847 (10th Cir. 2013). There two sheriff’s deputies arrested Mr.

Wilson without a warrant. Wilson, 715 F.3d at 850. He was taken to jail

and detained for eleven days without the filing of a complaint or an

opportunity for a probable-cause determination. Id. Mr. Wilson sued the

sheriff and the warden, alleging that they (1) had routinely allowed

deputies to make arrests without warrants and (2) had failed to file

criminal complaints or bring the arrestees to court. Id. at 851. The Wilson

court upheld supervisory liability, reasoning that under New Mexico law

the sheriff and the warden were responsible for running the jail and

ensuring prompt probable-cause determinations. Id. at 856-58.

      Wilson differs from our case on who controlled the situation causing

the overdetention. In Wilson, the sheriff and the warden were in control

because (1) deputy sheriffs had arrested Mr. Wilson and (2) the warden’s

staff had detained Mr. Wilson without a warrant. These facts proved

decisive because (1) New Mexico law requires the sheriff to “diligently

file a complaint or information,” N.M. Stat. Ann. §§ 4-37-4, 29-1-1, and

(2) the sheriff’s staff had never filed a complaint against Mr. Wilson.

Wilson, 715 F.3d at 851, 853. Without a complaint, the court could not

                                         6
make a probable-cause determination. By preventing a probable-cause

determination, the sheriff impeded the criminal-justice process; and the

warden exacerbated the delay by detaining Mr. Wilson for eleven days

without a court order. Id. at 857-59.

      In contrast, the court was firmly in control here. Grand juries

indicted Mr. Moya and Mr. Petry, and both individuals were arrested based

on outstanding warrants issued by the court. And after these arrests, jail

officials notified the court that Mr. Moya and Mr. Petry were in custody.

      The arrests triggered New Mexico’s Rules of Criminal Procedure,

which entitled Mr. Moya and Mr. Petry to arraignments within fifteen days.

Rule 5-303(A) NMRA. Compliance with this requirement lay solely with

the court, for an arraignment is a court proceeding that takes place only

when scheduled by the court. See People v. Carter, 699 N.E.2d 35, 38

(N.Y. 1998) (“Responsibility for scheduling an arraignment date and

securing a defendant’s appearance lies with the court, not the People.”).

      The court failed to comply with this requirement, resulting in

overdetention of Mr. Moya and Mr. Petry. These overdetentions were

caused by the court’s failure to schedule and conduct timely arraignments

rather than a lapse by the sheriff or wardens. See Webb v. Thompson, 643

F. App’x 718, 726 (10th Cir. 2016) (unpublished) (Gorsuch, J., concurring

in part and dissenting in part) (“[T]he only relevant law anyone has cited

to us comes from state law, and it indicates that the duty to ensure a

                                        7
constitutionally timely arraignment in Utah falls on the arresting officer—

not on correctional officers.”).

      Mr. Moya and Mr. Petry argue that the sheriff and wardens could

have mitigated the risk of overdetention by keeping track of whether

detainees had been timely arraigned, requesting arraignments for those who

had been overdetained, or bringing detainees to court prior to a scheduled

arraignment. But the sheriff and wardens did not cause the overdetention.

At most, the sheriff and wardens failed to remind the court that it was

taking too long to arraign Mr. Moya and Mr. Petry. But even with such a

reminder, the arraignments could only be scheduled by the court itself. See

Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th

Cir. 1999) (holding that the county did not cause the overdetention,

reasoning that the county could only ask for federal help and that the

county lacked the “ability itself to bring the prisoner before the

appropriate judicial officer”). 4


4
      The dissent points out that (1) Estate of Brooks involved a federal
detainee’s claim against a county and (2) our case involves a state
detainee. Dissent at 14 n.7. This difference shrouds the underlying
rationale in Estate of Brooks. There the court reasoned that the county’s
policies did not cause the overdetention because the county lacked
authority to release the detainee or bring him before a federal magistrate
judge. Estate of Brooks, 197 F.3d at 1248. Here the defendants did not
cause the overdetention because they could not have initiated an
arraignment and, as discussed below, the plaintiffs have disavowed any
argument that the sheriff or wardens could have ordered release. See pp.
10-11, below.

                                      8
      The plaintiffs rely in part on Armstrong v. Squadrito, 152 F.3d 564

(7th Cir. 1998), and Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470 (9th

Cir. 1992). In those cases, a clerical error prevented the court from

discovering the arrests and the need to schedule arraignments. 5 But here,

Mr. Moya and Mr. Petry do not allege a failure to tell the court of their

arrests in sufficient time to conduct the arraignments within fifteen days.

      Mr. Moya and Mr. Petry also rely on Jauch v. Choctaw County, 874

F.3d 425 (5th Cir. 2017), and Hayes v. Faulkner County, 388 F.3d 669 (8th

Cir. 2004). But the conclusions in Jauch and Hayes are not precedential,

pertinent, or persuasive.

      In Jauch, the sheriff’s office adopted a procedure of holding

defendants in jail without any court proceeding until the reconvening of

the circuit court that had issued the capias warrants. Jauch, 874 F.3d at

430, 435. This procedure resulted in detention for 96 days, with jail

officials rejecting the defendant’s requests to be brought before a judge.

Id. at 428. The Fifth Circuit Court of Appeals held that the sheriff could



      Although the circumstances differed in Estate of Brooks, the court
reasoned that the jailers’ limited powers prevented causation. That
rationale is applicable and persuasive.
5
      Oviatt arguably implies that jailers can cause an arraignment delay
by failing to remind a court to schedule the arraignment. To the extent that
Oviatt draws this implication, we disagree.


                                      9
incur liability for the institution of this unconstitutional policy. Id. at 436-

37. 6

        In our view, Jauch bears limited applicability. Jauch rested on

Mississippi law and the jailers’ authority to release detainees when they

had been detained too long without an opportunity for bail. Id. In

interpreting Mississippi law, the court pointed to Sheffield v. Reece, 28 So.

2d 745, 748 (Miss. 1947), which had required sheriffs to prevent detention

“‘for an unreasonable length of time.’” Jauch, 874 F.3d at 437 (quoting

Sheffield, 28 So. 2d at 748). As Jauch pointed out, Sheffield had

recognized the responsibility of the sheriff to release an arrestee who has

been detained too long without bail. Id. at 437.

        Here, however, Mr. Moya and Mr. Petry have not alleged that they

could have been released. To the contrary, they expressly disavowed this

theory in their opening brief:

        [The district court] . . . noted that the [county jail] was legally
        prohibited from releasing detainees without a valid court order.

               Yet Mr. Moya and Mr. Petry never argued that
        Defendants should have unconditionally released them from
        jail, so the fact that the [county jail] may have been prohibited
        from releasing them absent a court order is irrelevant.




6
     On the basis of the sheriff’s policy, the county also incurred liability.
Jauch, 874 F.3d at 436.


                                        10
Appellants’ Opening Br. at 29 (citation omitted). In light of this disavowal

of an argument that Mr. Moya and Mr. Petry should have been released,

Jauch provides little guidance on what the sheriff and wardens could have

done to avoid the due process violations other than remind the state trial

court of its failure to schedule timely arraignments. 7

      Hayes, too, provides little that is pertinent or persuasive. There an

arrestee alleged that (1) he should have been brought before a judge in a

timely manner and (2) no one from the jail had told him when his court


7
      In Jauch, the Fifth Circuit Court of Appeals recently denied a
petition for rehearing en banc. See Jauch v. Choctaw Cty., ___ F.3d ___, No.
16-60690, 2018 WL 1542262 (5th Cir. Mar. 29, 2018) (Southwick, J.,
dissenting from denial of rehearing en banc). Judge Southwick—joined by
five other judges—dissented from the denial, arguing that the sheriff
should have obtained qualified immunity. Id. at *1. In making this
argument, the dissent concluded that

           under Mississippi law, the state district court had the sole
            responsibility to schedule an arraignment and

           no federal law clearly established that the sheriff would violate
            the U.S. Constitution by following state law.

Id. at *4-6. In reaching these conclusions, the dissent observed that under
Mississippi law, the jailers could not prevent the overdetention because the
state district court had the exclusive authority to schedule and conduct
arraignments. See id. at *1 (“I cannot discern how these defendants had
any effect on when this plaintiff was considered for release.”); id. (“There
was no obligation on the sheriff to have Jauch arraigned because that is a
duty that falls elsewhere.”); id. at *4 (“The clear responsibilities relevant
to this case are those of the county’s circuit court judges.”); id. (“There
was no obligation on the sheriff to have Jauch arraigned because that is a
duty that falls elsewhere.”).


                                      11
date was (even though one had been set at the time of arrest). Hayes v.

Faulkner Cty., 388 F.3d 669, 672 (8th Cir. 2004). The Eighth Circuit Court

of Appeals concluded that an extended detention without a first

appearance, after an arrest by warrant, violated the Due Process Clause of

the Fourteenth Amendment. Id. at 673. The court added that responsibility

for the arrestee’s overdetention fell on the jailers, who could not delegate

responsibility for the first appearance to the court. Id. at 674.

      But Hayes sheds no light on what the jailers here could have done to

ensure timely court proceedings. In Hayes, the Eighth Circuit apparently

relied on a state procedural rule: Arkansas Rule of Criminal Procedure 8.1.

This rule requires arrestees to be brought before the court “‘without

unnecessary delay.’” Id. at 675 (quoting Ark. R. Crim. P. 8.1).

      Like Arkansas, New Mexico requires “[e]very accused” to be

“brought before a court . . . without unnecessary delay.” N.M. Stat. Ann.

§ 31-1-5(B). Arkansas’s version goes no further, omitting any mention of

who is required to bring the arrestee to court. Ark. R. Crim. P. 8.1. New

Mexico takes a different approach, clarifying elsewhere that the arresting

officer is obligated to bring the defendant to court “without unnecessary

delay.” N.M. Stat. Ann. § 31-1-4(C). 8



8
      This statute did not apply here, for the plaintiffs do not allege that
they were arrested by officers subject to the defendants’ supervisory

                                      12
     Unlike the Arkansas rule, New Mexico’s version of the rule does not

impose any duties on the sheriff or warden to bring an arrestee to court in

the absence of a scheduled arraignment. In light of this difference between

the Arkansas and New Mexico rules, we see nothing in Hayes to tell us

what the sheriff or wardens could have done to provide timely

arraignments for Mr. Moya and Mr. Petry.

     The approach taken in Hayes is also inconsistent with our own

precedent. The Hayes court attributed responsibility to the jailers based

solely on federal law, not state law. By contrast, our precedent directs us

to focus on state law when determining the scope of the defendants’

responsibility to ensure prompt hearings. See Wilson v. Montano, 715 F.3d

847, 854 (10th Cir. 2013) (“We consider New Mexico state law insofar as

it bears on the scope of each appellant’s responsibility to ensure a prompt

probable cause determination.”).

     And as we have discussed, New Mexico law did not require the

sheriff or wardens to bring Mr. Moya and Mr. Petry to court. Accordingly,

once the arresting officers brought Mr. Moya and Mr. Petry to the jail and

the court was notified of the arrests, New Mexico law required the court

(not the sheriff or wardens) to schedule timely arraignments.



authority. We thus have no occasion to decide whether a cause of action
could have been asserted against the arresting officers or their supervisors.

                                     13
       Under New Mexico law, Jauch and Hayes provide little guidance to

us in addressing the issue framed by Mr. Moya and Mr. Petry. They allege

that the state trial court failed to schedule timely arraignments and that the

sheriff and wardens told the court about the arrests early enough for timely

arraignments. But Mr. Moya and Mr. Petry did not sue the court; they sued

the sheriff and wardens, officials that could not have caused the

arraignment delays because of their inability to schedule the arraignments.

III.   The Dissent’s Theory

       The dissent argues that we have analyzed the wrong right. According

to the dissent, the right to an arraignment within fifteen days is “‘an

expectation of receiving process,’” which cannot alone be a protected

liberty interest. Dissent at 4-5, 8, 13 (quoting Olim v. Wakinekona, 461

U.S. 238, 250 n.12 (1983)). Thus, the dissent reasons that the right at issue

must be the right to freedom from pretrial detention rather than the right to

a timely arraignment. Based on this reasoning, the dissent concludes that

our misplaced focus on arraignment has caused us to improperly focus on

the state district court’s role and overlook actions that the defendants

could have taken, such as releasing Mr. Moya and Mr. Petry.

       We have focused on the plaintiffs’ right to timely arraignment

because that’s what the plaintiffs have alleged. As the dissent admits, Mr.

Moya and Mr. Petry are imprecise about their asserted right, conflating the

right to an arraignment within fifteen days of arrest and the right to

                                      14
pretrial release (or bail). This conflation is understandable because the

rights are coextensive under their theory of the case.

      Mr. Moya and Mr. Petry recognize freedom from detention as an

applicable liberty interest. See, e.g., Joint App’x at 7 (stating in the

complaint that the New Mexico Constitution creates a right to pretrial

liberty); id. at 83 (asserting in district court briefing that Mr. Moya and

Mr. Petry “have a liberty interest in not being unnecessarily detained

without the opportunity to post bail”); Appellants’ Opening Br. at 16 (“The

principal protected liberty interest that may be created by state law is the

freedom from detention.”). But Mr. Moya and Mr. Petry also allege a right

to an arraignment within fifteen days of arrest. See, e.g., Joint App’x at 14

(alleging in the complaint that “[b]ecause detainees charged in New

Mexico district courts . . . are guaranteed the right under state law to have

their conditions of release set at the least restrictive level to assure their

appearance and the safety of . . . the community within fifteen days of their

indictment or arrest, they have a federally protected liberty interest in this

right”); id. at 69 (asserting in district court that “Plaintiffs had a liberty

interest in having bail set within fifteen days of their arrest”); Appellants’

Opening Br. at 36 (“In summary, under settled procedural due process

principles, Defendants deprived Mr. Moya and Mr. Petry of their liberty

interest in a prompt pretrial arraignment . . . .”).



                                       15
      Under the theory articulated by Mr. Moya and Mr. Petry, the

defendants violated the right to freedom from detention by failing to

ensure timely arraignments. See, e.g., Appellants’ Opening Br. at 41 (“The

Complaint alleged that the failure to implement any policies ensuring that

detainees appear before a district court within fifteen days of indictment or

arrest caused Mr. Moya and Mr. Petry to be injured.”). The rights are

coextensive to Mr. Moya and Mr. Petry because to them, a violation of the

right to a timely arraignment resulted in violation of their right to freedom

from prolonged detention. 9

      Yet the dissent disregards the claim of delay in the arraignment

because this claim would founder based on the absence of a due-process

violation. The dissent may be right about the absence of a due-process

violation from a delay in an arraignment. 10 But in our view, we should

interpret the claim and appeal based on what the plaintiffs have actually


9
      This link is illustrated by the plaintiffs’ definition of the class. In the
complaint, Mr. Moya and Mr. Petry identified the class to include everyone
detained at the same facility as the named plaintiffs within the previous
three years “who [had not been] brought before a district court within
fifteen days of their indictment or arrest to have their conditions of release
set or reviewed.” Joint App’x at 12-13. Timely arraignment is so
fundamental to Mr. Moya and Mr. Petry’s claims that the fifteen-day
demarcation defines class membership.
10
      As noted above, we have assumed for the sake of argument that the
arraignment delays would result in a deprivation of due process. See p. 4,
above.


                                       16
said rather than which possible interpretation could succeed. In district

court, the plaintiffs based their claim on the delays in arraignments. And

on appeal, the plaintiffs have consistently framed their argument based on

the arraignment delays. The dissent’s theory is not the theory presented by

the plaintiffs. 11

      As discussed above, the defendants were powerless to cause timely

arraignments because arraignments are scheduled by the court rather than

jail officials. The dissent agrees.

      But the dissent theorizes that jail officials could have simply

released Mr. Moya and Mr. Petry. This theory is not only new but also

contrary to what Mr. Moya and Mr. Petry have told us, for they expressly

disavowed this theory: “Mr. Moya and Mr. Petry never argued that

Defendants should have unconditionally released them from jail . . . .”

Appellants’ Opening Br. at 29; see pp. 10-11, above. Thus, Mr. Moya and

Mr. Petry have waived reliance on that theory as a basis for reversal. See

Modoc Lassen Indian Hous. Auth. v. U.S. Dep’t of Hous. & Urban Dev.,

864 F.3d 1212, 1224 n.8 (10th Cir. Jul. 25, 2017) (stating that a theory

never raised was waived as a basis for reversal).


11
      For this reason, we need not decide whether Mr. Moya and Mr. Petry
would have stated a valid claim if they had alleged a broader right to
freedom from pretrial detention (unrelated to Rule 5-303(A)’s fifteen-day
requirement). We are deciding only the validity of the theory advanced by
Mr. Moya and Mr. Petry.

                                      17
      Even if it were otherwise appropriate to raise the issue sua sponte,

the dissent’s theory would create a Catch-22 for jailers. Under New

Mexico law, jailers commit a misdemeanor and must be removed from

office if they deliberately release a prisoner absent a court order. N.M.

Stat. Ann. § 33-3-12. Thus, a jailer would be forced to choose between

committing a crime and facing civil liability under § 1983.

      According to the dissent, jailers can eventually defend themselves

based on the Supremacy Clause. But Mr. Moya and Mr. Petry do not

challenge the constitutionality of the state law preventing release in the

absence of a court order. See Estate of Brooks ex rel. Brooks v. United

States, 197 F.3d 1245, 1248 (9th Cir. 1999) (affirming the dismissal of a

§ 1983 claim involving overdetention when the county defendant was

required under state law to hold the plaintiff detainee until receiving an

order from the United States and the plaintiff made no allegation that the

statute was unconstitutional).

      Even if Mr. Moya and Mr. Petry had challenged the constitutionality

of the state law, the Supremacy Clause would supply cold comfort to a

jailer facing this dilemma, particularly in light of the dissent’s

acknowledgment that there is no bright-line rule for when a delayed

arraignment becomes a due-process violation. See Dissent at 5-11. We need

not decide whether the Constitution would subject jailers to this Catch-22.

                                     * * *

                                      18
      The state trial court’s alleged failure to schedule timely arraignments

cannot be attributed to the sheriff or wardens. Thus, the complaint does not

plausibly allege a basis for supervisory liability of the sheriff or wardens.

IV.   Municipal Liability

      Mr. Moya and Mr. Petry also assert § 1983 claims against the county,

alleging that it failed to adopt a policy to ensure arraignments within

fifteen days. These claims are based on the alleged inaction by the sheriff

and wardens. But, as discussed above, the sheriff and wardens did not

cause the arraignment delays. Thus, the county could not incur liability

under § 1983 on the basis of the alleged inaction. See Schneider v. City of

Grand Junction Police Dep’t, 717 F.3d 760, 777 (10th Cir. 2013); see

generally note 2, above. Therefore, we affirm the dismissal of the claims

against the county.

V.    Leave to Amend

      In opposing dismissal, Mr. Moya and Mr. Petry stated generically

that amendment would not be futile and that they should have the

opportunity to amend if an element were deemed missing from the

complaint. The district court dismissed the complaint without granting

leave to amend. Mr. Moya and Mr. Petry argue that the district court erred

by refusing to allow amendment of the complaint.

      Generally, leave to amend should be freely granted when justice

requires, but amendment may be denied when it would be futile. Full Life

                                      19
Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013). We

conclude that the district court did not err because amendment would have

been futile based on the plaintiffs’ submissions.

      We ordinarily apply the abuse-of-discretion standard when reviewing

a denial of leave to amend. Fields v. City of Tulsa, 753 F.3d 1000, 1012

(10th Cir. 2014). But here, the district court denied leave to amend based

on futility. In this circumstance, “our review for abuse of discretion

includes de novo review of the legal basis for the finding of futility.”

Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d

1232, 1249 (10th Cir. 2009).

      The complaint fails to allege a factual basis for supervisory or

municipal liability. To cure the pleading defect, the plaintiffs needed to

add factual allegations tying the arraignment delays to a lapse by the

sheriff or wardens. The plaintiffs did not say how they could cure this

pleading defect. Instead, they stated only that amendment would not be

futile if the complaint had omitted an element. They did not tell the district

court what they could have added to attribute the arraignment delays to the

sheriff or wardens.

      Mr. Moya and Mr. Petry have failed to say even now how they could

have cured this defect in the complaint. As a result, the district court did

not abuse its discretion in denying leave to amend the complaint. See Hall

v. Witteman, 584 F.3d 859, 868 (10th Cir. 2009) (holding that the district

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court did not abuse its discretion in denying leave to amend when the

claimant had failed to explain how an amendment would cure the

deficiencies identified by the district court).

VI.   Conclusion

      Mr. Moya and Mr. Petry allege a deprivation of due process when

they were detained for more than fifteen days without arraignments. We

can assume, without deciding, that this allegation involved a constitutional

violation. But Mr. Moya and Mr. Petry sued the sheriff, wardens, and

county, and these parties did not cause the arraignment delays. Thus, the

district court did not err in dismissing the complaint or in denying leave to

amend.




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