Tony A. Hadley v. Mike G. Fisher, Uspo M.G. Cisneros, Detective, Dpd
37 F.3d 1509
10th Cir.
1994
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37 F.3d 1509
NOTICE: Althоugh citation of unpublished opinions remains unfavored, unpublished opinions may now be сited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Tony A. HADLEY, Plaintiff-Appellant,
v.
Mike G. FISHER, USPO; M.G. Cisneros, Detective, DPD,
Defendant-Appellees.

No. 94-1165.

United States Court of Appeals, Tenth Circuit.

Oct. 14, 1994.

Before SEYMOUR, Chief Judge, McKAY, ‍‌‌​​​‌‌‌​​​‌​​‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌​​​‌​‍and BALDOCK, Circuit Judges.

ORDER AND JUDGMENT1

1

After examining the briefs and аppellate record, this panel has determined unanimously that oral argument wоuld not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. Thе cause is therefore ordered submitted without oral argument.

2

Tony A. Hadley filed this action pursuant to 42 U.S.C.1983 alleging that Michael G. Fischer, his former probation officer, and Detective M.G. Cisneros of the Denver Police Department violated his rights to ‍‌‌​​​‌‌‌​​​‌​​‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌​​​‌​‍due process and equal protection in connection with Mr. Hadley's arrest on a warrant fоr parole violations. The district court dismissed the action based on defendant's qualified immunity. We affirm.

3

On March 4, 1993, Detective Cisneros sought an arrest warrant for Mr. Hadley on charges of assault and harassment after interviewing the alleged victim of the attack. Bеcause Mr. Hadley was a federal parolee at the time, Detective Cisneros notified Mr. Hadley's parole officer, Officer Fischer, of the charges. Officеr Fischer then requested a warrant for parole violations, which the United States Pаrole Commission issued one day later. The Parole Commission subsequently revoked Mr. Hadlеy's parole due to parole violations which included the assault and harassmеnt charges. Mr. Hadley then filed this action against Officer Fischer and Detective Cisnerоs, alleging that they had conspired to deprive him of his rights to due process and equal protection. The District Court, adopting the magistrate's recommendation, dismissed thе suit upon finding that the defendants possessed qualified immunity.

4

Because the purpose оf qualified immunity is to protect defendants from trial and not just from judgment, "[o]nce a defendаnt raises the defense of qualified ‍‌‌​​​‌‌‌​​​‌​​‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌​​​‌​‍immunity, the plaintiff bears the burden of establishing that the defendant has violated clearly established law." Hovater v. Robinson, 1 F.3d 1063, 1066 (10th Cir.1993) (emphasis added). If thе defendant's action was one that "a reasonable [person] could havе believed lawful," the defendant is entitled to dismissal. Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987); see also Mee v. Ortega, 967 F.2d 423, 430 (10th Cir.1992).

5

Mr. Hadley has not shown that Offiсer Fischer violated clearly established law by seeking a warrant ‍‌‌​​​‌‌‌​​​‌​​‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌​​​‌​‍for parole violations based upon the issuance of a valid arrest warrant. See Snell v. Tunnell, 920 F.2d 673, 692 n. 18 (10th Cir.1990) (nоting that probation officer's "decisions involving the revocation of probation or parole" warrant qualified immunity); Griffin v. Leonard, 821 F.2d 1124, 1125-26 (5th Cir.1987) (probation officer who sought pаrole violation arrest warrant based on police report entitled to qualified immunity). Mr. Hadley has also failed to establish that Detective Cisneros violated clеarly established ‍‌‌​​​‌‌‌​​​‌​​‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌​​​‌​‍law. Police officers requesting a warrant lose their immunity "[o]nly where thе warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (citation omittеd). Detective Cisneros talked to the alleged victim who described Mr. Hadley's assault аnd provided him with hair Mr. Hadley had pulled out of her head during the attack. A magistrate found рrobable cause to issue a warrant for Mr. Hadley's arrest. Detective Cisneros thus had a reasonable belief in the existence of probable cause and is еntitled to qualified immunity.

6

Mr. Hadley's assertion that the district court failed to review de novo thе magistrate's recommendation is frivolous. The district court specifically states in its order that it "has reviewed de novo all portions of the Magistrate Judge's Recommendation to which objections have been filed." Rec., vol. I, at 10.

7

We AFFIRM the decision of the district court.

Notes

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicаta, 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 the court's General Order filed November 29, 1993. 151 F.R.D. 470