WILLIAM FREY, Plaintiff - Appellant, v. THE TOWN OF JACKSON, WYOMING; TETON COUNTY, WYOMING; THE JACKSON HOLE AIRPORT; THE JACKSON HOLE AIRPORT BOARD; NATHAN KARNES, in his individual capacity; JAMES WHALEN, in his individual capacity, and JOHN DOES, Defendants - Appellees.
Nos. 20-8000 & 20-8021
United States Court of Appeals for the Tenth Circuit
July 26, 2022
Before MATHESON, BACHARACH, and CARSON, Circuit Judges.
PUBLISH. Appeal from the United States District Court for the District of Wyoming (D.C. No. 1:19-CV-00050-NDF). FILED July 26, 2022. Christopher M. Wolpert, Clerk of Court.
Marci Anne Crank Bramlet, Robinson Welch Bramlet LLC, Casper, Wyoming, (Seth “Turtle” Johnson, Slow and Steady Law Office, PLLC, Saratoga, Wyoming, and Benjamin N. White, Law Office of Benjamin N. White, LLC, Omaha, Nebraska, on the briefs) for Plaintiff-Appellant William Frey.
INSTITUTE FOR JUSTICE; CATO INSTITUTE; COMPETITIVE ENTERPRISE INSTITUTE; RUTHERFORD INSTITUTE, Amici Curiae.
Jesse B. Naiman, Senior Assistant Attorney General, Cheyenne, Wyoming, (Theodore R. Racines, Deputy Attorney General, Cheyenne, Wyoming, with him on the brief) for Defendants-Appellees Nathan Karnes and James Whalen in their individual capacities.
J. Kirk McGill, Godfrey Johnson, P.C., Englewood, Colorado, (Brett M. Godfrey, Godfrey Johnson, P.C., Englewood, Colorado, with him on the brief) for Defendants-Appellees the Jackson Hole Airport and the Jackson Hole Airport Board.
John D. Bowers, Bowers Law Firm, PC, Afton, Wyoming, briefed the case for Defendants-Appellees the Town of Jackson, Wyoming, Teton County, Wyoming, and Nathan Karnes and James Whalen in their official capacities.
Jeffrey Redfern, Institute for Justice, Arlington, Virginia, (Clark M. Neily III and Ilya Shapiro, Cato Institute, Washington, District of Columbia, Devin Watkins and Sam Kazman, Competitive Enterprise Institute, Washington, District of Columbia, and John W. Whitehead and Douglas R. McKusick, Rutherford Institute, Charlottesville, Virginia, with him on the brief) for Amici Curiae Institute for Justice, Cato Institute, Competitive Enterprise Institute, and Rutherford Institute.
This litigation arose from a contentious encounter at the Jackson Hole Airport in Teton County, Wyoming. As Plaintiff William Frey proceeded through the Transportation Security Administration (“TSA”) checkpoint, the body scanner alerted TSA screeners to a potentially suspicious area on Plaintiff’s person. When the security screeners informed Plaintiff that they would have to conduct a pat down, Plaintiff became agitated and repeatedly refused to cooperate. So the security screeners summoned a police officer, Defendant Nathan Karnes (“Karnes”), who arrested Plaintiff.
After being transported to the Teton County Jail for booking, Plaintiff continued his noncooperation, refusing to participate in the booking process and demanding that jail officials allow him to have an attorney present. Jail officials detained Plaintiff for about three hours before releasing him. Plaintiff sued under
I.
Because this case comes to us at the Rule 12(b)(6) stage, we take the facts from the amended complaint and assume their veracity. See Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011). In addition, when a plaintiff attaches a written document to his complaint as an exhibit, we consider it part of the complaint for all purposes, including in a Rule 12(b)(6) dismissal.
Plaintiff lives in Connecticut but maintains a home near the Town of Jackson in Teton County, Wyoming. He usually makes at least two round trips between Connecticut and Jackson each year via the Jackson Hole Airport (“the Airport”), which the Jackson Hole Airport Board (“the Board”) governs. In spring 2018, Plaintiff arrived at the Airport to travel home to Connecticut. He began the security screening process and entered the TSA’s body scanner, still wearing his belt. Although screening employees saw that Plaintiff kept his belt on, they did not instruct him to remove it before entering the scanner or inform him that they would require further screening if he kept it on.
The body scanner alerted to Plaintiff’s groin, upper-inner thigh, and outer thigh, so a screening employee informed Plaintiff that he would have to submit to a pat down of those areas, even though his belt likely caused the alert. Plaintiff refused to cooperate with a pat down and suggested that the screening employees allow him to remove his belt and try again. Though one screening employee suggested that this was viable, the employees determined that standard operating procedure required Plaintiff to submit to the pat
Because of Plaintiff’s continued noncooperation, Officer Karnes, a Jackson police officer posted to the airport that day, came to the scene and told Plaintiff he must submit to the pat down. Plaintiff again refused and asked Karnes to rescan him or permit him to leave. Karnes denied both requests and informed Plaintiff that he would arrest Plaintiff if he continued to refuse the pat down. Plaintiff refused a final time, stating that he would “file a police complaint and . . . start litigation if they try and do this.”2 Karnes, believing that Plaintiff’s actions violated the Jackson Municipal Code, arrested Plaintiff.3 Incident to the arrest, Karnes searched Plaintiff, finding nothing, and then placed Plaintiff in handcuffs and led him to a holding area.
On the way to the holding area, Karnes injured Plaintiff’s wrist by use of a “wristlock.”4 Plaintiff claims he did not provoke the wristlock. But Karnes’s police report narrative, attached to the amended complaint, states that on the way to the holding area, Plaintiff began resisting and twisting away from Karnes and that Karnes used a wristlock to regain control of Plaintiff.
Karnes then took Plaintiff to Teton County’s jail. While in Karnes’s vehicle on the way to the jail, Plaintiff requested to speak with an attorney, and Karnes denied that request. Plaintiff remained at the jail for about three hours total. During that time, he made several requests to speak with an attorney, which officers at the jail denied. Plaintiff claims that officers held him at the jail longer because he requested an attorney and that they told Plaintiff’s spouse that was the cause for the delay. Officers kept Plaintiff in a “simple cell” for some time before Karnes and two others “conducted an interrogation” during which they “berated [him] about his behavior and his requests for a lawyer.” Plaintiff interpreted this as retaliation for requesting an attorney and refusing to answer questions without one present.
Again, Karnes’s police report tells a different, but not entirely contradictory, story. According to the report, “[o]nce at the jail, Plaintiff was extremely uncooperative.” During the booking process, “he refused to answer questions, slammed his fists on the counter of the booking room, and demanded to speak to his lawyer.” So, “[d]eputies then escorted [Plaintiff] to a cell until he was cooperative and agreed to
Plaintiff sued, asserting claims under
After Defendants again moved to dismiss, the district court dismissed the entire amended complaint with prejudice and denied Plaintiff’s motion for leave to amend a second time. At issue from the amended complaint are (1) Plaintiff’s First Amendment retaliation claim against Karnes related to the detention at the jail; (2) his municipal-liability claims against Jackson, the Airport, and the Board arising from Karnes’s arrest, search, and use of force at the airport; and (3) his municipal liability claim against Jackson and Teton County for First Amendment retaliation arising from the detention at the jail. These claims and the First Amendment retaliation claims against Karnes from the original complaint are the only claims Plaintiff pursues on appeal, so we do not list the other claims Plaintiff brought below.
After the district court entered judgment for Defendants, Plaintiff filed his first notice of appeal, initiating the first of these two consolidated appeals. Meanwhile, the Municipal Defendants moved the district court for an award of attorney’s fees under
II.
Case No. 20-8000 presents three issues: whether Plaintiff stated any claims against Karnes not barred by qualified immunity;
We review Rule 12(b)(6) dismissals and qualified-immunity rulings de novo. Gee, 627 F.3d at 1183 (Rule 12(b)(6) dismissals); Sanchez v. Hartley, 810 F.3d 750, 753 (10th Cir. 2016) (qualified-immunity rulings). We review for abuse of discretion a denial of leave to amend, an award of attorney’s fees under
III.
Plaintiff identifies two claims against Karnes that he argues should have survived dismissal: his claim for First Amendment retaliation arising from the arrest, search, and use of а wristlock at the airport and his claim for First Amendment retaliation arising from the prolonged detention at the jail. The district court dismissed both claims with prejudice after deciding that Karnes is entitled to qualified immunity because Plaintiff failed to plausibly plead a First Amendment violation.
When a defendant raises qualified immunity in his motion to dismiss, we engage in a two-part analysis. Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). We must decide (1) whether the plaintiff plausibly alleged a violation of a constitutional right, and (2) if so, whether that right was clearly established at the time of the alleged violation. Id. We may address either prong first to achieve “the fair and efficient disposition of each case.” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 242 (2009)). Addressing each claim in turn, we agree with the district court that Plaintiff did not adequately plead a First Amendment violation.
To allege a First Amendment retaliation claim, Plaintiff must plead facts showing that: (1) he engaged in activity the First Amendment protects; (2) Karnes’s actions injured him in a way that would “chill a person of ordinary firmness from continuing to engage in that activity”; and (3) his protected activity substantially motivated Karnes’s responsive actions. Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009). And when pursuing a claim for retaliatory arrest against a law-enforcement officer, a plaintiff must plead еither that the officer lacked probable cause to arrest or that the officer historically has not arrested similarly situated people who were not engaged in the same type of speech. Nieves v. Bartlett, 139 S. Ct. 1715, 1726–27 (2019); Fenn v. City of Truth or Consequences, 983 F.3d 1143, 1149 (10th Cir. 2020).
We use the Iqbal/Twombly standard to determine whether Plaintiff stated a plausible constitutional violation. Brown, 662 F.3d at 1162–63. Thus, we take Plaintiff’s well-pleaded facts as true, view them in the light most favorable to him, and draw all reasonable inferences from the facts in his favor. Id. at 1162. A plausible claim must include facts from which we may reasonably infer the defendant’s liability. Id. at 1163 (citation omitted). Plaintiff must nudge the claims across the line from conceivable or speculative to plausible. Id. (citation omitted). Allegations that are
An allegation is conclusory if it states an inference without underlying facts or if it lacks any factual enhancement. Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021). Conclusory allegations are “not entitled to the assumption of truth.” Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). We disregard conclusory statements and look to the remaining factual allegations to determine whether a plaintiff stated a plausible claim. Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1282 (10th Cir. 2019). We must draw on our еxperience and common sense in evaluating the plausibility of a claim. Iqbal, 556 U.S. at 679. The degree of specificity needed to establish plausibility and provide fair notice depends on the context and the type of case. Id.; Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
A.
We look first to Plaintiff’s claim that Karnes retaliated against him in violation of the First Amendment when Karnes arrested, searched, and used a wristlock on him at the airport. The district court dismissed this claim, as alleged in Plaintiff’s original complaint, with prejudice for failure to plead facts establishing the third element—that Plaintiff’s engagement in protected speech caused Karnes’s actions.7 Because we conclude that Karnes had probable cause to arrest Plaintiff on the facts Plaintiff pleaded, we agree. See Fenn, 983 F.3d at 1149.
Plaintiff’s original complaint provides essentially the same narrative—minus the attached police report—as the amended complaint, which supported the factual background in section I of this opinion. In his original complaint, Plaintiff alleged that “Karnes arrested [him] for violation of” Jackson Municipal Code
Probable cause “requires reasonably trustworthy information that would lead a reasonable officer to believe that the person about to be arrested has committed or is about to commit a crime.” Cortez v. McCauley, 478 F.3d 1108, 1116 (10th Cir. 2007). The subjective mindset of the arresting officer does not matter—rather, we ask whether the totality of the circumstances, viewed objectively, justifies the arrest. Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d 1204, 1220 (10th Cir. 2020). Even a minor crime, when committed in the presence of a police officer,
Even so, Plaintiff argues that his claim should survive for three reasons. First, he argues that his allegations overcome the typical requirement that a retaliatory-arrest plaintiff plead an absence of probable cause. A retaliatory-arrest plaintiff need not show a lack of probable cause if he can show “that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Nieves, 139 S. Ct. at 1727. Of course, at the pleading stage, Plaintiff need not prove his case, and we accept any concrete factual allegation as true. See Brown, 662 F.3d at 1162. But Plaintiff’s original complaint lacks such an allegation. Plaintiff alleged only that “Karnes, and other peace officers . . . regularly detained, imprisoned, arrested, and/or cited individuals at the [airport].” Plaintiff never alleged that Karnes declined to arrest other individuals, not engaged in the same type of speech as Plaintiff, who refused to submit to pat downs mandated by airport procedure.
Second, Plaintiff argues that he pleaded that (1) the ordinance under which Karnes arrested him is facially overbroad and therefore unenfоrceable, and (2) Karnes lacked probable cause to arrest him. Overbreadth may work as a defense to prosecution, but it is irrelevant to whether an officer has probable cause to arrest.8 Mocek v. City of Albuquerque, 813 F.3d 912, 927–28 (10th Cir. 2015) (“[T]he validity of the statute is hardly relevant to the probable cause determination because officers generally may presume that statutes are constitutional until declared otherwise.”). And the bare assertion that Karnes lacked probable cause to arrest Plaintiff, without factual development to support it, is a legal conclusion that we disregard. See Khalik, 671 F.3d at 1193; Waller, 932 F.3d at 1282. As discussed above, the allegations in the complaint contradict that legal conclusion, revealing that Karnes had probable cause to arrest Plaintiff.
Finally, Plaintiff says he pleaded that Karnes lacked jurisdiction and authority to arrest him. Plaintiff included an excerpt from the disposition of his criminal case showing that the court dismissed his criminal case because Jackson lacked authority under state law to enforce the ordinance. But this is not an argument that probable cause did not exist. See United States v. Turner, 553 F.3d 1337, 1346 (10th Cir. 2009). As we explained in Turner, whether officers have probable cause to believe a рerson committed a crime in their presence is the only relevant question for determining the federal constitutionality of an arrest. Id. (citing Moore, 553 U.S. at 178). Whether state law authorizes the arrest is irrelevant to the federal constitutional question because state law does not establish the standard for reasonableness under the Fourth Amendment. Id. Thus, a police officer who arrests someone without jurisdiction under state law does not violate the Constitution if probable cause supports the arrest. Id.
And because Karnes had probable cause to arrest Plaintiff, the law permitted Karnes to search Plaintiff’s person incident
That leaves only Plaintiff’s claim that Karnes retaliated against him by applying an unprovoked wristlock. As to that claim, we conclude that Karnes is entitled to qualified immunity because no law clearly establishes that the alleged retaliatory wristlock violated the First Amendment. We use an objective test to determine “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Brown, 662 F.3d at 1164 (quoting Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010)). Clearly established law can come from a Supreme Court or Tenth Circuit decision “on point,” or from the “clearly established weight of authority from other courts.” Id. (quoting Stearns, 615 F.3d at 1282). We may not define rights or clearly established law “at a high level of generality.” Mglej v. Gardner, 974 F.3d 1151, 1159 (10th Cir. 2020) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). Rather, “the clearly established law must be particularized to the facts of the case” so that every reasonable officer would know, beyond debate, that the conduct in question would violate that right. Id. at 1159–60 (internal quotation marks omitted) (quoting Corona v. Aguilar, 959 F.3d 1278, 1285–86 (10th Cir. 2020)). Plaintiff bears the burden to show the law was clearly established. Id. at 1159. He has not met that burden.9
Plaintiff must show that clearly established First Amendmеnt law prohibits the force applied against him under the circumstances. In other words, Plaintiff must show that it was clearly established at the time of the incident that the force Karnes used would “chill a person of ordinary firmness” from engaging in protected speech. In his attempt to do so, Plaintiff cited in his opening brief only one case about retaliatory use of force—Youngblood v. Quails, 308 F. Supp. 3d 1184 (D. Kan. 2018). A single case from a district court does not show the “weight of authority” required to clearly establish law. See Brown, 662 F.3d at 1164.
The authorities cited in Plaintiff’s reply brief are similarly unhelpful. In Buck v. City of Albuquerque, 549 F.3d 1269, 1289–91 (10th Cir. 2008), we examined far greater force. In that case, officers deployed teargas and pepper ball rounds; hit suspects with batons; kneed a suspect, pushed him into the pavement, hit his face against a car, and exposed him to teargas while handcuffed; and used their horses as weapons. And Buck dealt with Fourth Amendment claims. Id. We did not have jurisdiction to address whether the use of force
Similarly, in Mglej, we reviewed whether overtightening a plaintiff’s handcuffs was excessive in violation of the Fourth Amendment. 974 F.3d at 1165–70. Like Buck, Mglej did not consider whether the amount of force would chill an ordinary person’s exercise of his First Amendment rights—a distinсt question. See id. Thus, Plaintiff failed to show that the law clearly establishes that using a wristlock to escort a validly arrested individual violates the First Amendment by chilling the exercise of one’s free-speech rights.
B.
Plaintiff also alleged that Karnes retaliated against him in violation of the First Amendment by prolonging his detention in response to Plaintiff’s requests to speak to an attorney. The district court similarly dismissed this claim because Plaintiff did not sufficiently plead causation—the third element of a First Amendment retaliation claim. Having reviewed the amended complaint and attached exhibits, we agree with the district court.
Completing an arrest includes taking necessary administrative steps incident to arrest—such as booking the arrestee at the jail. See Maryland v. King, 569 U.S. 435, 449 (2013). Because Plaintiff alleges that his detention during booking—part of his arrest—was retaliatory, he must satisfy the pleading standard for retaliatory-arrest claims. As explained above, pleading the causation element of a retaliatory-arrest claim requires allegations that officers either lacked probable cause or treated Plaintiff differently than similarly situated people who did not engage in the same speeсh. See Nieves, 139 S. Ct. at 1726–27. Plaintiff’s amended complaint contained sufficient allegations of neither.
Because making an arrest includes briefly detaining the arrestee to book him at the jail, the probable cause supporting the arrest also supports the brief detention. See King, 569 U.S. at 449. Thus, to plead that probable cause did not support his detention at the jail, Plaintiff must allege that the detention no longer constituted “a brief period of detention to take the administrative steps incident to arrest.” Id. (quoting Gerstein v. Pugh, 420 U.S. 103, 113–14 (1975)). Plaintiff alleged in his amended complaint that his detention at the jail lasted about three hours. Plaintiff also alleged the following facts about what happened while at the jail:
- Karnes refused Plaintiff’s request to speak to an attorney in the car on the way to the jail.
- At the jail, Plaintiff made several requests to speak to an attorney, and jail officials denied those requests.
- Plaintiff refused to answer questions during the booking process.
- Officers told Plaintiff’s spouse that they were holding him longer because of his “uncooperative requests for counsel.”
- Karnes and other officers put Plaintiff in a cell and berated him for requesting an attorney.
- Karnes and other officers said оr implied that Plaintiff’s requests for an attorney would lead to prolonged detention.
These allegations reveal that Plaintiff failed to cooperate with the booking process at the jail by refusing to answer jail officials’ booking questions. And Plaintiff’s allegations on that point are consistent with Officer Karnes’s police report, which Plaintiff attached to and made part of his
- Plaintiff was uncooperative at the jail.
- Plaintiff refused to answer booking questions.
- Plaintiff slammed his fists on the booking-room counter.
- Plaintiff demanded to speak to his lawyer.
- Officers put Plaintiff in a cell until he cooperated.
- Karnes tried to explain and issue a citation, but Plaintiff yelled at Karnes and others.
- Eventually, Plaintiff calmed down and completed the booking process, so jail officials released him.
According to Plaintiff’s amended complaint, Plaintiff refused to answer booking questions because he did not have an attorney with him. But the Sixth Amendment right to counsel first attaches after the prosecution initiates formal charges, so it did not apply to Plaintiff during the booking process. Moran v. Burbine, 475 U.S. 412, 431 (1986); United States v. Calhoun, 796 F.3d 1251, 1254 (10th Cir. 2015) (explaining that the right attaches at the transition from investigation to prosecution—in other words, at the time of the “preliminary hearing, indictment, information, or arraignment”). Likewise, the Fifth Amendment right to counsel during custodial interrogations does not extеnd to “routine booking questions to secure the biographical data necessary to complete booking or pretrial services.” See Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (plurality opinion); see also Clayton v. Gibson, 199 F.3d 1162, 1172–73 (10th Cir. 1999) (explaining that the booking process and booking questions do not constitute interrogation and therefore do not implicate the Fifth Amendment right to counsel). And while Plaintiff’s amended complaint includes a legal conclusion that Officer Karnes “interrogated” him, it offers no specific facts to support that their interaction amounted to a custodial interrogation, such as a description of the nature or content of the
questioning. Plaintiff thus alleged no lawful basis for his refusal to participate in the booking process, and his refusal warranted a brief extension of his detention so officers could complete the process.10
Because Plaintiff‘s allegations reveal that he refused to participate in the booking process, jail officials had an objectively reasonable basis to briefly prolong the process to attempt to secure his compliance.11 Plaintiff‘s allegations that officers’ retaliatory
Because probable cause supported Plaintiff‘s detention at the jail following his arrest, his retaliation claim can succeed only if Officer Karnes treated him differently than similarly situated arrestees who did not engage in the same speech. See Nieves, 139 S. Ct. at 1727. In other words, Plaintiff must have alleged that Officer Karnes ordinarily immediately releases arrestees who refuse to participate in the booking process when those arrestees do not express a desire for an attorney. Plaintiff‘s amended complaint contains no such allegation.
Because Plaintiff failed to allege either that Karnes lacked probable cause to detain him for three hours or that Karnes usually does not detain similarly situated arrestees not engaged in the same speech, Plaintiff failed to state a valid retaliation claim against Karnes. The district court thus properly dismissed Plaintiff‘s retaliation claim based on the detention at the jail.
IV.
The second issue concerns Plaintiff‘s claims against the Municipal Defendants under Monell v. Department of Social Services, 436 U.S. 658 (1978). Under
Plaintiff argues that two of his municipal-liability claims should have survived dismissal: his claim against Jackson and the Airport аrising from Karnes‘s arrest and search of Plaintiff and a First Amendment retaliation claim against Jackson and
We first address Plaintiff‘s claim arising from Karnes‘s arrest and search of Plaintiff at the airport.13 Plaintiff argues that Jackson and the Airport have instituted policies and engaged in customs that cause illegal arrests and searches, and he tried to allege that those policies or customs caused his arrest and search. Whether Plaintiff pursues a claim under the Fourth Amendment for unlawful seizure or under the First Amendment for retaliatory arrest, both claims fail because probable cause supported Plaintiff‘s arrest. See supra Section III.A.
If a plaintiff suffered no constitutional violation, he cannot recover simply because some municipal policy might have authorized an officer to violаte the Constitution. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam). The crux of a municipal-liability claim is that a municipal policy or custom caused the plaintiff to suffer a constitutional injury. See Bryson, 627 F.3d at 788 (quoting Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Without a constitutional violation, Plaintiff has suffered no injury for which a municipality can be liable. As explained above, Plaintiff‘s allegations reveal that Karnes had probable cause to arrest Plaintiff, meaning that the arrest did not violate the First or Fourth Amendments.
Plaintiff also suffered no constitutional violation from Officer Karnes‘s search of his person incident to the arrest. Even if Plaintiff is correct that Jackson and the Airport have policies authorizing or requiring unconstitutional searches, the only search Plaintiff experienced was incident to a lawful arrest and therefore constitutional. Plaintiff alleged no constitutional injury.
Finally, Plaintiff argues that the district court should not have dismissed his First Amendment retaliation claim arising from his detention at the Teton County Jail. Plaintiff claims that Jackson and Teton County have a policy or custom of prolonging detention for those who engage in protected speech—specifically, those who request legal counsel. But, as with his claims arising out of the arrest and sеarch, Plaintiff did not plead a First Amendment violation because he failed to allege that probable cause did not support his detention or that jail officials treated him differently than similarly situated arrestees not engaged in the same speech. See supra Section III.B. Thus, Plaintiff alleged no constitutional injury.
V.
Plaintiff also partially challenges the district court‘s denial of his motion for leave to amend. While Defendants’ motions to dismiss the amended complaint were still pending, Plaintiff filed a motion under
On appeal, Plaintiff challenges the district court‘s denial of leave to amend only as to his proposed tort claims against the TSA and Preston.14 First, the district court correctly determined that the proposed claims against the TSA were futile because they would have faced dismissal. A federal agency is never a proper defendant for an FTCA claim.
As to the proposed tort claims against airport screening supervisor Martha Preston, the district court determined that they too would be futile because Preston is not a proper defendant under the FTCA and because the FTCA retains immunity for intentional torts committed by TSA screeners. But the applicability of the FTCA to14
the proposed tort claims against Preston is unclear. The FTCA applies only to torts committed by employees of the federal government in the scope of their employment. See
But we need not resolve whether the FTCA applies to Plaintiff‘s proposed allegations against Preston because we conclude that Plaintiff‘s proposed tort claims would be futile regardless. We may affirm the district court on any ground supported by the record, even one not addressed by the district court or presented on appeal. Fields v. City of Tulsa, 753 F.3d 1000, 1015 (10th Cir. 2014) (citation omitted). We conclude that regardless of who employs Preston, Plaintiff‘s proposed claims would be futile because his allegations fail to plausibly allege that Preston committed any torts against him.
Plaintiff‘s proposed second amended complaint sought to add tort claims against Preston for assault, false imprisonment, abuse of process, and battery. But Plaintiff‘s
For example, as to the assault claim, Plaintiff alleged merely that Preston told him that TSA policy required him to submit to a pat-down and demanded that he consent to the pat-down. Wyoming follows the second restatement in defining tortious assault as an act intending to place another in imminent apprehension of harmful or offensive contact and that causes such imminent apprehension. See Jung-Leonczynska v. Steup, 782 P.2d 578, 583 (Wyo. 1989); Restatement (Second) of Torts § 21 (Am. L. Inst. 1965). Plaintiff‘s proposed second amended complaint contains no allegation that by informing Plaintiff of TSA policy, Preston intended to place him in “imminent apprehension” of offensive contact or that Plaintiff actually experienced such imminent apprehension. In fact, Plaintiff‘s allegation that Preston demanded he consent to the pat-down undercuts both elements by suggesting that contact would occur only if Plaintiff consented.
As to the false-imprisonment claim, Plaintiff alleged only that Preston “falsely imprisoned the Plaintiff by detaining the Plaintiff at the security screening checkpoint.” This conclusory allegation cоntains no detail as to what actions Preston allegedly took that resulted in Plaintiff‘s detention at the checkpoint. Plaintiff‘s only allegation remotely to that effect is that Preston “instructed [Officer Karnes] to arrest the Plaintiff.” But that allegation is also vague and fails to show the causal connection between Preston and the actions of a police officer employed by a separate agency. And regardless, Plaintiff‘s proposed second amended complaint, like his amended complaint, fails to allege that probable cause did not support his arrest.
As to the abuse-of-process claim, Plaintiff‘s only allegation is that Preston “assisted the Town of Jackson in its pursuit of charges.” The proposed second amended complaint contains no allegation of any specific actions that reveal what kind of assistance Preston gave or how it constituted the use of improper process with an ulterior motive in a legal proceeding. See Bosler v. Shuck, 714 P.2d 1231, 1234 (Wyo. 1986) (defining tortious abuse of process).
As to the battery claim, Plaintiff alleged only that Preston “instructed” Officer Karnes to conduct a pat-down of Plaintiff and arrest him. Not only is the allegation too vague as to Prеston‘s role in the search and arrest conducted by Karnes—a police officer employed by a different agency—but like Plaintiff‘s previous allegations, the allegations in the proposed second amended complaint reveal that probable cause supported the arrest and Karnes‘s search was a lawful search incident to arrest.
Because the tort claims against Preston in Plaintiff‘s proposed second amended complaint would be subject to dismissal for failure to state a claim, we affirm the district court‘s denial of Plaintiff‘s motion for leave to amend.
VI.
Finally, we turn to the last issue, presented in case No. 20-8021. The district court ordered Plaintiff—under
A.
We review a district court‘s award of attorney‘s fees under
Under
A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim can also become frivolous during the litigation if it becomes apparent that the claim lacks any arguable basis in law or fact and the plaintiff continues to litigate the claim anyway. Hughes v. Rowe, 449 U.S. 5, 15 (1980) (per curiam) (citation omitted). The district court dismissed Plaintiff‘s
Plaintiff also asserted a Fourth Amendment claim against the Municipal Defendants arising out of a pat-down search conducted by Karnes at the time of the arrest. Plaintiff alleged that the search violated the Fourth Amendment because it was unreasonable and unsupported by probable cause. But long-established Fourth Amendment doctrine provides that searches of persons incident to a lawful arrest are reasonable under the Fourth Amendment. E.g., United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (citing Chimel v. California, 395 U.S. 752, 762–63 (1969)). Karnes arrested Plaintiff, and Plaintiff‘s allegations did not reveal that the arrest was unsupported by probable cause. Thus, Plaintiff had no basis to challenge a pat-down search conducted incident to that arrest.
Furthermore, the principal reason the district court allowed Plaintiff to amend his complaint was to provide him the opportunity to plausibly plead that the Municipal Defendants had an unconstitutional policy or custom. But Plaintiff added no concrete allegations in his amended complaint suggesting an entity-widе policy or custom by any of the Municipal Defendants. Instead, Plaintiff included several statements that he “believe[d] that discovery [would] reveal” such policies or customs. But in Twombly, the seminal case on federal pleading standards, the Supreme Court rejected the idea that a plaintiff may proceed to discovery armed with just a belief that discovery might reveal facts to support his claims. See 550 U.S. at 561–62. A plaintiff must plead concrete facts sufficient “to raise a reasonable expectation that discovery will reveal evidence” supporting his claims. Id. at 556. Despite the district court‘s reminding Plaintiff of this standard before granting leave to amend, Plaintiff added only allegations of his belief that he could draft a proper complaint after discovery. No arguable basis for the sufficiency of those allegations exists.
Reasonable minds could disagree as to whether Plaintiff‘s shortcomings were egregious enough to warrant an award of attorney‘s fees, but the district
The district court also narrowly tailored the fee award. The court found only the
B.
Plaintiff‘s attorneys also challenge the district court‘s award of sanctions against them. Invoking
But a 1993 amendment to
Turning to the merits, we review a sanctions award under
Here, the district court determined that Plaintiff‘s counsel unreasonably multiрlied the proceedings against the Municipal Defendants by filing a second motion to amend just one week after the parties completed briefing on Defendants’ motions to dismiss the first amended complaint. So the district court found Plaintiff‘s attorneys responsible for the Municipal Defendants’ reasonable attorney‘s fees incurred in responding to the motion for leave and moving for sanctions.
With his second motion to amend, Plaintiff filed a proposed second amended complaint asserting claims against the Municipal Defendants for violations of Plaintiff‘s First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Those were largely the same claims Plaintiff asserted against the Municipal Defendants in his amended complaint, with the main addition being allegations that the Jackson Municipal Code incorporates the TSA standard operating procedures and violates the Constitution. The district court determined that Plaintiff‘s proposed amendment would be futile because the proposed claims against the Municipal Defendants, like the other claims in Plaintiff‘s proposed second amended complaint, would be subject to dismissal. Plaintiff does not challenge on appeаl the district court‘s futility determination as to the claims against the Municipal Defendants, but his attorneys argue that the proposed amendments did not warrant sanctions.
As with the award of attorney‘s fees against Plaintiff, we will not reverse an award of sanctions under
The district court also found that Plaintiff‘s attorneys likely sought to amend the claims against the Municipal Defendants as a dilatory tactic, that the proposed allegations against the Municipal Defendants were available to Plaintiff‘s attorneys when they filed the original complaint, and that the delay was unjustified. Because these findings are not clearly erroneous, we must accept them. See Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir. 1985) (“The findings of a district court in assessing an attorney‘s liability under
AFFIRMED.