                                                                   F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                     APR 5 2005
                          FOR THE TENTH CIRCUIT
                                                               PATRICK FISHER
                                                                         Clerk

DIANA GALINDO; CHARLES
SCHRODER; JOANNA SCHRODER;
ELIZABETH ACOSTA; ORLANDO
GARCIA,
                                                       No. 03-2134
             Plaintiffs-Appellants,         (D.C. No. CIV-02-476-KBM/LCS)
                                                        (D. N.M.)
v.

TOWN OF SILVER CITY; JOHN
PAUL JONES, Silver City Mayor, and
his successor in interest, in their
official and individual capacities;
TOM BATES, Silver City Manager,
and his successor in interest, in their
official and individual capacities;
RALPH DOMINGUEZ, ELIZABETH
GARY, GARY CLAUSS, PETER
RUSSELL, Silver City Councilors, in
their official and individual capacities;
HENRY CHAVEZ, Silver City Police
Chief, in his official and individual
capacity; JOE ACOSTA, BOBBY
RUIZ, DANIEL BARDE, SAM
RODRIGUEZ, Silver City Police
Officers, in their official and
individual capacities; JOHN DOES
1-3,

             Defendants-Appellees,

COUNTY OF GRANT; MANUEL
SERNA, HENRY TORRES, DAVID
CONWAY, Grant County
Commissioners, in their official and
individual capacities; STEVE REESE,
    Grant County Sheriff, in his official
    and individual capacity; REUBEN
    PORTILLO, Grant County Sheriff's
    Officer, in his official and individual
    capacity,

                 Defendants.




                               ORDER AND JUDGMENT *


Before TACHA , Chief Judge, HENRY and O’BRIEN , 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.

         Plaintiffs filed an action pursuant to 42 U.S.C. § 1983 alleging defendants

violated their Fourth Amendment rights to reasonable searches and seizures.       1
                                                                                      The




*
      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
      Plaintiffs raised several other claims in the district court, but do not
continue to assert them on appeal.

                                              -2-
district court   2
                     granted summary judgment in favor of defendants. Plaintiffs argue

that the district court erred in doing so, because there are unresolved material

facts and because another magistrate judge had granted plaintiffs’ motion to

compel complete answers to discovery requests and had awarded sanctions for the

discovery abuses. Also, plaintiffs argue that the district court erred in denying

their motion to disqualify the attorney for defendant Town of Silver City. We

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

                                      BACKGROUND

       The facts construed in the light most favorable to plaintiffs are as follows.

See Hope v. Pelzer , 536 U.S. 730, 733 n.1 (2002) (on review of summary

judgment, court reviews facts in light most favorable to nonmoving party).

Plaintiff Elizabeth Acosta, a minor, did not call her mother, Cynthia Acosta, for a

ride home from her job at McDonald’s on May 12, 2000 after her evening shift

ended. Mrs. Acosta became concerned, went to McDonald’s and learned that

Elizabeth had left with her boyfriend Michael Anderson. Mrs. Acosta drove by

the home of her sister, plaintiff Diana Galindo, and saw Michael’s truck parked in

front of the home, a home where Elizabeth had been forbidden to go because she

drank alcohol there. Mrs. Acosta stopped and knocked on the front door, but no



2
      The parties consented to having the magistrate judge decide the case.      See
28 U.S.C. § 636(c).

                                             -3-
one came to the door, even though she could hear people in the house. When she

returned to her own home, Mrs. Acosta telephoned the Galindo home, but no one

answered.

      Mrs. Acosta called her husband, defendant Joe Acosta, Elizabeth’s

stepfather and a police officer for the Town of Silver City, and told him what she

knew. He proceeded to the Galindo home at 1:30 a.m. on May 13, when he got

off work. Mr. Acosta saw Michael’s truck there, but received no answer to his

knocks on the front door of the Galindo home. He, however, saw his niece,

plaintiff Joanna Schroeder, peeking out the window and heard scrambling,

laughing and giggling inside the house. Mr. Acosta went home and changed his

clothes.

      He and Mrs. Acosta then returned to the Galindo home. Although he

remained in his vehicle, she knocked on the front door, but again she received no

response.

      Meanwhile, Mr. Acosta called the police. Defendant Silver City police

officer Samuel Rodriguez responded. Mr. Acosta told Officer Rodriguez that he

believed Elizabeth was in the Galindo home with her boyfriend, that they

probably were drinking, that every time Elizabeth went to the Galindo home she

came home drunk, and that the occupants of the home did not open the door in

response to his and his wife’s knocking. He also told Officer Rodriguez that the


                                         -4-
home belonged to his sister-in-law. Officer Rodriguez contacted the Minors with

Alcohol Tactical Team, and then-Lieutenant Reuben Portillo, among others,

responded. Officer Rodriguez and Lt. Portillo knocked on the front door of the

Galindo home and announced themselves as law enforcement officers. After

receiving no response, they proceeded to the carport and to the back door of the

house. Lt. Portillo saw that the back patio door was partially opened. Also, he

saw one minor lying on the floor and another lying on the sofa. Lt. Portillo

repeatedly knocked on the patio door and yelled to get the minors’ attention.

Neither responded. Because the two law enforcement officers feared for the

minors’ safety and welfare, including alcohol poisoning, they entered the house.

One minor awakened, and indicated when asked that the homeowner was at the

other end of the house. As the law enforcement officials proceeded, they met

Michael, who denied that Elizabeth was there or that there had been any drinking.

Michael pointed out the bedroom where the homeowner could be found.

      After Ms. Galindo, the homeowner, came out of the bedroom, she gave

Officer Rodriguez and Lt. Portillo permission to search for Elizabeth. Joanna

informed Ms. Galindo that Elizabeth was hiding in Ms. Galindo’s closet.

Ms. Galindo told the officers to get Elizabeth, which they did. Elizabeth was

intoxicated.




                                        -5-
      Officer Rodriguez and Lt. Portillo took Elizabeth, Michael and his brother

to the Grant County Detention Center. These three minors were released to their

parents and no reports or charges were filed.

      Thereafter, plaintiffs Elizabeth Acosta, Diana Galindo, Ms. Galindo’s

children Joanna and Charles Schroder, and Ms. Galindo’s then-boyfriend Orlando

Garcia filed their complaint alleging Fourth Amendment violations for the

warrantless entry of the home and its curtilage against two sets of defendants.

The first set consisted of the Town of Silver City; its mayor, John Paul Jones; its

city manager, Tom Bates; its four city councilors, Ralph Dominguez, Elizabeth

Gary, Gary Clauss, Peter Russell; its police chief, Henry Chavez; four city police

officers, Joe Acosta, Bobby Ruiz, Daniel Barde and Sam Rodriguez; and three

John Does (collectively the Silver City defendants). The second set of defendants

consisted of Grant County; its sheriff, Steve Reese; Lt. Reuben Portillo; and three

county commissioners, Manuel Serna, Henry Torres, and David Conway

(collectively the Grant County defendants). All persons were sued in their

individual and official capacities.

      Each set of defendants moved for summary judgment. The district court

granted the motions, finding no Fourth Amendment violations. The district court

determined that Officer Rodriguez and Lt. Portillo were on the premises for the

legitimate purposes of ascertaining if Elizabeth was there and if there was teenage


                                         -6-
drinking occurring at the home. Because the officers received no response to

their knocks and they were on the premises for a legitimate purpose, the court

decided it was consistent for them to walk to the back of the house and enter the

curtilage to locate any occupants. The court also determined that exigent

circumstances justified the warrantless entry into the house:

       At the time the officers went around the back of the Galindo home,
       they were aware that Elizabeth had been missing for hours, and that
       the Acostas had made several attempts over the course of several
       hours to contact people inside the Galindo home. No one was
       answering, but the Acostas had heard someone inside and the
       windows were obstructed. Upon discovering the open patio door and
       the kids who admittedly were not responding at all to the officers’
       inquiries, they were justified in entering the premises to (1) ascertain
       whether those juveniles were all right, and (2) to see whether
       Elizabeth was there and in a similar seemingly-dangerous situation.

Jt. App., vol. III at 715. Nor did the district court find that the officers’ conduct

after they entered the home violated the Fourth Amendment. In addition to

finding no constitutional violation, the court also found no violation of any

clearly established rights. The court therefore held that the officers were entitled

to summary judgment on the basis of qualified immunity. Lastly, the court

decided that without a constitutional violation, there could be no municipal

liability.

       Plaintiffs filed a motion to disqualify the Silver City defendants’ counsel

from representing both Mr. Acosta and the other Silver City defendants. After



                                          -7-
holding a hearing, the district court denied the motion, finding no obvious

conflict by the joint representation and no potential foreseeable conflict.

       During the course of this appeal, Ms. Galindo, Charles, Joanna and

Elizabeth settled their appeal against the Grant County defendants. These parties

stipulated to dismiss the claims against the Grant County defendants, and this

court dismissed the appeal against these defendants. The appellate arguments of

these four plaintiffs therefore concern only the Silver City defendants.

       Also on appeal, plaintiffs’ counsel withdrew from representing plaintiff

Orlando Garcia. Mr. Garcia has not filed a pro se or counseled brief on appeal.

We conclude he has abandoned this appeal, and we dismiss his appeal for failure

to prosecute. See 10th Cir. R. 42.1; see also United States ex rel. Jimenez v.

Health Net, Inc. , 400 F. 3d 853, 854-56 (10th Cir. 2005) (dismissing appeal sua

sponte for failure to prosecute because appellant disappeared and failed to meet

court deadlines).   3



                                    DISCUSSION

I. SUMMARY JUDGMENT

               We review a grant of summary judgment on the basis of
       qualified immunity de novo . Summary judgment is appropriate if the
       pleadings, depositions, answers to interrogatories, and admissions on
       file, together with the affidavits, if any, show that there is no genuine


3
      We refer to Ms. Galindo, Charles, Joanna and Elizabeth as plaintiffs
throughout the remainder of this order and judgment.

                                          -8-
      issue of material fact and one party is entitled to judgment as a
      matter of law. Fed. R. Civ. P. 56(c). We construe the record in the
      light most favorable to the non-moving party.

Jiron v. City of Lakewood , 392 F.3d 410, 413-14 (10th Cir. 2004) (citation

omitted). There is a genuine issue of material fact if the nonmoving party

presents facts such that a reasonable jury could find in favor of the nonmoving

party. Simms. v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.     ,

165 F.3d 1321, 1326 (10th Cir. 1999). “If there is no genuine issue of material

fact in dispute, we determine whether the district court correctly applied the

substantive law.”   Id.

      A. DISPUTED MATERIAL FACTS

      Plaintiffs argue that although they disputed most, if not all, of the facts the

Silver City defendants used to support their motion for summary judgment, the

district court never considered the issues of disputed material facts that plaintiffs

set forth. According to plaintiffs, the undisputed material facts show that Officer

Rodriguez and the John Does deprived them of their right to be free from

unreasonable searches and seizures when these officers illegally entered the

curtilage and home of Ms. Galindo without a warrant, probable cause or the

existence of exigent circumstances. This, however, is a legal conclusion, which

necessarily does not show disputed material facts.




                                          -9-
       Plaintiffs also indicate that they disputed fifteen of seventeen allegations

that were characterized as undisputed facts by the Grant County defendants.

Plaintiffs further contend they cannot respond to the other two allegedly

undisputed facts, because those defendants failed or refused to respond to

discovery. As indicated above, plaintiffs have settled all claims against the Grant

County defendants. To the extent that these allegedly undisputed facts could be

relevant to plaintiffs’ appeal against the Silver City defendants, plaintiffs do not

list on appeal what these undisputed facts are or specifically indicate in their

appellate brief what they believe the material facts actually are. Plaintiffs’

conclusory assertions are insufficient for us to consider the issue.   Cf. Murrell v.

Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (deciding that where appellant

failed to frame and develop issue, there was insufficient basis to invoke appellate

review). Thus, we conclude plaintiffs have not shown that there are disputed

material facts. In any event, upon our de novo review of the record, we conclude

that the district court did not ignore plaintiffs’ facts, but instead correctly

determined that the material facts were undisputed.

       B. DISCOVERY REQUESTS

       Plaintiffs argue that the district court erred in dismissing this action with

prejudice without considering another magistrate judge’s order granting plaintiffs’

motion to compel Sheriff Reese and Lt. Portillo to completely answer discovery


                                             -10-
requests and awarding plaintiffs sanctions against these two defendants and Grant

County. Plaintiffs have settled their claims against all Grant County defendants.

Thus, in light of the settlement, and plaintiffs’ failure to prove the argument is

still viable in light of the settlement, we conclude this argument is now moot.      Cf.

Marc Dev., Inc. v. FDIC , 12 F.3d 948, 949 (10th Cir. 1993) (per curiam)

(concluding settlement of case rendered appeal moot).

       C. DEFENDANTS’ ENTITLEMENT TO QUALIFIED IMMUNITY

       Plaintiffs argue the district court erred in granting summary judgment to the

Silver City defendants on qualified immunity grounds. “To prevail on summary

judgment against a defendant who asserts a defense of qualified immunity, a

plaintiff must show that (1) the official violated a constitutional or statutory right;

and (2) the constitutional or statutory right was clearly established when the

alleged violation occurred.”    Mimics, Inc. v. Village of Angel Fire   , 394 F.3d 836,

841 (10th Cir. 2005) (quotation omitted). If the threshold constitutional-right

inquiry is not met, there is no need for further qualified immunity analysis.

Saucier v. Katz , 533 U.S. 194, 201 (2001).

       We first consider whether the facts taken in the light most favorable to

plaintiffs show that the Silver City defendants’ conduct violated plaintiffs’ Fourth

Amendment rights.     See Brosseau v. Haugen , 125 S. Ct. 596, 598 (2004) (per

curiam). “The Fourth Amendment prohibition against unreasonable search and


                                            -11-
seizure is implicated when there is some meaningful interference with an

individual’s possessory interests in . . . property.”    Marcus v. McCollum , 394 F.3d

813, 818 (10th Cir. 2004) (quotation omitted). “It is well-established that a

warrantless search is presumptively unreasonable under the Fourth Amendment

and therefore invalid unless it falls within a specific exception to the warrant

requirement.”    Mimics , 394 F.3d at 844 (quotation omitted).

       Here, it is undisputed that defendants failed to obtain a warrant before

proceeding to the back of the Galindo home. Merely proceeding from the front to

the back of a house alone, however, did not establish an invasion of the curtilage

in violation of the Fourth Amendment.         See United States v. Cavely , 318 F.3d

987, 994 n.1 (10th Cir. 2003) (“The mere fact that officers went to the front and

around towards the back of appellant’s house, standing alone, does not establish

an invasion of the curtilage.”). Getting no response to knocks on the front door

and knowing that there were people in the home, Officer Rodriguez reasonably

proceeded around to the back door, where he could reasonably carry out his

objectives of locating Elizabeth and of checking on underage drinking. As the

district court noted, even plaintiffs’ expert agreed that Officer Rodriguez

legitimately proceeded to the back of the house. Plaintiffs therefore have failed

to meet their burden of proving a legitimate expectation of privacy in the

curtilage that was violated by Officer Rodriguez.       See id. at 993-94. Accordingly,


                                              -12-
we conclude that Officer Rodriguez’s proceeding to the back of the house resulted

in no constitutional violation.

         It is also undisputed that Officer Rodriguez failed to obtain a warrant

before entering and searching the Galindo home. Officer Rodriguez’s actions are

presumptively unreasonable unless an exception to the warrant requirement

applies. See Roska ex rel. Roska v. Peterson       , 328 F.3d 1230, 1240 (10th Cir.

2003).

         Defendants argue that there was an exception to the warrant requirement

due to exigent circumstances. Exigent circumstances exist when (1) an officer

has reasonable grounds to believe there is an immediate need to protect the lives

of others; (2) the officer’s search is not motivated by an intent to arrest or seize

evidence; and (3) there is a reasonable basis to believe that an emergency exists at

the place to be searched.   Id. ; see id. at 1250 n.24 (requiring immediate risk to

safety for exigent circumstances to exist). “In evaluating whether exigent

circumstances existed, we examine the circumstances as they would have

appeared to prudent, cautious, and trained officers.”      Id. at 1240 (quotation

omitted); see also United States v. Anderson , 154 F.3d 1225, 1233 (10th Cir.

1998) (recognizing there is no absolute test for assessing whether exigent

circumstances exist because determination depends on unique facts of each case).




                                            -13-
       The undisputed material facts in this case show that exigent circumstances

justified the warrantless entry into the Galindo home. Mr. Acosta had informed

Officer Rodriguez and Lt. Portillo that Elizabeth was in the home and underage

drinking was likely occurring, and the occupants of the home had ignored his and

Mrs. Acosta’s knocks on the front door. Also, these law enforcement officers

personally observed minors in the home, who could not be aroused by repeated

knocking on the patio door and yelling through the open door. Fearing for the

safety and welfare of these unresponsive minors, as well as for Elizabeth, due to

alcohol poisoning, the officers entered the home to check on the welfare of the

minors. Under these circumstances, where there was an “immediate threat of

death or severe physical harm,”   id. at 1241, it was objectively reasonable for

Officer Rodriguez to have entered the Galindo home. Officer Rodriguez therefore

did not violate plaintiffs’ Fourth Amendment rights.   4



       Because plaintiffs failed to allege facts to support a constitutional

violation, they did not meet their threshold burden for qualified immunity

analysis, and it is unnecessary for this court to consider if there was a clearly

established right.   See Jiron , 392 F.3d at 419. The district court correctly held

that Officer Rodriguez was entitled to qualified immunity.


4
       Plaintiffs do not continue to argue that Officer Rodriguez’s conduct after
entering the Galindo home violated the Fourth Amendment. Nonetheless, we
conclude that the district court correctly found no constitutional error.

                                           -14-
      Because plaintiffs did not prove a constitutional violation by Officer

Rodriguez, a § 1983 action against the remaining Silver City defendants, apart

from Mr. Acosta, is precluded.   See Jiron , 392 F.3d at 419 & n.8. Accordingly,

we conclude the district court correctly granted summary judgment to these Silver

City defendants.

      Plaintiffs argue that if, as the Silver City defendants alleged, Mr. Acosta

was not acting under color of law, he would not be entitled to qualified immunity.

The record shows that at all relevant times Mr. Acosta was off-duty and a civilian

and a concerned parent, whose only actions were knocking on the Galindo door

and calling the police. Nothing in the record indicates Mr. Acosta was acting

under color of law. Granting summary judgment in favor of Mr. Acosta was

appropriate because a person must be acting under color of law to be held liable

under § 1983. See 42 U.S.C. § 1983 (providing federal cause of action against

person who deprives another of federal rights when acting under state law);

Parratt v. Taylor , 451 U.S. 527, 535 (1981) (requiring plaintiff seeking § 1983

relief to prove conduct complained of was committed by person acting under

color of state law and that conduct deprived person of constitutional right),

overruled on other grounds by    Daniels v. Williams , 474 U.S. 327 (1986). We

may affirm the district court’s grant of summary judgment on any ground




                                         -15-
supported by the record.      See Bolden v. PRC Inc. , 43 F.3d 545, 548 (10th Cir.

1994).

II. MOTION TO DISQUALIFY

         Plaintiffs argue the district court erred in denying their motion to disqualify

the attorney representing Mr. Acosta and all other Town of Silver City

defendants. Plaintiffs maintain there is an inherent conflict of interest between a

city and a police officer when both are defendants in a § 1983 action and the

police officer is sued in his individual capacity. Also, plaintiffs point to the

Town of Silver City’s assertion that Mr. Acosta was not acting under color of

state law at the time of the search.

         “We review a district court’s decision on a motion to disqualify counsel for

abuse of discretion.”      Chavez v. New Mexico , 397 F.3d 826, 839 (10th Cir. 2005).

“Given the potential conflict between the defenses available to a government

official sued in his individual and official capacities, we have admonished that

separate representation for the official in his two capacities is a wise precaution.”

Johnson v. Bd. of County Comm’rs       , 85 F.3d 489, 493 (10th Cir. 1996) (quotation

omitted). We, however, only require separate counsel if a potential conflict turns

into an actual conflict.    Id.

         It is true that there was a potential conflict between the Town of Silver City

and Mr. Acosta. Yet the facts and circumstances of this case show that no actual


                                            -16-
conflict resulted due to the grant of summary judgment to all Silver City

defendants, and Mr. Acosta therefore received fair proceedings.       See Dunton v.

County of Suffolk , 729 F.2d 903, 909 (2d Cir. 1984) (when counsel acts against

litigant’s interests due to conflict that litigant is unaware of, litigant does not

receive fair trial). We therefore conclude the district court did not abuse its

discretion in denying plaintiffs’ disqualification motion.

      The judgment of the district court is AFFIRMED. We sua sponte DISMISS

Mr. Garcia’s appeal for failure to prosecute. The appeal against the Grant County

defendants is DISMISSED.



                                                       Entered for the Court



                                                       Deanell Reece Tacha
                                                       Chief Judge




                                           -17-
