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

                               FOR THE TENTH CIRCUIT                       November 28, 2018
                           _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
    ANEXORA LEON,

         Plaintiff - Appellant,

    v.                                                         No. 17-4205
                                                    (D.C. No. 2:17-CV-00165-DN-EJF)
    SUMMIT COUNTY; OFFICER                                       (D. Utah)
    GRAHAM,

         Defendants - Appellees.
                        _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

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

         Plaintiff Anexora Leon appeals the dismissal of her complaint under 42 U.S.C.

§ 1983 against Summit County, Utah, and Officer Mike Graham of the Summit County

Sheriff’s Office. Her claims arise out of a traffic stop. On appeal she argues that Graham

did not have probable cause to arrest her for driving under the influence of alcohol (DUI)

and that the County is liable for both the arrest and her malicious prosecution on a DUI

complaint. She relies largely on a test of her blood alcohol content (BAC) that showed a

low BAC level. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. First,




*
  This order and judgment is not binding precedent, except under the doctrines of law of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’s operative complaint does not allege an arrest, and the facts alleged support

reasonable suspicion to detain her to determine whether she was intoxicated. Second, the

operative complaint does not allege that she was ever arrested or incarcerated on the DUI

complaint, so she fails to state a malicious-prosecution claim under the Fourth

Amendment.

       I.     THE OPERATIVE COMPLAINT

       Plaintiff submitted three complaints over the course of litigation in the United

States District Court for the District of Utah: an original complaint, a first amended

complaint, and a proposed second amended complaint. Plaintiff was permitted to file the

first amended complaint as of right under Federal Rule of Civil Procedure 15(a)(1). It

superseded the original complaint for all purposes. See Predator Int’l, Inc. v. Gamo

Outdoor USA, Inc., 793 F.3d 1177, 1180-81 (10th Cir. 2015) (“An amended pleading

supersedes the pleading it modifies and remains in effect throughout the action unless it

subsequently is modified.” (internal quotations marks omitted)). The amended

complaint (hereafter, the Complaint) is the operative pleading for this appeal.

       We recognize that in response to Defendant’s motion to dismiss the Complaint,

Plaintiff moved for leave to amend her complaint again, and submitted a proposed second

amended complaint. But the district court denied the motion. The propriety of that

denial is not properly before us. Plaintiff forfeited any challenge to that denial in this

court, because her opening brief on appeal does not challenge it. See Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an

opening brief generally forfeits appellate consideration of that issue.”). Her attempt to


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raise the issue in her reply brief comes too late. See Wheeler v. Comm’r, 521 F.3d 1289,

1291 (10th Cir. 2008) (“[I]ssues raised by an appellant for the first time on appeal in a

reply brief are generally deemed waived.”). Because Plaintiff was not granted leave to

amend, her proposed second amended complaint is “without legal effect.” Murray v.

Archambo, 132 F.3d 609, 612 (10th Cir. 1998).

       The Complaint alleges the following facts regarding the incident and subsequent

prosecution: Graham pulled Plaintiff over while she was driving on October 27, 2016,

after a computer check indicated that the registration for the license plate had been

canceled. Plaintiff explained that she had a valid license plate in the trunk of her car.

After she opened the trunk for him, Graham found license plates that matched the

vehicle’s registration.

       While speaking with Plaintiff, however, Graham claimed that he smelled alcohol

coming from the vehicle. Plaintiff admitted that she had drunk a beer with lunch. At

Graham’s request, Plaintiff performed field sobriety tests. (The Complaint does not

describe Plaintiff’s performance on the field sobriety test but does allege that “Graham’s

observations and notes are inconsistent with the results of the [BAC blood test].” Aplt.

App. at 13.) He then issued her a citation requiring her to appear in court within two

weeks, and sent that citation to the Summit County Justice Court. Plaintiff also provided

a blood sample—the Complaint does not state when this occurred or whether it was

provided to Graham or another officer—to be used to test her BAC.

       Five days later, on November 1, Summit County charged Plaintiff with DUI. But

on November 23 the County received the results of Plaintiff’s blood test, which indicated


                                              3
that she had a BAC of .01 grams per deciliter, well below the Utah “legal limit”—the

blood alcohol content with which it is always illegal to operate a vehicle—of .05 grams.

See Utah Code Ann. § 41-6a-502(a)(1) (West 2018). On the motion of Summit County

the charge against Plaintiff was dismissed with prejudice in January 2017.

       The first claim in the Complaint is a “§ 1983 Claim for Unreasonable Search and

Seizure against Officer Graham.” Aplt. App. at 14. (italics omitted). The pertinent

allegations are as follows:

       32. During the traffic stop, Leon exhibited no signs of intoxication.
       33. Other than the odor of alcohol in Leon’s vehicle and Leon’s admission
       that she had a beer for lunch, Officer Graham had no basis for suspecting
       Leon was driving while impaired.
       34. Based on the totality of the circumstances, Officer Graham lacked the
       reasonable suspicion required to expand the scope of the stop.

Id. Though the Statement of Issues in Plaintiff’s opening brief suggests otherwise, the

Complaint does not assert a false-arrest claim against the County.

       The Complaint’s second claim is a “§ 1983 [Claim] for Malicious Prosecution

against Summit County and Officer Graham.” Id. (italics omitted). The pertinent

allegations are as follows:

       36. Officer Graham electronically filed Anexora Leon’s citation to Summit
       County Justice Court, thereby initiating the criminal case against Leon.
       37. On October 27th, 2016, Summit County Justice Court issued a note to
       appear in court within fourteen (14) days regarding the DUI charge.
       38. Summit County received the results of the blood test on November 23rd,
       2016.
       39. Summit County lacked probable cause to charge Leon with a DUI
       because her BAC was .01.
       40. Summit County moved to dismiss the case on January 17, 2017.
       41. The DUI charge against Leon was dismissed with prejudice on the same
       day.



                                            4
       42. Summit County has a policy or practice by which the County commences
       prosecution of DUIs prior to receiving the result of BAC chemical tests.
       43. As a result of this policy, Summit County prosecutes DUIs which lack
       probable cause.
       44. Summit County’s malicious prosecution of Leon violated her
       constitutional rights.

Id. at 14-15. Although the Complaint asserts a malicious-prosecution claim against

Graham as well as Summit County, Plaintiff’s opening brief on appeal (and for that

matter her reply brief) does not make any argument that Graham should be liable for his

role in initiating her prosecution. That claim is therefore forfeited. See Bronson, 500

F.3d at 1104.

       II.      ANALYSIS

       A. Claim Against Graham

       In her opening brief, Plaintiff argues that Graham did not have probable cause to

arrest her. She asserts that Graham arrested her without giving her a chance to take a

portable breath test that would have established her innocence, that Graham did not

conduct her field sobriety tests in accordance with accepted national standards, and that

even on the flawed tests her performance indicated she was sober. Also, she contends

that the rest of the encounter could not have given Graham probable cause to arrest her,

because she did not exhibit typical signs of drunkenness such as impaired driving,

bloodshot eyes, or slurred speech.

       But much of this argument is not based on allegations in the Complaint. The

Complaint fails to mention a portable breath test, the manner in which Graham conducted

the field sobriety tests, or that Leon’s eyes and speech were normal. More importantly,



                                             5
the Complaint does not assert that Leon was arrested or allege facts showing an arrest. It

describes only Graham’s actions to determine whether Plaintiff was intoxicated. This is a

typical investigative detention, which does not require probable cause but can be

conducted upon reasonable suspicion. As we have stated, “[A] field sobriety test is a

minor intrusion on a driver only requiring a reasonable suspicion of intoxication and an

easy opportunity to end a detention before it matures into an arrest.” Wilder v. Turner,

490 F.3d 810, 815 (10th Cir. 2007) (internal quotation marks omitted). Indeed, the

Complaint’s explicit theory of liability appears to be that Graham lacked reasonable

suspicion to expand the traffic stop from a check of the license plates to a DUI

investigation. See Aplt. App. at 14 (“Graham lacked the reasonable suspicion required to

expand the scope of the stop.”). The issue of whether probable cause to arrest Plaintiff

arose from the events of the stop is therefore irrelevant.1



1
  The defendants’ answer to the Complaint goes well beyond the Complaint itself in
setting out the facts of the incident. In describing Plaintiff’s encounter with Graham, the
answer states that Plaintiff was placed in handcuffs, told she was under arrest, and taken
to the jail to provide a blood sample. But the answer pairs those statements with
allegations that two officers at the scene detected the smell of alcohol coming from
Plaintiff’s vehicle, that Plaintiff performed poorly on field sobriety tests, and that Plaintiff
repeatedly refused to take a portable breath test offered to her at the scene. Generally, on
a motion to dismiss, the court reviews only the complaint and should not treat allegations
of the answer as true. See Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir.
2010). The Complaint in this case pointedly refrained from alleging an arrest without
probable cause or describing the events after the field sobriety test, and we presume that
to be a deliberate decision. (Perhaps Plaintiff was seeking to avoid our cases indicating
that refusal to take a breath test is often a strong factor supporting probable cause. See,
e.g., Wilder, 490 F.3d at 815 (basing probable cause to arrest in large part on suspect’s
refusal to participate in field sobriety test and quoting Miller v. Harget, 458 F.3d 1251,
1259-60 (11th Cir. 2006), for proposition that after officers “smelled alcohol coming
from the vehicle, . . . probable cause developed, justifying [the driver’s] arrest, because

                                               6
       Turning then to the Complaint’s actual allegations against Graham, we conclude

that they do not state a claim. For there to be reasonable suspicion, all that is required is

that “the officer . . . must have a particularized and objective basis for suspecting the

particular person stopped of criminal activity.” Cortez v. McCauley, 478 F.3d 1108, 1115

(10th Cir. 2007) (en banc) (internal quotation marks omitted). Moreover, because this is

a § 1983 claim against Graham in his personal capacity, he is entitled to the defense of

qualified immunity. To overcome that defense, a plaintiff must “plead[] facts showing

(1) that the official violated a statutory or constitutional right, and (2) that the right was

clearly established at the time of the challenged conduct.” Ashcroft v. Al-Kidd, 563 U.S.

731, 735 (2011) (internal quotation marks omitted). In the present context, that means

that Plaintiff’s allegations need to show that Graham lacked even arguable reasonable

suspicion. See Vondrak v. City of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008).

       The Complaint fails that test. Given the odor of alcohol in Plaintiff’s vehicle and

her admission to having had a beer with lunch (as stated in the Complaint), there was

arguable reasonable suspicion to detain her further and require her to participate in field

sobriety tests. We have held that a person’s statement that he “had one beer three hours

ago,” standing alone, is sufficient to create “reasonable suspicion to conduct [] field

sobriety tests, or at the very least . . . arguable reasonable suspicion entitling [an officer]




[the driver] refused to take a breathalyzer test.”)). Because the claim in the Complaint is
that there was an improper expansion of the stop, we decline to extend the claim to
include events described in the answer that occurred after the expansion.

                                               7
to qualified immunity.” Vondrak, 535 F.3d at 1207. Plaintiff does not plead any facts

that distinguish this case from Vondrak.2

       The Complaint also alleges that Plaintiff “submitted to a blood draw,” but it does

not say where, when, or with whom, nor does it state whether Plaintiff’s participation in

the test was voluntary or involuntary. Aplt. App. at 13. Nor do Plaintiff’s briefs argue

that the blood test impermissibly extended the investigatory stop, or that it violated her

Fourth Amendment rights in some other way. The Complaint thus does not state a claim

against Graham arising out of the blood test.

       B. Malicious-Prosecution Claim

       The Complaint’s second claim is against the County for malicious prosecution of

Plaintiff. We first address the County’s argument that it is entitled to absolute

prosecutorial immunity and then consider whether the Complaint states a claim for

malicious prosecution.

              1. Absolute Prosecutorial Immunity

       “It is well established that prosecutors are absolutely immune from suit under

section 1983 concerning activities intimately associated with the judicial process, such as




2
 At oral argument, Plaintiff’s counsel argued during rebuttal, for the first time, that
Vondrak is distinguishable from this case because the New Mexico DUI law at issue in
Vondrak was stricter than the Utah law in this case. But “[a]rguments that are raised for
the first time at oral argument come too late to merit our attention.” United States v.
DeRusse, 859 F.3d 1232, 1240 n.3 (10th Cir. 2017) (brackets and internal quotation
marks omitted). That is especially so when an argument is raised for the first time in
oral-argument rebuttal, “affording [the other party] no opportunity to respond.” Coal. of
Battery Recyclers Ass’n v. EPA, 604 F.3d 613, 623 (D.C. Cir. 2010).

                                              8
initiating and pursuing criminal prosecutions.” Pfeiffer v. Hartford Fire Ins. Co., 929

F.2d 1484, 1489 (10th Cir. 1991) (ellipsis and internal quotation marks omitted). The

County, which is liable only if its officers or employees violated Plaintiff’s constitutional

rights, see Hinton v. City of Elwood, Kan., 997 F.3d 774, 782 (10th Cir. 1993) (“A

municipality may not be held liable where there was no underlying constitutional

violation by any of its officers.”), argues that it is entitled to that same immunity. But the

argument is contrary to settled law. As the Supreme Court has stated, “unlike various

government officials, municipalities do not enjoy immunity from suit—either absolute or

qualified—under § 1983.” Leatherman v. Tarrant Cty. Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 166 (1993); see Sample v. City of Woodbury, 836 F.3d

913, 917 (8th Cir. 2016) (government entities do not enjoy absolute prosecutorial

immunity); Burge v. Parish of St. Tammany, 187 F.3d 452, 466-67 (5th Cir. 1999)

(same).

              2. No Fourth Amendment Seizure

       The Complaint does not, however, state a claim against Summit County for

malicious prosecution in violation of Plaintiff’s constitutional rights. The ground on

which we rely was not the basis of the district court’s decision, nor has it been raised by

the County during these proceedings. But the flaw in the Complaint is clear, and “[t]his

court can affirm the district court’s dismissal on any grounds sufficiently supported by

the record.” GF Gaming Corp. v. City of Black Hawk, Colo., 405 F.3d 876, 882 (10th

Cir. 2005).




                                              9
       To bring a malicious-prosecution claim under § 1983, a plaintiff must allege a

violation of a federal right. See 42 U.S.C. § 1983 (Every person who . . . subjects, or

causes to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured . . . .”); Estate of Booker v.

Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (“Title 42 U.S.C. § 1983 allows an injured

person to seek damages against an individual who has violated his or her federal rights

while acting under color of state law.” (internal quotation marks omitted)). Neither the

Complaint nor Plaintiff’s briefs on appeal identify the predicate constitutional right on

which she bases her malicious-prosecution claim. Typically, the claim is based on a

violation of the Fourth Amendment (as applied to the States under the Fourteenth

Amendment, see Fletcher v. Burkhalter, 605 F.3d 1091, 1093 (10th Cir. 2010)), although

we have recognized that in certain circumstances a claim might be based on a violation of

Fourteenth Amendment procedural due process, see Becker v. Kroll, 494 F.3d 904, 920–

21 (10th Cir. 2007). Here, the Complaint does not identify any liberty or property

interest protected by the Fourteenth Amendment of which Plaintiff was deprived. See

Boutwell v. Keating, 399 F.3d 1203, 1211 (10th Cir. 2005) (“In order to establish a due

process violation, [a plaintiff] must first demonstrate that he has been deprived of a

constitutionally-protected liberty or property interest.”). We therefore assume that she is

raising a claim of deprivation of Fourth Amendment rights.

       But absent from the Complaint is a necessary component of such a claim. A

mandatory element of a Fourth Amendment malicious-prosecution claim is that the


                                              10
defendant caused the plaintiff to be seized. “A groundless charging decision may abuse

the criminal process, but it does not, in and of itself, violate the Fourth Amendment

absent a significant restriction on liberty.” Becker, 494 F.3d at 915; see Mata v.

Anderson, 635 F.3d 1250, 1254 (10th Cir 2011) (“To prevail on [a Fourth Amendment

malicious-prosecution claim, a plaintiff] must show that he was seized under the Fourth

Amendment.”). For purposes of a malicious-prosecution claim a seizure must be either

an “arrest or imprisonment.” Becker, 494 F.3d at 914. In particular, we have rejected the

argument that a seizure includes “requiring a person to post bond, compelling a person to

appear in court, or imposing restrictions on a person’s right to interstate travel.” Becker,

494 F.3d at 915.

       The Complaint does not allege an arrest or imprisonment. The most we can infer

from its allegations is that Summit County issued Plaintiff a notice to appear in court.

Because she has not pleaded facts showing that she was subject to any Fourth

Amendment seizure as a result of her DUI prosecution, Plaintiff has failed to state a

§ 1983 malicious-prosecution claim.

       III.   CONCLUSION

       We AFFIRM the judgment of the district court.


                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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