                                                                   FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit

                                                          December 5, 2011
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                            Clerk of Court
                              TENTH CIRCUIT



ADAM KARTIGANER,

            Plaintiff - Appellant,                  No. 11-1345
      v.                                           (D. Colorado)
BRUCE NEWMAN, in his Official            (D.C. No. 1:09-CV-00050-WYD-MEH)
Capacity of Sheriff of Huerfano
County, Colorado; LARRY
BALDONADO, in his Official
Capacity of Police Chief of
Walsenburg, Colorado; DEREK
PETERS, in his Official Capacity of
Police Officer of Walsenburg,
Colorado; JOE BERNAL, in his
Official Capacity of Police Officer of
Walsenburg, Colorado,

            Defendants - Appellees,
and
HUERFANO COUNTY,
COLORADO; CITY OF
WALSENBURG, COLORADO; LEE
ALLEN HAWKE, in his Official
Capacity of District Attorney for the
Third District of Colorado; DIANNE
PACHECO, in her Official Capacity of
Investigator for the Third District,
District Attorney; THIRD DISTRICT
COURT OF COLORADO;
COLORADO BUREAU OF
INVESTIGATION; JUAB COUNTY,
UTAH; ALDEN ORME, in his
Official Capacity of Sheriff of Juab
County, Utah; HOBY METZ, in his
Official Capacity of Utah Highway
 Patrol Officer; FOURTH DISTRICT
 COURT OF UTAH; MAY
 AUTOMOTIVE TOWING, LLC;
 UTAH STATE TAX COMMISSION,
 DOES 1 to 10,

              Defendants.


                            ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      Plaintiff and appellant, Adam Kartiganer, proceeding pro se, appeals two

orders of the district court, ultimately dismissing all claims Mr. Kartiganer

brought in a 42 U.S.C. § 1983 action against several law enforcement members.

We affirm.




      *
       This order and judgment is not binding precedent, except under the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.


                                         -2-
                                 BACKGROUND

      On July 23, 2006, Mr. Kartiganer was arrested during a traffic stop in

Walsenburg, Colorado. Evidence was seized during the stop, including financial

instruments belonging to individuals other than Mr. Kartiganer.

      Based upon the seized evidence, the District Attorney’s Office decided that

probable cause existed to file felony criminal charges against Mr. Kartiganer.

Accordingly, the District Attorney for the Third Judicial District, State of

Colorado, filed a felony complaint and information in a Colorado state court,

charging Mr. Kartiganer with various felonies, including identity theft and

criminal possession of a financial device. Mr. Kartiganer was also charged with

false reporting to authorities, as well as other state misdemeanors relating to his

operation of the car he was driving when stopped.

      With respect to the criminal charges, Mr. Kartiganer was appointed

representation by the Public Defender, who promptly filed a motion to suppress

the evidence seized during the traffic stop. Following a hearing on December 26,

2006, the court found no probable cause for the traffic stop and suppressed all the

evidence obtained during that stop. As a result of that suppression order, the

District Attorney’s Office filed a motion to dismiss the charges against Mr.

Kartiganer.

      On January 5, 2009, Mr. Kartiganer initiated the instant pro se 42 U.S.C.

§ 1983 action, alleging in general that he had been falsely arrested, falsely

                                         -3-
imprisoned and subjected to malicious prosecution for a period of five months

before the charges were dropped. Upon initial consideration, the federal district

court judge allowed the action to proceed only against defendants Bruce Newman,

the Sheriff of Huerfano County; Larry Baldonado, the Police Chief of

Walsenburg, Colorado; Derek Peters, a police officer in Walsenburg, Colorado;

and Joe Bernal, a police officer in Walsenburg, Colorado. 1

      Mr. Kartiganer then filed an amended complaint, making essentially the

same allegations as those in his first complaint, but against the four remaining

named defendants. Construing the pro se complaint liberally, the court

determined that Mr. Kartiganer brought various constitutional claims, including

claims for false arrest, false imprisonment, malicious prosecution, conspiracy, and

due process, invoking 42 U.S.C. § 1983, as well as state tort claims for assault

and battery, intentional infliction of emotional distress, and slander and libel.

      The defendants filed a motion to dismiss on September 28, 2009, arguing

that Mr. Kartiganer’s claims were barred by the statute of limitations, that

defendants Sheriff Newman and Police Chief Larry Baldonado did not personally

participate in the allegedly unlawful conduct, and that the amended complaint

contained insufficient allegations to demonstrate a conspiracy among the

defendants.


      1
      There had initially been numerous other defendants, including counties,
municipalities, agencies, courts, and individuals.

                                         -4-
      The matter was referred to a magistrate judge, who issued a report and

recommendation suggesting that the defendants’ motion to dismiss be granted in

part and denied in part. More specifically, the report and recommendation found

that Mr. Kartiganer’s claims for false arrest, false imprisonment and due process

should be dismissed as barred by the statute of limitations; that Sheriff Newman

be dismissed as a party for Mr. Kartiganer’s failure to plausibly allege personal

participation; and that Mr. Kartiganer’s claims for malicious prosecution and

conspiracy should proceed against Police Chief Baldonado and Officers Peters

and Bernal. The magistrate judge made no findings regarding Mr. Kartiganer’s

state law claims, which claims were not challenged in the motion to dismiss.

      The defendants then filed a motion for summary judgment on the remaining

claims. The magistrate judge issued a second report and recommendation,

recommending that the motion for summary judgment be granted, on the grounds

that Mr. Kartiganer failed to raise any genuine issue of material fact

demonstrating that the defendants personally participated in the alleged

constitutional violations, or established the essential elements of Mr. Kartiganer’s

claims for malicious prosecution and conspiracy. Furthermore, as to the state tort

law claims, the magistrate judge recommended dismissal because Mr. Kartiganer

failed to show factual issues as to whether those claims were barred by the

applicable one-year statute of limitations. Accordingly, the judge recommended

granting the defendants’ motion for summary judgment.

                                         -5-
      Mr. Kartiganer registered objections with the reports and recommendations,

which the district court carefully reviewed. The court adopted the first report and

recommendation, as slightly modified, and partially granted and partially denied

the defendants’ motion to dismiss. 2 The court also adopted the second report and

recommendation, and granted defendants’ motion for summary judgment. These

orders had the effect of dismissing Mr. Kartiganer’s claims entirely.



                                   DISCUSSION

      We review a district court’s dismissal on a Rule 12(b)(6) motion de novo.

Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). We do not assess

credibility; rather, we only consider whether the allegations, taken as true, are

legally sufficient to allow the suit to proceed. See id. “[W]e accept as true all

well-pleaded factual allegations in a complaint and view these allegations in the

light most favorable to the plaintiff.” Id. To survive a Rule 12(b)(6) motion, a

plaintiff must allege “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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

determine whether “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);

      2
      It primarily modified the report and recommendation by considering
Colorado tolling principles, which the magistrate judge had not done. The court
concluded those principles had no effect on the outcome of the analysis.

                                          -6-
Celotrex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We view the evidence in

the light most favorable to the non-moving party, but disputes about immaterial

issues of fact will not preclude summary judgment. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1977).

      We have carefully reviewed the lengthy and thorough decisions by the

magistrate judge, as adopted and modified by the district court. We agree

completely with the reasoning and conclusions contained therein. We therefore

affirm the district court’s orders dismissing the claims in this case, for

substantially the reasons stated by the district court.



                                   CONCLUSION

      For the foregoing reasons, we AFFIRM the orders of the district court. We

DENY Mr. Kartiganer’s request to proceed on appeal in forma pauperis.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                          -7-
