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

                                   TENTH CIRCUIT                    February 4, 2015

                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
LORI MARTINEZ,

         Plaintiff - Appellant,

    v.                                                No. 14-2124
                                          (D.C. No. 2:13-CV-00538-JCH-GBW)
                                                        (D.N.M.)
DARREN HOOKER, ROOSEVELT
COUNTY SHERIFF, individually;
JAVIER SANCHEZ, individually;
and CHARLIE SMART,

         Defendants - Appellees.




                            ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



                                  I.   BACKGROUND

   Lori Martinez was arrested on the evening of June 12, 2012, under a bench

warrant issued by the City of Portales municipal court judge. The warrant

   * This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, 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. After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties' request for a decision on the briefs without
oral argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
authorized the arrest of “Lori Teel” for failing to appear in court for fines relating

to overdue library books. The warrant, issued on May 17, 2011, stated Teel’s date

of birth as December 3, 1981, and her address as 2200 S. Ave. I Portales, NM

88130. We accept the following summary of facts from the United States District

Court for the District of New Mexico’s Memorandum Opinion and Order:

      On June 12, 2012, Jimmy Teel was a suspect in a criminal
      investigation conducted by the Defendants in this case, all of whom
      are members of the Roosevelt County Sheriff’s Department. They
      apprehended and arrested Mr. Teel outside the apartments where he
      lived. During the arrest, Martinez approached the scene and asked
      why her husband was being arrested. She identified herself as “Lori
      Martinez,” said that she was married to Mr. Teel, and gave her date
      of birth as December 3, 1981. Defendant Javier Sanchez called his
      dispatcher with this information, and they informed him that while
      there were no warrants for a “Lori Martinez,” there was an
      outstanding bench warrant for “Lori Teel” with the same date of
      birth as Martinez. The dispatcher also informed Sanchez that the
      address on the bench warrant was 2200 S. Ave. I, Portales, NM
      88130. Sanchez asked Martinez if she had ever lived at that address.
      Martinez said that she had previously lived at the Baptist Children’s
      Home, but could not remember the address. The dispatcher informed
      Sanchez that the address at issue matched with the Baptist Children’s
      Home. Next, Sanchez asked Martinez if she ever went by the name
      “Lori Teel,” which she denied. However, Martinez did confirm that
      she had been married to Jimmy Teel for two years. There is a fact
      dispute as to whether or not Martinez admitted checking out
      materials from the city library—Sanchez asserts that she admitted
      that she did, and Martinez contends that she did not. There is also a
      fact dispute as to whether or not Mr. Teel told the Defendants that
      his wife went by the name “Lori Teel.” Due to “manpower issues,”
      Sanchez asked a City of Portales police officer, Raul Rosa, to
      execute the warrant and arrest Martinez. However, after speaking
      with Martinez, Officer Rosa concluded that he lacked sufficient
      evidence to confirm that Martinez was the “Lori Teel” identified in
      the warrant. As a result, he declined to arrest Martinez. After
      checking with his supervisors, Sanchez arrested Martinez based upon
      the outstanding bench warrant for Lori Teel.


                                         -2-
Appellant’s App. vol. I at 8–9. After spending a night in jail, Martinez posted

the cash bail bond. For reasons unknown, the City Attorney dismissed the charges

a few days later.

   On August 9, 2012, Martinez filed a lawsuit in the Ninth Judicial District

Court against the City of Portales and the City Manager. Martinez v. City of

Portales, et al., Civ. No. 12-933 WJ/GBW (“Martinez I”). She alleged

negligence, violation of due process and equal protection, failure to train, and

municipal liability for an unconstitutional custom or policy. The defendants

removed the case to the United States District Court for the District of New

Mexico.

   The district court granted the defendant’s motion for summary judgment. The

court held that the bench warrant was facially valid and that the deputies from the

Sheriff’s Department (the defendants in this case) had probable cause to arrest

Martinez. Martinez filed her notice to appeal the court’s grant of summary

judgment with this court, but the parties settled the case before the appeal was

resolved.

   Apparently dissatisfied with the settlement in her first case, Martinez filed a

new complaint in the Ninth Judicial District Court (“Martinez II”). She based her

claims on the same factual allegations that she pleaded in Martinez I, although

she sued different defendants: Darren Hooker, Javier Sanchez, and Charlie Smart,

all of whom are employees of the Sheriff’s Department (“Defendants”). In

Martinez II, Martinez asserts three claims: (1) an unconstitutional policy or

                                        -3-
custom of the municipality that resulted in an unreasonable seizure of her person

and arrest without probable cause; (2) a § 1983 claim against Defendants in their

official capacities for unreasonable seizure and arrest without probable cause; and

(3) false arrest and false imprisonment. After Defendants removed the case to

federal court, the district court granted summary judgment in favor of

Defendants. It held that (1) Martinez was barred by issue preclusion from

litigating this case because the court in Martinez I had found there was probable

cause for Martinez’s arrest and the bench warrant was facially valid, and (2) her

claims against Defendants in their official capacities failed because their actions

as individual state actors did not constitute a constitutional violation or custom by

the governmental agency. Martinez timely appealed.

   Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.


                                 II.    DISCUSSION

   A. Standard of Review

   We review a district court’s grant of summary judgment de novo. Cooperman

v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Summary judgment is

appropriate “if the movant shows that 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). We apply this standard by viewing the evidence in the light most

favorable to the nonmoving party. Foster v. Alliedsignal, Inc., 293 F.3d 1187,

1192 (10th Cir. 2002).

                                         -4-
   B. Issue Preclusion

   The doctrine of issue preclusion prevents a party from “relitigating an issue

once it has suffered an adverse determination on the issue, even if the issue arises

when the party is pursuing or defending against a different claim.” Park Lake

Res. Ltd. Liab. v. U.S. Dep’t of Agr., 378 F.3d 1132, 1136 (10th Cir. 2004); see

also Burrell v. Armijo, 456 F.3d 1159, 1172 (10th Cir. 2006). Issue preclusion

bars reconsideration of an issue that has been previously decided in an earlier

action when the following elements are met:

      (1) the issue previously decided is identical with the one presented in
      the action in question, (2) the prior action has been finally
      adjudicated on the merits, (3) the party against whom the doctrine is
      invoked was a party, or in privity with a party, to the prior
      adjudication, and (4) the party against whom the doctrine is raised
      had a full and fair opportunity to litigate the issue in the prior action.

Park Lake Res. Ltd. Liab., 378 F.3d at 1136; Dodge v. Cotter Corp., 203 F.3d

1190, 1198 (10th Cir. 2000). The district court held that all four elements were

satisfied, barring Martinez’s claims involving probable cause and the validity of

the bench warrant. We agree that Martinez is barred by issue preclusion from

raising her claims.

   Martinez sets forth two arguments. First, she contends that the issues are

distinct because Martinez I involved the City’s underlying policies that existed

before her arrest of seeking to use the municipal court as a collection agency,

while Martinez II involves her actual arrest. Second, she argues that she did not




                                         -5-
have a full and fair opportunity to litigate her issues in Martinez I because it was

settled before this court decided the appeal.

   As a preliminary argument, the Defendants contend that Martinez did not

challenge in the district court the first element of issue preclusion, whether the

issues are identical, and so she should not be able to assert it for the first time on

appeal. “When an issue has not been properly raised below, ‘to preserve the

integrity of the appellate structure, we should not be considered a ‘second-shot’

forum . . . where secondary, back-up theories may be mounted for the first time.’”

Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1270–71 (10th Cir. 2000)

(quoting Tele-Communications, Inc. v. Comm’r, 104 F.3d 1229, 1233 (10th Cir.

1997)); Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1386 (10th Cir. 1997)

(“We will consider matters not raised or argued in the trial court only in the most

unusual circumstances which may include . . . instances where public interest is

implicated . . . or where manifest injustice would result.”) (internal quotations

omitted) (citations omitted). Because Martinez did not challenge the first element

of issue preclusion in the district court, we will not entertain it here. 1 Thus, on

appeal, we consider only the fourth element. As explained below, we hold that

Martinez had a full and fair opportunity to litigate her issues in Martinez I and so

is barred from raising these issues on appeal.



   1
     The district court in Martinez I found that the Defendants had a facially valid bench
warrant for Lori Teel’s arrest, and that they had reason to believe that Martinez was Lori
Teel. Those are the same issues in Martinez II.
                                            -6-
   Martinez argues that she did not have a full and fair opportunity to litigate the issues

in Martinez I. The doctrine of issue preclusion bars attack on a judgment only when the

issue in question has been fully and fairly litigated in the prior proceeding. Bell v. Dillard

Dep’t Stores, Inc., 85 F.3d 1451, 1454 (10th Cir. 1996) (citations omitted); Murdock v.

Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683, 689 (10th Cir. 1992).

She claims that because her case settled on appeal, before the court decided the merits,

she did not fully and fairly litigate the issue in that proceeding. She alleges that her “lack

of opportunity to appeal [the] issue establishes that there has not been a full and fair

opportunity to litigate it.” Appellant’s Br. at 21.

   She submits Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991), in support of her

argument. But the case offers her no help. In Dixon, this court held that the district court

correctly denied the motion for summary judgment based on issue preclusion and

qualified immunity, in part because the appellees did not have a full and fair opportunity

to litigate the issue of probable cause in the prior proceeding. Id. at 1459. In that first

case, the appellees did not have an opportunity to appeal the court’s ruling on their

motion to suppress because an interlocutory appeal at that time, before final judgment,

would have been improper. Id. After they were acquitted, an appeal would have been

moot.2 Id.


   2
     Martinez also submits Fletcher v. Atex, Inc., 68 F.3d 1451 (2d. 1995), to support her
proposition. She runs into the same problem with Fletcher as she does with Dixon. In
Fletcher, the party did not have the opportunity to appeal the court’s finding of fact
because the court’s ruling was in its favor. Fletcher, 68 F.3d at 1458. That stands in
contrast to this case where Martinez had an opportunity to appeal the district court’s
finding.
                                              -7-
   Martinez’s situation is quite different. In Martinez I, the district court issued a final

judgment for which she had the absolute ability to appeal. She took advantage of that

opportunity by filing her notice to appeal with this court. Before the Tenth Circuit could

rule on the case, however, the parties voluntarily settled. As such, she had a full and fair

opportunity to litigate—opportunity being the operative word.

   In addition, the rationales for invoking issue preclusion are satisfied by applying it in

this case.

       [Often, the] inquiry into whether a party had a full and fair opportunity to
       litigate an issue . . . will focus on whether there were significant procedural
       limitations in the prior proceeding, whether the party had the incentive to
       litigate fully the issue, or whether effective litigation was limited by the
       nature or relationship of the parties.

Salguero v. City of Clovis, 366 F.3d 1168, 1174 (10th Cir. 2004) (citations omitted).

Here, nothing indicates that Martinez had different incentives to litigate her claims in

Martinez I than she did in Martinez II. There were also no procedural limitations in

Martinez I, as illustrated by her ability to fully brief the district court on the issues, which

issued a final judgment against her, and her beginning the appeal process before settling.

Her voluntary choice to drop the appeal does not entitle her to evade the fourth prong of

issue preclusion. To allow such maneuvers would undermine the judicial system and the

strong policies supporting issue preclusion. Perhaps in the future, under different

circumstances, we might conclude that a settlement after a final judgment from the

district court prevents a party from having a full and fair opportunity to litigate an issue.

But under this particular set of facts, the voluntary settlement did not prevent it.



                                              -8-
   “[T]here is no reason why a court should be bothered or a litigant harassed with

duplicating lawsuits on the same docket; it is enough if one complete adjudication of the

controversy be had.” Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d

982, 989 (10th Cir. 2002) (quoting Sutcliffe Storage & Whse. Co. v. United States, 162

F.2d 849, 851 (1st Cir. 1947)). Martinez had her chance to contest her arrest. Therefore,

we will not address the merits of Martinez’s lawsuit because her claims are barred by the

doctrine of issue preclusion.3

   C. Official Capacity

   Martinez also argues that she is entitled to assert a claim against the

Defendants in their official capacities because, she alleges, the Sheriff’s

Department had an “unconstitutional or illegal custom and/or policy of arresting

individuals without probable cause.” Appellant’s Br. at 22. Specifically, she claims

that the Sheriff’s Office had a policy or custom in place that allowed its “employees to

act with deliberate indifference to the constitutional rights of individuals including

tolerating misconduct by its police officers, encouraging misconduct by failing to

adequately supervise, discipline or train by among other things and using arrest for

alleged over-due library books as a tool of fear, intimidation and retaliation.” Id. at 23

[grammar in original]. The district court held that she could not succeed on this claim


   3
     Martinez also argues that the identity of the causes of action is different and asks us
to apply the transactional approach. However, this approach applies to claim preclusion,
not issue preclusion, so we do not address this argument. See Wilkes v. Wyo. Dep’t of
Emp’t Div. of Labor Standards, 314 F.3d 501, 504 (10th Cir. 2002) (stating this court has
adopted the transactional approach of Restatement (Second) of Judgments to determine
“what constitutes a ‘cause of action’ for claim preclusion purposes”) (emphasis added).
                                            -9-
because she failed to show that the Defendants, as employees of the Department, violated

her constitutional rights.

   “If a person has suffered no constitutional injury at the hands of the individual police

officer, the fact that the departmental regulations might have authorized the use of [the

behavior] is quite beside the point.” City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986) (emphasis in original). Here, the district court in Martinez I concluded that the

bench warrant was facially valid and that the Defendants had probable cause to arrest

Martinez. Absent a constitutional violation, her claim against the Defendants in their

official capacity fails. See Trigalet v. City of Tulsa, Okla., 239 F.3d 1150, 1154 (10th Cir.

2001) (listing our sister circuits that have held that a city cannot be held liable absent a

constitutional violation by an officer). Because Martinez is precluded from relitigating

the issue of probable cause, we conclude that she establishes no constitutional violation.

Therefore, we hold that the Defendants are entitled to summary judgment on this claim as

well.

                                    III.   CONCLUSION

   We AFFIRM the district court’s grant of summary judgment in favor of the

Defendants.


                                                   ENTERED FOR THE COURT



                                                   Gregory A. Phillips
                                                   Circuit Judge



                                            -10-
