                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 29 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ERNEST E. WALKER,

                Plaintiff - Appellant,

    v.                                                   No. 02-1020
                                                      D.C. No. 00-S-1931
    OFFICER DISNER; JOHN DOE OF                         (D. Colorado)
    ARAPAHOE COUNTY DETENTION
    FACILITY,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before KELLY and BALDOCK , Circuit Judges, and          BRORBY , Senior 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). 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      This order and judgment is not binding precedent, except under the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, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Earnest Walker, a state prisoner appearing      pro se , appeals the

district court’s order dismissing his amended complaint alleging, under 42 U.S.C.

§ 1983, that Officer Edward Disner, a Sheridan, Colorado, police officer, and

an unidentified John Doe violated his civil rights.    1
                                                           The magistrate judge

recommended that the complaint be dismissed under Fed. R. Civ. P. 12(b)(6) for

failure to state a claim upon which relief could be granted. By separate order, the

magistrate judge denied Mr. Walker’s motion to amend his complaint for a third

time. The district court affirmed the denial of the motion to amend and, adopting

the magistrate judge’s recommendation, dismissed the complaint. We affirm.

       “We review de novo the district court’s grant of a [Rule] 12(b)(6) motion

to dismiss, bearing in mind that all well-pleaded allegations in the complaint are

accepted as true and viewed in the light most favorable to the nonmoving party.”

Stidham v. Peace Officer Standards & Training         , 265 F.3d 1144, 1149 (10th Cir.

2001) (quotation and alteration omitted). The district court thoroughly and



1
       John Doe remains unknown and unserved. The district court informed
Mr. Walker by order dated December 20, 2000, that he must provide sufficient
information so that this defendant could be identified. Mr. Walker never provided
further identifying information. Mr. Walker has waived his right to appellate
review of the dismissal of this John Doe defendant because he did not raise any
objections to the dismissal of this defendant in his objections to the magistrate
judge’s report and recommendation,    see Key Energy Res. Inc. v. Merrill (In re
Key Energy Res. Inc.) , 230 F.3d 1197, 1199-1200 (10th Cir. 2000), or in his
opening brief on appeal, see Coleman v. B-G Maint. Mgmt. of Colo., Inc.    , 108
F.3d 1199, 1205 (10th Cir. 1997).

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accurately described Mr. Walker’s allegations, as contained in his amended

complaint and his verified statement of facts filed in response to the motion to

dismiss. Thus, we only briefly summarize them here.

      Mr. Walker returned to the apartment he shared with his wife on the

morning of September 28, 1999, after an argument with her the evening before.

He could not unlock the door, and the apartment maintenance manager told him

his wife had changed the locks and requested he not be allowed inside the

apartment. Nevertheless, Mr. Walker admits he manipulated the locks on the door

and entered the apartment. The maintenance manager called the police. Officer

Disner and an unidentified fellow officer arrived, and were told by the

maintenance manager that there was an unwanted person in the apartment.

      The officers knocked on the door, but Mr. Walker was unable to answer at

the time. The officers again knocked on the door and then forcibly entered the

apartment. The officers handcuffed Mr. Walker. After searching his wallet, the

officers told Mr. Walker he was being arrested for a violation of a restraining

order. Although Mr. Walker’s wife had previously obtained a restraining order

against him, it was later determined that the restraining order had been vacated

prior to September 28, 1999. The officers briefly searched the apartment, and

then arrested Mr. Walker for criminal mischief for manipulating the locks and for

violating a restraining order.


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      Mr. Walker contends Officer Disner violated his constitutional rights

because he did not obtain a search warrant prior to entering his apartment and

arrested him without probable cause. We agree with the district court that Officer

Disner is entitled to qualified immunity because the facts, taken in the light most

favorable to Mr. Walker, do not show that Officer Disner violated a constitutional

right. See Saucier v. Katz , 533 U.S. 194, 200 (2001).

      Absent exigent circumstances, police may not enter a citizen’s home

without a warrant.   Payton v. New York , 445 U.S. 573, 590 (1980). Here, Mr.

Walker admits that the police responded to a call of a suspected burglary and

were told by the apartment maintenance manager that an unwanted person was in

the apartment. He admits that he manipulated the locks to enter the apartment

and that he did not respond to the officers’ initial knock. Because the officers

had received a burglary call, and upon arriving at the apartment, observed signs

of a burglary, Officer Disner’s entry into, and brief search of, the apartment

were lawful pursuant to the emergency exception to the warrant requirement.        See

United States v. Tibolt , 72 F.3d 965, 970-71 (1st Cir. 1995) (holding that

responding to report of possible burglary is exigent circumstance authorizing

warrantless entry into home).




                                          -4-
      Furthermore, these same facts are sufficient to demonstrate that Officer

Disner had probable cause to believe Mr. Walker had committed a criminal

offense.

      A police officer may arrest a person without a warrant if he has
      probable cause to believe that person committed a crime. Probable
      cause exists if facts and circumstances within the arresting officer’s
      knowledge and of which he or she has reasonably trustworthy
      information are sufficient to lead a prudent person to believe that the
      arrestee has committed or is committing an offense.

Romero v. Fay , 45 F.3d 1472, 1476 (10th Cir. 1995) (quotations and citations

omitted). Although Mr. Walker contends that Officer Disner lacked probable

cause to arrest him for violating the restraining order, he ignores the fact that

he was also arrested for criminal mischief for manipulating the locks on the

apartment door. He offers no argument why Officer Disner lacked probable cause

to arrest him for this charge. The district court correctly ruled that Mr. Walker

failed to assert the violation of a constitutional right.

      Mr. Walker alleges it was error for the district court to deny his motion to

file a third amended complaint on grounds of futility. We review the district

court’s denial of a motion to amend a complaint for abuse of discretion.    See

Ramirez v. Okla. Dep’t of Mental Health     , 41 F.3d 584, 596 n.9 (10th Cir. 1994).

Officer Disner’s motion to dismiss had been pending for two months when

Mr. Walker filed his motion to amend. He did not detail the changes he sought



                                           -5-
to make in his amended complaint or offer any justification for the proposed

amendment. We find no abuse of discretion.

       We AFFIRM the district court’s judgment. We remind Mr. Walker to

continue making partial payments until the entire balance of the appellate

filing fee is paid.


                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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