                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                September 7, 2007
                                                   Elisabeth A. Shumaker
                        FO R TH E TENTH CIRCUIT        Clerk of Court



    R OD O LFO RIV ER A,

               Plaintiff-Appellant,

    v.                                                  No. 06-1485
                                             (D.C. No. 05-cv-01714-EW N-M JW )
    TRAVIS CO RM ANEY , U.S.                             (D . Colo.)
    Probation Officer; KU RT RU NG E,
    Probation O fficer; C HA D
    CHADDICK, Parole Officer Division
    of Adult Parole and Community
    Corrections; LARRY STUART, Parole
    Officer Division of Adult Parole and
    Community Corrections; W ESLEY
    W ARD, Pathw ays Director;
    RICHARD HERRANEN, Former
    Pathw ays Director; ROSEM ARY J.
    KJELDGAARD, Pathw ays Counselor;
    DIRECTOR OF SUM M IT
    C OU N SELIN G ; M A RIO N A V OY,
    Summit Counseling; HARVEY J.
    HODGE, PhD , Center of Family and
    M arital Treatment; Y V O N NE
    SLETTA, Evaluator Center of Family
    and M arital Treatment,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *

*
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
                                                                       (continued...)
Before H EN RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




      Plaintiff-appellant Rodolfo Rivera, proceeding pro se, appeals from the

district court’s dismissal of his civil rights complaint filed under 42 U.S.C.

§ 1983 for lack of subject matter jurisdiction, for failure to state a claim, and

based on the applicable statute of limitations. W e exercise jurisdiction under

28 U.S.C. § 1291 and affirm.


                                 I. BACKGROUND

      The magistrate judge thoroughly review ed the facts asserted in

M r. Rivera’s amended complaint. See R., Doc. 66, at 2-5 (reviewing id., Doc. 4).

W e merely summarize those assertions here. On September 3, 1999, M r. Rivera

was convicted in state court of robbery, assault, and criminal first degree trespass.

He maintained his innocence. He was sentenced to thirty days in jail, probation,

and thirty-six weeks of counseling. After he attended the first eighteen weeks of

classes, counselor Rosemary J. Kjeldgaard discharged him because he would not

admit guilt and wrote an allegedly derogatory report to the state trial court and the




*
 (...continued)
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.

                                         -2-
probation department. M r. Rivera then attended another eighteen weeks of

classes at another counseling center, but counselor M arion Avoy refused to pass

him because he w ould not admit guilt, and she w rote an allegedly derogatory

report to the state trial court and the probation department. M r. Rivera alleged

that probation officers Travis Cormaney and Kurt Runge then imposed a

requirement that he attend another eighteen weeks of counseling classes.

Probation revocation proceedings were also initiated. The state trial court asked

M r. Rivera to obtain another evaluation, and counselors Yvonne Sletta and

Harvey J. Hodge wrote an allegedly derogatory report to the trial court because he

would not admit guilt. On June 25, 2001, the state trial court revoked

M r. Rivera’s probation and resentenced him to two years in prison. M r. Rivera

was released on Friday, November 29, 2002, with instructions to call his parole

officer as soon as he arrived in Colorado Springs. He asserted that he tried to

call, but got an answering machine with no option for the officer he had been

directed to call. He went to the parole office in person on the following M onday

and was arrested by parole officers Chad Chaddick and Larry Stuart. He was

released after a few days. The Colorado Court of Appeals overturned the

revocation of M r. Rivera’s probation in December 2003, and his sentence was

vacated by the state trial court in April 2004.

      M r. Rivera, proceeding pro se, filed his initial civil rights complaint on

September 2, 2005, id., Doc. 3, and filed an amended complaint on September 16,

                                          -3-
2005, id., Doc. 4. He sued numerous defendants (probation officers, counselors,

and parole officers), asserting that he had been subjected to double jeopardy by

their involvement with the June 25, 2001, revocation of his probation, which

resulted in his being illegally resentenced to a two-year prison term, see id. at 6

¶28, or by their involvement with his D ecember 2, 2002, arrest for a parole

violation shortly after his release from prison, see id. at 7 ¶¶32-33. Defendants

moved to dismiss M r. Rivera’s amended complaint on various grounds.

      The magistrate judge first considered the motion of defendants Travis

Cormaney and Kurt Runge, both probation officers, and Chad Chaddick and Larry

Stuart, both parole officers. The magistrate judge determined that M r. Rivera’s

official capacity claims against these defendants w ere barred by the Eleventh

Amendment, and it therefore lacked subject matter jurisdiction over them. R.,

Doc. 66, at 7. The magistrate judge further determined that defendants Cormaney

and Runge were entitled to absolute judicial immunity because their

recommendations concerning the revocation of M r. Rivera’s probation were made

to the state trial court and were integrally related to the judicial function. Id.

at 8-9. The magistrate judge determined that defendants Chaddick and Stuart

were entitled to qualified immunity because they had “probable cause to arrest

and hold [M r. Rivera] for a parole violation based upon his failure to report to

parole in a timely manner as directed.” Id. at 10. In the alternative, the

magistrate judge determined that the claims M r. Rivera asserted in his September

                                           -4-
2005 complaint challenging his arrest by defendants Chaddick and Stuart on

December 2, 2002, were barred by the applicable two-year statute of limitations.

See id. at 4-5, 10-13.

      The magistrate judge next considered the motion of defendant Yvonne

Sletta, a private counselor who evaluated M r. Rivera and wrote a report to the

state trial court recommending jail time because M r. Rivera would not admit

guilt. The magistrate judge determined that M r. Rivera did not assert that

M s. Sletta was a state actor for purposes of 42 U.S.C. § 1983 and did not assert

any facts tending to show that she acted in agreement and concerted action with a

state actor. Id. at 14. Further, the magistrate judge noted that the trial court

revoked M r. Rivera’s probation, not M s. Sletta. Id. at 14-15. The magistrate

judge further determined that M r. Rivera’s claims against M s. Sletta were barred

by the applicable two-year statute of limitations because she w rote her report

sometime before the June 25, 2001, revocation of his probation, which w as more

than tw o years before M r. Rivera filed suit in September 2005. See id. at 3-4, 15.

      The magistrate judge then considered the motion of defendant Rosemary J.

Kjeldgaard, a private counselor who discharged M r. Rivera from counseling

classes because he would not admit guilt and who wrote a derogatory report to the

state trial court and the probation department. The magistrate judge indicated that

M s. Kjeldgaard was not a state actor for purposes of 42 U.S.C. § 1983 and

determined that M r. Rivera failed to assert any facts tending to show that she

                                          -5-
acted in agreement or concerted action with a state actor. Id. at 15-17. Further,

the magistrate judge noted that the trial court revoked M r. Rivera’s probation, not

M s. Kjeldgaard. Id. at 16. The magistrate judge further determined that

M r. Rivera’s claims against M s. Kjeldgaard were barred by the applicable

two-year statute of limitations because she wrote her report sometime before the

June 25, 2001, revocation of his probation, which w as more than two years before

M r. R ivera filed suit in September 2005. See id. at 3-4, 16-17. The magistrate

judge concluded that the motions to dismiss filed by defendants Cormaney,

Runge, Chaddick, Stuart, Sletta, and Kjeldgaard should be granted.

      The magistrate judge determined that the remaining five defendants were

not state actors and that M r. Rivera did not assert any facts tending to show that

any of them acted in agreement and concerted action with a state actor. Id. at 17.

Because M r. Rivera was proceeding in forma pauperis, the magistrate judge

recommended that his claims against these five defendants be dismissed for

failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). R., Doc. 66, at 17.

The magistrate judge further concluded that the amended complaint should be

dismissed with prejudice as to all of the defendants. Id. at 18.

      M r. Rivera filed objections to the magistrate judge’s recommendation. Id.,

Doc. 70. The district court, noting that its review was de novo, accepted the

magistrate judge’s recommendation and dismissed the amended complaint with

prejudice. Id., Doc. 76. M r. Rivera filed this appeal.

                                          -6-
                                 II. DISCUSSION

      W hen we review a dismissal, “the standard of review is de novo whether w e

treat the appeal as seeking review of a [Fed. R. Civ. P.] Rule 12(b)(1) or 12(b)(6)

dismissal.” Colo. Envtl. Coalition v. Wenker, 353 F.3d 1221, 1227 (10th Cir.

2004) (per curiam). In addition, “the proper standard for evaluating dismissal in a

qualified immunity case is the normal standard we apply to dismissals generally.”

M oya v. Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006). W e also review a

dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo. See Trujillo v. Williams,

465 F.3d 1210, 1215-16 (10th Cir. 2006). “W e must accept all the well-pleaded

allegations of the complaint as true and must construe them in the light most

favorable to the plaintiff.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, ____

(10th Cir. 2007). “‘W e look for plausibility in th[e] complaint.’” Id. (quoting

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1970 (2007)). W e need not

accept conclusory allegations. See M oya, 465 F.3d at 455.

      M r. Rivera argues on appeal that: (1) the district court did not conduct a

de novo review of the magistrate judge’s recommendation; (2) the magistrate

judge misstated the facts of the case and misapplied the law ; (3) the magistrate

judge adopted the defendants’ version of the facts to support his determinations

that certain defendants were not state actors or that claims against them were

barred by the statute of limitations, or that defendants Chaddick and Stuart were



                                         -7-
entitled to immunity; and (4) the district court did not lack subject matter

jurisdiction and M r. Rivera stated a claim upon which relief could be granted.

      W e reject M r. Rivera’s conclusory argument that the district court did not

perform a de novo review of the magistrate judge’s recommendation. The district

court stated that it did so. R., Doc. 76, at 2. “W e assume that the district court

performed its review function properly in the absence of evidence to the

contrary.” Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). M r. Rivera

presented no such evidence.

      W e also reject M r. Rivera’s argument that the magistrate judge misstated

the facts and misapplied the law. Based on our review, the magistrate judge set

out the facts as asserted by M r. Rivera in his amended complaint. In his brief on

appeal, M r. Rivera only clearly challenges one fact, and it appears in one of the

motions to dismiss, not in the magistrate judge’s recommendation. He argues that

he was only required to call his parole officer when he was released from prison

on Friday, November 29, 2002, not to report to his parole officer, as asserted by

defendants Cormaney, Runge, Chaddick, and Stuart in their motion to dismiss.

Aplt. Opening Br. at 10. The magistrate judge, however, correctly stated that

M r. Rivera asserted that he “was directed by his case manager to call his parole

officer upon his arrival in Colorado Springs[.]” R. Doc. 66, at 10. Although

M r. R ivera explained that he got an answering machine when he called, id.,

Doc. 4, at 7 ¶32, he did not assert that he spoke to a parole officer that day.

                                          -8-
Rather, he admitted that he did not speak to a parole officer until the following

M onday, when he appeared at the parole office in person. Id., ¶33. Thus,

M r. Rivera has not demonstrated that there is any error in the magistrate judge’s

conclusion that defendants Chaddick and Stuart had “probable cause to arrest and

hold the plaintiff for a parole violation based upon his failure to report to parole

in a timely manner as directed.” Id., Doc. 66, at 10. W e think it is irrelevant that

the magistrate judge used the word “report” instead of repeating the word “call”

when he stated his conclusion.

      M r. Rivera also argues that defendants Chaddick and Stuart, the parole

officers who arrested him shortly after he was released from prison, were not

entitled to absolute immunity. Aplt. Opening Br. at 9-10. His reliance on Swift v.

California, 384 F.3d 1184 (9th Cir. 2004), is misplaced. The Ninth Circuit did

state in that case that “parole officers may claim absolute immunity [only] for

those actions relating to their responsibility to determine whether to revoke

parole[.]” Id. at 1189 (quotation omitted). The magistrate judge held, however,

that defendants Chaddick and Stuart were entitled only to qualified immunity, not

absolute immunity. See R., Doc. 66, at 9-10. M r. Rivera has not even argued that

defendants Chaddick and Stuart were not entitled to qualified immunity, and,

because he admitted that he did not speak to his parole officer on November 29,

2002, as he asserted he had been directed to do, he cannot show that defendants

Chaddick and Stuart were not entitled to qualified immunity for arresting him

                                          -9-
when he appeared in person at the parole office on the following M onday. The

dismissal of his claims against defendants Chaddick and Stuart was therefore

proper. W e do not read M r. Rivera’s opening brief to challenge the magistrate

judge’s holding that his claims against defendants Cormaney, Runge, Chaddick,

and Stuart in their official capacities were barred by the Eleventh Amendment.

W e also do not read M r. Rivera’s opening brief to challenge the magistrate

judge’s conclusion that defendants Cormaney and Runge were entitled to absolute

immunity. Therefore, these conclusions are affirmed without discussion. W e

need not discuss any other arguments directed at defendants Cormaney, Runge,

Chaddick, and Stuart.

      M r. Rivera argues that the magistrate judge erred in concluding that

defendants Sletta, Kjeldgaard, Hodge, and Avoy are not state actors, arguing that

he asserted “joint action between the concerned Domestic Violence staff and the

state.” Aplt. Opening Br. at 8-9. His assertions against the defendants are

conclusory, at best. Further, he did not assert any specific facts from which it

could be inferred that the state trial court did not make an independent decision to

revoke his probation due to defendants’ influence. See Gallagher v. “Neil Young

Freedom Concert”, 49 F.3d 1442, 1454 (10th Cir. 1995). M r. Rivera’s argument

that these defendants are state actors is without merit.




                                         -10-
      M r. Rivera makes no specific argument with respect to the remaining

defendants. Accordingly, we affirm the dismissal of his claims against them

without discussion.

      M s. Sletta filed a motion to dismiss the appeal, asserting that M r. Rivera’s

notice of appeal was untimely. W e disagree. The district court entered its Order

Accepting M agistrate Judge’s Recommendation on September 25, 2006, R.,

Doc. 76, but never entered a judgment on a separate document, as required by

Fed. R. Civ. P. 58. Under Rule 58(b)(2)(B), judgment was deemed entered 150

days after the entry of the district court’s order. M r. Rivera filed his notice of

appeal on October 27, 2006, R., Doc. 77— before his time to appeal had even

begun to run— and it was therefore timely. M s. Sletta’s motion to dismiss the

appeal is denied.

      M r. Rivera has moved for leave to proceed in forma pauperis on appeal.

Because he was released from prison on November 29, 2002, and was not

incarcerated at the time he filed this appeal, the provisions of the Prison

Litigation Reform Act do not apply to this appeal. See 28 U.S.C. § 1915(a), (b),

(h). M r. Rivera therefore must demonstrate “a financial inability to pay the

required filing fees and the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Under this standard, the motion is

granted.

                                          -11-
                                 III. CONCLUSION

      Appellee Sletta’s motion to dismiss the appeal is denied. Appellant’s

motion to proceed on appeal in forma pauperis is granted. The judgment of the

district court is A FFIR ME D.


                                                  Entered for the Court


                                                  Robert H. Henry
                                                  Circuit Judge




                                       -12-
