                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                              DEC 4 2000
                         FOR THE TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                  Clerk

MARK TRIMBLE;
MICHELLE TRIMBLE,

            Plaintiffs-Appellants,

v.                                              No. 99-1426
                                         (D.C. No. 97-WY-608-WD)
PARK COUNTY BOARD OF                             (D. Colo.)
COMMISSIONERS; PARK
COUNTY BOARD OF HEALTH;
PARK COUNTY BOARD OF
SOCIAL SERVICES; PARK
COUNTY HEALTH DEPARTMENT;
PARK COUNTY DEPARTMENT OF
SOCIAL SERVICES; PARK
COUNTY BUILDING AND
ZONING DEPARTMENT; PARK
COUNTY SHERIFF’S
DEPARTMENT; PARK COUNTY
CHILD PROTECTION TEAM;
HARLAN APARTMENT
COMPANY; KENNETH PLOTZ,
individually and in his administrative
capacity; EDWARD RODGERS,
individually and in his official
capacity; DAVID THORSON,
individually and in his official
capacity; DAVID KANIGEL,
individually and in his official
capacity; PAUL OTTMER,
individually and in his official
capacity; EUNICE TOKATLOGLOU,
individually and in her official
capacity; RICHARD TRAST,
individually and in his official
capacity; JAMES COGGIN,
individually and in his official
capacity; DOUG WALTERS,
individually and in his/their official
capacities as Park County Board of
Commissioners; VICTORIA
MCCOLLOUGH-MATT, individually
and in her official capacity;
BARBARA CATLIN, individually
and in her official capacity;
RANDALL MCKINNON,
individually and in his official
capacity; ROBERT POWELL,
individually and in his official
capacity; MARK DAHLSTEN,
individually and in his official
capacity; JOLEIN HARRO; JULIET
GODWIN SHARPE; DIANA
ELLINGTON; JANE HAZEN;
ROBERT HARRISON, individually
and in his official capacity; RAY
POBLANO; KAREN ROHLOFF;
MARK MORSTAD; HARRIS PARK
HOMEOWNER’S ASSOCIATION;
HARRIS PARK BOARD; HARLEY
HAMILTON, individually and in his
official capacity; MARY GENTRY,
individually and in her official
capacity; UNKNOWN PARTIES OF
THE PARK COUNTY CHILD
PROTECTION TEAM, individually
and in their official capacities;
UNKNOWN PARTIES OF THE
PARK COUNTY BOARD OF
COMMISSIONERS, individually and
in their official capacities; ERIC
MILLER, individually and in his
official capacity,

            Defendants-Appellees.


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                            ORDER AND JUDGMENT           *




Before BRORBY , KELLY , and LUCERO , Circuit Judges.



       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.

       Plaintiffs-appellants Mark Trimble and Michelle Trimble appeal the

judgment entered against them on their claims brought pursuant to 42 U.S.C.

§§ 1983, 1985. They request leave to proceed on appeal without payment of

costs and fees; the request is granted. The district court adopted the report and

recommendations of the magistrate judge and granted the various defendants’

motions to dismiss and for summary judgment. We exercise jurisdiction under

28 U.S.C. § 1291 and affirm.

       Plaintiffs’ claims are based on numerous actions taken by various

employees and agencies of Park County, Colorado, as well as by private actors.


*
      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.

                                          -3-
Their claims arise from interactions they had with county government employees

involving foster care of their children, arrests, public housing, permission to

install a sewer system, and removal of items from their real property. Plaintiffs’

claims included allegations that various supervisors were liable because they

failed to train and supervise the people who treated plaintiffs unlawfully.

       On appeal, plaintiffs assert that because the magistrate judge did not hold

any hearings, he violated the referral order to hold hearings and make

recommendations. They also allege that (1) the filing date for their complaint was

not March 26, 1997, but instead March 18, 1997, and therefore, the statute of

limitations had not run; (2) the limitations period did not apply under a continuing

violation theory; (3) issues of material fact precluded summary judgment and

dismissal; and (4) even if the governmental defendants were entitled to qualified

immunity, they remained personally liable.

       We review de novo an order dismissing a complaint for failure to state

a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

using the same standard applied by the district court.   See Ordinance 59 Ass’n v.

United States Dep’t of Interior Sec’y   , 163 F.3d 1150, 1152 (10th Cir. 1998).

“We accept as true all well-pleaded facts, as distinguished from conclusory

allegations, and view those facts in the light most favorable to the nonmoving

party.” Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998).


                                            -4-
Dismissal of a complaint pursuant to Rule 12(b)(6) will be upheld only if “it

appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.”     Conley v. Gibson , 355 U.S. 41,

45-46 (1957).

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

viewing the record in the light most favorable to the party opposing summary

judgment. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128

(10th Cir. 1998). Summary judgment is appropriate if there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).

Because plaintiffs are appearing pro se, we will liberally construe their pleadings.

Whitney v. N.M. , 113 F.3d 1170, 1173 (10th Cir. 1997).

       Turning to plaintiffs’ appellate arguments, the magistrate judge was not

required to hold unnecessary hearings.     Cf. Hand v. Matchett , 957 F.2d 791,

794 n.2 (10th Cir. 1992) (district court’s sua sponte ruling on summary judgment

motion proper where parties had had adequate opportunity to address all pertinent

issues). Furthermore, plaintiffs have not demonstrated how a hearing would have

prevented entry of judgment against them.

       Plaintiffs request that personal liability be imposed on the defendants who

were granted qualified immunity. The defense of qualified immunity, where


                                            -5-
properly granted, “protects a government official from personal liability and the

burden of having to go to trial.”   Andersen v. McCotter , 100 F.3d 723, 729

(10th Cir. 1996). Accordingly, here, those defendants granted qualified immunity

cannot be held personally liable. As for plaintiffs’ challenge to the filing date for

their complaint, with the exception of claim five discussed below, correcting the

filing date from March 26, 1997 to March 18, 1997, would not save their claims.

       Claim five alleged that two sheriff’s deputies, defendants Powell and

Miller, entered plaintiffs’ home and arrested them without a warrant or probable

cause, and defendant Thorson, a deputy district attorney, charged them with

crimes that were later dismissed. Plaintiffs alleged further that while they were

in jail, their home was searched, also without a warrant. The district court

dismissed this count on the ground that it was filed outside the two-year statute

of limitations.

       The incident occurred on March 18, 1995. Although the complaint was

formally filed on March 26, 1997, the filing date relates back to the date the

complaint was received by the court, together with the motion to proceed without

prepayment of fees.    Jarrett v. U.S. Sprint Communications Co.   , 22 F.3d 256, 259

(10th Cir. 1994). The district court file indicates that the motion and complaint

were received on March 14, 1997; therefore, claim five was not barred by the

statute of limitations.


                                           -6-
       The district court’s decision to deny relief on claim five was nevertheless

proper. Therefore, we affirm the judgment, but for reasons other than those given

by the district court. United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir.

1994). Claim five alleges malicious prosecution, false arrest, false imprisonment,

and an illegal search of plaintiffs’ home.

       Plaintiffs’ allegation that their home was searched illegally while they were

in jail is too conclusory to state a claim under § 1983. Defendants Powell and

Miller, acting in their capacity as sheriff’s deputies, are   entitled to qualified

immunity if the law was not clearly established or, if it was, if their conduct was

objectively reasonable. Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir.

1997). “[I]n the context of a qualified immunity defense, this court has

traditionally required plaintiffs to meet a heightened pleading standard.”      Id.

at 1292. Claim five “fails to offer specific, non-conclusory factual allegations”

to demonstrate that defendants violated plaintiffs’ Fourth Amendment rights.

Id. at 1293.

       To maintain a malicious prosecution, false arrest, or false imprisonment

claim under § 1983, plaintiffs must demonstrate the elements of a common law

claim and show that their Fourth Amendment right to be free from unreasonable

search and seizure has been violated.       See Taylor v. Meacham , 82 F.3d 1556,

1561 (10th Cir. 1996). One of the essential elements of a malicious prosecution


                                              -7-
claim in Colorado is there was no probable cause for the charges against the

plaintiff. Walford v. Blinder, Robinson & Co.     , 793 P.2d 620, 623 (Colo. Ct. App.

1990). Similarly, claims for false arrest or false imprisonment cannot stand if

there was probable cause to arrest.    Rose v. City & County of Denver , 990 P.2d

1120, 1123 (Colo. Ct. App. 1999).

       Here, there was a specific finding of probable cause for the arrest of

plaintiff Mark Trimble. R., doc. 145, ex. 1. As for the charges against plaintiff

Michelle Trimble, plaintiffs’ pleadings do not meet the heightened pleading

standard required by Breidenbach , 126 F.3d at 1293, to demonstrate that she was

arrested without probable cause. Bare allegations will not suffice.      Id. Therefore,

neither plaintiff’s claim can withstand summary judgment.

       Defendant Miller was never served with the complaint. We affirm the

district court’s determination that the claims against him should be dismissed.

Defendant Thorson was properly dismissed from the lawsuit because he is entitled

to prosecutorial immunity,   Imbler v. Pachtman , 424 U.S. 409, 427 (1976), and the

allegations against him are too vague and conclusory to state a claim.     See Kidd v.

Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996) (conclusory allegations

not supported by evidence insufficient to resist summary judgment).

       Summary judgment also was appropriate as to the various supervisors

named in claim five because plaintiffs failed to “show that any of the


                                            -8-
defendant[s]-supervisor[s] took deliberate action in directing the constitutional

violation, or had actual knowledge of the violation and allowed the violation to

continue.” DeAnzona v. City & County of Denver      , 222 F.3d 1229, 1234

(10th Cir. 2000).

      We have carefully reviewed the record on appeal, as well as the briefs

submitted by the parties. Except for the ruling on claim five, we approve the

magistrate judge’s thorough and correct report and recommendation, as adopted

by the district court, for substantially the reasons stated in the report. On claim

five, we affirm the judgment in favor of defendants for the reasons given above.

      Plaintiffs’ request to proceed on appeal without payment of costs and fees

is granted. The judgment of the United States District Court for the District of

Colorado is AFFIRMED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




                                          -9-
