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

                             FOR THE TENTH CIRCUIT                             April 4, 2019
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 TODD ELLISON,

       Plaintiff - Appellant,

 v.                                                           No. 18-3080
                                                  (D.C. No. 5:17-CV-04025-DDC-JPO)
 CHRISTINE M. T. LADNER,                                        (D. Kan.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

      Todd Ellison spent nearly five years—1,705 days—in the Sedgwick County

Adult Detention Facility awaiting trial on the state’s civil petition to involuntarily

commit him under the Kansas Sexually Violent Predator Act. The state district court

eventually concluded that the extraordinary delay violated Ellison’s due process

rights and ordered him released. The Kansas Supreme Court affirmed. Ellison then

filed this suit for damages in federal court alleging that the lengthy detention violated



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
his rights under the United States Constitution. The district court concluded that the

only defendant Ellison had sued was entitled to absolute prosecutorial immunity or,

alternatively, to qualified immunity, and dismissed the case. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                      Background1

       The Kansas Sexually Violent Predator Act (KSVPA) authorizes the state of

Kansas to commit an individual in a civil proceeding if the state proves beyond a

reasonable doubt that he is a sexually violent predator. Kan. Stat. Ann. § 59-

29a07(a) (2005 & 2008 Supp.).2 When the state files a petition for civil commitment

under the KSVPA, a state court must determine whether the state has shown probable

cause that the individual is a sexually violent predator. Id. § 59-29a05(a). If the

court finds probable cause, it must order the individual detained. Id. The accused

individual is entitled to a jury trial, and the trial must be held within 60 days after the

probable cause hearing. Id. § 59-29a06(a), (c). But “[t]he trial may be continued

upon the request of either party and a showing of good cause, or by the court on its

own motion in the due administration of justice, and when the [individual] will not be

substantially prejudiced.” Id. § 59-29a06(a).




       1
         The facts are drawn from the allegations in Ellison’s complaint, which must
be taken as true when considering a motion to dismiss. Thomas v. Kaven, 765 F.3d
1183, 1190 (10th Cir. 2014).
       2
         We cite the version of the statute in effect in 2009 when Ellison was
detained. The statute has since been amended several times, but those amendments
are not relevant to our analysis.
                                             2
      Ellison served a term of imprisonment in the custody of the Kansas

Department of Corrections for committing a sex crime. Before his release, and based

on certification by the Kansas DOC that Ellison met the statutory criteria, the state

filed a petition against him under the KSVPA. On June 25, 2009, a state court judge

found probable cause that Ellison was a sexually violent predator and ordered him

detained in the county jail pending further proceedings.

      Ellison’s trial was set for September 21, 2009. A combination of multiple

continuances, changes in Ellison’s counsel, and reassignment to three different state-

court judges resulted in a lengthy delay. On June 21, 2012, Ellison filed several

motions advocating for his immediate release, including a motion arguing that the

KSVPA violated due process. On June 7, 2014, the state-court judge concluded that

the delay had violated Ellison’s due process rights, dismissed the case, and ordered

him released. The Kansas Supreme Court affirmed, and in doing so decided for the

first time in Kansas that the Sixth Amendment speedy-trial factors applying in

criminal prosecutions supplied the appropriate framework for assessing delay in a

civil-commitment proceeding. In re Ellison, 385 P.3d 15, 22-25 (Kan. 2016).

Ellison spent 1,705 days, more than 56 months, in state custody without a trial on the

state’s KSVPA petition.

      Ellison filed suit in federal court under 42 U.S.C. § 1983 against Christine

Ladner, the Assistant Attorney General for the State of Kansas assigned to civil-

commitment actions under the KSVPA during the time Ellison was in custody. He



                                           3
alleged that she had violated his constitutional rights by detaining him for 56 months

without trial and by not taking any action to advance his case.

      Ladner moved to dismiss the complaint under Federal Rule of Civil Procedure

12(b)(5) and (6).3 She argued that the complaint failed to state a claim and that she

was entitled to absolute prosecutorial immunity and qualified immunity. The district

court concluded that Ladner was entitled to absolute prosecutorial immunity or, in

the alternative, qualified immunity. The court did not decide whether the allegations

in the complaint stated a claim for a constitutional violation. Ellison appeals both

immunity determinations.

                                      Discussion

      We review the district court’s immunity determinations de novo. Snell v.

Tunnell, 920 F.2d 673, 675 (10th Cir. 1990). Because we are reviewing an order

granting a motion to dismiss under Rule 12(b)(6), we accept as true all well-pleaded

allegations in the complaint and construe them in favor of Ellison. Thomas v. Kaven,

765 F.3d 1183, 1190 (10th Cir. 2014).

      Absolute Immunity

      “State attorneys and agency officials who perform functions analogous to

those of a prosecutor in initiating and pursuing civil and administrative enforcement

proceedings are absolutely immune from suit under section 1983 concerning



      3
         Ladner styled her motion as arising under Rule 12(b)(1), (2), (5), and (6), but
the district court read the motion as presenting arguments only under Rule 12(b)(5)
and (6), and neither side has objected to this characterization on appeal.
                                           4
activities intimately associated with the judicial process.” Scott v. Hern, 216 F.3d

897, 908 (10th Cir. 2000) (internal quotation marks and alterations omitted). A

prosecutor is immune from suit for “actions that cast [her] in the role of an advocate

initiating and presenting the government’s case.” Mink v. Suthers, 482 F.3d 1244,

1261 (10th Cir. 2007). Prosecutorial immunity does not extend to actions that are

primarily investigative or administrative in nature. Id. at 1262. Among the factors a

court should consider in determining whether an action falls on the advocacy—and

immune—side of the spectrum are “(1) whether the action is closely associated with

the judicial process, (2) whether it is a uniquely prosecutorial function, and

(3) whether it requires the exercise of professional judgment.” Id. at 1261 (citations

omitted).

      In his complaint, Ellison alleges that Ladner violated his constitutional rights

by “taking no action to further advance the case against [him] for approximately

fifty-six months” and by “detaining him . . . for that time without reasonable

explanation of the delay and based solely on an unverified petition.” Aplt. App. at 9.

But he also alleges that the lengthy delay was caused by “a combination of multiple

continuances, [his] obtaining new counsel and three different district [j]udges

handling the case.” Id. at 6. Notably, Ellison does not allege that Ladner is

responsible for any of those circumstances.

      Noting the state-court judge, not Ladner, ordered Ellison detained, the district

court construed the complaint as alleging that Ladner had violated Ellison’s

constitutional rights by not filing a motion for his release. The court concluded that

                                           5
the decision to file such a motion required legal knowledge and the exercise of

discretion that are part of a prosecutor’s role in presenting the government’s case.

The court also concluded that any actions by Ladner that contributed to the delay in

bringing Ellison to trial—either by agreeing to Ellison’s requests for continuance, by

acquiescing in the state court’s continuances, or by requesting continuances herself—

also required legal knowledge and the exercise of discretion.

      We agree with the district court. The state court’s decisions to continue

Ellison’s trial were “unquestionably a judicial act.” Mink, 482 F.3d at 1259-60

(internal quotation marks omitted). So Ladner’s role in agreeing to, requesting, or

acquiescing in those continuances involved an exercise of professional judgment

associated with the judicial process. Id. at 1261. We also agree with the district

court that any decision by Ladner not to seek Ellison’s release required an exercise of

professional judgment.4

      On appeal, Ellison argues that Ladner’s failure to diligently pursue the matter

was a failure to discharge her obligations that should be treated as an administrative

failure, not advocacy. But the suggestion that Ladner did nothing for 56 months is

belied by the allegation in Ellison’s complaint that the delay was caused by “a

combination of multiple continuances” and other circumstances not within Ladner’s

control—Ellison’s requests for counsel and reassignment to different judges. Aplt.



      4
        In any event, on appeal, Ellison disagrees with the district court’s
construction of his complaint and insists he “does not allege that Ladner was required
to seek his release.” Aplt. Opening Br. at 15.
                                           6
App. at 6. At a minimum, Ladner must have agreed to, requested, or not opposed

those continuances. That is not inaction, and, as described above, such actions are

advocative, not administrative.

       Qualified Immunity

       Qualified immunity shields government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). When resolving a motion to dismiss based on

qualified immunity, a court must consider (1) whether the plaintiff has alleged facts

that make out a violation of a constitutional right, and (2) whether that right was

clearly established at the time of the alleged violation. Pearson v. Callahan,

555 U.S. 223, 232 (2009). We may resolve these questions in any order, and a

defendant is entitled to qualified immunity if a plaintiff fails to satisfy either

requirement. Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016). To

show a clearly established right in this circuit, a plaintiff must identify a Supreme

Court or Tenth Circuit decision on point, or at least show a “clearly established

weight of authority from other courts.” Thomas, 765 F.3d at 1194 (internal quotation

marks omitted).

       The district court did not decide whether Ellison had pleaded sufficient facts to

state a claim or, relatedly, whether Ellison had alleged conduct that violated a

constitutional right. Instead, it concluded that even assuming the alleged conduct did

violate a constitutional right, the right was not clearly established. We agree that

                                             7
Ladner is entitled to qualified immunity, in part for different reasons than the district

court. To explain why, we find it helpful to first identify the constitutional rights

potentially at issue in this case. See Manuel v. City of Joliet, 137 S. Ct. 911, 920

(2017) (noting that the threshold inquiry in a § 1983 suit is to “‘identify the specific

constitutional right’ at issue” (quoting Albright v. Oliver, 510 U.S. 266, 271 (1994))).

       The complaint Ellison filed in the district court includes somewhat muddled

references to the Fourth Amendment’s protections against unreasonable seizure and

the Fourteenth Amendment’s due process protections. The complaint contains a

single claim entitled, “Constitutional and Civil Rights Pursuant to 42 U.S.C. § 1983,

1988 Unreasonable Seizure in Violation of Fourth and Fourteenth Amendments.”

Aplt. App. at 9. Under this heading, Ellison alleges that Ladner violated his “Fourth

Amendment right to be free from unreasonable seizure.” Id. But elsewhere in the

complaint, he alleges that Ladner was aware that jails are not to be used for detention

pending civil commitment proceedings as doing so “violates the person’s substantive

and procedural due process rights,” yet she “made the decision to continue to detain

[him] in jail without a finding as to his guilt . . . , thereby punishing him and

violating his due process rights for approximately fifty-six months.” Id. at 8

(emphasis added). It appears the district court read the complaint as asserting

violations of both the Fourth and Fourteenth Amendments. Compare Aplt. App. at

114 (“Here, plaintiff claims that qualified immunity cannot protect defendant because

plaintiff had a clearly established right to be free from unreasonable seizures.”), with

id. at 115 (“Importantly, the Kansas Supreme Court [in In re Ellison] cited no

                                            8
existing case law from the Supreme Court or the Tenth Circuit that directly answered

whether Kansas had deprived plaintiff of due process by proceeding so slowly in a

civil commitment proceeding, or keeping him detained while doing so. . . . Neither

does plaintiff now.”).

      Ellison certainly argues on appeal that his prolonged detention violated both

the Fourth5 and Fourteenth Amendments. Aplt. Opening Br. at 22-25. For her part,

Ladner insists that Ellison has not alleged a Fourteenth Amendment due process

claim in his complaint or in the district court. Aplee. Br. at 35-36. But based on the

complaint’s referring to violations of Ellison’s due process rights, and on the

language in the district court’s order, we will construe the complaint as alleging a

procedural-due-process violation in addition to an unreasonable seizure.6 Even so,

Ladner is entitled to qualified immunity on both claims.

      The Fourth Amendment protects the people from unreasonable seizures, those

unsupported by probable cause. Manuel, 137 S. Ct. at 918-19. Here, the state court



      5
         Ellison references malicious-prosecution case law as the starting point for a
Fourth Amendment analysis. See Aplt. Opening Br. at 23, 28. But Ellison did not
raise a malicious-prosecution claim below. To the extent he attempts to raise such a
claim now, we will not consider legal theories raised for the first time on appeal.
Utah Animal Rights Coal. v. Salt Lake Cty., 566 F.3d 1236, 1244 (10th Cir. 2009).
       6
         We do not construe the complaint to allege a substantive-due-process claim,
because it contains no allegations that the conditions (as opposed to the duration) of
Ellison’s pretrial detention amounted to punishment, see Bell v. Wolfish, 441 U.S.
520, 535 (1979) (explaining that the proper substantive-due-process inquiry is
whether the conditions of pretrial detention amount to punishment of the detainee),
and the district court did not address a substantive-due-process claim. Accordingly,
we do not consider the substantive-due-process arguments Ellison raises for the first
time on appeal. Utah Animal Rights Coal., 566 F.3d at 1244.
                                           9
found probable cause that Ellison was a sexually violent predator and ordered Ellison

detained. In his complaint, Ellison does not allege that he was detained without

probable cause or that the legal process underlying the probable cause determination

was defective. On appeal, he concedes that his initial detention was “most likely

reasonable, as it was based upon a finding of probable cause,” but he asserts “it was

at some time during the next 56 months that the seizure became unreasonable.” Aplt.

Opening Br. at 24. In other words, Ellison does not challenge the probable cause

determination; rather, he contends that the probable cause did not justify his lengthy

detention. For plaintiffs not challenging the probable cause determination itself, but

instead only the confinement after a determination of probable cause, “the protections

offered by the Fourth Amendment do not apply.” Wilkins v. DeReyes, 528 F.3d 790,

798 (10th Cir. 2008) (brackets and internal quotation marks omitted). Thus, while

the district court concluded Ellison’s Fourth Amendment right was not clearly

established, we conclude Ladner is entitled to qualified immunity on Ellison’s Fourth

Amendment claim because his allegations do not make out a Fourth Amendment

violation.

      The Fourteenth Amendment’s Due Process Clause protects individuals from

governmental deprivations of liberty “without due process of law.” Baker v.

McCollan, 443 U.S. 137, 145 (1979). As a matter of procedure, due process requires

“the opportunity to be heard at a meaningful time and in a meaningful manner.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted).

The Kansas Supreme Court concluded, as a matter of first impression in Kansas, that

                                          10
the lengthy delay in bringing Ellison to trial in the civil-commitment proceeding

violated his procedural-due-process rights. In reaching this decision, the Kansas

Supreme Court did not identify a single Supreme Court or Tenth Circuit case finding

a procedural due process violation in the civil-commitment context, and the cases it

did identify—from two states and the Ninth Circuit—do not clearly establish the due

process violation Ellison asserts. See In re Ellison, 385 P.3d at 22-25.

      On appeal, Ellison admits he cannot point to a Supreme Court or Tenth Circuit

case where a state attorney denied due process to a KSVPA detainee, but he argues

that he need show only that his right to the KSVPA’s procedural protections was

clearly established. Ellison misunderstands the particularity with which the right

must be established.7 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)

(reiterating that “clearly established law must be particularized to the facts of the

case” (internal quotation marks omitted)). He must identify a case where a

government official acting under similar circumstances was held to have violated the

Fourteenth Amendment. See id. In other words, Ellison must identify a Tenth

Circuit or Supreme Court case in which a state attorney in a civil commitment



      7
         We read Ellison’s complaint as alleging that Ladner violated due process by
depriving him of a liberty interest arising from the Fourteenth Amendment (the
liberty interest identified by the Kansas Supreme Court) as opposed to a liberty
interest created by the KSVPA. See Cordova v. City of Albuquerque, 816 F.3d 645,
656-57 (10th Cir. 2016) (explaining that “[l]iberty interests can either arise from the
Constitution or be created by state law”). To the extent he now argues that the
KSVPA created a liberty interest that Ladner violated by not complying with its
procedural requirements, we decline to consider this theory for the first time on
appeal. Utah Animal Rights Coal., 566 F.3d at 1244.
                                           11
proceeding was held to have violated procedural due process for her role in

prolonged detention without trial after a probable cause determination. He has,

admittedly, not done this.8

                                     Conclusion

      For the foregoing reasons, the judgment of the district court is affirmed.


                                           Entered for the Court


                                           Gregory A. Phillips
                                           Circuit Judge




      8
         The Supreme Court’s decision in Kansas v. Hendricks, 521 U.S. 346 (1997),
does not supply clearly established law for Ellison’s due-process claim. In that case,
the Supreme Court considered a challenge to the constitutionality of the KSVPA and
determined that the procedures and evidentiary standards set forth in the statute
satisfied substantive-due-process requirements such that the statute was
constitutional. Id. at 356-60, 371. The Court did not consider a procedural-due-
process claim or hold that any particular government conduct had violated
procedural-due-process by resulting in a lengthy detention.
                                          12
