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

                                      TENTH CIRCUIT                         June 17, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

    LESLIE BROWN, JR.,

               Plaintiff-Appellant,
         v.                                                   No. 13-5135
                                                  (D.C. No. 4:12-CV-00577-CVE-PJC)
                                                              (N.D. Okla.)

    JAMES COLE and JIMMIE CURRAN,

               Defendants-Appellees.



                             ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.


        Mr. Leslie Brown, Jr., brought the present suit under 42 U.S.C. § 1983, alleging

false arrest by Officers James Cole and Jimmie Curran. The district court granted

summary judgment against Mr. Brown, reasoning that Officers Cole and Curran enjoyed

qualified immunity because they had probable cause for the arrest. We affirm.



*
       After examining the briefs and appellate record, the Court has determined
that oral argument would not materially assist us in deciding the appeal. See Fed.
R. App. P. 34(a)(2)(c); 10th Cir. R. 34.1(G). As a result, we have decided the
appeal based on the briefs.

       This order and judgment does not constitute binding precedent, but can be
cited for its persuasive value. See 10th Cir. R. 32.1(A).
I.     The Altercation and Arrest

       Defendants Cole and Curran are Tulsa police officers who went to Mr. Brown’s

home in response to a 911 call. The two officers observed a man, Mr. Samuel Hill,

visibly injured and intoxicated. Mr. Hill stated that he had been beaten by Mr. Brown

with a tree branch. Mr. Brown admitted that this statement was true, but claimed that Mr.

Hill had taken the first swing and refused to leave the house. Unpersuaded, the officers

arrested Mr. Brown for a felony, assault with a deadly weapon.

       The district attorney’s office later reduced the charge to misdemeanor assault and

battery. This charge was ultimately dropped after Mr. Hill refused to cooperate with the

district attorney’s office. Mr. Hill swore in an affidavit that he had instigated the fight

and that Mr. Brown had acted in self-defense.

II.    Procedural Background

       In the complaint, Mr. Brown alleged false arrest, stating that he had a right to

defend himself and that the police officers had failed to properly investigate.

       Officers Cole and Curran moved to dismiss the false arrest claims. Treating this

motion as one for summary judgment, the district court concluded that the officers had

probable cause for the arrest and enjoyed qualified immunity. Accordingly, the district

court granted summary judgment to Officers Cole and Curran on the false arrest claims.

       Mr. Brown filed a motion entitled “New Trial with Request for a Court Hearing,”

which the district court construed as a motion to reconsider under Fed. R. Civ. P. 59. The

district court denied the motion, reasoning that Mr. Brown had raised the same arguments

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in his summary judgment briefing. Mr. Brown now appeals the district court’s denial of

his Rule 59 motion and the district court’s award of summary judgment to the officers.

III.   Standard of Review

       For the two rulings, we employ different standards.

       For the denial of a Rule 59(e) motion to reconsider, we review only for an abuse

of discretion and will disturb the district court’s exercise of that discretion only if we

have a “‘definite and firm conviction that the [district] court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.’” Barber

ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (quoting

Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)).

       On the award of summary judgment, we conduct de novo review, applying the

same standard that the district court had employed. Becker v. Bateman, 709 F.3d 1019,

1022 (10th Cir. 2013). Summary judgment is appropriate “if the movant shows . . . there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). When a defendant raises qualified immunity in a

motion for summary judgment, the burden shifts to the plaintiff to show: “(1) the

defendant violated a constitutional right and (2) the constitutional right was clearly

established.” Becker, 709 F.3d at 1022.

IV.    Application of the Standard of Review

       In his appellate brief, Mr. Brown asserts three errors with the district court’s

rulings: (1) the district court erred by converting the motion to dismiss into a motion for

summary judgment; (2) the district court incorrectly determined that Officers Cole and

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Curran had probable cause for the arrest; and (3) the district court improperly decided

questions of fact in the officers’ favor. We conclude that the officers had arguable

probable cause to arrest Mr. Brown and that the district court did not improperly decide

questions of fact in the officers’ favor. Thus, we affirm the district court’s rulings.

       A.      Conversion of the Motion to Dismiss to a Motion for Summary
               Judgment

       Mr. Brown contends the district court erred in converting the motion to dismiss to

a motion for summary judgment. According to Mr. Brown, the conversion constituted

error because no discovery had taken place. We disagree.

       The district court had “broad discretion” to consider materials outside the

complaint. Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir. 1998).

Exercising this discretion, the court decided to consider the Defendants’ evidence and

converted the motion to dismiss to a motion for summary judgment. See Fed. R. Civ. P.

12(d). The district court provided notice of this conversion and allowed the parties to file

additional evidence. Id.

       Mr. Brown argues that this conversion was premature based on the status of

discovery. We disagree for two reasons. First, “‘[t]here is no requirement in Rule 56 . . .

that summary judgment not be entered until discovery is complete.’” Pub. Serv. Co. of

Colo. v. Cont’l Cas. Co., 26 F.3d 1508, 1518 (10th Cir. 1994) (quoting Weir v. Anaconda

Co., 773 F.2d 1073, 1081 (10th Cir. 1985)). Second, Mr. Brown did not tell the district

court that he disagreed with the conversion or that he needed additional discovery to

respond to the officers’ motion. See Marquez v. Cable One, Inc., 463 F.3d 1118, 1121


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(10th Cir. 2006). For both reasons, the district court did not abuse its discretion by

treating the officers’ motion as one for summary judgment.

       B.     Probable Cause to Arrest

       The federal constitution prohibits an arrest without probable cause. See Kaufman

v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). But even when probable cause is absent,

the arresting officer enjoys qualified immunity if the existence of probable cause was at

least arguable. Id. We conclude that the officers had arguable probable cause to arrest

Mr. Brown.

       When we evaluate whether an officer had probable cause to arrest, we consider

whether the arresting officer knew of facts based on reasonably trustworthy information

that would suffice to warrant a reasonably cautious person to believe that an offense had

been or was being committed. Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th

Cir. 2008).

       Officers Cole and Curran arrested Mr. Brown for assault with a dangerous

weapon, which is defined under Oklahoma law as the commission of “assault, battery, or

assault and battery upon the person of another with any sharp or dangerous weapon . . . or

other means” without “justifiable or excusable cause.” Okla. Stat. tit. 21, § 645. Under

Oklahoma’s self-defense law, police officers cannot “arrest the person for using force

unless [they] determine[] that there is probable cause that the force that was used was

unlawful.” Okla. Stat. tit. 21, § 1289.25.G.




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       Mr. Brown argues that: (1) the officers should have more fully investigated his

assertion of self-defense, and (2) his self-defense claim is confirmed by Mr. Hill’s

subsequent affidavit. We reject both arguments.

       According to Mr. Brown, Officers Cole and Curran erred by ignoring his assertion

of self-defense and failing to investigate whether Mr. Hill had been arrested the previous

night. These circumstances do not preclude probable cause.

       When the officers arrived at the house, they observed a visibly beaten Mr. Hill,

who identified Mr. Brown as his assailant. Mr. Brown admitted that he had beaten Mr.

Hill with a tree branch and told the officers that Mr. Hill was a tenant. A prudent officer

could reasonably have concluded that Mr. Brown had no justification to beat Mr. Hill

with the tree branch. See Delmonico v. Capito, 356 F. App’x 144, 149 (10th Cir. 2009)

(noting that “a witness’s opinion that a party to a fight acted in self-defense would not

necessarily defeat probable cause”).1

       Mr. Brown also asserts that probable cause is belied by Mr. Hill’s eventual

affidavit. But probable cause is “measured at the moment the arrest occurs.” Cortez v.

McCauley, 478 F.3d 1108, 1121 (10th Cir. 2007) (en banc). Thus, the later affidavit does

not preclude the existence of probable cause.

       In these circumstances, we conclude the officers enjoyed qualified immunity

because they had arguable probable cause to arrest Mr. Brown for assault with a

dangerous weapon.



1
       Delmonico is persuasive, but not precedential.
                                             6
      C.     Assessment of the Evidence

      Mr. Brown also argues that the district court improperly assessed the evidence in

favor of Officers Cole and Curran. But Mr. Brown does not identify the evidence that

was improperly assessed. Without further guidance, we reject Mr. Brown’s argument.

V.    Disposition

      We affirm.


                                        Entered for the Court


                                        Robert E. Bacharach
                                        Circuit Judge




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