                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                         January 25, 2017
                          UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                       TENTH CIRCUIT                       Clerk of Court



 JOHN CLEMA,

           Plaintiff - Appellant,

 v.                                                          No. 16-2004
                                                 (D.C. No. 1:11-CV-00807-MV-WPL)
 PAUL COLOMBE, in his individual and                          (D. N.M.)
 official capacities; ROBERT A. GARCIA,
 in his official capacity as Santa Fe County
 Sheriff,

           Defendants - Appellees.



                                    ORDER AND JUDGMENT*


Before TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.


       Plaintiff John Clema brings this action against Officer Paul Colombe and against

Santa Fe County, pursuant to 42 U.S.C. § 1983, alleging various violations of the

Constitution and New Mexico law. The district court granted summary judgment to all

defendants on all claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

Further, we deny Mr. Clema’s pending motion to certify two questions of law to the New

Mexico Supreme Court.


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
                                              I

       Officer Paul Colombe is an officer for the Pueblo of Tesuque Police Department,

which pays his salary and benefits. Aplt. App. at 169. Pursuant to New Mexico state

law, Officer Colombe has been “recognized and authorized to act as [a] New Mexico

peace officer[]” by the Santa Fe County Sheriff’s Department. N.M. Stat. Ann. § 29-1-

11; Aplt. App. at 169. On July 10, 2009, Officer Colombe stopped a vehicle for allegedly

failing to stop at a stop sign. Aplt. Br. at viii. Plaintiff John Clema and one other person

were passengers in that vehicle. Id. The subsequent interaction was recorded on dash

cam video. See Aplt. App. vol. IV. Officer Colombe administered a field sobriety test to

the driver and found her to be impaired. Id. at 2:17–8:18. He placed the driver under

arrest for driving under the influence (DUI). Id. at 9:55–10:09. Officer Colombe then

asked if Mr. Clema would like to call someone for a ride home. Id. at 13:25–13:39. Mr.

Clema indicated that he would like to drive the vehicle himself. Id. at 13:40–14:24.

Officer Colombe explained that Mr. Clema was visibly intoxicated and would not be

permitted to drive. Id. During this conversation, Officer Colombe was standing outside

the passenger door of the vehicle, while Mr. Clema was seated in the passenger seat. Id.

Officer Colombe had his flashlight pointing into the vehicle. Id. At one point, Mr. Clema

“swept at” the flashlight because it was shining in his eyes, causing Officer Colombe to

move back and ask Mr. Clema not to reach for his flashlight. Id. at 14:03–14:12; Aplt.

Br. at 29. Mr. Clema argued with Officer Colombe, insisted that he was willing and able

to drive, and indicated his belief that Officer Colombe was acting illegally. See, e.g.,

                                              2
Aplt. App. vol. IV, at 13:52–13:58 (Mr. Clema saying, “Can you give me the blow to see

if I’m sober or not?”); id. at 14:00–14:04 (Mr. Clema saying, “But if you refuse to give

me one, then in a court of law, excuse me.”); id. at 14:14–14:16 (Mr. Clema saying, “I’m

trying to cooperate, are you cooperating?”). In addition, throughout this conversation,

Mr. Clema was slurring his speech, and, when asked to step out of the vehicle, was

unsteady on his feet. See, e.g., id. at 13:42–13:46 (Officer Colombe noting Mr. Clema’s

slurred speech), id. at 14:40–15:28 (Officer Colombe telling Mr. Clema: “It is obvious

that you are highly intoxicated, sir, okay? It is obvious though that you can’t even keep

your balance.”). Officer Colombe then arrested both Mr. Clema and the other passenger

for parties to a crime DUI. Id. at 14:50–15:11; 17:16–19:20. During the arrest, Officer

Colombe explained to Mr. Clema that “When you reach at my flashlight and stuff and

start threatening because I have my light on you, then it becomes a different story.” Id. at

16:28–16:34. At all times during the interaction, Officer Colombe was patient and

courteous to Mr. Clema and his companions. See generally, id.

       All criminal charges against the driver and both passengers were dropped for a

variety of reasons. Aplt. App. at 4–5, 79. In Mr. Clema’s case, the charge of parties to a

crime DUI was dismissed because Officer Colombe did not appear at the hearing. Id. at

590. Officer Colombe claims that he never received notice of the hearing. Id.

       Mr. Clema filed suit against Officer Colombe in his individual and official

capacities, and against Sheriff Robert Garcia in his official capacity. Id. at 1. We

construe the official capacity claims against Officer Colombe and Sheriff Garcia as

                                             3
claims against the municipality they represent — Santa Fe County. See Porro v. Barnes,

624 F.3d 1322 (10th Cir. 2010). Mr. Clema raised a number of state and federal claims,

most of which were premised on his belief that his arrest was unlawful. Id. at 5–12. The

district court granted summary judgment to Santa Fe County because Mr. Clema had not

alleged an official policy or practice to establish liability under Monell v. Dep’t of Soc.

Servs., 436 U.S. 658 (1978), id. at 192, and because he had not presented any evidence to

“satisfy the deliberate indifference standard for his negligent hiring claim premised solely

upon a single instance of negligently cross-commissioning Colombe,” id. at 193. The

district court granted summary judgment to Officer Colombe as to the New Mexico state

law claims because the New Mexico Tort Claims Act (NMTCA), N.M. Stat. Ann. §§ 41-

4-1 to 41-4-30, provided immunity, Aplt. App. at 597, and as to the constitutional claims

because Officer Colombe had “arguable probable cause” to arrest Mr. Clema, id. at 603.

Mr. Clema appeals, claiming the district court erred by (1) finding Officer Colombe was

entitled to immunity under the NMTCA; (2) finding arguable probable cause to arrest Mr.

Clema for assault on a peace officer and parties to a crime DUI; (3) reconsidering Officer

Colombe’s motion for summary judgment; (4) denying equitable expungement of Mr.

Clema’s record; and (5) declining to reconsider its grant of summary judgment to Santa

Fe County in light of the New Mexico Supreme Court’s decision in Loya v. Gutierrez,

2015-NMSC-017, 350 P.3d 1155 (N.M. 2015). Aplt. Br. at vi–viii. We address each of

these arguments in turn.




                                              4
                                    NMTCA Immunity

       Mr. Clema claims the district court erred in holding that Officer Colombe was

entitled to immunity under the NMTCA. Further, he has moved to certify this question to

the New Mexico Supreme Court. We deny this motion because New Mexico Supreme

Court precedent is clear that the NMTCA provides immunity to Officer Colombe.

       The NMTCA provides that “[a] governmental entity and any public employee

while acting within the scope of duty are granted immunity from liability for any tort

except as waived” by identified provisions of New Mexico law. N.M. Stat. Ann. § 41-4-

4. One of the identified exceptions provides that immunity “does not apply to . . . law

enforcement officers while acting within the scope of their duties.” Id. § 41-4-12. The

NMTCA defines “law enforcement officer” in relevant part as “a full-time salaried public

employee of a governmental entity, or a certified part-time salaried police officer

employed by a governmental entity, whose principal duties under law are to hold in

custody any person accused of a criminal offense, to maintain public order or to make

arrests for crimes.” Id. § 41-4-3(D).

       According to the Supreme Court of New Mexico, a tribal officer deputized by the

sheriff is a “public employee” as defined by the NMTCA when he is “acting in an

‘official capacity’ and ‘on behalf or in service of’ the County sheriff and Santa Fe

County.” Loya, 2015-NMSC-017, ¶ 32, 350 P.3d at 1164. Thus, Officer Colombe, a

tribal officer making an arrest pursuant to New Mexico State law, was a public employee

granted immunity by the NMTCA. Id. Further, a tribal police officer is “not a ‘full-time

                                             5
salaried public employee’ or even a ‘part-time salaried police officer’ of the County or

any other ‘governmental entity’ recognized by the NMTCA.” Id., 2015-NMSC-017,

¶¶ 16–17, 350 P.3d at 1160. Therefore, this exception does not remove the statutorily

granted immunity from Officer Colombe. The district court properly applied this clear

precedent from the Supreme Court of New Mexico and thoroughly addressed Mr.

Clema’s policy arguments that the statute should be read differently. See Aplt. App. at

600–02 (“[T]he mere fact that the decision in Loya may yield unintended consequences

when applied to other provisions within the same statute does not mean that this Court

must ignore the plain meaning of the text.”). The district court did not err in holding that

Officer Colombe was entitled to immunity under the NMTCA. Our certification of this

question to the New Mexico Supreme Court is unnecessary.

                                 Probable Cause to Arrest

       Mr. Clema argues that the district court erred by finding Officer Colombe had

probable cause to arrest Mr. Clema. The Fourth Amendment requires that an officer must

have probable cause to initiate a search, arrest, and prosecution. Stonecipher v. Valles,

759 F.3d 1134, 1141 (10th Cir. 2014), cert. denied, __ U.S. __, 135 S. Ct. 881 (2014).

“Probable cause is not a precise quantum of evidence.” Id. Rather, the relevant question

is whether there was a “substantial probability” that the suspect committed the crime. Id.

The officer’s “subjective reason for making the arrest need not be the criminal offense as

to which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146,

153 (2004). As long as the officer had reason to believe that any crime had occurred,

                                              6
probable cause exists to support the arrest. United States v. Turner, 553 F.3d 1337,

1344–45 (10th Cir. 2009). The district court found Officer Colombe had probable cause

to arrest Mr. Clema on at least two grounds: party to a crime DUI, and assault on a peace

officer. Aplt. App. at 602–04. We agree that Mr. Clema’s arrest was supported by

probable cause.

       Mr. Clema argues, with respect to assault on a peace officer, that “the facts viewed

in favor of the nonmoving party show only an older gentleman, seated in a car, engaging

in banter with an officer standing outside the car, sweeping at the officer’s flashlight

because it was shining in his eyes.” Aplt. Br. at 29. By this statement, Mr. Clema admits

that he “swept at” Officer Colombe’s flashlight, and this is corroborated by the video.

Aplt. App. vol. 4. Mr. Clema submits, however, that “[a] reasonable law enforcement

officer under the circumstances might have been a bit annoyed, but would not have felt

that the offense of battery had been attempted on his person, nor felt in imminent threat of

a battery.” Aplt. Br. at 29–30.

       Under New Mexico law, assault on a peace officer is defined as either “an attempt

to commit a battery upon the person of a peace officer while he is in the lawful discharge

of his duties,” or “any unlawful act, threat or menacing conduct which causes a peace

officer while he is in the lawful discharge of his duties to reasonably believe that he is in

danger of receiving an immediate battery.” N.M. Stat. Ann. § 30-22-21. “Battery,” in

turn, is defined as “the unlawful, intentional touching or application of force to the person

of another, when done in a rude, insolent or angry manner.” Id. § 30-3-4. “[T]he word

                                              7
‘person’ as used in New Mexico’s battery upon a peace officer statute includes anything

intimately connected with [the] person.” State v. Ortega, 1992-NMCA-003, ¶ 14, 113

N.M. 437, 441, 827 P.2d 152, 156 (N.M. Ct. App. 1992). Specifically, taking an officer’s

flashlight or knocking it out of his hand constitutes battery on a peace officer under New

Mexico law. Id. at ¶ 16, 113 N.M. at 441, 827 P.2d at 156. Thus, if Mr. Clema attempted

either to take the flashlight from Officer Colombe, or to knock the light out of his hand,

he committed an assault on a peace officer.

       Mr. Clema reached for Officer Colombe’s flashlight. Because of the proximity

between Officer Colombe and Mr. Clema, this action caused Officer Colombe to move

back. Had he not done so, Mr. Clema might have come in contact with Officer Colombe

or the flashlight. At the time of Mr. Clema’s action, Officer Colombe was a peace officer

engaged in the lawful discharge of his duties.1 Thus, the facts and circumstances,

including Mr. Clema reaching for Officer Colombe’s flashlight, would cause a reasonable

officer to believe there was a substantial probability that Mr. Clema had committed an

assault on a peace officer under New Mexico law. Therefore, Officer Colombe had

probable cause to arrest Mr. Clema. This conclusion alone is sufficient to dispose of Mr.


       1
          Although Officer Colombe is not a salaried police officer or public employee
under the NMTCA, he is a peace officer for purposes of the crime of assault on a peace
officer. In this context a “peace officer” is “any public official or public officer vested by
law with a duty to maintain public order or to make arrests for crime, whether that duty
extends to all crimes or is limited to specific crimes.” N.M. Stat. Ann. § 30-1-12(C). A
“public officer” is then defined as “any elected or appointed officer of the state or any of
its political subdivisions, . . . whether or not he receives remuneration for his services.”
Id. § 30-1-12(I) (emphasis added).

                                              8
Clema’s claim for wrongful arrest. We decline to consider whether there was also

probable cause to arrest Mr. Clema for parties to a crime DUI under New Mexico law.2

                        False Imprisonment, Malicious Prosecution

       To support his false imprisonment and malicious prosecution claims, Mr. Clema

argues only that his arrest was unconstitutional. As discussed, we conclude that Officer

Colombe had probable cause to arrest Mr. Clema. An arrest supported by probable cause

cannot be the basis for a claim of false imprisonment or malicious prosecution.3 Puller v.

Baca, 781 F.3d 1190, 1200 (10th Cir. 2015). Thus, Mr. Clema’s claims for false

imprisonment and malicious prosecution fail. The district court did not err by granting

summary judgment to Officer Colombe on these claims.

       2
          Mr. Clema also argues that the district court erred by reconsidering Officer
Colombe’s motion for summary judgment on this issue. The district court had previously
denied summary judgment to Officer Colombe and held that “a reasonable officer in
Defendant Colombe’s position would not have had probable cause to believe that [Mr.
Clema was] aiding and abetting the commission of driving under the influence.” Aplt.
App. at 137–38. This was not error because the district court has discretion to reconsider
any order that is not final. Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005)
(“[E]very order short of a final decree is subject to reopening at the discretion of the
district judge.” (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 12 (1983))); Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating all the claims and all the parties’ rights
and liabilities.”).
       3
         To establish a claim for false imprisonment, a plaintiff must specifically allege
facts to show that “a government official acted with deliberate or reckless intent to falsely
imprison the plaintiff.” Romero v. Fay, 45 F.3d 1472, 1480 (10th Cir. 1995) (emphasis
added). Similarly, to establish a claim for malicious prosecution, a plaintiff must
demonstrate, inter alia, that “no probable cause supported the original arrest, continued
confinement, or prosecution.” Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008).

                                              9
                                    Equitable Expungement

         “[I]n extreme circumstances, an arrest record may be expunged after dismissal of

the charges or acquittal.” United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). On

appeal, Mr. Clema presents no argument as to why his record should be expunged.

According to the district court, “Plaintiff’s sole factual assertions in this regard are that he

believes the arrest to have been unconstitutional and the existence of a criminal record

continues to harm his career and reputation.” Aplt. App. at 608. The district court

declined to expunge Mr. Clema’s arrest record because the arrest was not unconstitutional

and Mr. Clema presented no other facts that would render this case “extreme.” Id. We

agree.

                               Reconsideration in Light of Loya

         Mr. Clema argues that the district court erred by declining to reconsider its grant of

summary judgment to Santa Fe County in light of Loya. Aplt. Br. at 56. He asks this

court to certify a question of law to the New Mexico Supreme Court regarding whether

Loya established a duty of the sheriff to supervise deputized tribal police officers.

Certification of this question to the New Mexico Supreme Court would be inappropriate

because the asserted question of law is irrelevant to the district court’s proper grant of

summary judgment to Sheriff Garcia.4

         4
         Mr. Clema misunderstands the district court’s basis for granting summary
judgment on this claim. As discussed, the court granted summary judgment because Mr.
Clema did not allege sufficient facts to establish municipal liability under either a policy
or deliberate indifference. In its analysis, the district court assumed, without deciding,
                                                                                   (continued...)

                                               10
       “A plaintiff suing a municipality under § 1983 for the actions of one of its officers

must prove: (1) that a municipal employee committed a constitutional violation; and (2)

that a municipal policy or custom was the moving force behind the constitutional

deprivation.” Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). “[A]

municipality cannot be liable under § 1983 if the officer in fact inflicted no constitutional

harm.” See id. (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Officer

Colombe did not violate Mr. Clema’s rights, so no municipal liability can arise from

Officer Colombe’s actions. Sheriff Garcia is entitled to summary judgment on this claim.

                                             III

       For the foregoing reasons, we affirm the grant of summary judgement to all

defendants on all claims. We also deny Mr. Clema’s motion to certify two questions of

law to the New Mexico Supreme Court.



                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Circuit Judge


       4
        (...continued)
that the county did have a duty to train and supervise Officer Colombe. Aplt. App. at
188. Thus, whether the New Mexico Supreme Court’s decision in Loya affirmatively
established such a duty has no effect on the district court’s conclusion. Further, Mr.
Clema argues that he has “additional evidence” that would indicate an official policy or
practice of arresting persons for parties to a crime DUI. Because we affirm the grant of
summary judgment on the alternative ground that there was no underlying constitutional
violation, we decline to address this argument.

                                             11
