                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 21 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JAMES LEE WELLS,

                Plaintiff-Appellant,

    v.                                                   No. 03-1360
                                                 (D.C. No. 02-MK-1367-BNB)
    THE CITY AND COUNTY OF                                (D. Colo.)
    DENVER; DENVER POLICE
    DEPARTMENT; CHRIS CAMERON;
    JAMES MONEGHAN; ED DAVID,
    and John Does 1 through 10, all
    Denver Police Officers, whose
    identities are not known to Plaintiff,

                Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
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      This order and judgment is not binding precedent, except under the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.
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.

      James Lee Wells appeals from the grant of        summary judgment to

defendant s on state tort and federal civil rights claims following a traffic stop

which resulted in his arrest and detention. We have jurisdiction over this appeal

by virtue of 28 U.S.C. § 1291.   Appellant challenges the      district court ’s ruling

only as to certain claims against the individual defendants: 1) state tort claims of

false arrest and assault and battery and 2) civil rights claims, brought pursuant to

42 U.S.C. § 1983, characterized by the district court as false arrest and excessive

force. We review the district court’s      grant of summary judgment     de novo ,

applying the same legal standards as the      district court . Simms v. Okla. ex rel.

Dep’t of Mental Health & Substance Abuse Servs.        , 165 F.3d 1321, 1326

(10th Cir. 1999).

      The district court granted summary judgment on the assault and battery

claim and granted qualified immunity to the individual defendants on the

excessive force claim, based on its conclusion that appellant had neither argued

nor presented factual evidence about whether the force used in effectuating his

arrest was reasonable. We agree with the       district court ’s reasoning. Despite

appellant’s appellate arguments that evidence which would support these claims

existed in the record, the district court is not required to either manufacture legal


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argument or sift through the record to find factual support for potential claims.

See Mitchell v. City of Moore , 218 F.3d 1190, 1198-99 (10th Cir. 2000).

Summary judgment was properly granted on these claims.

       The district court rejected appellant’s false arrest claims because it

determined there was probable cause to arrest, which conclusion precludes a false

arrest claim under both Colorado and federal constitutional law.      See Enright v.

Groves , 560 P.2d 851, 853 (Colo. Ct. App. 1977);       Taylor v. Meacham , 82 F.3d

1556, 1561 (10th Cir. 1996) (stating elements of a common law claim are starting

point for civil rights violations based on state law tort). As he did before the

district court, appellant contends probable cause was lacking for his arrest. But,

in support of this position, he raises three arguments never presented to the

district court. Absent unusual circumstances not present here, we decline to

address theories raised for the first time on appeal.    See Bancamerica Commercial

Corp. v. Mosher Steel of Kan., Inc.    , 100 F.3d 792, 798-99 (10th Cir.),

op. amended on other grounds , 103 F.3d 80 (10th Cir. 1996).

       Accordingly, the judgment of the district court is AFFIRMED.


                                                        Entered for the Court



                                                        Wade Brorby
                                                        Senior Circuit Judge


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