                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 30 1998
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID CRAIG CARLSEN,

                Plaintiff-Appellant,

    v.                                                    No. 97-4071
                                                     (D.C. No. 93-CV-67G)
    TIM G. DURON, BRIAN COY,                               (D. Utah)
    LEM R. EARL, and KENT HARRIS,
    individually and in their official
    capacities as Logan City Police
    Officers; and SCOTT L. WYATT,
    in his official capacity as Logan City
    Prosecutor,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before ANDERSON, McKAY, 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      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff David Craig Carlsen appeals the district court’s grant of summary

judgment in favor of defendants on his 42 U.S.C. § 1983 complaint. Defendants

are four Logan City police officers sued as individuals and in their official

capacities, and the Logan City prosecutor, sued in his official capacity. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.


                                   I. Background

      Mr. Carlsen filed two complaints: the first filed against defendants Duron,

Coy and Earl, who are Logan City police officers, and Wyatt, a Logan City

prosecutor; the second filed against defendants Earl and Harris, also a Logan City

police officer. The district court consolidated these actions, and defendants filed

a motion for summary judgment. Defendants asserted qualified immunity as to all

of the police officer defendants, and absolute prosecutorial immunity as to Wyatt.

The district court granted summary judgment in favor of the defendants.


                                    II. Analysis

      “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.” Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997).


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In order to prevail against a defense of qualified immunity in a summary

judgment motion, a plaintiff must first assert the violation of a constitutional

or statutory right. See id. Second, a plaintiff must show that the “‘right was

clearly established such that a reasonable person in the defendant’s position

would have known that [his] conduct violated the right.’” Id. (quoting

Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996)). “Once the plaintiff

has sufficiently alleged the conduct violated clearly established law, then the

defendant bears the burden, as a movant for summary judgment, of showing

no material issues of fact remain that would defeat the claim of qualified

immunity.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995) (quotation

omitted). With these principles in mind, we turn to each of Carlsen’s claims.


      A. Driver’s License Check. Mr. Carlsen alleges that on May 15, 1991,

Officer Coy ordered him out of his place of employment, told him he was

suspected of driving on a suspended license, and asked to see Carlsen’s driver’s

license. Once Officer Coy saw Carlsen’s valid driver’s license, he told him

he was free to leave. Mr. Carlsen alleges that Officer Coy’s conduct constituted

a seizure without reasonable suspicion or probable cause in violation of the

Fourth and Fourteenth Amendment. He also charges Officer Earl, who was Coy’s

watch commander during this incident, violated his civil rights by failing to stop

Coy’s actions.

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      Officer Coy alleged that he had seen Carlsen driving and mistook him for

Carlsen’s brother, who he knew had a suspended license. Coy alleged that a radio

check indicated the vehicle he saw was registered to Carlsen’s brother. Officer

Earl alleged he was never at the scene and has no personal knowledge of the

incident. Mr. Carlsen disputed the reasonableness of mistaking him for his

brother and showed that the car identified by Officer Coy was registered to him,

not his brother. These disputes, however, are not material because Officer Coy’s

actions did not constitute a “seizure” under the Fourth Amendment.

      “The Fourth Amendment protects individuals against ‘unreasonable

searches and seizures.’” Latta v. Keryte, 118 F.3d 693, 698 (10th Cir. 1997)

(quoting U.S. Const. amend. IV). However:

      [N]ot all police-citizen encounters implicate the Fourth Amendment.
      A person has been ‘seized’ within the meaning of the Fourth
      Amendment only if, in view of all the circumstances surrounding
      the incident, a reasonable person would have believed that he was
      not free to leave. Thus, mere police questioning does not amount to
      a seizure because law enforcement officers do not violate the Fourth
      Amendment by merely approaching an individual on the street or in
      another public place.

Id. (internal quotations and citations omitted). “Without any basis for suspecting

the criminal involvement of a particular individual, police may communicate and

ask questions of that individual.” United States v. Sanchez, 89 F.3d 715, 718

(10th Cir. 1996).



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      Mr. Carlsen’s allegations that Officer Coy asked him to come outside his

place of employment, asked him some questions and requested to see his driver’s

license do not demonstrate that he was “seized” within the meaning of the

Fourth Amendment. None of the factors we have identified as tending to lead

a reasonable innocent person to believe he was not free to ignore the police

officer are alleged here. See id. (listing factors, including the threatening

presence of several officers; brandishing a weapon; physical touching; use of

aggressive language or tone of voice indicating that compliance with an

officer’s request is compulsory; prolonged retention of a person’s personal

effects; a request to accompany the officer to the station; interaction in a

nonpublic place or a small, enclosed space; and absence of other members of

the public.). Because Officer Coy’s brief interaction with Mr. Carlsen was not

a “seizure,” he was not required to have reasonable suspicion or probable cause.

See Latta, 118 F.3d at 699. Thus, Mr. Carlsen did not allege facts that constitute

a violation of his constitutional rights, and summary judgment on this claim was

proper.


      B. Assault at the Car Wash. Four days after the driver’s license incident,

on May 19, 1991, Officer Duron, who was off-duty and not in uniform, attempted

to wash his police car at Mr. Carlsen’s parent’s car wash, where Carlsen was

working at the time. Mr. Carlsen contends he was walking near the car wash bay

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and refused to allow Duron to clean his vehicle because it was too muddy.

Mr. Carlsen alleges that Officer Duron then got out of his vehicle, demanded that

he be allowed to wash the car, and then verbally and physically assaulted Carlsen.

Mr. Carlsen states he then broke free from Officer Duron, ran into the car wash

office, but Duron followed him inside, threw him to the ground and handcuffed

him. Mr. Carlsen’s brother filed an affidavit stating that he saw Officer Duron

choke Mr. Carlsen and slam his head to the floor in the car wash office.

      At some time during this incident, Officer Duron called for police

assistance, and Officer Earl arrived on the scene. Mr. Carlsen was put into

a police vehicle and taken to jail, where he was charged with assault upon

a peace officer. After he was released, Mr. Carlsen sought medical treatment

for his throat injuries. Mr. Carlsen was later convicted of assault upon a peace

officer, but the judge reduced the charge to simple assault, finding that Officer

Duron was not acting as a peace officer when he was washing his police vehicle

off-duty.

      Mr. Carlsen alleges that Officer Duron used excessive force, and that

Officers Duron and Earl arrested him without probable cause, in violation of the

Fourth and Fourteenth Amendment. Officer Duron did not file an affidavit or

otherwise controvert any of Mr. Carlsen’s allegations about the car wash incident.




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Mr. Carlsen and Officer Earl dispute whether Earl arrived in time to prevent the

alleged wrongful arrest and use of excessive force.

      The Fourth Amendment’s guarantee of an individual’s right not to be

arrested without probable cause was clearly established well before Mr. Carlsen’s

arrest. See Beck v. Ohio, 379 U.S. 89, 91 (1964). It was also clearly established

at the time of this incident that citizens have the right under the Fourth

Amendment to be free from the use of excessive force by government officials.

See Graham v. Connor, 490 U.S. 386, 395 (1989); Mick v. Brewer, 76 F.3d 1127,

1135 (10th Cir. 1996).

      However, “[t]o state a claim under § 1983, a plaintiff must allege that the

claimed deprivation was committed by a person acting under color of state law.”

Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir. 1996). “[I]t is the plaintiff’s

burden to plead, and ultimately establish, the existence of ‘a real nexus’ between

the defendant’s conduct and the defendant’s ‘badge’ of state authority in order

to demonstrate action was taken ‘under color of state law.’” Jojola v. Chavez,

55 F.3d 488, 494 (10th Cir. 1995). “‘[T]he key determinant is whether the actor,

at the time in question, purposes to act in an official capacity or to exercise

official responsibilities pursuant to state law,’ or ‘whether [the officer’s] actions

related in some way to the performance of a police duty.’” David v. City &

County of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996) (quoting Martinez v.


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Colon, 54 F.3d 980, 986 (1st Cir. 1995) and Gibson v. City of Chicago, 910 F.2d

1510, 1517 (7th Cir. 1990)).

      Mr. Carlsen’s assault conviction represents a defense to his § 1983 claim

asserting Officers Duron and Earl arrested him without probable cause. See

Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir. 1986) (conviction following

jury trial); see also Howard v. Dickerson, 34 F.3d 978, 981 n.2 (10th Cir. 1994)

(dicta). Moreover, the state court found, in connection with Mr. Carlsen’s assault

conviction, that there was no evidence Officer Duron, who was off-duty and not

in uniform, was acting within the scope of his authority as a peace officer at the

time. Appellee’s Answer Brief, Addendum B at 4. We conclude from our review

of the record that Mr. Carlsen has not satisfied his burden of demonstrating that

Officer Duron’s alleged actions related in some way to the performance of a

police duty. Therefore, because Mr. Carlsen was convicted of assault and because

he did not demonstrate that Officer Duron’s alleged actions were taken under

color of state law, the district court properly granted summary judgment in favor

of Officers Duron and Earl on the claims related to the car wash incident.


      C. DUI Arrest. On September 13, 1992, Officer Harris and Logan City

police officer Bryan Low, who is not a defendant, stopped Mr. Carlsen in his

automobile at approximately 1:30 in the morning. According to Mr. Carlsen, the

officers told him he was being stopped for changing lanes too fast. Mr. Carlsen

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alleges that shortly after the stop, Officer Earl arrived and observed the following

interaction from his police vehicle. The officers ordered Mr. Carlsen out of the

car. The parties dispute whether Mr. Carlsen was ordered, or volunteered, to take

a field sobriety test. The parties also dispute whether Mr. Carlsen successfully

completed this test, but do not dispute that at its conclusion, Mr. Carlsen was

handcuffed, searched, and arrested for driving under the influence of alcohol.

Mr. Carlsen was taken to the county jail, where he was given a breathalyser test

that indicated he had a blood alcohol level of zero percent. Mr. Carlsen was then

released; he was not cited for any traffic citation, nor were any other charges

brought against him. Mr. Carlsen alleges that Officer Harris stopped his car

without reasonable suspicion and arrested him for driving under the influence

of alcohol without probable cause, and that Officer Earl, who observed the arrest

from a nearby police vehicle, is liable for failing to intervene.

      Officers Harris and Low filed affidavits stating that they observed

Mr. Carlsen make an improper right turn from an inside lane. As they followed

his car, they stated they observed his brake lights go on twice even though the

light was green. The officers pulled Mr. Carlsen over and, while checking his

driver’s license, detected an odor of cigarettes, which Officer Harris indicated

on his arrest report prevented him from detecting any odor of alcohol. Both




                                          -9-
officers stated Carlsen’s eyes were red, that he looked sleepy, and became angry

when asked if he had been drinking.

      The parties dispute the results of the field sobriety test. Officers Harris and

Low state that during the “alphabet/hand slap” portion of the test, Mr. Carlsen

started before they finished instructing him on how to take the test, that Carlsen’s

slap became uncoordinated at “J” and he ultimately did not complete this portion

of the test. The officers stated that, in four attempts, Mr. Carlsen was unable to

track the movement of a pen without moving his head during the “horizontal gaze

nystagmus test.” Further, they alleged Mr. Carlsen started to perform the “walk

and turn” test before instructions were completed, failed to touch his heel to his

toe on all of the steps, and used his arms for balance, contrary to their

instructions. Officer Earl alleges that he did not arrive on the scene until after

the arrest was made.

      Mr. Carlsen filed verified affidavits in response, disputing the officers’

allegations with respect to the DUI arrest with detail and specificity. Mr. Carlsen

described the movement of his vehicle in detail prior to the stop, denying that he

made any improper right hand turn, and stating that an improper right turn was

not the reason given by the officers for pulling him over. He stated that he may

have braked to slow down on a steep decline, but was not driving erratically.

He specifically denied starting the “alphabet/hand” slap test early, did not confuse


                                         -10-
the letters during the test, and completed the test. He stated that he successfully

completed the “horizontal gaze nystagmus” test to its completion and in

accordance with Officer Harris’s instructions. He also denied the officers’

assertions that he started the “walk and turn” test early, that he failed to touch

his heel to his toe on all of the steps, and asserted that he never lost his balance

during the test.

      “Probable cause . . . is present if ‘at the moment the arrest was

made . . . the facts and circumstances [within the arresting officers’] knowledge

and of which they had reasonably trustworthy information were sufficient to

warrant a prudent man in believing that the [suspect] had committed or was

committing an offense.’” Cottrell v. Kaysville City, 994 F.2d 730, 733-34

(10th Cir. 1993) (quoting Adams v. Williams, 407 U.S. 143, 148 (1972) and

Beck, 379 U.S. at 91). Thus, the existence of probable cause depends on the

reasonableness of Officer Harris’ conduct under the particular circumstances

presented.

      Here, all of the factors articulated by the officers that led them to determine

they had probable cause to arrest Mr. Carlsen are disputed by Carlsen, with the

exception of their observation that he had appeared tired and smelled of

cigarettes. We cannot conclude that these latter undisputed observations--a tired

appearance at 1:30 in the morning and the smell of cigarettes--are sufficient, by


                                          -11-
themselves, to provide Officer Harris with probable cause to arrest Mr. Carlsen

for driving under the influence of alcohol. Thus, the disputed facts as to whether

Mr. Carlsen was driving erratically and how he performed on the field sobriety

test are genuine and material issues as to whether Officer Harris had probable

cause to arrest Mr. Carlsen. See Cottrell, 994 F.2d at 734 (disputed issues of fact

as to plaintiff’s driving and as to results of field sobriety test preclude summary

judgment on qualified immunity defense to § 1983 claim for wrongful arrest).

These disputed issues, along with the dispute as to when Officer Earl arrived

at the scene, also resolve whether or not Officer Earl failed to intervene in

a wrongful arrest. Thus, it was error to grant summary judgment as to Officers

Harris and Earl on this claim

      D. Police Harassment. Mr. Carlsen next complains of three incidents

of harassment by Officer Duron. On March 26, 1993, plaintiff was in court on

a traffic citation. According to Mr. Carlsen, Officer Duron appeared in court but,

at Mr. Carlsen’s request, was excluded from the courtroom. Mr. Carlsen claims

that when he left the courtroom, Officer Duron began yelling at him and

threatened to strangle Mr. Carlsen again. Mr. Carlsen claims Officer Duron’s

actions interfered with his Sixth Amendment right to access to the court. A few

weeks later, on April 14, 1993, Mr. Carlsen alleges he was driving normally

when Officer Duron began tailgating him for such a prolonged period that Carlsen


                                         -12-
was forced to pull into a post office and call a police dispatcher to report Officer

Duron’s behavior. A few weeks after that, on April 30, 1993, Mr. Carlsen was

parked in his car in front of his work when Officer Duron drove by, pulled his

police vehicle in next to Carlsen and began yelling obscenities at him and

hindered his ability to walk from his car into work. Mr. Carlsen claims these

actions constituted seizure without reasonable suspicion or probable cause.

Officer Duron did not controvert any of Carlsen’s harassment claims.

      Although we cannot condone Officer Duron’s alleged actions, claims

of verbal harassment are generally insufficient to state a claim under § 1983.

See King v. Olmsted County, 117 F.3d 1065, 1067 (8th Cir. 1997); Keenan v.

Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (same conclusion under Eighth

Amendment). There is no evidence indicating Mr. Carlsen was not free to leave

during each interaction; therefore, we cannot conclude that he was “seized”

within the meaning of the Fourth Amendment. There is also no evidence that

Officer Duron’s verbal assault outside the courtroom in any way interfered with

the court proceedings. Thus, summary judgment was properly granted as to

these claims.


      E. Use of False Testimony. Finally, Mr. Carlsen alleges that Logan City

prosecutor Scott Wyatt knowingly used false testimony during two trials against

him. Wyatt filed an affidavit stating that his only participation in these trials was

                                         -13-
as a prosecutor, and he denied that he knowingly used false testimony, stating that

he believed all the witnesses he called to have been honest and truthful.

      We note that allegations of prosecutorial wrongdoing that arise from the

prosecutor’s role as an advocate during the preparation of, and performance of

a trial are entitled to absolute prosecutorial immunity. See Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993). Moreover, Mr. Carlsen made only

conclusory allegations that witnesses gave inconsistent testimony, and failed

to allege facts sufficient to demonstrate that Wyatt knowingly permitted perjured

testimony in the two trials. Thus, the district court properly granted summary

judgment in favor of Wyatt.

      Accordingly, the judgment of the United States District Court for the

District of Utah is AFFIRMED as to defendants Coy, Wyatt and Duron, and

REVERSED and REMANDED for further proceedings consistent with this

order and judgment as to defendants Earl and Harris.



                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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