                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               FEB 1 1999
                          FOR THE TENTH CIRCUIT
                                                          PATRICK FISHER
                                                                   Clerk

MARY K. TAYLOR,

             Plaintiff-Appellant,

v.                                              No. 97-1170
                                            (D.C. No. 95-N-3141)
FRANK HARRINGTON,                                 (D. Colo.)
individually and in his official
capacity as an Officer of the City
and County of Denver Police
Department; JIM COLE, individually
and in his official capacity as a Cadet
Officer of the City and County of
Denver Police Department; RANDY
PENN, Sergeant, individually and in
his official capacity as an Officer of
the City and County of Denver Police
Department; MARK VASQUEZ,
Lieutenant, individually and in his
official capacity as an Officer of the
City and County of Denver Police
Department; JOHN and/or MARY
DOES, individually and in their
official capacity as Officers of the
City and County of Denver Police
Department, and the CITY AND
COUNTY OF DENVER;

             Defendants-Appellees,

ALEX WOODS, JR., individually and
in his official capacity as an


Officer of the City and County
of Denver Police Department,
               Defendant-Cross-
               Claimant-Appellee,

v.

DENVER, CITY AND COUNTY OF

               Defendant-Cross-
               Defendant-Appellee.



                            ORDER AND JUDGMENT               *




Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.




       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.

       Mary K. Taylor appeals from the    district court’s order granting defendants’

motions to dismiss her claims under 28 U.S.C. § 1983.    1
                                                                 Her federal civil rights


*
      This order and judgment is not binding precedent, except under the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.
1
      The district court’s order also disposed of cross-claims brought by
defendant Woods against the City and County of Denver and declined to exercise

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suit against defendants sought money damages, costs, and attorneys fees for

injuries she allegedly suffered as a result of defendants’ actions following

a domestic violence assault by defendant Woods.

       “We review the denial or grant of a motion to dismiss de novo, applying

the same standard used by the     district court.” Breidenbach v. Bolish , 126 F.3d

1288, 1291 (10th Cir. 1997). Further, “w        e must accept all of the well-pleaded

allegations in the complaint as true. However, we need not accept conclusory

allegations. We must liberally construe the pleadings and draw all reasonable

inferences in favor of the plaintiff.”   Tonkovich v. Kansas Bd. of Regents     ,

159 F.3d 504, 510 (10th Cir. 1998) (citations omitted). In this case, the      district

court’s grant of defendants’ motion to dismiss was based on its conclusion that

defendants were entitled to qualified immunity.        See Dill v. City of Edmond ,

155 F.3d 1193, 1203-04 (10th Cir. 1998). We exercise jurisdiction pursuant to

28 U.S.C. § 1291, and affirm.

       On appeal, plaintiff contends that the     district court applied improper legal

standards to dismiss her claims and asserts that defendants should not have been

granted qualified immunity. She also argues several theories of liability not

presented to the district court, including her contentions that defendant police




jurisdiction over appellant’s pendent state law claims. These rulings were not
appealed.

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officers failed to intervene despite a duty to do so and that the City and County

of Denver was deliberately indifferent to plaintiff’s rights. We decline to address

theories or arguments not presented to the     district court. See Bancamerica

Commercial Corp. v. Mosher Steel of Kan., Inc.      , 100 F.3d 792, 798-99

(10th Cir.), opinion amended on other grounds      , 103 F.3d 80 (10th Cir. 1996).

       The district court, in a thorough and reasoned opinion, concluded that,

while plaintiff had adequately pleaded a conspiracy claim under § 1983,        see

Appellant’s App. at 121, she had failed to demonstrate that any of her federal

or constitutional rights had been thereby deprived or even implicated.       See id.

at 123-27. We agree with the district court’s analysis rejecting plaintiff’s claims.

However, we part company with the       district court in its grant of qualified

immunity to defendants on each of those claims. Although examination of

a qualified immunity defense in a motion to dismiss is necessarily restricted to

a review of the pleadings and involves a heightened pleading standard,        see Dill ,

155 F.3d at 1203-04, we conclude that the interplay of standards does not require

that the motion to dismiss be determined solely on the basis of the grant or denial

of qualified immunity. “We must first assess whether Plaintiff has asserted a

violation of a constitutional right.   If the complaint alleges a valid claim, then we

must determine whether the constitutional right was clearly established so that




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reasonable officials would have understood that their conduct violated that right.”

Dill , 155 F.3d at 1204 (quotation and citations omitted) (emphasis added).

       We are free to affirm the   district court’s judgment on alternate grounds,

provided the record is sufficient to permit conclusions of law.     See United States

v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). In accord with the     district

court’s analysis, we conclude that the following claims should have been

dismissed for failure to state a claim: a) plaintiff’s conclusory assertions of rights

to safety and security, freedom from threats from the state, and exercise of federal

and state constitutional rights; b) any claims based on violation of state law;

c) plaintiff’s free speech claim; d) her due process claim; and e) her equal

protection claim. To the extent that the    district court construed plaintiff’s

pleadings as including claims regarding access to the courts, those claims should

have been dismissed both on grounds of standing (as to claims regarding

prosecution of defendant Woods) and for failure to state a claim (as to claims

regarding plaintiff’s access to the courts). Similarly, without an underlying

deprivation of federal or constitutional rights, plaintiff’s § 1983 claims against

defendant the City and County of Denver fail to state a claim.

       In light of the above conclusions, we need not address plaintiff’s arguments

that the district court wrongly granted defendants qualified immunity on her

claims. However, we note again that, contrary to those arguments, liability under


                                            -5-
§ 1983 cannot be based on violation of state law alone.       See Jones v. City &

County of Denver , 854 F.2d 1206, 1209 (10th Cir. 1988).

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                          Entered for the Court



                                                          Robert H. Henry
                                                          Circuit Judge




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