                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JUL 16 2003
                             FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    MERRILY C. COBURN,

                Plaintiff-Appellant,

    v.                                                     No. 02-3249
                                                    (D.C. No. 01-CV-2562-JAR)
    ROGER A. NORDEEN,                                        (D. Kan.)

                Defendant-Appellee.


                              ORDER AND JUDGMENT            *




Before BRISCOE , PORFILIO , and ANDERSON , 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.

         Plaintiff Merrily C. Coburn, appearing   pro se , appeals the district court’s

order dismissing her 42 U.S.C. § 1983 complaint. She alleged in her complaint



*
      This order and judgment is not binding precedent, except under the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.
that defendant, Roger A. Nordeen, a Kansas prosecutor sued in his individual

capacity, violated her constitutional rights by making false or misleading

statements in an affidavit of probable cause in support of a state criminal

complaint. The district court concluded that the defendant was entitled

to qualified immunity, and dismissed plaintiff’s complaint pursuant to

Fed. R. Civ. P. 12(b)(6). We affirm.

       We review de novo the district court’s dismissal under Rule 12(b)(6) for

failure to state a claim upon which relief can be granted.    Stidham v. Peace

Officer Standards & Training , 265 F.3d 1144, 1149 (10th Cir. 2001). The court

accepts as true all well-pleaded facts, and reads all reasonable inferences in favor

of the plaintiff.   See Witt v. Roadway Express , 136 F.3d 1424, 1428 (10th Cir.

1998). A Rule 12(b)(6) motion to dismiss may be granted only if it appears

beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to

relief under her theory of recovery.    Conley v. Gibson , 355 U.S. 41, 45-46 (1957).

We note that the district court incorrectly applied a heightened pleading standard

to plaintiff’s § 1983 complaint. Although we previously required a plaintiff to

meet a heightened pleading standard when qualified immunity was raised as

a defense, we more recently held, reviewing a Rule 12(b)(6) dismissal, that our

heightened pleading requirement did not survive the Supreme Court’s opinion in

Crawford-El v. Britton , 523 U.S. 574 (1998).      Currier v. Doran , 242 F.3d 905,


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916 (10th Cir. 2001).     We therefore apply the traditional Rule 12(b)(6) standards

enunciated above in our     de novo review of plaintiff’s claim.

      Briefly, defendant prepared a sworn affidavit that plaintiff had attempted to

intimidate a juvenile witness by driving by the witness’s home. Plaintiff alleges

the affidavit falsely stated plaintiff was looking for the witness’s vehicle,

mischaracterized a portion of the witness’s mother’s statement, and omitted

information that the witness was not home during the events in question. We do

not further repeat the remaining details of the underlying facts, which are fully

and accurately set forth in the district court’s thorough and well-analyzed

memorandum and order.        See Coburn v. Nordeen , 206 F. Supp. 2d 1119, 1120-22

(D. Kan. 2002).

      Although prosecutors are absolutely immune from suits for damages arising

from the performance of the traditional functions of an advocate, the district court

correctly ruled that the defendant in this case is not entitled to absolute immunity

for his sworn statements made in an affidavit supporting application for an arrest

warrant, but may be entitled to qualified immunity.     See Kalina v. Fletcher , 522

U.S. 118, 130 (1997) (“Testifying about facts is the function of the witness, not of

the lawyer.”). The district court further correctly ruled that a public officer, such

as defendant, whose request for an arrest warrant is alleged to have caused an

illegal arrest is shielded by qualified immunity unless “the warrant application is


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so lacking in indicia of probable cause as to render official belief in its existence

unreasonable.”    Malley v. Briggs , 475 U.S. 335, 344-45 (1986). “Defendants will

not be immune if, on an objective basis, it is obvious that no reasonably

competent officer would have concluded that a warrant should issue; but if

officers of reasonable competence could disagree on this issue, immunity should

be recognized.”   Id. at 341.

       On appeal, plaintiff first contends the district court failed to afford her

complaint the benefit of all favorable factual inferences, as required when

considering a Rule 12(b)(6) dismissal. We disagree. Although plaintiff

characterized certain of the defendant’s statements in the affidavit as “false,” and

alleged that probable cause would have been vitiated if certain information had

been included in the affidavit, her characterizations are merely conclusory

allegations, not well-pled facts which must be accepted as true. In conducting a

Rule 12(b)(6) analysis, the court need not accept as true any conclusory

allegations contained in the complaint.   S. Disposal, Inc. v. Tex. Waste Mgmt.      ,

161 F.3d 1259, 1262 (10th Cir. 1998). We agree with the district court that there

is nothing to support plaintiff’s allegation that defendant knowingly or recklessly

made false statements or omissions in his affidavit.

       Plaintiff next contends that, regardless of any alleged misstatements or

omissions in defendant’s affidavit, it failed to support a finding of probable cause


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that plaintiff intended to intimidate a witness because it was based on mere

supposition. To be entitled to qualified immunity, defendant need only have

possessed a reasonable belief that probable cause existed.     Anderson v. Creighton ,

483 U.S. 635, 643-44 (1987). “[I]t is inevitable that law enforcement officials

will in some cases reasonably but mistakenly conclude that probable cause is

present, and [the Supreme Court has] indicated that in such cases those

officials--like other officials who act in ways they reasonably believe to be

lawful--should not be held personally liable.”     Id. at 641. Even viewing the facts

in the light most favorable to plaintiff, for the purpose of a Rule 12(b)(6)

dismissal, public officials are entitled to draw reasonable inferences from the

facts they possess at the time.   Cf. Ornelas v. United States , 517 U.S. 690, 699

(1996) (noting that “a police officer views the facts through the lens of his police

experience and expertise”). We agree with the district court that plaintiff did not

demonstrate that no reasonably competent official would have found indicia of

probable cause supporting the complaint and arrest warrant.

       Finally, plaintiff contends the district court improperly relied upon an

unsubstantiated history of acrimony between her family and the witnesses’ family

in assessing the reasonableness of defendant’s belief that probable cause existed.

We disagree. The sheriff’s report, which formed the basis of defendant’s

affidvavit and was attached to plaintiff’s complaint, includes evidence of an


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acrimonious relationship between the two families. We do not conclude that the

district court placed any undue or unwarranted reliance on this one factor.

      We conclude, for substantially the reasons stated in the district court’s

June 6, 2002 order, that plaintiff’s complaint was properly dismissed for failure

to state a claim. The judgment of the district court is AFFIRMED. The mandate

shall issue forthwith.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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