                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                September 28, 2007
                             FO R TH E TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

    STEV E CUM M ISK Y ,

              Plaintiff-Appellant,

      v.                                                No. 06-5028
                                               (D.C. No. 04-CV-44-TC K-SAJ)
    JOHN M INES, in his individual and                  (N.D. Okla.)
    official capacities; PA U L
    W HITM IRE, Captain of the Catoosa
    Police Department, in his individual
    and official capacities; R AY M OND
    ROGERS, Chief of Police of the City
    of Catoosa, in his individual
    and official capacities; CURTIS
    CONLEY, M ayor of the City of
    Catoosa, in his individual and official
    capacities; C ITY O F C ATO O SA,
    political entity in the State of
    Oklahoma,

              Defendants-Appellees,

           and

    CA TOO SA POLICE DEPARTM ENT,

              Defendant.



                              OR D ER AND JUDGM ENT *

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
                                                                       (continued...)
Before O’BRIEN, Circuit Judge, BROR BY, Senior Circuit Judge, and
BRO W N, ** District Judge.




      In this 42 U.S.C. § 1983 case, plaintiff Steve Cummisky alleges that

defendant John M ines, a police officer, filed a false affidavit in support of an

arrest w arrant, subjecting Cummisky to a false arrest and malicious prosecution.

He also alleges that Officer M ines stalked and harassed him in violation of his

constitutional rights. We have jurisdiction under 28 U.S.C. § 1291, and we

AFFIRM the district court’s grant of summary judgment.

                                          I.

      Cummisky and M ines have a history of animosity, including a physical

altercation arising out of a traffic stop in September 2000. Cummisky filed an

unreasonable-force law suit after that altercation, and while it was pending, in

November 2001 M ines and Cummisky encountered each other at the restaurant

area of a truck stop. M ines alleges that, on this occasion, Cummisky challenged

M ines to a fight by saying “why don’t you come outside with me and we will

settle this like men.” A plt. App. at 102. Cummisky denies even speaking to



*
 (...continued)
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.
**
       The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.

                                         -2-
M ines that evening, instead contending that he waved in M ines’ direction. After

the incident, M ines consulted an assistant district attorney, who advised him to

file a report about the incident for her evaluation. After M ines filed his report,

including an affidavit in support of a warrant, an unsworn report by his partner,

and the statements of two dispatchers who arrived at the restaurant shortly after

the alleged “settle this like men” comment, the assistant DA filed charges of

assault on a police officer against Cummisky. She filed her own affidavit and

M ines’ affidavit in support of an arrest warrant. A magistrate signed the bottom

of M ines’ affidavit, indicating the arrest warrant was approved. Cummisky

learned of the arrest warrant some time later, and he surrendered at the police

station, was photographed and fingerprinted, and was allowed to leave after he

posted bond. Ultimately the charges w ere dismissed, with court costs allocated to

the state.

       Cummisky sued under § 1983. The district court found that M ines had not

violated any of Cummisky’s clearly established constitutional rights and held that

M ines w as entitled to qualified immunity on the false arrest claim. It also held

that Cummisky could not pursue a malicious prosecution claim because the

charges had been dismissed. Finally, it held that Cummisky could not pursue a

§ 1983 “stalking” and “harassment” claim because M ines had not violated

Cummisky’s constitutional rights by driving past his house on multiple occasions

and by videotaping Cummisky in public places, and that M ines’ supervisors and

                                          -3-
the city could not be liable under § 1983 where there had been no constitutional

violation by M ines. Cummisky appeals.

                                          II.

      “W e review the district court’s summary judgment rulings de novo, using

the same standard as the district court, and may affirm the district court’s order

on any grounds adequately presented below.” Novitsky v. City of Aurora,

491 F.3d 1244, 1252 (10th Cir. 2007) (quotation omitted).

      Given the underlying purposes of qualified immunity, we require a
      plaintiff to satisfy a heavy two-part burden to overcome a
      defendant’s summary judgment motion based on qualified immunity.
      First, the plaintiff must demonstrate the defendant’s actions violated
      a constitutional right. Second, the plaintiff must show that the right
      alleged to be violated was clearly established at the time of the
      conduct at issue.

Id. (quotation and citations omitted).

                                   A. False Arrest

      The basis for Cummisky’s false arrest claim is that M ines allegedly filed an

affidavit containing false statements that resulted in his arrest on unfounded

charges. The constitutional right at issue is the Fourth Amendment right to be

free from unreasonable seizures. See Becker v. Kroll, 494 F.3d 904, 919

(10th Cir. 2007). The district court found, with regard to this claim, that

Cummisky had not shown a violation of any of his clearly established

constitutional rights. It offered three bases to support its conclusion:




                                          -4-
       (1) there was no arrest or seizure of Plaintiff; (2) the circumstances
       surrounding Plaintiff’s self-surrender are insufficient to give rise to
       any Fourth Amendment seizure; and (3) there was independent
       evidence, other than the Affidavit by Officer M ines complained of in
       this lawsuit, that supported a finding of probable cause.

Aplt. App. at 313. Although we do not necessarily agree with the district court’s

first and second reasons, its third reason is sufficient to establish that Cummisky

suffered no violation of his Fourth Amendment right against an unreasonable

seizure. 1




1
       Because we affirm the grant of summary judgment based on the existence
of other evidence supporting a finding of probable cause, we need not examine
the district court’s other reasons in detail. W e note, however, that a plurality of
the Supreme Court has indicated, in dicta, that a person’s “surrender to the State’s
show of authority” by reporting to police after learning of an outstanding warrant
“constitute[s] a seizure for purposes of the Fourth Amendment.” Albright v.
Oliver, 510 U.S. 266, 271 (1994). In Petersen v. Farnsworth, 371 F.3d 1219,
1221-22 (10th Cir. 2004), this court concluded that a plaintiff was seized when he
reported to the police station in response to a summons, was escorted into a
secure area, was handcuffed to a bar, and was placed in a holding cell. Petersen’s
circumstances w ere more harsh than the facts of this case, but several other courts
have held that a self-surrender in circumstances more akin to Cummisky’s
constitutes a seizure under the Fourth Amendment. See Whiting v. Traylor,
85 F.3d 581, 584-85 (11th Cir. 1996); Pomykacz v. Borough of West Wildwood,
438 F. Supp. 2d 504, 512 (D. N.J. 2006); Freeman v. M urray, 163 F. Supp. 2d
478, 484 (M .D. Pa. 2001), aff’d, 37 F. App’x 49 (3d Cir. 2002); Groom v. Fickes,
966 F. Supp. 1466, 1474-75 (S.D. Tex.), aff’d, 129 F.3d 606 (5th Cir. 1997);
Niemann v. Whalen, 911 F. Supp. 656, 663, 668 (S.D.N.Y. 1996). Thus, it
appears that Cummisky was “seized” for purposes of a Fourth Amendment
analysis. Further, as for whether the seizure was too insubstantial to constitute a
constitutional violation, we note that the question of w hether a “de m inimis”
unreasonable seizure of a person is actionable appears to be unsettled in this
circuit. See Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1206 n.5
(10th Cir. 2006) (declining to decide whether “whether de minimis injuries
resulting from unreasonable seizures are compensable under § 1983”).

                                          -5-
      The Fourth Amendment provides in pertinent part, “[t]he right of the people

to be secure in their persons . . . against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation . . . .” Consequently, “an arrest warrant must be supported

by probable cause to comply with the Fourth Amendment. Probable cause for an

arrest w arrant is established by demonstrating a substantial probability that a

crime has been committed and that a specific individual committed the crime.”

Taylor v. M eacham, 82 F.3d 1556, 1562 (10th Cir. 1996). “It is a violation of the

Fourth A mendment for an arrest warrant affiant to ‘knowingly, or with reckless

disregard for the truth,’ include false statements in the affidavit.” Id. “If an

arrest warrant affidavit contains false statements, the existence of probable cause

is determined by setting aside the false information and reviewing the remaining

contents of the affidavit.” Id. (quotation omitted).

      Cummisky asserts that M ines falsely stated that Cummisky said to him,

“why don’t you come outside with me and we will settle this like men.” A plt.

App. at 102. Even disregarding this portion of the affidavit, however, the arrest

warrant was supported by probable cause. W hile it appears that the remainder of

M ines’ affidavit would not establish probable cause for the offense of assault on a

police officer, that affidavit was not the only affidavit before the judge who

issued the warrant. The assistant district attorney also filed an affidavit in

support of the arrest warrant. Her affidavit was based not solely on M ines’

                                          -6-
affidavit, but on all the evidence in front of her, including an unsworn statement

by another officer, who is not a party to this case, confirming that the disputed

comm ent was made, and the statements of two dispatchers who arrived at the

restaurant shortly after the altercation. Because the warrant was supported by

evidence other than M ines’ statement that established probable cause,

Cummisky’s Fourth Amendment rights were not violated. See also DeLoach v.

Bevers, 922 F.2d 618, 621-22 (10th Cir. 1990) (noting a Fourth Amendment

violation where “the judicial finding of probable cause is based solely on

information the officer knew to be false or would have known to be false had he

not recklessly disregarded the truth”) (emphasis added, quotation omitted). The

grant of summary judgment to M ines on this claim is affirmed. 2

                             B. M alicious Prosecution

      Cummisky also argues in passing that the district court erred in granting

summary judgment on his malicious prosecution claim on the ground that the

charges w ere dropped, so he could not show that the proceeding terminated in his

favor. See Novitsky, 491 F.3d at 1258 (listing the elements of a malicious

prosecution § 1983 claim).




2
       Cummisky also argues that, even assuming the facts recited by M ines were
true, the allegations do not establish the elements of assault under O klahoma law.
This argument was not raised in the district court. This court generally does not
consider arguments raised for the first time on appeal. See Tele-Commc’ns, Inc.
v. Comm’r, 104 F.3d 1229, 1232-33 (10th Cir. 1997).

                                         -7-
      The grant of summary judgment to M ines w as not improper. “In this

circuit, when addressing § 1983 malicious prosecution claims, we use the

comm on law elements of malicious prosecution as the ‘starting point’ of our

analysis; however, the ultimate question is whether plaintiff has proven the

deprivation of a constitutional right.” Id. at 1257. This court recently held that

“where criminal charges were brought but dismissed before trial, [the plaintiff]

must allege a violation of the Fourth Amendment in order to proceed on a theory

of § 1983 malicious prosecution.” Becker, 494 F.3d at 919. As discussed above,

Cummisky did not show a violation of the Fourth Amendment. Consequently, the

grant of summary judgment to M ines on this claim is affirmed.

                             C. Stalking and Harassment

      Cummisky also asserted a claim against M ines, M ines’ supervisors, and the

city for alleged stalking and harassment by M ines. The claim primarily was

based on M ines’ driving slow ly by Cummisky’s house several times and M ines’

videotaping Cummisky on at least two (and possibly more) occasions. The

district court granted summary judgment for all defendants on this claim, holding

that M ines’ activities did not give rise to any constitutional violations.

      On appeal, Cummisky does not argue that M ines’ activities actually did

violate his constitutional rights. See Aplt. Br. at 18-21. Instead, he focuses on

various reasons why M ines’ superiors and the city should be held liable for

M ines’ conduct. Id. Because Cummisky does not assert or support any

                                           -8-
arguments regarding the constitutionality of M ines’ conduct, he has waived any

challenge to the district court’s decision that M ines’ activities did not violate his

constitutional rights. See Trackwell v. United States Gov’t, 472 F.3d 1242, 1247

(10th Cir. 2007). And as the district court concluded, because M ines did not

violate Cummisky’s constitutional rights, then the supervisors and the city cannot

be liable under § 1983. See Hinton v. City of Elwood, 997 F.2d 774, 783

(10th Cir. 1993).

                                          III.

      The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      Terrence L. O’Brien
                                                      Circuit Judge




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