Good v. Hamilton, (10th Cir. 2005)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN FRANKLIN GOOD,

Plaintiff-Appellant,

v.

JOAN M. HAMILTON, former

Shawnee County District Attorney,

Defendant-Appellee,

and

BOARD OF COUNTY

COMMISSIONERS, SHAWNEE

COUNTY, KANSAS; RICHARD

BARTA, Shawnee County Sheriff;

JOEL W. MEINECKE, Shawnee

County Assistant District Attorney;

TONY W. RUES, Shawnee County

Assistant District Attorney; JACK

METZ; DANIEL JARAMILLO;

SCOTT HOLLADAY; PHILLIP

BLUME; DIANE GORDY,

Defendants.

No. 04-3224

(D.C. No. 01-CV-4067-RDR)

(D. Kan.)

ORDER AND JUDGMENT(*)

Before BRISCOE, ANDERSON, and

BRORBY, 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 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 John Franklin Good, a former Shawnee County, Kansas deputy

sheriff, brought suit alleging claims under 42 U.S.C. 1983 and state law against

several defendants, including Joan M. Hamilton, the former Shawnee County

District Attorney. Ms. Hamilton is the only defendant relevant to this appeal.

See Aplt. Br at 1-2; Aplt. App., Vol. V at 580 (notice of appeal). Mr. Good's

claims against her for conspiracy, malicious prosecution, and abuse of process

arise from his employment termination and two criminal prosecutions for

perjury.(1)

The district court (1) dismissed the conspiracy claim, because it had

previously granted summary judgment in favor of defendant Diane Gordy on the

same issue, Aplt. App., Vol. I at 91 n.1, 94; (2) dismissed the malicious

prosecution claim based on absolute prosecutorial immunity, and also decided

that to the extent any malicious prosecution claims remained, Ms. Hamilton was

entitled to summary judgment on them because Mr. Good failed to show that she

acted without probable cause in filing the perjury charges and thus was absolutely

immune, id. at 92-94; Good v. Bd. of County Comm'rs, 331 F. Supp. 2d

1315,

1328-29, 1330 (D. Kan. 2004); and (3) entered summary judgment against

Mr. Good on the abuse of process claim, because he had failed to show that

Ms. Hamilton acted with an ulterior motive, Good, 331 F. Supp. 2d at 1331.

Mr. Good appeals. We exercise jurisdiction under 28 U.S.C. 1291,

and we

affirm.

Mr. Good first argues that the district court erred in granting summary

judgment to Ms. Hamilton on his conspiracy claim, because she did not file a

motion for summary judgment. The district court, however, did not grant

summary judgment on the claim; rather, the court dismissed the claim. In doing

so, the district court stated as follows:

In a recent opinion, the court granted summary judgment to Gordy

because plaintiff had not provided sufficient evidence of any

agreement or concerted action between Hamilton and Gordy to

manufacture the false evidence. This ruling would, of course, also

apply to Hamilton since they are the only members of the alleged

conspiracy.

Aplt. App., Vol. I at 91 n.1.

We review the district court's dismissal of Mr. Good's conspiracy claim

under Fed. R. Civ. P. 12(b)(6) de novo. Sutton v. Utah State Sch. for Deaf &

Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Dismissal under Rule 12(b)(6) is

appropriate only when it "appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to relief." Id. (quotations

omitted).

Because only Ms. Hamilton and Ms. Gordy allegedly participated in the

conspiracy, and the district court had found no conspiracy concerning Ms. Gordy,

the court correctly concluded Ms. Hamilton could not conspire alone. Despite the

district court's prior ruling, Mr. Good failed to provide any evidence rebutting or

in any way calling that ruling into doubt. Accordingly, we conclude the district

court did not err in dismissing the conspiracy claim against Ms. Hamilton.(2)

Next, Mr. Good argues that the district court should not have dismissed or

granted summary judgment in Ms. Hamilton's favor on his claims of malicious

prosecution and abuse of process. He contends, without further elaboration, that

Ms. Hamilton was not entitled to absolute immunity for filing both perjury

actions against him because she was a complaining witness for each action. He

also contends, without specification, that there were many factual issues in

dispute.

Mr. Good's appellate arguments are conclusory and undeveloped. As such,

they are insufficient for us to consider. Cf. Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 679 (10th Cir. 1998) ("Arguments inadequately briefed in the

opening brief are waived, . . . and bald assertions in briefs that there are genuine

issues of material fact are insufficient to merit reversal of summary judgment);

Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (deciding that

where

appellant "fail[ed] to frame and develop an issue," there was insufficient basis to

invoke appellate review); Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1

(10th Cir. 1992) (deciding that issue mentioned on appeal, but not addressed, is

waived), modified on other grounds on reh'g, 995 F.2d 992 (10th Cir. 1993).

Nonetheless, we have examined the appellate briefs, Mr. Good's appendix,

and the applicable law and have reviewed the district court's decisions de novo,

see Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (summary

judgment); Sutton, 173 F.3d at 1236 (dismissal). We affirm the decisions for

substantially the same reasons stated by the district court in its Memorandums and

Orders filed April 22, 2002, Aplt. App., Vol. I at 87, and May 19, 2004, Good,

331 F. Supp. 2d at 1327-29, 1330-31.

The judgment of the district court is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

1. This case has a complicated and

lengthy factual background. Because the

parties are familiar with the facts, we will not set them forth here. See Good v.

Bd. of County Comm'rs, 331 F. Supp. 2d 1315, 1320-23 (D. Kan. 2004)

(discussing undisputed facts).

2. Mr. Good argues that the conspiracy

claim was both a § 1983 claim and a

state-law tort-of-outrage claim. Aplt. Br. at 1. In the district court, however, he

abandoned the outrage claim. Aplt. App., Vol. II at 125 n.1, 161. And because

he only lists, but does not argue this issue in his brief, it is waived. See

Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990).

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