                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        April 14, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
FRANCISCO FRANCO,

             Plaintiff-Appellant,

v.                                                        No. 14-2134
                                              (D.C. No. 2:13-CV-00714-LH-GBW)
THE BOARD OF COUNTY                                        (D.N.M.)
COMMISSIONERS FOR THE COUNTY
OF ROOSEVELT, in its official capacity;
CHARLENE WEBB, in her individual
and official capacities; DAVID
CASANOVA, in his individual and
official capacities; TAMARA PEEL, in
her individual and official capacities,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.


      After pleading guilty to two misdemeanor charges in New Mexico state court,

Francisco Franco was sentenced to two consecutive terms of supervised probation:


*
      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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
(1) an initial 364-day term that (2) was to be followed by a second, six-month term.

Tamara Peel was assigned to supervise his probation. On March 7, 2013, the last day

of the first term, Ms. Peel filed a motion for discharge with the state court indicating

that Mr. Franco had been “given 364 days supervised probation” and “ha[d]

completed the period of probation without revocation.” App. 101. That same day,

the court ordered that Mr. Franco “be discharged from the terms of probation.” Id.

But following this March 7 order, Mr. Franco continued to report to Ms. Peel and to

submit to drug screening, presumably in accord with the second probationary period

the court mandated. Several months later, Mr. Franco allegedly failed a drug test and

was found intoxicated by a local police officer. Ms. Peel filed a motion in state court

arguing that Mr. Franco violated the terms of his probation and asking the court to

issue a bench warrant for his arrest. The court issued the warrant and Mr. Franco was

arrested and held for about three weeks.

      Some time after his release, Mr. Franco filed this action against Ms. Peel,

County Manager Charlene Webb, jail administrator David Casinova, and the

Roosevelt County Board of Commissioners. Among other things, he alleged that

Ms. Peel had him arrested without probable cause, and that the Board and Mr.

Casinova are liable for false imprisonment under state law. Underlying all of his

claims is this argument: that the state court’s March 7 order fully discharged him

from both of his terms of probation.




                                           -2-
      Even if this is true, however, we agree with the district court that the

defendants are still entitled to summary judgment as a matter of law. Turning first to

Ms. Peel, we conclude she is entitled to qualified immunity. “Qualified immunity is

an affirmative defense that protects government officials from personal liability

unless their actions violate clearly established law of which a reasonable person

would have known.” Coen v. Runner, 854 F.2d 374, 377 (10th Cir. 1988). Mr.

Franco claims that Ms. Peel violated clearly established law by seeking a bench

warrant for his arrest without probable cause and subjecting him to probation

conditions after the state court had fully discharged him from probation. But

qualified immunity protects a government officer who has made a reasonable mistake

of fact. See Stonecipher v. Valles, 759 F.3d 1134, 1141-42 (10th Cir.), cert. denied,

135 S. Ct. 881 (2014). And while we admit there’s ambiguity in the state court’s

March 7 order — even the state prosecutor and a different state judge have at times

suggested that it discharged both terms of probation — the relevant question is

whether Ms. Peel could have reasonably concluded otherwise. On that dispositive

score, we just don’t see room for dispute. The March 7 order explicitly referenced

the length of the first term of probation only (364 days), and Mr. Franco continued to

report to Ms. Peel after the order issued. Neither does he argue that he ever

suggested to Ms. Peel that he was freed from the second term of probation. Given

these facts, it was reasonable for her to have believed that the order discharged only

the initial 364-day term.


                                         -3-
      Mr. Franco replies that Ms. Peel is not entitled to qualified immunity because

she is an independent contractor rather than a county employee. He maintains that

her position with the county is like the position of the private prison guards in

Richardson v. McKnight, 521 U.S. 399 (1997). But in holding that the guards in that

case could not assert qualified immunity, Richardson emphasized the peculiar facts

before it, a situation “in which a private firm, systematically organized to assume a

major lengthy administrative task (managing an institution) with limited direct

supervision by the government, undertakes that task for profit and potentially in

competition with other firms.” Id. at 413. The Court itself later distinguished

Richardson in Filarsky v. Delia, 132 S. Ct. 1657 (2012), noting that Richardson was

based on the “various incentives characteristic of the private market in that case.” Id.

at 1667. In particular, Filarsky held that a private attorney hired by a city to assist in

conducting an official investigation was entitled to qualified immunity, reasoning

that “immunity under § 1983 should not vary depending on whether an individual

working for the government does so as a full-time employee, or on some other basis.”

Id. at 1665. We agree with the district court that Ms. Peel’s position as an

independently contracted probation officer is a good deal more like the one in

Filarsky than Richardson, especially given the Court’s express admonition that the

“typical case of an individual hired by the government to assist in carrying out its

work” will fall outside Richardson’s exception. Id. at 1667.




                                           -4-
      We also affirm the grant of summary judgment on the individual capacity

claims against Mr. Casinova and Ms. Webb. Even assuming they were personally

involved in Mr. Franco’s detention after the state court issued the arrest warrant as

Mr. Franco alleges, it’s long since settled that “an official charged with the duty of

executing a facially valid court order enjoys absolute immunity from liability for

damages in a suit challenging conduct prescribed by that order.” Valdez v. City &

County of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989). And as we’ve seen, the

warrant was at least that, appearing valid on its face.

      To be sure, Mr. Franco also argues that the jail in which he was detained has a

“policy or custom” of holding individuals without valid charges. Bryson v.

Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Hinton v. City of

Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). But Mr. Franco’s only evidence of

such a policy or custom is an affidavit from George Rowan, a former jail employee.

And we agree with the district court that this affidavit is insufficient to suggest a

triable question of fact. Mr. Rowan does not describe his job responsibilities at the

jail, does not indicate how he might have personal knowledge of relevant policies and

procedures at the jail, and does not identify any facts that would allow a rational juror

to conclude that the county had a practice of unconstitutional incarceration “so

permanent and well settled as to constitute a custom or usage with the force of law.”

Bryson, 627 F.3d at 791 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988)).


                                           -5-
       Finally, Mr. Franco points us to his state law false-imprisonment claim. Under

New Mexico law, “[f]alse imprisonment consists of intentionally confining or

restraining another person without his consent and with knowledge that he has no

lawful authority to do so.” N.M. Stat. Ann. § 30-4-3 (emphasis added). And before

this court Mr. Franco fails to address the district court’s holding that there was no

evidence in this record that any defendant acted with this level of mens rea. So it is

we are left without any basis on which to say the district court erred in dismissing

this claim either.

       Affirmed.


                                                ENTERED FOR THE COURT


                                                Neil M. Gorsuch
                                                Circuit Judge




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