                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 26 2002
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROBERT JOSEPH,

                Plaintiff - Appellant,

    v.

    DAVID YOCUM, in his individual
    capacity; SALT LAKE COUNTY,

                Defendants - Appellees,                 No. 01-4142
                                                  D.C. No. 2:00-CV-340-K
    and                                                  (D. Utah)

    DEE DEE CORRADINI, in her
    individual capacity; ROSS C.
    ANDERSON, in his individual
    capacity; RUBEN B. ORTEGA, in his
    individual capacity; JERRY
    MENDEZ, in his individual capacity;
    A.M. CONNOLE, also known as Mac
    Connole, in his individual capacity;
    SALT LAKE CITY, a municipal
    corporation, and JOHN DOES I
    THROUGH XX, in their individual
    capacity,

                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      This order and judgment is not binding precedent, except under the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 BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and       HARTZ ,
    Circuit Judge.




         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). This case is

therefore ordered submitted without oral argument.

         Plaintiff Robert Joseph appeals the district court’s order granting summary

judgment in favor of defendants-appellees David Yocum and Salt Lake County in

his malicious prosecution complaint brought under 42 U.S.C. § 1983. We affirm.

         At the time of the events in question, plaintiff was a Salt Lake City police

officer. While off-duty, he observed a speeding driver and initiated a traffic stop.

He drew his service revolver as he approached the vehicle. The driver attempted

to leave by backing up. Plaintiff jumped on the car’s running board and fired his

weapon. He shot eleven times, wounding the driver in the face and foot. A police

investigator later testified that plaintiff gave differing accounts of the event and

that police could not confirm plaintiff’s claim that the driver had dragged him with

the vehicle.


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

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      The Salt Lake County District Attorney’s office charged plaintiff with

aggravated assault in the second degree. At a preliminary hearing, the state court

judge found probable cause to believe the plaintiff had committed the offense

charged in the information and plaintiff was bound over for trial. The state trial

court denied plaintiff’s motion to dismiss. Prior to trial, plaintiff’s experts

performed a laser reconstruction of the bullet strikes which revealed some

inconsistencies in the driver’s version of events. As a result, the District

Attorney’s Office decided to dismiss the charges against plaintiff.

      Plaintiff then filed a civil rights action against numerous defendants,

including appellees David Yocum, the Salt Lake City District Attorney, in his

individual capacity, and Salt Lake County, on the ground that the Salt Lake County

District Attorney’s Office is a division or department of the County. Plaintiff

claimed appellees violated his constitutional rights by issuing a criminal

information based on an inadequate police investigation, transmitting news of his

arrest to the media, and waiting approximately five months after the preliminary

hearing before dismissing the charges against him.

      The appellees moved for summary judgment, arguing the claims against

them were barred by prosecutorial immunity and the Utah Governmental Immunity

Act. The appellees presented evidence indicating that all of the allegations of

wrongdoing against them arose solely from the performance of their prosecutorial


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functions. In response, plaintiff presented no evidence to support his claims

against appellees, but argued the alleged wrongdoing implicated appellees’

administrative, rather than prosecutorial, functions. The district court granted

appellees’ motion for summary judgment. It later granted appellees’ motion to

certify the judgment as final pursuant to Federal Rule of Appellate Procedure

54(b).

         On appeal, plaintiff contends the district court erred in ruling the appellees

were entitled to prosecutorial immunity. He argues that his claims that the

appellees conducted an inadequate investigation, held press conferences, and

delayed in dismissing the case involve administrative functions, rather than

functions within the role of a prosecutor, and thus, are not barred by prosecutorial

immunity.

         The district court’s decision that appellees are entitled to prosecutorial

immunity is a question of law which we review de novo.        England v. Hendricks ,

880 F.2d 281, 285 (10th Cir. 1989). This court has explained the reach of absolute

prosecutorial immunity as follows:

         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 activities intimately associated
         with the judicial process. Absolute immunity does not extend to
         actions that are primarily investigative or administrative in nature,
         though it may attach even to such administrative or investigative


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       activities when these functions are necessary so that a prosecutor may
       fulfill his function as an officer of the court.

Scott v. Hern , 216 F.3d 897, 908 (10th Cir. 2000) (quotations, citations and

alterations omitted).

       “‘[T]here is no question in this circuit that prosecutors are absolutely

immune from liability for allegedly failing to conduct an adequate, independent

investigation of matters referred to them for prosecution.’”    Id. at 909 (quoting

Pfeiffer v. Hartford Fire Ins. Co.   , 929 F.2d 1484, 1490 (10th Cir. 1991)). Further,

a prosecutor’s decision as to when to dismiss charges is entitled to absolute

prosecutorial immunity because it is “intimately associated with the judicial phase

of the criminal process.”    Imbler v. Pachtman , 424 U.S. 409, 430 (1976);     see also

Brodnicki v. City of Omaha , 75 F.3d 1261, 1268 (8th Cir. 1996) (“The decisions

relating to the initiation and dismissal of cases are at the very heart of a

prosecutor’s function as an advocate for the state, and absolute immunity thus

attaches to those decisions.”). Thus, the district court correctly ruled that

appellees are absolutely immune from liability under § 1983 for the decision to

prosecute, even based on an allegedly inadequate police investigation, and the

decision whether and when to dismiss the charges against plaintiff.

       It is true that a prosecutor is only entitled to qualified, not absolute,

immunity when holding a press conference and making comments to the media.

See Buckley v. Fitzsimmons , 509 U.S. 259, 277-78 (1993). Qualified immunity

                                             -5-
shields a § 1983 defendant from liability so long as his actions do not violate

clearly established federal statutory or constitutional rights of which a reasonable

person would have known.        Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982).

Plaintiff alleges only that news of his arrest was transmitted by appellees to the

media, which caused him to be held up to ridicule and scorn. This allegation fails

to state any constitutional violation.   See McGhee v. Draper , 639 F.2d 639, 643

(10th Cir. 1981) (stating that “stigmatization or reputational damage alone, no

matter how egregious, is not sufficient to support a § 1983 cause of action”); s    ee

also Arnold v. McClain , 926 F.2d 963, 968 (10th Cir. 1991) (holding that

governmental employee must show publication of false and defamatory

information in connection with job termination in order to establish claim of

liberty interest violation). Thus, the district court did not err in ruling plaintiff’s

claims against appellees were barred by prosecutorial immunity.

       Plaintiff next argues the district court erred by dismissing his claims against

appellees with prejudice pursuant to the entry of final judgment under Fed. R. Civ.

P. 54(b). Plaintiff does not contend that the judgment lacked finality, nor does he

challenge the district court’s finding that there was no just reason for delay, the

determinations required for entry of a Rule 54(b) certification.      See Okla. Turnpike

Auth. v. Bruner , 259 F.3d 1236, 1242 (10th Cir. 2001). Rather, plaintiff appears to

mistakenly believe that his claims were dismissed with prejudice only when the


                                             -6-
Rule 54(b) certification was entered. Plaintiff’s claims, however, had already been

dismissed with prejudice when the district court granted summary judgment in

appellees’ favor.   See Wheeler v. Hurdman , 825 F.2d 257, 259 n.5 (10th Cir. 1987)

(stating that a grant of summary judgment necessarily resolves the issues on the

merits and is, therefore, a disposition of the claim with prejudice).

       We do not address plaintiff’s claim that the district court should have

afforded him an opportunity to respond to appellees’ motion before granting the

Rule 54(b) certification because he failed to raise this perceived procedural

violation in a motion to alter or amend the judgment pursuant to Federal Rule of

Civil Procedure 59(e). Because the district court was not allowed the opportunity

to decide whether plaintiff was denied any right to respond, this court has nothing

to review. Cf. Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co.          , 175 F.3d

1221, 1256 n.45 (10th Cir. 1999) (holding that “‘[g]rounds for new trial that arise

solely in the context of post trial proceedings must be presented to the trial court

for consideration by a motion for new trial, and the failure to do so deprives the

appellate court [of] any record that is reviewable for error,’” quoting    Moore's

Federal Practice 3d § 59.55, at 59-136 (1997)). In short, we find no error in the

district court’s Rule 54(b) certification.

       Finally, plaintiff seeks to supplement his appendix with additional materials

and documents. Because these materials were not presented to the district court,


                                             -7-
we do not consider them and his motion to supplement his appendix is DENIED.

Myers v. Okla. County Bd. of County Comm’rs      , 151 F.3d 1313, 1319 (10th Cir.

1998).

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

AFFIRMED for substantially the reasons set forth in the district court’s order

dated June 8, 2001.



                                                      Entered for the Court



                                                      Wade Brorby
                                                      Senior Circuit Judge




                                           -8-
