                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         MAY 9 1997
                    UNITED STATES COURT OF APPEALS

                           FOR THE TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk


    HAROLD ALVIN SCHILDT,

              Plaintiff-Appellant,

    v.                                            Nos. 96-4114, 96-4149
                                                  (D.C. No. 93-CV-1082)
    FEDERAL BUREAU OF                                    (D. Utah)
    INVESTIGATION; UTAH STATE
    DEPARTMENT OF SOCIAL
    SERVICES; MONTANA STATE
    SOCIAL SERVICES, GLACIER
    COUNTY; FRANCIS ONSTAD,
    Blackfeet ICWA Director; ROBERT
    M. CARLSON; HARRY SOUVALL,
    8th District Prosecutor; JOHN
    LAURSEN, Uintah County Sheriff
    Deputy; UINTAH COUNTY
    SHERIFF’S DEPARTMENT,

              Defendants-Appellees.




                           ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and LUCERO, Circuit Judges.



*
      This order and judgment is not binding precedent, except under the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 Harold Alvin Schildt appeals the order of the district court

granting summary judgment to all defendants on plaintiff’s claims brought

pursuant to 42 U.S.C. § 1983. Because we agree with the district court that all

defendants in this action were entitled to immunity or were otherwise

appropriately dismissed, we affirm. 1

      Plaintiff and his former wife were engaged in a custody dispute involving

their daughter, Sammi. On November 3, 1992, a Utah state court awarded

temporary physical custody of Sammi to plaintiff. When, by December 3, 1992,

the child’s mother had not relinquished custody, the mother was arrested. At a

hearing following the mother’s arrest, the court modified the November 3 custody

order to prohibit plaintiff from removing Sammi from the state of Utah and to

provide for visitation for the mother. Plaintiff’s attorney was present at this

hearing.

      A few days later, plaintiff himself appeared before the court and was orally

informed by the judge of the modification of the custody order preventing him

from removing Sammi from Utah. Neither this order nor the November 3 order




1
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

                                         -2-
had been reduced to written form when, shortly before Christmas, plaintiff took

his daughter to visit his family in Browning, Montana.

      Upon learning that plaintiff had taken his daughter out of the State of Utah,

Harry Souvall, the county prosecutor for Uintah County, Utah, instructed the

county sheriff, John Laursen, to draft an affidavit of probable cause for custodial

interference. Sheriff Laursen did so after conducting an investigation of the

matter. Mr. Souvall then obtained a warrant for plaintiff’s arrest and contacted

the FBI for help in arresting plaintiff, who by then was on the Blackfeet Indian

Reservation in Montana. An FBI agent, Robert Carlson, secured a warrant for

plaintiff’s arrest under 18 U.S.C. § 1073. 2 Plaintiff was arrested and returned to

Browning, Montana, where a federal magistrate judge determined that plaintiff

was not a fugitive from justice. The federal charges against plaintiff were

dismissed, but he spent thirty-seven days in jail in Montana awaiting his return to

Utah. Once in Utah, the charges pending there against plaintiff were also

dismissed because of a defect in the information.




2
      18 U.S.C. § 1073 provides, in pertinent part:

              Whoever moves or travels in interstate or foreign commerce
      with intent . . . to avoid prosecution . . . under the laws of the place
      from which he flees, for a crime . . . which is a felony under the laws
      of the place from which the fugitive flees . . . shall be fined under
      this title or imprisoned not more than five years, or both.

                                         -3-
      Plaintiff brought this action under § 1983 alleging that his civil rights had

been violated by various defendants including county attorney Souvall, Sheriff

Laursen, the Sheriff’s Department of Uintah County, the FBI, and FBI agent

Carlson. The district court determined that Mr. Souvall was absolutely immune

from prosecution because he had been acting within the scope of his prosecutorial

duties. Sheriff Laursen was later granted qualified immunity, and the Sheriff’s

Department was dismissed. With regard to the latter, the court held that no

factual allegations had been made against the Sheriff’s Department per se, and

that no respondeat superior liability would lie against the department. Finally,

agent Carlson was granted qualified immunity, and the FBI was also dismissed.

      On appeal, plaintiff argues that the district court prematurely dismissed his

claims, thereby precluding his ability to establish defendants’ liability under

§ 1983. 3 We disagree.

      At the heart of plaintiff’s lawsuit is his theory that an oral order from a

court of competent jurisdiction is somehow legally ineffective until it is reduced

to writing, thus making defendants’ efforts at enforcing the order against him

wrongful. Under the circumstances presented here, this is incorrect. As the

Supreme Court has noted,



3
      Plaintiff filed a premature appeal in this matter, case No. 96-4114. That
appeal has been consolidated with case No. 96-4149.

                                         -4-
       [t]he orderly and expeditious administration of justice by the courts
       requires that an order issued by a court with jurisdiction over the
       subject matter and person must be obeyed by the parties until it is
       reversed by orderly and proper proceedings. This principle is
       especially applicable to orders issued during trial.

Maness v. Meyers, 419 U.S. 449, 459 (1975) (quotation and citation omitted).

Because plaintiff’s attorney was present when the court initially modified the

custody order to prohibit the removal of Sammi from Utah, and because plaintiff

himself was present when the court later reiterated this restriction, he cannot now

argue that he was free to disobey the order until it had been reduced to writing.

As the Supreme Court has instructed:

       If a person to whom a court directs an order believes that order is
       incorrect the remedy is to appeal, but, absent a stay, he must comply
       promptly with the order pending appeal. Persons who make private
       determinations of the law and refuse to obey an order generally risk
       criminal contempt even if the order is ultimately ruled incorrect.

Id., at 458.

       The fact that the court’s order in this case was oral does not diminish its

force. We recognize that the eventual entry on a docket of a written order is

important for many procedural reasons, not the least of which is to determine

when, for purposes of appellate review, there is a final appealable judgment. See

Fed. R. Civ. P. 58; Fed. R. App. P. 4. Plaintiff, however, did not appeal the

court’s order or attempt any other judicial remedy that may have depended on the

existence of a written order.


                                          -5-
      We view the court’s order as akin to the grant of a temporary restraining

order or a preliminary injunction, the purpose of which is to prohibit specific

actions. See Bethlehem Mines Corp. v. United Mine Workers, 476 F.2d 860, 862-

64 (3d Cir. 1973) (affirming a finding of contempt against a party which had

disobeyed an orally entered temporary restraining order); see also In re LaMarre,

494 F.2d 753, 758 (6th Cir. 1974) (noting that an order “entered in open court in

the presence of the person concerned or with his knowledge clearly proved” can

be enforced by criminal contempt proceedings). While there may be instances in

which an oral order should not be enforceable until reduced to writing, this case is

not one of them. “[T]his case involves an order that forbids certain actions rather

than one that allows those actions. The former is meaningless if of no effect until

written.” In re Nail, 195 B.R. 922, 930 (Bankr. N.D. Ala. 1996). Plaintiff’s

argument that defendants all acted illegally because they proceeded without the

auspices of an enforceable order, therefore, is without merit.

      As noted above, the district court determined that county attorney Souvall

was entitled to absolute immunity because his involvement in this case was in his

role as a prosecutor exercising his prosecutorial duties. “Absolute immunity

defeats a suit at the outset, so long as the official’s actions were within the scope

of the immunity.” Roberts v. Kling, 104 F.3d 316, 318 (10th Cir. 1997), petition

for cert. filed, (U.S. April 1, 1997) (No. 96-1602) (quotation and citation


                                          -6-
omitted). Plaintiff’s complaint charged that Mr. Souvall “had Uintah County

Deputy Sheriff, John Laursen draft an Affidavit of Probable Cause,” Appellant’s

App. at 18, and that he eventually charged plaintiff with the third degree felony of

custodial interference. Plaintiff also alleged that Mr. Souvall violated his

constitutional rights by contacting the FBI for help in apprehending him.

      This court has recently examined the issue of absolute immunity in a

prosecutorial setting where the defendant was an investigator in a district

attorney’s office. See Roberts, 104 F.3d at 318. There, we concluded that the

defendant’s actions in swearing out a complaint and obtaining an arrest warrant

were prosecutorial in nature, as part of the initiation of a judicial proceeding, and

thus deserving of absolute immunity. See id. at 319-20. Defendant Souvall’s

actions in this case in directing the Uintah County Sheriff’s Department to

investigate rumors relative to plaintiff’s whereabouts was simply an attempt to

establish the probable cause necessary before a criminal complaint could be filed.

Once the facts reported to defendant Souvall were verified by the Sheriff’s

Department, it was incumbent upon him to charge plaintiff and to take steps to

secure his appearance. Defendant’s acts of verifying probable cause and

ultimately filing a complaint were clearly a part of the initiation of prosecution,

see Imbler v. Pachtman, 424 U.S. 409, 431 (1976), and thus deserving of absolute

immunity, see Roberts, 104 F.3d at 319-20.


                                          -7-
      As mentioned above, the district court granted qualified immunity to

Sheriff Laursen.

      We review de novo the district court’s grant of qualified immunity on
      summary judgment, viewing the evidence in the light most favorable
      to the nonmoving party. We analyze assertions of qualified immunity
      under a two-part framework: first we determine whether the plaintiff
      has asserted a violation of a constitutional or statutory right, and then
      we decide whether that right was clearly established such that a
      reasonable person in the defendant’s position would have known that
      [his or] her conduct violated the right. The plaintiff must articulate
      the clearly established constitutional right and the defendant’s
      conduct which violated the right with specificity. Once the plaintiffs
      have met this initial burden, the defendant must demonstrate that no
      material issues of fact remain as to whether his or her actions were
      objectively reasonable in light of the law and the information he or
      she possessed at the time. If we determine that plaintiffs have failed
      to show the officers’ conduct constituted a violation of a
      constitutional or statutory right, we need not address the other
      elements of the qualified immunity inquiry.

Davis v. Gracey, No. 95-6245, 1997 WL 192018, slip op at *3 (10th Cir. Apr. 21,

1997) (quotations and citations omitted). As long as a defendant pleads it as an

affirmative defense, qualified immunity acts as a shield for defendant from the

burdens of discovery and trial as well as for liability. See Mitchell v. Maynard,

80 F.3d 1433, 1447 (10th Cir. 1996).

      Plaintiff’s complaint alleged only that Sheriff Laursen’s probable cause

affidavit “was fatally defective because it did not articulate facts that alleged the

elements of Custodial Interference.” Appellant’s App. at 20. Nothing in the

complaint implicates the Uintah County Sheriff’s Department. Under these


                                          -8-
circumstances, we agree with the district court that plaintiff has not stated a claim

that can overcome Sheriff Laursen’s qualified immunity and has not stated a

claim at all against the Sheriff’s Department.

      Plaintiff did not contest the veracity of Sheriff Laursen’s affidavit. See id.

at 44. In order to establish that Sheriff Laursen violated his due process rights,

plaintiff would have to prove that the affidavit filed by the Sheriff was untruthful.

See St. John v. Justmann, 771 F.2d 445, 448 (10th Cir. 1985). Because plaintiff

concedes that the facts in the affidavit were true, he cannot show that Sheriff

Laursen’s conduct constituted a violation of a constitutional right. Sheriff

Laursen is thus entitled to qualified immunity. See Davis, 1997 WL 192018,

at *3. Because we agree with the district court that Sheriff Laursen committed no

constitutional violation, and because plaintiff alleged no specific claims

implicating the Uintah County Sheriff’s Department, the claim against the

department was also properly dismissed. See Taylor v. Meacham, 82 F.3d 1556,

1564 (10th Cir.), cert. denied, 117 S. Ct. 186 (1996). 4

      Finally, we also affirm the dismissal of the FBI and its agent, Robert

Carlson. When county attorney Souvall wrote to the FBI requesting help in


4
       On appeal, plaintiff discards his argument based on the allegedly defective
probable cause affidavit and, instead, argues that Sheriff Laursen violated
plaintiff’s constitutional rights by allowing Mr. Souvall, the county attorney, to
act as the complainant. Even if we could determine that this argument had been
raised in the district court, we would reject it as meritless.

                                          -9-
apprehending plaintiff, he included in his correspondence a copy of the

information, the warrant of arrest, the affidavit of probable cause, and a petition

filed in juvenile court for custody of plaintiff’s daughter to social services. See

Appellant’s App. at 33. The arrest warrant charged plaintiff with custodial

interference, a third degree felony; plaintiff does not argue that the warrant

appeared facially invalid.

         As the district court noted, “[g]overnment officials, including FBI agents,

are protected by the defense of qualified immunity for civil liability for

objectively reasonable official actions.” Id. at 46 (citing Anderson v. Creighton,

483 U.S. 635, 636 (1987)). Plaintiff has pointed to no authority establishing his

right to have the FBI re-investigate and verify the facts underlying state process

before proceeding under 18 U.S.C. § 1073. Even if plaintiff has identified a more

general constitutional right to be free from false arrest, however, Agent Carlson

would not lose his qualified immunity unless it was clear that, on an objective

basis,

         no reasonably competent officer would have concluded that a warrant
         should issue; but if officers of reasonable competence could disagree
         on this issue, immunity should be recognized.

         ....

         Only where the warrant application is so lacking in indicia of
         probable cause as to render official belief in its existence
         unreasonable . . . will the shield of immunity be lost.


                                          -10-
Malley v. Briggs, 475 U.S. 335, 341, 344-45 (1986). We agree with the district

court that Agent Carlson was entitled to rely on the documentation he received

from the Utah county attorney for purposes of 18 U.S.C. § 1073. Because Agent

Carlson committed no constitutional violation, and because plaintiff made no

specific charges in his complaint against the FBI, the latter was also appropriately

dismissed as a defendant.

      AFFIRMED.



                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge




                                        -11-
