                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    ANTONIO DELMONICO,

                Plaintiff-Appellant,

    v.                                                  No. 09-1178
                                            (D.C. No. 1:08-CV-00498-LTB-BNB)
    JEFF CAPITO (Pueblo Police Officer)                  (D. Colo.)
    in his individual and professional
    capacities; NATHAN PRUCE (Pueblo
    Police Officer) in his individual and
    professional capacities; CITY OF
    PUEBLO, COLORADO; JAMES
    BILLINGS, JR. (Chief of Pueblo
    Police Dept.) in his individual and
    professional capacities,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff Antonio DelMonico brought this pro se civil rights action pursuant

to 42 U.S.C. § 1983 and Colorado state tort law, complaining that the defendants

wrongfully arrested and incarcerated him following an altercation at his

ex-girlfriend’s house. Both plaintiff and defendants moved for summary

judgment, the defendants contending that there had been no constitutional

violation and that they were entitled to qualified immunity. A magistrate judge

recommended that plaintiff’s summary judgment motion be denied and that

defendants’ motion be granted. The district court adopted this recommendation

over plaintiff’s objections, entered judgment in favor of defendants on plaintiff’s

constitutional claims, and dismissed his state law claims without prejudice. This

appeal followed. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

                                 BACKGROUND

      The following facts are undisputed. 1 On May 22, 2007 at around 2:00 a.m.,

Officer Jeff Capito was dispatched to St. Mary-Corwin Hospital in Pueblo,

Colorado. The hospital had reported a patient with a knife wound. The patient

was the plaintiff.




1
       Plaintiff asserts that these facts are not undisputed. But he does not
identify specific facts in the record that contradict them. Instead he claims that
every statement given by a non-police witness in this case was “coerced,” thereby
creating genuine issues of material fact. Aplt. Reply Br. at 3-4. We deal with his
claims of coercion in the analysis section of this order and judgment, infra.

                                         -2-
      Plaintiff’s Initial Statement to Officer Capito

      Officer Capito interviewed plaintiff at the hospital. Plaintiff told him that

earlier that evening he had gone to Patricia Ricker’s residence, “to help [her], if

she needed it.” R., Vol. I, at 75. 2 Upon arriving at her residence he knocked on

the door until Frank Marksberry answered it. Ms. Ricker was present at the house

but she did not speak. Plaintiff believed Mr. Marksberry was preventing her from

talking to him.

      Plaintiff and Mr. Marksberry began to fight. Mr. Marksberry drew a knife

and cut plaintiff with it. Plaintiff wrested the knife away from Mr. Marksberry

and then walked to the “Prime Time” bar, where he got a ride home.

      Officer Pruce Visits the Ricker Residence

      At around the same time Officer Capito was dispatched to the hospital,

Officer Nathan Pruce was dispatched to the Ricker residence in response to an

abandoned 911 call. Upon arrival, he spoke with Ms. Ricker and Mr. Marksberry.

They informed him that the “unwanted party” who had occasioned the call had

already left. Id. at 80. Officer Pruce then departed the scene.

      Shortly after he left the Ricker residence, Officer Pruce received another

dispatch call stating that the Ricker residence might have been the scene of a




2
      The magistrate judge incorrectly identified this individual as “Patricia
Riker.” We have corrected the spelling of her surname.

                                         -3-
stabbing. He returned to the residence, where Ms. Ricker informed him that

Mr. Marksberry had already left.

      During his second visit to the Ricker residence, Officer Pruce made several

visual observations. He observed drops of blood on and near a door to the

residence. He also noticed drops of blood on the floor near the residence door

leading outside. He observed that a board that had been used to cover a window

in the residence had been dislodged from the window and was lying against the

wall, under the window. He did not see any blood near the window or on the

board under the window.

      Dispatch contacted Officer Pruce again and advised him that officers had

made contact with Mr. Marksberry at his residence. Officer Pruce advised the

officers to take Mr. Marksberry to the police station for questioning. At the

station, Officers Pruce and Capito questioned Mr. Marksberry about the incident.

He provided the officers with voluntary oral and written statements.

      Mr. Marksberry’s Statement

      Mr. Marksberry told the officers that he had been at Ms. Ricker’s house for

approximately two hours when he heard a loud knocking on the front door. He

heard plaintiff say “‘Patty I need to talk with you.’” Id. at 85. When he asked

Ms. Ricker who was at the door, she said, “‘my ex.’” Id.

      Plaintiff then pushed in the board covering the front window and entered

the residence holding a large steel pipe. He struck Mr. Marksberry in the face

                                         -4-
with the pipe. Mr. Marksberry reached for his folding box-cutter knife, which

was clipped to his pants pocket. He swung the knife blade open and slashed at

plaintiff. Then he took the pipe away from plaintiff and chased him from the

house. After that, Mr. Marksberry threw the pipe and the knife into some grass

and bushes.

      Mr. Marksberry showed Officer Pruce the wound on his face where he had

been struck with the pipe. Officer Pruce then transported him to Ms. Ricker’s

house where he led the officer to a large piece of steel pipe and a blue folding box

cutter-style knife.

      Plaintiff’s Second Statement to Office Capito

      Having noted several differences between Mr. Marksberry’s narrative of

events and plaintiff’s, Officer Capito returned to the hospital to re-interview

plaintiff. Plaintiff gave him a new version of events that differed somewhat from

his previous story. He now said that he had been drinking at a bar called “Phil’s

Radiator” and went to Ms. Ricker’s residence to get a ride home. He knocked on

the door until Mr. Marksberry answered. As soon as he entered the house

Mr. Marksberry confronted him. A fight ensued with Mr. Marksberry pulling

a knife and cutting him.

      Officer Capito told plaintiff he knew more details than that. Plaintiff

immediately stated that he entered the house with permission. Officer Capito

found this comment suspicious because he had not yet accused plaintiff of

                                         -5-
entering the house without permission. Plaintiff further stated that after he

entered the residence and Mr. Marksberry confronted him with the knife, he

grabbed a pipe that was lying on a shelf and tried to defend himself with it. After

Mr. Marksberry cut him he ran out the door, then re-entered and again fought

with Mr. Marksberry. He then pulled off the board from the window and fled out

the window. A friend took him to the hospital for treatment.

      Officer Capito asked plaintiff about his relationship with Ms. Ricker. He

stated that it was an intimate relationship and had been for several months. 3

      The Arrest

      Based in part on Mr. Marksberry’s statements, plaintiff’s inconsistent

statements, and the physical evidence Officer Pruce observed at the scene,

plaintiff was arrested for first degree burglary, second degree assault, and

domestic violence. The charges against him were later dismissed.

                                    ANALYSIS

      1. Standard of Review

      “We review the district court’s grant of summary judgment de novo,

employing the same legal standard applicable in the district court.” Thomson v.

Salt Lake County, 584 F.3d 1304, 1311 (10th Cir. 2009). A summary judgment

motion should be granted “if the pleadings, the discovery and disclosure materials


3
      Ms. Ricker also gave written and oral statements to the officers. These
statements will be discussed later in the analysis.

                                         -6-
on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). We “view the facts, and all reasonable inferences those

facts support, in the light most favorable to the non-movant.” Fisher v. City of

Las Cruces, 584 F.3d 888, 893 (10th Cir. 2009).

      Here, the officers have asserted qualified immunity. This court reviews

summary judgment decisions involving a qualified immunity question differently

than other summary judgment rulings because of the purposes behind qualified

immunity. Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008). When a

defendant raises a qualified immunity defense on summary judgment, the plaintiff

must show that (1) the defendant’s conduct violated a constitutional right, and

(2) the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001);

see also Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (holding that the

sequence of the Saucier inquiry is discretionary).

      2. Existence of Probable Cause

      Count One of plaintiff’s complaint asserts that Officers Capito and Pruce

wrongfully arrested him without probable cause. Count Two asserts that as a

result he was wrongfully incarcerated in the Pueblo County Jail. Count Three

asserts that Pueblo Police Department Chief James Billings, Jr. failed to prevent

the officers from wrongfully arresting and/or wrongfully incarcerating plaintiff

and that he maintained illegal policies that permit officers to arrest people without

                                         -7-
probable cause. As the district court recognized, all of these claims ultimately

turn on whether the officers had probable cause to arrest plaintiff.

      A warrantless arrest violates the Fourth Amendment unless the arrest is

supported by probable cause. Fogarty v. Gallegos, 523 F.3d 1147, 1156

(10th Cir. 2008). “In evaluating the existence of probable cause, we consider

whether the facts and circumstances within the officers’ knowledge, and of which

they have reasonably trustworthy information, are sufficient in themselves to

warrant a man of reasonable caution in the belief that an offense has been or is

being committed.” Id. (quotation omitted). “Our determination on this score is

an independent and objective one. Thus an officer’s own subjective reason for

the arrest is irrelevant, and it does not matter whether the arrestee was later

charged with a crime.” Id.

             a. Ms. Ricker’s Statement

      Plaintiff contends that probable cause was absent because Ms. Ricker

“signed a verified statement [stating that he] did not enter her residence through a

window and did not commit any crimes.” Aplt. Opening Br., Attach. 1, at 2.

Plaintiff has not accurately characterized her statement. While she checked a box

on the Domestic Violence Victim Report Form & Case Summary indicating that

plaintiff had not struck or injured her, see R., Vol. I, at 22, nowhere did

Ms. Ricker state on this form that plaintiff had not committed any crimes against

anyone. In fact, Mr. Marksberry informed Officer Pruce that plaintiff struck him

                                          -8-
in the face with a pipe, which appears to meet the elements of the crime of second

degree assault. See Colo. Rev. Stat. § 18-3-203(1)(b) and (d). Striking

Mr. Marksberry under these circumstances also fits the definition of “domestic

violence,” which includes crimes against persons other than those in an intimate

relationship with the accused “when used as a method of coercion, control,

punishment, intimidation, or revenge” against the person with whom the accused

had an intimate relationship. Id. § 18-6-800.3(1).

      Of more concern is Ms. Ricker’s notation on the form, signed prior to

plaintiff’s arrest, that “He didn’t come thru window.” R., Vol. I at 23. She later

filed a declaration stating that she made this notation because she was being

pressured to state falsely that plaintiff came through the window, when in fact she

had voluntarily invited him into her home. Under Colorado law, first degree

burglary requires, among other things, unlawful entry into a building or occupied

structure. Colo. Rev. Stat. § 18-4-202(1). If plaintiff was voluntarily admitted

into Ms. Ricker’s home, the entry would likely not qualify as first degree

burglary. But even so, Ms. Ricker’s statements that plaintiff did not come

through the window cannot defeat probable cause, for two reasons.

      First, the officers had other evidence, both physical and testimonial, that

strongly contradicted Ms. Ricker’s statements. The board that had covered the

window was dislodged, suggesting that it had in fact been recently removed.

Although plaintiff told Officer Capito at one point that he left through the

                                         -9-
window, Officer Pruce did not see blood on the window or the board that had

been removed from it as might be expected if plaintiff departed by that route after

being slashed with the knife. But he did see blood near the door to the residence,

leading outside, suggesting that plaintiff left through the front door after he was

injured. 4 Thus, a reasonable officer could have concluded that the dislodging of

the board was more likely the result of plaintiff’s intrusive entry than of his hasty

departure. Supporting this theory, Mr. Marksberry specifically told officers that

plaintiff came in through the window armed with a pipe.

      Second, even if Ms. Ricker’s statement would have given a reasonable

officer pause before arresting plaintiff for first degree burglary, the officers had

two other grounds on which to arrest plaintiff. Thus, the arrest was supported by

probable cause as to these crimes.

             b. Effect of Dismissal

      Plaintiff next argues that the Pueblo County District Attorney’s Office later

dismissed the charges against him because probable cause did not exist. As the

magistrate judge noted, the fact that charges were dismissed is not determinative

of the issue of probable cause. Moreover, plaintiff does not cite to any evidence




4
      The location of this blood does not support plaintiff’s theory that he both
entered and left through the front door. There is no evidence that plaintiff was
bleeding when he entered the residence.

                                         -10-
in the record that would reveal the reason for the dismissal of charges. Thus, his

argument lacks merit. 5

             c. Ms. Ricker’s Affidavits

      Plaintiff complains that the magistrate judge and the district court failed to

discuss affidavits he filed executed by Ms. Ricker after the charges were

dismissed. He contends that several statements she made in these affidavits

negate the existence of probable cause. Ms. Ricker stated that:

      1. Officer Pruce attempted to get her to write, falsely, on the domestic

violence form that plaintiff came in through the window. As we have already

discussed, however, the officers had probable cause to arrest plaintiff whether or

not Ms. Ricker disputed their theory about how he entered the residence.

Therefore, any pressure Officer Pruce exerted on her to conform her statement to

the officers’ conclusions from other evidence does not negate probable cause.

      2. Officer Pruce came to her residence a total of four times, until he

coerced her into giving a “false oral report” against plaintiff. Aplt. Opening Br.,

Attach. 1 at 3. If Ms. Ricker’s allegedly false oral statement were the only

evidence implicating plaintiff, her assertions of police coercion might give us

pause. But other physical evidence and Mr. Marksberry’s statements amply


5
      The magistrate judge noted defendants’ argument that the charges were
dismissed because Ms. Ricker and Mr. Marksberry failed to show up at plaintiff’s
preliminary hearing, but he acknowledged that the defendants also failed to
supply any evidence in support of this statement. R., Vol. I at 854 n.3.

                                        -11-
supported the officers’ decision to arrest plaintiff. And it is the objective

reasonableness of the decision to arrest that concerns us. See Fogarty, 523 F.3d

at 1156 (identifying objective reasonableness rather than subjective motivation as

standard for probable cause determinations). In any event, like the district court,

we need not rely on Ms. Ricker’s disputed oral statements to establish probable

cause in view of the other evidence.

      3. She reported to Officer Pruce that plaintiff acted in self-defense after

Mr. Marksberry attacked him with a knife. But a witness’s opinion that a party to

a fight acted in self-defense would not necessarily defeat probable cause. Under

Colorado law, self-defense is an affirmative defense that may be raised by the

defendant at trial when the record contains credible evidence to support it.

Cassels v. People, 92 P.3d 951, 956 (Colo. 2004); Colo. Rev. Stat. § 18-1-407(1).

Plaintiff fails to show that Ms. Ricker’s alleged protestations so overcame the

other significant evidence in this case that negated self-defense--by showing that

plaintiff and not Mr. Marksberry had been the initial aggressor--that a reasonably

cautious officer would not have arrested plaintiff.

      4. Mr. Marksberry told her that the Pueblo Police Department told him

they were going to take him to jail if he did not write a statement against plaintiff.

This hearsay statement is inadmissible for summary judgment purposes. See, e.g.,

Fisher, 584 F.3d at 897 n.3 (stating hearsay is inadmissible in summary judgment

determinations).

                                         -12-
             d. Caitlin Allen Statements

      Plaintiff presented statements from a witness named Caitlin Allen who

claimed to have been present at the hospital when Officer Capito interrogated

plaintiff. She stated that Officer Capito delayed plaintiff’s medical treatment,

keeping plaintiff in severe pain while he tried to obtain a “false confession” from

plaintiff that he broke into Ms. Ricker’s house. R., Vol. I at 555. 6 While

aggressively interrogating a wounded suspect could conceivably give rise to a

Fourteenth Amendment claim, see Chavez v. Martinez, 538 U.S. 760, 773, 779-80

(2003), such a Fourteenth Amendment claim is not included as part of plaintiff’s

complaint, see R., Vol. I at 855 n.5. Again, as to plaintiff’s Fourth Amendment

claims, which are the focus of our inquiry, the objective evidence supports the

existence of probable cause to arrest, whether or not Officer Capito attempted to

obtain a confession from plaintiff to bolster the evidence he already had.

             e. Conclusion

      Plaintiff has failed to show that the defendant officers lacked probable

cause to arrest him. The district court therefore properly granted summary

judgment to the defendants on his claims on the basis of qualified immunity.

Since no showing of a constitutional violation was made, plaintiff’s claims




6
     Plaintiff also filed an affidavit stating that Officer Capito delayed his
medical treatment while he interrogated him. R., Vol. I at 190.

                                        -13-
against Chief Billings fail as well, and his state law claims were properly

dismissed.

      3. Completeness of Record

      Plaintiff further argues that the district court’s summary judgment ruling

must be reversed because it was reached on the basis of an incomplete record. He

argues that some of the documents attached to his summary judgment pleadings

did not scan completely into the district court’s PACER system and were

therefore not considered. The district court, addressing this claim, concluded that

all of the allegedly omitted documents were included in duplicate form in a

separate document entitled “Plaintiff’s Response to Defendants’ Motion for Leave

to Supplement Defendants’ Motion for Summary Judgment.” See R., Vol. I, at

906. We conclude that plaintiff has to failed to cast appreciable doubt on the

factual accuracy of this conclusion and, more fundamentally, he has failed to

demonstrate that the district court made its determination on an incomplete

record.

      4. Recusal

      Plaintiff contends that the magistrate judge was biased against him and

should have recused himself. He presents no evidence that he ever filed a recusal

motion in the district court. We therefore need not consider this claim.




                                        -14-
     The judgment of the district court is AFFIRMED. Plaintiff’s motion to

proceed in forma pauperis is GRANTED.


                                                Entered for the Court



                                                Jerome A. Holmes
                                                Circuit Judge




                                     -15-
