                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      May 6, 2014
                                                                     Elisabeth A. Shumaker
                                    TENTH CIRCUIT                        Clerk of Court



 JOHN T. BARNES

               Plaintiff - Appellant,

 v.                                                           No. 13-1184
                                                 (D.C. No. 1:12-CV-01042-WJM-KMT)
 ANGUS JEFFERY TIMMONS, JR.;                                   (D. Colo.)
 ANTHONY MORABITO, Officer,

               Defendants - Appellees.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


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

unanimously that oral argument would not materially assist in 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 John Barnes, representing himself pro se, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 complaint. Plaintiff’s complaint was based on his July

2010 arrest for criminal mischief. According to the allegations in Plaintiff’s complaint,



       *
         This order and judgment is not binding precedent, except under the doctrines of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 neighbor, Defendant Angus Timmons, called the police and requested an

officer to come to his residence. When Defendant Anthony Morabito responded to the

scene, Mr. Timmons told him Plaintiff had pointed a red light into his vehicle and then

thrown an object (a 9 volt battery) at the vehicle. Plaintiff told the officer he had been

taking pictures of Mr. Timmons with his camera in order to document Mr. Timmons’

reckless driving habits. Officer Morabito stated in his police report he noticed a 9 volt

battery on the ground near Mr. Timmons’ vehicle and further observed some minor

damage to the vehicle. Although Plaintiff denied throwing anything at Mr. Timmons’

vehicle, Officer Morabito arrested Plaintiff for criminal mischief.

       In his § 1983 complaint, Plaintiff raised the following causes of action: (1) false

arrest and violation of First Amendment rights against Officer Morabito; (2) conspiracy to

violate civil rights and First Amendment rights against Mr. Timmons; (3) malicious

prosecution against Mr. Timmons; and (4) intentional infliction of emotional distress

against Mr. Timmons. The magistrate judge recommended dismissal of all of these

claims. The magistrate judge concluded that the allegations in Plaintiff’s complaint could

not support a finding of false arrest because, even taking the allegations in the light most

favorable to Plaintiff, Officer Morabito had probable cause to arrest Plaintiff for criminal

mischief. The magistrate judge concluded Plaintiff’s First Amendment claim failed

because the allegations in his case did not link any retaliatory action to Plaintiff’s exercise

of his First Amendment rights. As for Plaintiff’s conspiracy claim against Mr. Timmons,

the magistrate judge concluded this claim failed both because the allegations in his

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complaint did not suggest any kind of agreement to engage in concerted action and

because Mr. Timmons was acting as a private citizen, not as a state actor who could be

sued under § 1983. The magistrate judge concluded that Plaintiff’s malicious prosecution

claim against Mr. Timmons failed based on the fact that Plaintiff’s arrest was supported

by probable cause. Finally, the magistrate judge noted that intentional infliction of

emotional distress is a state law claim, and the magistrate judge concluded the court

should decline to exercise jurisdiction over this claim. The district court agreed with the

magistrate judge’s recommendations and dismissed all of Plaintiff’s claims.

       On appeal, Plaintiff argues there were disputed facts in this case which entitled

him to a jury trial. He argues his arrest lacked probable cause because it was based on

“the mere words of Defendant Timmons.” (Appellant’s Opening Br. at 4.) However,

“[w]hen police officers obtain information from an eyewitness or victim establishing the

elements of a crime, the information is almost always sufficient to provide probable cause

for an arrest in the absence of evidence that the information, or the person providing it, is

not credible.” Pasiewicz v. Lake Cnty. Pres. Dist., 270 F.3d 520, 524 (7th Cir. 2001).

Plaintiff also appears to argue that Mr. Timmons’ allegations were not credible because

the alleged damage to the vehicle was not consistent with the damage “a tiny 9 volt

battery” would be likely to inflict. (Appellant’s Opening Br. at 4-5.) However, the

allegations in Plaintiff’s complaint do not support this assertion. Additionally, Plaintiff

did not allege in his complaint that Officer Morabito fabricated his reported observations

of a battery near the vehicle; rather, the complaint alleges simply that Officer Morabito

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“failed to preserve the 9 volt battery as physical evidence.” (R. at 37.) After thoroughly

reviewing the briefing and the record on appeal, we conclude the facts alleged in

Plaintiff’s complaint do not support a conclusion that he was arrested without probable

cause. We also see no error in the magistrate judge’s thorough explanation as to why

each of Plaintiff’s other claims were subject to dismissal.

       Accordingly, for substantially the same reasons given by the magistrate judge and

district court, we AFFIRM the district court’s order of dismissal.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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