                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       October 20, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
RODNEY DUTTON; SHIRLEY
DUTTON,

      Plaintiffs - Appellants,

v.                                                          No. 15-6048
                                                    (D.C. No. 5:13-CV-01239-HE)
THE CITY OF MIDWEST CITY; DAN                               (W.D. Okla.)
PETERSON, Police Officer Badge #88;
OKLAHOMA COUNTY DETENTION
CENTER; STATE OF OKLAHOMA,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.
                  _________________________________

      In this civil-rights case, Rodney and Shirley Dutton appeal pro se from district

court orders that granted the defendants’ motions to dismiss and for summary

judgment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm for

substantially the same reasons identified by the district court.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    BACKGROUND

      Responding to a reported disturbance at the Duttons’ home, Midwest City

police officer Dan Peterson, a certified bomb technician, saw what he believed were

numerous Molotov cocktails in the Duttons’ open garage. Officers attempted to

speak with Mr. Dutton, but he refused, stating he had “something” for them and they

should “get the ‘fuck’ out of here.” R., Vol. I at 60. A SWAT team arrived, shot

Mr. Dutton through the window with sponge-tipped projectiles, and took him into

custody. Officer Peterson prepared a probable-cause affidavit, charging Mr. Dutton

with fifteen counts of manufacturing or possessing an explosive device. Mr. Dutton

was detained in the Oklahoma County Detention Center (OCDC).

      While awaiting trial, the Duttons filed a pro se 42 U.S.C. § 1983 suit in federal

court against the State of Oklahoma, the OCDC, Midwest City, and Officer Peterson.

The Duttons’ claims against the State concerned its pursuit of criminal charges. The

Duttons’ claims against the OCDC concerned conditions of confinement. As for

Midwest City and Officer Peterson, the Duttons advanced false-arrest and

excessive-force claims. The Duttons also complained that the defendants’ actions

interfered with their marriage.

      When the state criminal case against Mr. Dutton went to trial, the judge

dismissed the charges due to insufficient evidence of criminal intent.

      Meanwhile, in the federal civil case, the district court dismissed the State and

OCDC, and it denied leave to amend. Each of the remaining parties then moved for



                                           2
summary judgment. The district court granted summary judgment to Midwest City

and Officer Peterson, prompting this appeal.

                                     DISCUSSION

       We review the district court’s orders de novo. See Chamber of Commerce of

U.S. v. Edmondson, 594 F.3d 742, 760 (10th Cir. 2010) (dismissal); EEOC v. C.R.

England, Inc., 644 F.3d 1028, 1037 (10th Cir. 2011) (summary judgment). As

summarized below, the Duttons have offered no cogent basis on which to reverse the

district court’s orders.1

       We first address the dismissal of the State of Oklahoma and the OCDC. The

State is immune from suits brought in federal court, Chamber of Commerce of U.S. v.

Edmondson, 594 F.3d 742, 760 (10th Cir. 2010), and it has not waived that immunity

for the types of claims advanced by the Duttons, see Okla. Stat. tit. 51, § 152.1. As

for the OCDC, it is not a person or legally created entity that can be sued under

§ 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); see, e.g.,

Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (stating that

municipality’s jail was not a person under § 1983). Dismissing those parties without

granting leave to amend was proper, given that the Duttons proposed amending their

complaint to bring in parties (the prosecutors in the state criminal case) who are

absolutely immune from suit. See Berneike v. CitiMortgage, Inc., 708 F.3d 1141,

1151 (10th Cir. 2013) (“[A] district court may dismiss without granting leave to

       1
        Nor can we say that the district court abused its discretion in refusing to
appoint counsel for the Duttons, given Mr. Dutton’s demonstrated understanding of
procedural and substantive legal issues.
                                           3
amend when it would be futile to allow the plaintiff an opportunity to amend [the]

complaint.” (ellipsis, brackets, and internal quotation marks omitted)); Thomas v.

Kaven, 765 F.3d 1183, 1191 (10th Cir. 2014) (observing that “[p]rosecutors are

absolutely immune for those activities intimately associated with the judicial phase of

the criminal process.” (internal quotation marks omitted)). Accordingly, we affirm

the district court’s dismissal order and the denial of leave to amend.

      As for summary judgment, that procedural mechanism “is appropriate where

the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Riser v. QEP Energy, 776 F.3d

1191, 1195 (10th Cir. 2015) (internal quotation marks omitted). Where, as here, a

defendant asserts qualified immunity, the plaintiff must show that “(1) the defendant

violated a constitutional right and (2) the constitutional right was clearly established”

at the time of the challenged conduct. Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir.

2012) (internal quotation marks omitted).

      In regard to false arrest, the undisputed facts were that Officer Peterson

observed numerous open containers of gasoline, rags, wires, and an antenna all

within close proximity to each other, and Mr. Dutton belligerently refused to respond

to the officers’ concerns about the apparent incendiary devices and even threatened

them. A reasonable police officer could have viewed these circumstances as

providing probable cause to arrest Mr. Dutton. See Olsen v. Layton Hills Mall,

312 F.3d 1304, 1312 (10th Cir. 2002) (“In the context of a warrantless arrest in a

§ 1983 action, this court must grant a police officer qualified immunity if a

                                            4
reasonable officer could have believed that probable cause existed to arrest the

plaintiff.” (internal quotation marks omitted)). The fact that the charges against

Mr. Dutton were later dismissed is not determinative. See United States v. Morris,

247 F.3d 1080, 1088 (10th Cir. 2001) (“Probable cause does not require facts

sufficient for a finding of guilt.”).

       Regarding excessive force, because Officer Peterson had no involvement in

apprehending Mr. Dutton, he is entitled to summary judgment. See Porro v. Barnes,

624 F.3d 1322, 1327-28 (10th Cir. 2010) (“To establish a violation of § 1983 . . . the

plaintiff must establish a deliberate, intentional act on the part of the defendant to

violate the plaintiff’s legal rights.” (brackets and internal quotation marks omitted)).

       As for the claims against Midwest City, they fail without an underlying

constitutional violation, see Ellis ex rel. Estate of Ellis v. Ogden City, 589 F.3d 1099,

1104 (10th Cir. 2009), and without evidence of a municipal policy or custom behind

the violation, see Becker v. Bateman, 709 F.3d 1019, 1025 (10th Cir. 2013).

       Finally, to the extent Mrs. Dutton attempts to advance claims on behalf of her

husband, it is well established that a litigant is generally prohibited from “raising

another person’s legal rights.” Lexmark Int’l, Inc. v. Static Control Components,

Inc., 134 S. Ct. 1377, 1386 (2014) (internal quotation marks omitted). And insofar as

the Duttons complain that the defendants’ actions interfered with their marriage, such

a claim is not cognizable under 42 U.S.C. § 1983. See Stallworth v. City of

Cleveland, 893 F.2d 830, 838 (6th Cir. 1990).



                                            5
      Accordingly, summary judgment was properly granted in favor of Midwest

City and Officer Peterson.

                                    CONCLUSION

      The judgment of the district court is affirmed for substantially the same

reasons given by the district court in its orders dated March 4, 2014, October 24,

2014, and March 18, 2015.2


                                           Entered for the Court


                                           John C. Porfilio
                                           Circuit Judge




      2
       We deny as moot the Duttons’ “Notice of Related Civil Rights Complaints
and Motion to Review for Appropriate Relief Regarding Judgment of Case.”
                                           6
