Goad v. Town of Meeker, 070116 FED10, 15-6085

Docket Nº:15-6085
Opinion Judge:Gregory A. Phillips Circuit Judge.
Party Name:JAMES GOAD, Plaintiff - Appellant, v. TOWN OF MEEKER; SAMUEL D. BYRD, Defendants-Appellees.
Judge Panel:Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges. HARTZ, Circuit Judge, concurring:
Case Date:July 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

JAMES GOAD, Plaintiff - Appellant,


TOWN OF MEEKER; SAMUEL D. BYRD, Defendants-Appellees.

No. 15-6085

United States Court of Appeals, Tenth Circuit

July 1, 2016

D.C. No. 5:14-CV-00282-HE (W.D. Okla.)

Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.


Gregory A. Phillips Circuit Judge.

James Goad sued the Town of Meeker and Meeker Police Chief Samuel D. Byrd (the Defendants), asserting federal-civil-rights and state-law claims after Chief Byrd obtained an arrest warrant based on Goad's allegedly making a false statement to Meeker police. The district court granted summary judgment to the Defendants, and Goad appeals. We first conclude that Goad has waived review of some of his claims. For Goad's other claims, we conclude that the district court did not err in considering information outside Chief Byrd's arrest-warrant application in its probable-cause determination. We hold that, with that information, probable cause supported the charge against Goad and the resulting seizure. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


A. Goad and the Meeker Police Department

Even before a dispute with police in which Goad claimed ownership of a pawnshop-which was the false statement underlying his charged crime-Goad had a history of conflict with the Meeker Police Department. On June 4, 2012, Goad had a dispute with Meeker Police Officer Sean Sugrue. While on traffic patrol, Officer Sugrue had parked his police car in front of Meeker Supply and Pawn-a pawnshop that Goad operated with his brother, Gerald Goad. Officer Sugrue's car was blocking the pawnshop's entrance when Goad arrived. Although the pawnshop was then closed, Goad told Officer Sugrue that he owned the pawnshop and that the officer needed to move the police car because Goad was expecting a delivery. Officer Sugrue refused to move, and Goad told Officer Sugrue that he was going to raise the issue with the city manager. Soon after this, Goad drove to Meeker City Hall to voice his grievances. When Officer Sugrue saw Goad heading toward City Hall, Officer Sugrue decided to follow so that he could meet with the town manager to explain his side of the story. Two days later, on June 6, 2012, Goad filed a citizen's complaint against Officer Sugrue. Chief Byrd, who was then Meeker's Assistant Chief of Police, investigated the complaint and issued verbal and written warnings to Officer Sugrue.

On February 16, 2013, eight months later, Officer Sugrue stopped Goad for driving 45 mph in a 35-mph zone.[1] Goad hired an attorney to defend him, and, on March 6, 2013, Goad's attorney requested Officer Sugrue's personnel files.

B. The Arrest-Warrant Application and Criminal Charge

On March 7, 2013, a local prosecutor working for Lincoln County (where Meeker is located) filed a criminal complaint against Goad for making a false statement, which was accompanied by Chief Byrd's arrest-warrant application. In the application, Chief Byrd declared that Goad had falsely sworn in an earlier citizen's complaint against Officer Sugrue that Goad owned the pawnshop. Chief Byrd found Goad's claim inconsistent with Goad's status as a convicted felon. Based on the arrest-warrant application, a Lincoln County District Court judge found probable cause to issue the arrest warrant. When Goad learned about the arrest warrant, he turned himself in at the Lincoln County Jail and was booked and released. On August 7, 2013, the local prosecutor moved to dismiss the charge, simply deeming dismissal to be "in the best interest of justice." Appellant's App. vol. 3 at 570. That same day, the state court granted the motion and dismissed the case without prejudice.

C. Goad's Lawsuit

On January 6, 2015, Goad filed a federal lawsuit against the Defendants, 2alleging five claims for relief: (1) various civil-rights violations under 42 U.S.C. § 1983, (2) First Amendment retaliation, (3) malicious prosecution and abuse of process, (4) false arrest and unreasonable seizure, and (5) intentional infliction of emotional distress.3

The Defendants moved for summary judgment. Addressing Goad's first four claims, the Defendants argued that Goad had failed to present any evidence to support those claims. The Defendants also contended that Chief Byrd had probable cause to obtain the arrest warrant. In doing so, the Defendants relied on information beyond that which Chief Byrd had included in the arrest-warrant application.

In response, Goad disputed that probable cause supported the arrest warrant and contended that, in arguing for probable cause, the Defendants were limited to the information contained within the four corners of the arrest-warrant application. Goad then recited the allegations Chief Byrd made in the arrest-warrant application, argued that some of Chief Byrd's statements were false, [4] argued that those statements should be removed from consideration, and argued that the remaining facts failed to support a probable-cause finding that he had committed a crime. This being so, Goad argued that his seizure resulting from the arrest warrant was unreasonable under the Fourth Amendment.

The district court granted summary judgment for the Defendants on all of Goad's claims. In its order, the district court noted that "the question is not whether Byrd's written [arrest-warrant] application was sufficient to support a finding of probable cause, but is rather whether Byrd had probable cause for the charge at all." Appellant's App. vol. 3 at 807 n.9 (emphasis in original). Considering all of the information that Chief Byrd knew when he applied for the arrest warrant, the district court concluded that there was probable cause to believe that Goad had violated Okla. Stat. tit. 21, § 453 (2015), by making a false statement to law enforcement. Goad now appeals.


On appeal, Goad argues that the district court erred in its probable-cause analysis by considering information beyond what Chief Byrd included within the four corners of the arrest-warrant application. In addition, Goad argues that the district court erred by concluding that he had confessed three of the First Amendment civil- rights violations in his first claim for relief (including his rights to free speech and to petition the government for redress of grievances).5

For the following reasons, we conclude that Goad has waived some of his claims. For Goad's other claims, we conclude that, in evaluating whether Goad's voluntary surrender was an unreasonable seizure, the district court was free to consider in its probable-cause analysis all of the information that Chief Byrd knew, and not just the information in Chief Byrd's arrest-warrant application. We also conclude that probable cause supported the false-statement charge against Goad.

A. Standard of Review

We review de novo a district court's grant of summary judgment. Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005). Summary judgment is appropriate where the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "To avoid summary judgment, the nonmovant must make a showing sufficient to establish an inference of the existence of each element essential to the case." Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The nonmovant "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

B. Waiver

Before considering the merits, we address whether Goad has preserved all of his claims by raising them in the district court and to us.6 In response to the Defendants' summary-judgment motion, Goad argued that Chief Byrd's arrest-warrant application failed to establish probable cause that he had committed the charged crime. And after limiting the available facts to those within the four corners of the arrest-warrant application, Goad argued that two of Chief Byrd's statements were false, warranting their removal from the probable-cause determination. See Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996) (noting that probable cause must support an arrest warrant and determining probable cause by setting aside false information from an affidavit and including material, omitted information in the affidavit). Similarly, Goad argued that the Defendants had not met the Rule 56 standard for summary judgment for Goad's First Amendment-retaliation claim.

An appellant waives a claim if he fails to raise it in the district court and then fails "to argue for plain error and its application on appeal." Campbell v. City of Spencer, 777 F.3d 1073, 1080 (10th Cir. 2014). And even for claims raised in the district court, a party waives a claim if he does not raise it in his opening brief-even if he later raises it in his reply brief. Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011).7 Under this rule, Goad has not waived his unreasonable-seizure, malicious-prosecution, abuse-of-process, false-arrest, and First Amendment-retaliation claims. By arguing against the district court's probable-cause determination, Goad has preserved review of those claims on appeal.

But Goad has waived his claims unrelated to probable cause. First, Goad has not addressed on appeal his intentional-infliction-of-emotional-distress or substantive-due-process claims. Because he has failed to mention those two claims in his opening brief, we will not consider them. See Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (concluding that an appellant waived claims that she did not address in her opening brief). Goad has also...

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