                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          NOV 21 2001
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    MARK ALAN STREPKA,

               Plaintiff-Appellant,

    v.                                            No. 00-1294 and 00-1389
                                                    (D.C. No. 99-D-902)
    GREG MILLER, So. Metro Task;                         (D. Colo.)
    OFFICER COLLINS, So. Metro Task;
    CHRISTOPHER CROSS, Arap. Cty.
    J.; GREG NOZUM,

               Defendants-Appellees,

    SCOTT JONES, So. Metro Task;
    KELLY MARTIN, So. Metro Task;
    C. KLOPPENBERG, So. Metro Task;
    J. GORDANIER, So. Metro Task;
    RONALD BEATTY, Arap. Cty. S.O.;
    PATRICK J. SULLIVAN, JR., Sheriff;
    JERRY ROSENBAUGH, C.B.I.;
    J. FORSTER, Denver Dist. D.E.A.;
    DIRECTOR OF C.B.I.; DIRECTOR
    DENVER DIST. D.E.A.; NAT’L
    ADMIN. D.E.A.; EXECUTIVE
    DIRECTOR OF PUBLIC SAFETY,

               Defendants.


                             ORDER AND JUDGMENT          *




*
      This order and judgment is not binding precedent, except under the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
                                                                       (continued...)
Before HENRY , PORFILIO , and MURPHY , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Plaintiff sued the federal and local officers who arrested him, and the state

judge who later issued an order to detain him, for violating his constitutional right

to a prompt judicial determination of probable cause following his warrantless

arrest. The district court dismissed the complaint and denied leave to amend. We

must decide if plaintiff’s allegations, either with or without amendment, are

sufficient to establish that any of the defendants are liable for the alleged

constitutional violation.

       In assessing the sufficiency of plaintiff’s allegations, we must “accept the

well-pleaded allegations of the complaint as true and construe them in the light

most favorable to the plaintiff.”   Benefield v. McDowall , 241 F.3d 1267, 1270

(10th Cir. 2001) (quotation omitted). Because plaintiff is proceeding pro se, we



*
 (...continued)
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                          -2-
also must liberally construe the allegations of his complaint.         See Haines v.

Kerner , 404 U.S. 519, 520 (1972). This liberal construction, however, does not

obligate us either to “supply additional factual allegations to round out a

plaintiff’s complaint or [to] construct a legal theory on a plaintiff’s behalf.”

Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997).

       Plaintiff alleged that Officers Miller and Collins of the South Metro Task

Force 1 and Agent Nozum of the federal Drug Enforcement Agency arrested him

without a warrant in Blackhawk, Colorado.          2
                                                       Following his arrest, plaintiff was

transported to the Gilpin County Jail, where he was held for three days. Gilpin

County officers then transported plaintiff to a detention facility in Jefferson

County, where he was held for one day. Finally, Arapahoe County officers

transported plaintiff to a detention facility in Arapahoe County. Plaintiff was not

taken before a judge during any of this time. It was not until the fifth day

following his arrest that he appeared before Arapahoe County Judge Cross, who

advised him of his rights. Several hours before that, Judge Cross made a finding

of probable cause and signed an order to detain plaintiff.


1
       This is a local multi-jurisdictional task force. Although members of the
task force, Officers Miller and Collins were actually policemen for the City of
Sheridan.
2
       Plaintiff originally sued ten arresting officers and various supervisors, but
later filed a motion dismissing all but these three officers. For purposes of this
appeal, we refer only to these three defendants as the arresting officers.

                                             -3-
      Plaintiff alleged that being held in excess of forty-eight hours without

being released on bail or taken before a neutral magistrate for a determination of

probable cause violated his constitutional rights. He further alleged that Judge

Cross acted outside his authority when he made the probable cause determination

more than forty-eight hours after plaintiff’s arrest, and he violated plaintiff’s

rights when he made the determination before plaintiff appeared in court.

Plaintiff purported to bring his claims pursuant to 42 U.S.C. §§ 1983, 1985 and

1986 (and, presumably pursuant to    Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics , 403 U.S. 388 (1971)    3
                                                         ). He sought money damages

from the three arresting officers and injunctive relief against Judge Cross.

      Each defendant moved to dismiss plaintiff’s complaint, arguing, among

other things, that he was entitled to qualified immunity. In addition, Agent

Nozum argued that sovereign immunity barred any claim against him in his

official capacity, and Judge Cross argued both that absolute immunity barred any

claim against him for money damages and that Eleventh Amendment immunity

barred any claim against him in his official capacity. Without distinguishing



3
        The form provided by the District of Colorado for prisoner civil rights
cases directs prisoners to choose between either 42 U.S.C. § 1983 or     Bivens (and
28 U.S.C. § 1331) as the basis for the court’s jurisdiction, and states that the
former is for use by state prisoners and the latter is for use by federal prisoners.
As a state prisoner, plaintiff understandably checked the line for § 1983, but not
the line for Bivens.

                                          -4-
between official and individual capacity claims, the district court applied a

qualified immunity analysis to all plaintiff’s claims, granted the motions to

dismiss on that basis, and dismissed the case with prejudice.

       Thereafter, plaintiff filed a motion challenging the dismissal and seeking

leave to amend his complaint to add further allegations against defendants.

Plaintiff submitted a proposed amended complaint with his motion. The district

court construed the motion as one under Federal Rule of Civil Procedure 59(e)

and denied it. Plaintiff now appeals, challenging both the dismissal of his

complaint and the denial of his motion to amend.

       At the outset, we must determine in what capacity plaintiff intended to sue

defendants. Plaintiff did not clearly indicate his intent in his complaint, so we

must review “the course of proceedings” to find the answer.     Houston v. Reich ,

932 F.2d 883, 885 (10th Cir.1991). Our review reveals that plaintiff intended to

sue defendants in both their individual and official capacities, and we will

liberally construe plaintiff’s complaint as asserting both types of claims.

       Turning first to the individual capacity claims, the Supreme Court has

recognized a qualified immunity defense both for § 1983 claims against state

officials and Bivens claims against federal officials.   See Johnson v. Fankell , 520

U.S. 911, 914 (1997). “In both situations, officials performing discretionary

function[s], generally are shielded from liability for civil damages insofar as their


                                            -5-
conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.”            Id. at 914-15 (quotation omitted;

alteration in original). “Once a defendant raises the defense of qualified

immunity in the context of a motion to dismiss, a court must first determine

whether the plaintiff has asserted a violation of federal law.”         Currier v. Doran ,

242 F.3d 905, 917 (10th Cir. 2001),         cert. denied , 70 U.S.L.W. 3163

(U.S. Nov. 13, 2001) (No. 01-382),       and cert. denied , 70 U.S.L.W. 3270

(U.S. Nov. 13, 2001) (No. 01-551).      4



       “[T]he Fourth Amendment requires a judicial determination of probable

cause as a prerequisite to extended restraint of liberty following arrest.”          Gerstein

v. Pugh , 420 U.S. 103, 114 (1975). “[T]his determination must be made by a

judicial officer either before or promptly after arrest.”         Id. at 125. “[A]

jurisdiction that provides judicial determinations of probable cause within 48

hours of arrest will, as a general matter, comply with the promptness requirement

of Gerstein .” County of Riverside v. McLaughlin            , 500 U.S. 44, 56 (1991).

“Where an arrested individual does not receive a probable cause determination

within 48 hours, the calculus changes. In such a case, the arrested individual does


4
       In reviewing plaintiff’s allegations, we are mindful that we no longer apply
a heightened pleading standard to plaintiff’s complaint, despite defendants’
assertion of a qualified immunity defense.    See Currier , 242 F.3d at 916. Rather,
we review the complaint under the traditional standards applicable to a motion to
dismiss. Id. at 917.

                                                -6-
not bear the burden of proving an unreasonable delay. Rather, the burden shifts

to the government to demonstrate the existence of a bona fide emergency or other

extraordinary circumstance.”     Id. at 57. Even if an arrested individual receives a

probable cause determination within forty-eight hours of arrest,

       [s]uch hearing may nonetheless violate   Gerstein if the arrested
       individual can prove that his or her probable cause determination was
       delayed unreasonably. Examples of unreasonable delay are delays
       for the purposes of gathering additional evidence to justify the arrest,
       a delay motivated by ill will against the arrested individual, or delay
       for delay’s sake.

Id. at 56.

       The determination of probable cause can be made “reliably without an

adversary hearing. The standard is the same as that for arrest. That

standard–probable cause to believe the suspect has committed a

crime–traditionally has been decided by a magistrate in a nonadversary

proceeding on hearsay and written testimony . . . .”   Gerstein , 420 U.S. at 120

(footnote omitted). Thus, the determination can be made ex parte, without the

presence of the arrestee.   See Garcia v. City of Chicago , 24 F.3d 966, 969 (7th

Cir. 1994); King v. Jones , 824 F.2d 324, 327 (4th Cir. 1987).

       Plaintiff had a constitutional right to a prompt judicial determination of

probable cause following his warrantless arrest. Plaintiff’s allegations, taken as




                                            -7-
true, established that he was deprived of that right by someone.     5
                                                                         To state a claim

for violation of a constitutional right against these particular defendants, however,

plaintiff had to allege facts showing that each defendant personally participated in

or caused the constitutional violation.    Foote v. Spiegel , 118 F.3d 1416, 1423

(10th Cir. 1997) (“Individual liability under § 1983 must be based on personal

involvement in the alleged constitutional violation.”);     Kite v. Kelley , 546 F.2d

334, 338 (10th Cir. 1976) (holding same as to       Bivens claim).

       Even under the most liberal construction, plaintiff’s complaint was devoid

of any allegations showing that any of the arresting officers caused or participated

in the delay in providing plaintiff a prompt probable cause determination.

Likewise, the complaint contained no allegations showing Judge Cross caused or

contributed to that delay. Judge Cross made a determination of probable cause

promptly after plaintiff was delivered into the custody of Arapahoe County.

Because plaintiff had no constitutional right to be present for that probable cause

determination, Judge Cross did not violate plaintiff’s constitutional rights by

making the determination in advance of plaintiff’s first appearance before him.



5
       In their brief on appeal, Officers Miller and Collins state that they have
discovered that a Jefferson County judge actually made an ex parte probable
cause determination within forty-eight hours of plaintiff’s arrest. Because this
fact was not raised in the district court, and the officers do not provide us with
sufficient information to enable us to take judicial notice of this fact on appeal,
we will not consider it in our analysis.

                                            -8-
In the absence of any facts showing that defendants violated his constitutional

rights, the district court properly dismissed plaintiff’s claims against the

individual defendants on qualified immunity grounds.

      Although the district court did not separately analyze plaintiff’s claims

against defendants in their official capacities, its dismissal of those claims also

was correct. An official capacity claim against a government officer is really a

claim against the government that employs that officer.         See Myers v. Okla.

County Bd. of County Comm’rs , 151 F.3d 1313, 1316 n.2 (10th Cir. 1998).

Plaintiff’s official capacity claims against Agent Nozum, therefore, were really

claims against the United States, and were barred by sovereign immunity in the

absence of a waiver.   See Pleasant v. Lovell , 876 F.2d 787, 793 (10th Cir. 1989).

Plaintiff did not identify any waiver of sovereign immunity for the type of claims

he asserted, and we know of none. Therefore, plaintiff’s official capacity claims

against Agent Nozum were barred.

      Plaintiff’s official capacity claims against Judge Cross were really claims

against the State of Colorado. The Eleventh Amendment “generally bars suits

brought by individuals against state officials acting in their official capacities.

This bar does not apply, however, if the state waives its sovereign immunity, if

Congress validly abrogates the state’s immunity, or if the suit falls within the

legal fiction of Ex parte Young , 209 U.S. 123 . . . (1908).”     Harris v. Owens ,


                                           -9-
264 F.3d 1282, 1289-90 (10th Cir. 2001). Plaintiff did not identify any waiver of

immunity by the State or any abrogation of that immunity by Congress.       Ex parte

Young creates an exception to Eleventh Amendment immunity for a suit against a

state official that “seeks prospective relief for the official[’s] ongoing violation of

federal law.” Id. at 1290. But “the doctrine [does] not go so far as to allow

federal jurisdiction over a suit that seeks to redress past wrongs–only ongoing

violations are covered.”   ANR Pipeline Co. v. LaFaver , 150 F.3d 1178, 1189 (10th

Cir. 1998). Plaintiff’s official capacity claims against Judge Cross sought only to

redress past wrongs and alleged no ongoing violations of federal law. Therefore,

those claims were barred by the Eleventh Amendment.

       Plaintiff’s official capacity claims against Officers Miller and Collins were

really claims against the local government that employed them.

       Under 42 U.S.C. § 1983, a local government may be held liable for
       the constitutional violation of its employees only when employee
       action pursuant to official municipal policy . . . caused a
       constitutional tort. Therefore, to establish municipal liability a
       plaintiff must show (1) the existence of a municipal custom or policy
       and (2) a direct causal link between the custom or policy and the
       violation alleged.

Hollingsworth v. Hill , 110 F.3d 733, 742 (10th Cir. 1997) (citation and quotations

omitted; alteration in original). Plaintiff did not allege any municipal custom or

policy in his complaint, much less a link between that custom or policy and the




                                          -10-
violation. Therefore, the district court properly dismissed the claims against

Officers Miller and Collins in their official capacities.

       Likewise, although the district court did not separately analyze plaintiff’s

§ 1985(3) and § 1986 claims, it properly dismissed those claims as well. To state

a claim under § 1985(3), plaintiff had to allege that defendants conspired to

deprive him of equal protection or equal privileges and immunities. Not only did

plaintiff fail to sufficiently allege any conspiracy among defendants, but he did

not allege any race or class-based animus on their part. In the absence of these

allegations, plaintiff’s complaint failed to state a claim for relief under § 1985(3).

Bisbee v. Bey , 39 F.3d 1096, 1102 (10th Cir. 1994). By definition, plaintiff’s

§ 1986 claim fell with his § 1985 claim.

       After the district court dismissed his complaint, plaintiff filed a Rule 59(e)

motion objecting to the dismissal and seeking leave to amend. Plaintiff also filed

a proposed amended complaint. “[O]nce judgment is entered, the filing of an

amended complaint is not permissible until judgment is set aside or vacated

pursuant to Fed. R. Civ. P. 59(e) or 60(b).”          Seymour v. Thornton , 79 F.3d 980,

987 (10th Cir. 1996) (quotation omitted; alteration in original). The district court

denied the Rule 59 motion without specifically commenting on the request for

leave to amend. We review the district court’s denial of the Rule 59 motion and

its implicit denial of the motion for leave to amend under an abuse of discretion


                                               -11-
standard. See Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir. 1997) (Rule 59

motion); Cooper v. Shumway , 780 F.2d 27, 29 (10th Cir. 1985) (post-judgment

motion to amend).

      The only ground for relief plaintiff asserted in his Rule 59 motion was that

he should be given an opportunity to amend his complaint to cure the deficiencies

brought to light in the district court’s dismissal order. Plaintiff proposed

amending his complaint to include the following allegations. Officer Miller

arrested him without a warrant in a “foreign” county and neither released him

when no evidence was discovered at the time of his arrest nor ensured that he was

taken before a judge for a probable cause determination. Instead, Officer Miller

had plaintiff held in jail in a county that had no prosecutorial interest in him and,

by inference, no interest in providing him a prompt probable cause determination,

while he obtained and executed a search warrant of plaintiff’s temporary

residence in the hope of finding some evidence to support the arrest. Officer

Miller also acted in furtherance of a county policy not to transport prisoners in a

car without a cage, which delayed plaintiff’s transport to a detention facility in

Arapahoe County, which did have a prosecutorial interest in him.    6
                                                                        Plaintiff made


6
       In their motion to dismiss, Officers Miller and Collins explained that
plaintiff was transported to the Gilpin County jail by Blackhawk police officers
because the arresting officers, being undercover, were in vehicles that did not
have cages, and municipal policy prohibited them from transporting a prisoner in
                                                                      (continued...)

                                          -12-
similar allegations against Officer Collins and Agent Nozum, except that he did

not allege any involvement by Officer Collins in the search warrant. These

proposed allegations, together with all reasonable inferences, described conduct

on the part of the officers that plaintiff might have been able to prove contributed

to an unreasonable delay.

       Although the proposed allegations were probably sufficient to state a claim

for relief against at least Officer Miller and Agent Nozum, the interests of judicial

economy counsel against remanding the action to allow plaintiff to proceed on

those allegations. If we were to remand, the officers would undoubtedly reassert

their claim that they are entitled to qualified immunity because the law was not

clearly established that an arresting officer had a constitutional duty to ensure that

an arrested individual received a prompt probable cause determination.

       “Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.”   Currier , 242 F.3d at 923 (quotation omitted). Although

Supreme Court opinions have clearly established the right to a prompt probable

cause determination, they have not established that the duty to ensure that right



6
 (...continued)
a car without a cage.

                                         -13-
rests with the arresting officer. Nor have any Tenth Circuit cases–or the majority

of cases from other circuits–so held. Because remanding the action to the district

court to proceed on plaintiff’s amended complaint would serve no useful purpose

and would disserve the interests of judicial economy, we will uphold the district

court’s denial of plaintiff’s post-judgment motion to amend his complaint.

       The judgment of the United States District Court for the District of

Colorado is AFFIRMED. Plaintiff’s motion to exceed the line count on his reply

brief is GRANTED. Plaintiff’s objection to Officers Miller and Collins filing a

separate appellees’ brief is DENIED. Plaintiff’s motion to strike a reference in

those officers’ brief to facts not raised in the district court is DENIED as moot.

Plaintiff is reminded of his continuing obligation to make partial payments of his

filing fee until that fee is paid in full.



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




                                             -14-
