                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         June 7, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    R OBER T PETT; C HA RLES A .
    SCHU LTZ,

                Plaintiffs-Appellants,
                                                         No. 05-4106
    v.                                             (D.C. No. 03-CV-508-TC)
                                                          (D. Utah)
    JAM ES DUDZINSK I; STEVE IVIE,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.




         Plaintiffs Robert Pett and Charles A. Schultz were arrested on arson

charges after a fire deemed suspicious by defendants totally destroyed Schultz’s

home. After the arson charges were dropped, plaintiffs brought this suit under

42 U.S.C. § 1983 alleging that defendant Dudzinski, an investigator for the Utah




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
State Fire M arshal, and defendant Ivie, the W asatch County Fire M arshal,

violated their rights under the Fourth and Sixth Amendments and also committed

various state-law torts during the course of their fire investigation. Specifically,

plaintiffs’ complaint alleged that defendants violated their constitutional rights by

causing them to be charged and arrested on the basis of false information in an

affidavit establishing probable cause for their arrests. The complaint further

alleged that defendants caused plaintiff Pett to undergo custodial questioning

without benefit of counsel. The district court granted defendants’ motions for

judgment on the pleadings and for summary judgment and later denied plaintiffs’

motion to alter or amend the judgment. Plaintiffs appeal from these rulings. W e

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      On appeal, plaintiffs argue that (1) the district court erred in granting

defendants’ motions for judgment on the pleadings and summary judgment,

contending specifically that the district court ignored controlling law when it

found defendants eligible for qualified immunity; (2) the district court ignored

undisputed facts, improperly made factual findings, and wrongly view ed all

factual disputes in the light most favorable to the movant defendants; and (3) the

district court improperly denied their motion to alter or amend the judgment.

      W e review a dismissal based on judgment on the pleadings de novo. See

M cHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir. 1991).




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W e also review the district court’s grant of summary judgment de novo and apply

special rules in cases such as this w here defendants assert qualified immunity in

their motion for summary judgment. Taylor v. M eacham, 82 F.3d 1556, 1559

(10th Cir. 1996). The initial inquiry is whether plaintiffs have asserted the

violation of a constitutional right at all. Id. Only if plaintiffs have done so does

it become necessary for the court to determine whether that identified right was

clearly established at the relevant time. Id. Here, plaintiffs fail to establish a

constitutional violation.

      Plaintiffs do not dispute that the affidavit, taken on its face, established

probable cause for their arrests. They claim, however, that relevant information

in the affidavit was false and that defendants are responsible for the inclusion of

the falsehoods. To establish this constitutional violation, plaintiffs are required to

present evidence tending to show that defendants “knew that the challenged

information was false or that [they] had a reckless disregard for its truthfulness.”

Beard v. City of Northglenn, 24 F.3d 110, 114 (10th Cir. 1994). Plaintiffs

presented no such evidence.

      Contrary to plaintiffs’ focus on appeal, this case is not about whether the

State could prove an arson charge; it is about whether there is evidence that

defendants deliberately falsified the affidavit or were reckless about whether the

statements in the affidavit were true. Keeping this focus in mind, and having

reviewed the record and decision of the district court de novo, we affirm the grant

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of qualified immunity to defendants for substantially the same reasons articulated

by the district court.

       Turning to plaintiffs’ motion to alter or amend the judgment filed under

Fed. R. Civ. P. 59(e) and 60(b), we agree with defendants that the district court

did not abuse its discretion in denying the motion. See Servants of the Paraclete

v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). Plaintiffs failed to identify any

intervening change in the applicable law, bring forth new evidence unavailable at

the time of the original decision, or show that granting the motion was necessary

to correct clear error or to prevent manifest injustice. See id. at 1012.

       Plaintiffs’ motion to file a supplemental appendix is DENIED. Defendant

Ivie’s request for costs on appeal is GRANTED. Although in his request for costs

M r. Ivie w rongly charges plaintiffs w ith failing to include his memorandum in

support of his motion for summary judgement in the appendix, see Aplt. Appx. at

229, we note that “costs are taxed against the [unsuccessful] appellant[s]” as a

matter of course under Fed. R. App. P. 39(a)(2). The judgment of the district

court is AFFIR ME D.

                                                     Entered for the Court


                                                     M ary Beck Briscoe
                                                     Circuit Judge




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