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

                                       TENTH CIRCUIT                    November 17, 2014

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 DOMINGO GOMEZ,

           Plaintiff - Appellant,

 v.                                                         No. 14-2004
                                               (D.C. No. 2:12-CV-01067-GBW-WPL)
 BENJAMIN MARTIN,                                            (D. N.M.)

           Defendant - Appellee,

 and

 MYRNA GOMEZ; BELLIA
 ARMENDARIZ,

           Defendants.




                                    ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO, and McHUGH, Circuit Judges.


       Domingo Gomez appeals the district court’s grant of summary judgment in favor


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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. 32.1.
of Benjamin Martin based on qualified immunity and its denial of Mr. Gomez’s Rule

56(d) request to depose Martin. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                             I

          On September 26, 2008, Mr. Gomez’s then-wife, Myrna Gomez, and her mother,

Bellia Armendariz, contacted the Doña Ana County Sheriff’s Office to report that Mr.

Gomez attempted to poison them. They described falling ill on several occasions after

drinking wine offered by Mr. Gomez or taking a vitamin that appeared discolored. Both

Ms. Gomez and Armendariz were hospitalized at least once after an alleged poisoning

incident. The Sheriff’s Office assigned Martin to investigate the case.

          Martin reviewed an October 2, 2008 safe-house interview with the Gomez

family’s two minor children. One, AG, reported overhearing a telephone conversation in

which Mr. Gomez discussed poisoning Ms. Gomez, and seeing Mr. Gomez place a small

brown pill into a drink he gave to Ms. Gomez. During the same interview, AG made

several statements that potentially undermine his credibility. AG claimed that one of Mr.

Gomez’s friends attempted to lure Ms. Gomez to a fortune teller in Juarez where she was

to be murdered.

          Martin interviewed Ms. Gomez, who repeated her claims of poisoning and alleged

two additional poisoning incidents. She stated that after consuming poisoned wine or

vitamins, she suffered respiratory failure, paralysis, and nausea. Ms. Gomez also

mentioned that her hair products were discolored. She provided Martin with a bottle of
                                            -2-
wine, probiotic vitamins, and hair product to be tested for evidence of poison. When

Martin interviewed Ms. Gomez and Armendariz again several months later, they repeated

their claims of poisoning.

       In April 2009, a private lab found the pesticide carbofuran in the wine Ms. Gomez

gave Martin. Martin learned that carbofuran is highly toxic and potentially fatal to

humans if ingested, and that it can cause a myriad of symptoms. Martin discovered that

Mr. Gomez had access to carbofuran at his workplace. In May 2010, the Food and Drug

Administration informed Martin that it found carbofuran in both the wine bottle and

vitamins it tested.

       Martin also reviewed the medical records from Ms. Gomez’s and Armendariz’s

hospital visits. Those records neither affirmatively listed poisoning as the cause of either

woman’s illness nor categorically ruled out poisoning.

       With the district attorney’s support, Martin submitted a criminal complaint against

Mr. Gomez on July 27, 2010, alleging that he had attempted to murder Armendariz or

Ms. Gomez on five occasions. Mr. Gomez was then arrested and charged with five

counts of attempted murder. When Martin submitted an affidavit in support of the arrest,

he listed several symptoms of carbofuran poisoning and stated that “[a]ll or most of these

symptoms were described by Ms. Armendariz and Ms. Gomez as the exact same

symptoms they had felt.”

       Almost two years later, Deputy District Attorney Jeanne Quintero filed a nolle

prosequi on the basis of insufficient evidence. The case against Mr. Gomez was
                                            -3-
dismissed without prejudice. The nolle prosequi noted that Ms. Gomez and

Armendariz’s medical reports were “not indicative specifically of poisoning;” that there

were significant evidence chain problems; that prosecutors learned Ms. Gomez had

access to carbofuran; and that Mr. Gomez passed a polygraph examination. It also stated

that Ms. Gomez failed to stay in contact with the District Attorney, missing meetings and

infrequently returning phone calls.

       Mr. Gomez sued Martin under 42 U.S.C. § 1983, alleging malicious prosecution in

violation of his Fourth and Fourteenth Amendment rights, and false arrest and

imprisonment in violation of his Fourth Amendment rights.1 During discovery, Mr.

Gomez attempted to depose Martin, but the deposition was stayed on May 6, 2013, by

agreement of the parties. On June 12, 2013, Martin moved for summary judgment on the

basis of qualified immunity. Mr. Gomez responded with a Federal Rule of Civil

Procedure 56(d) motion for leave to depose Martin in order to properly defend against the

summary judgment motion.

       The district court granted summary judgment in favor of Martin. It also denied

Mr. Gomez’s Rule 56(d) motion, concluding that Mr. Gomez had already received

sufficient discovery and that further discovery would be fruitless. Mr. Gomez timely

appealed.


       1
        Mr. Gomez also sued Ms. Gomez and Armendariz for torts stemming from the
same investigation and prosecution. Because Ms. Gomez and Armendariz failed to
respond to Mr. Gomez’s complaint, defaults were entered against them.

                                           -4-
                                              II

       “[W]e review the award of summary judgment based on qualified immunity de

novo.” Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir. 2006). We view the facts in the

light most favorable to Mr. Gomez, the nonmoving party. Tolan v. Cotton, 134 S. Ct.

1861, 1863 (2014) (per curiam).

       To overcome a qualified immunity defense at the summary judgment stage, a

plaintiff must first prove that “the defendant violated a constitutional right.” Lundstrom

v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010). “[A]n arrestee’s constitutional rights

[a]re violated if the arresting officer act[s] in the absence of probable cause that the

person had committed a crime.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir.

2012). To prove false arrest, false imprisonment, and malicious prosecution, a plaintiff

“must establish that his arrest and detention were without probable cause.” Kerns v.

Bader, 663 F.3d 1173, 1187 (10th Cir. 2011); see also Taylor v. Meacham, 82 F.3d 1556,

1561-62 (10th Cir. 1996) (holding that arrest warrants must be supported by probable

cause to comply with the Fourth Amendment in malicious prosecution cases). Probable

cause is a “common-sensical standard” that is “not reducible to precise definition or

quantification.” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (quotations omitted).

Nor does it “require the suspect’s guilt to be more likely true than false.” Stonecipher v.

Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (quotations omitted). To establish probable

cause, an officer must demonstrate “a substantial probability that a crime has been
                                             -5-
committed and that a specific individual committed the crime.” Wolford v. Lasater, 78

F.3d 484, 489 (10th Cir. 1996).

       Rather than challenge the facial validity of the arrest warrant, Mr. Gomez argues

that Martin omitted several material facts in his affidavit that, if they had been included,

would have vitiated probable cause. See United States v. Kennedy, 131 F.3d 1371, 1377

(10th Cir. 1997) (noting that courts may consider whether an affiant makes material

omissions that would alter a probable cause determination).

       Mr. Gomez specifically alleges four categories of omissions: (1) Ms. Gomez’s

and Armendariz’s hospital records do not mention poisoning and other illnesses could

have caused their symptoms; (2) Ms. Gomez appeared disinterested in pursuing her claim

against Mr. Gomez; (3) evidence chain issues; and (4) AG was not a credible witness.

       We must reject Mr. Gomez’s claims that the hospital records would have vitiated

probable cause. Although medical professionals failed to explicitly diagnose Ms. Gomez

or Armendariz with poisoning and Ms. Gomez and Armendariz were ultimately

diagnosed with other illnesses, this information does not negate probable cause. The

medical professionals had no reason to suspect that either woman had been poisoned.

And they never definitively ruled out carbofuran poisoning as the cause of the women’s

symptoms. Ms. Gomez and Armendariz did suffer from many of the symptoms of

carbofuran poisoning as evinced in their medical records, and they reported even more

symptoms of carbofuran poisoning to Martin. He reasonably relied on these reports in

his probable cause determination. It is true that the alleged victims did not suffer from all
                                             -6-
of the possible symptoms of carbofuran poisoning, and suffered from symptoms that

were not indicative of such poisoning. But as the Supreme Court held long ago, probable

cause determination “is a practical, nontechnical conception.” Brinegar v. United States,

338 U.S. 160, 176 (1949). Probable cause is not vitiated simply because the medical

evidence is inconclusive. Further, as the district court concluded, the affidavit was not

misleading as the judge reviewing the affidavit could simply compare the list of

carbofuran poisoning symptoms to those suffered by the alleged victims.

       Mr. Gomez argues that several of Ms. Gomez’s actions reflect a broader pattern of

indifference to his prosecution. Quintero described as a “problem” the fact that Ms.

Gomez “does not stay in contact.” She also noted that, during Ms. Gomez’s original

interaction with the Sheriff’s office, after being asked to wait, Ms. Gomez left in order to

go to a manicure appointment. And Ms. Gomez also did not report the alleged

poisonings for several months. Nevertheless, we cannot agree with Mr. Gomez that if

these facts had been included in Martin’s affidavit, they would have materially affected

the probable cause analysis. “[T]he skepticism and careful scrutiny usually found in

cases involving informants . . . is appropriately relaxed if the informant is an identified

victim or ordinary citizen witness.” Easton v. City of Boulder, 776 F.2d 1441, 1449

(10th Cir. 1985). Martin has offered reasonable explanations for his continued belief in

Ms. Gomez’s credibility. Moreover, Ms. Gomez’s statements were independently




                                             -7-
corroborated by the medical records, the carbofuran testing, and AG’s statements.2

       Mr. Gomez also argues that the affidavit’s omission of evidence chain issues as to

the items that tested positive for carbofuran vitiates probable cause. Specifically, the

affidavit does not include the facts that Ms. Gomez had access to carbofuran or that the

laboratories were unable to determine when the carbofuran was placed in the wine and

vitamins. Although these issues reduced the probative value of the evidence, a probable

cause determination is less demanding than “standards such as proof beyond a reasonable

doubt or by a preponderance of the evidence.” Harris, 133 S. Ct. at 1055. The presence

of a deadly pesticide in items intended for human consumption was sufficient for Martin

to reasonably conclude that there was “a substantial probability that a crime has been

committed.” Wolford, 78 F.3d at 489.

       Finally, for the first time on appeal, Mr. Gomez argues that Martin’s affidavit

omitted AG’s statements that would have undermined his testimony if included. Because

Mr. Gomez failed to present this argument to the district court, it is forfeited. United

States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004).3



       2
        Nor would a lack of independent corroboration have made Martin’s probable
cause determination per se unreasonable. See United States v. Patane, 304 F.3d 1013,
1016 (10th Cir. 2002) (rejecting “any suggestion that victims of domestic violence are
unreliable witnesses whose testimony cannot establish probable cause absent independent
corroboration”), rev’d on other grounds, 542 U.S. 630 (2004).
       3
        We note, however, that probable cause would still exist even if the allegedly
material omissions had been included in the affidavit. AG’s more implausible statements
                                                                            Continued . . .
                                            -8-
       None of the alleged omissions, even considered in aggregate, would have vitiated

probable cause if they had been included in Martin’s affidavit. See United States v.

Jurado-Vallejo, 380 F.3d 1235, 1239 (10th Cir. 2004) (noting that totality of

circumstances test does not require conclusive proof of any factor to establish probable

cause). Because Mr. Gomez fails to show that Martin violated his constitutional rights,

there is no need for us to proceed further on the qualified immunity question. See

Saucier v. Katz, 533 U.S. 194, 201 (2001) (observing that if the plaintiff fails to show

that a constitutional right “would have been violated were the allegations established,

there is no necessity for further inquiries concerning qualified immunity”).

                                                  III

       We review the district court denial of Mr. Gomez’s Rule 56(d) motion for abuse of

discretion. World Publ’g Co. v. U.S. Dep’t of Justice, 672 F.3d 825, 832 (10th Cir.

2012). Under Rule 56(d), nonmoving parties who need additional discovery to respond

to a motion for summary judgment may present an affidavit identifying “the probable

facts not available and what steps have been taken to obtain these facts.” Trask v.

Franco, 446 F.3d 1036, 1042 (10th Cir. 2006). This burden is somewhat elevated in

qualified immunity cases because officials have “a right, not merely to avoid standing

trial, but also to avoid the burdens of such pretrial matters as discovery.” Medina v.



do not undermine the “solid core” of his account about the alleged poisoning. See
Easton, 776 F.2d at 1450.


                                            -9-
Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (quotations omitted). Although an assertion

of qualified immunity heightens the Rule 56(d) burden, “limited discovery may

sometimes be necessary before the district court can resolve a motion for summary

judgment based on qualified immunity.” Crawford-El v. Britton, 523 U.S. 574, 593 n.14

(1998).

       Mr. Gomez sought to depose Martin to learn more about the medical and scientific

evidence available to him and his assessment of the alleged victims’ credibility. The

district court denied the motion, concluding that there had already been significant

discovery on both issues, including discovery of Martin’s entire investigative file,

rendering further discovery unnecessary and cumulative. This was not an abuse of

discretion. On appeal, Mr. Gomez claims that the additional discovery might have helped

prove that Martin knew Ms. Gomez also had access to carbofuran, that carbofuran would

have caused more acute symptoms, and that Martin lacked expertise in poisoning and

failed to consult an expert. We are skeptical that these facts, even if established, would

vitiate probable cause. And in any event, Mr. Gomez fails to articulate why such facts

would have been discovered by deposing Martin and why he was not able to ask these

questions in the allowed interrogatories and requests for production.




                                           - 10 -
                                   IV

For the foregoing reasons, the judgment of the district court is AFFIRMED.



                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




                                  - 11 -
