Deherrera v. Eddy, 101420 FED10, 19-8066

Docket Nº:19-8066
Opinion Judge:Harris L Hartz. Circuit Judge.
Party Name:MARIA ISELA DEHERRERA, Plaintiff - Appellant, v. OFFICER JIM EDDY, in his individual capacity; SERGEANT MATTHEW SOLBERG, in his individual capacity, Defendants - Appellees, and BRIAN KOZAK, individually and in his official capacity as Chief of Police; OFFICER JIM EDDY, in his official capacity; SERGEANT MATTHEW SOLBERG, in his official capacity...
Judge Panel:Before HARTZ, McHUGH, and EID, Circuit Judges.
Case Date:October 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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MARIA ISELA DEHERRERA, Plaintiff - Appellant,

v.

OFFICER JIM EDDY, in his individual capacity; SERGEANT MATTHEW SOLBERG, in his individual capacity, Defendants - Appellees,

and

BRIAN KOZAK, individually and in his official capacity as Chief of Police; OFFICER JIM EDDY, in his official capacity; SERGEANT MATTHEW SOLBERG, in his official capacity; STEVE PALSO, an individual; LIPSEY COMMUNICATIONS, LLC, an authorized Sprint Retailer, DBA Connectivity Source; CCT WIRELESS, INC., an authorized Sprint Retailer; SPRINT COMMUNICATIONS COMPANY, LP, Defendants.

No. 19-8066

United States Court of Appeals, Tenth Circuit

October 14, 2020

(D.C. No. 2:19-CV-00111-SWS) (D. Wyo.)

Before HARTZ, McHUGH, and EID, Circuit Judges.

ORDER AND JUDGMENT [*]

Harris L Hartz. Circuit Judge.

Plaintiff Maria Isela DeHerrera appeals the district-court order dismissing under Fed.R.Civ.P. 12(b)(6) her 42 U.S.C. § 1983 claims against Officer Jim Eddy and Sergeant Matthew Solberg in their individual capacities for violation of her rights under the Fourth Amendment.1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Because the district court resolved the case under Rule 12(b)(6), we take the facts from Plaintiff's complaint, accepting as true all well-pleaded nonconclusory factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). We also consider two additional documents-a police report and a witness statement. They were relied on by the district court because their authenticity is not challenged and they are referred to in the complaint and central to the claim. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (noting propriety of the use of such documents in resolving motion under Rule 12(b)(6)). Moreover, on appeal neither party challenges the district court's reliance on them.

Thus, we assume the truth of the following relevant facts: Using an online platform and identifying herself as "Isela Maria," Plaintiff sold what she described as a working Sprint iPhone for $400. The woman who purchased the phone (the purchaser) took it to a Sprint store to have it activated. Before activating a phone for a new owner, a Sprint employee manually enters the phone's International Mobile Equipment Identity (IMEI) number into a Sprint computer program-"a diagnostic tool, called the Sprint Network Analysis, foreign device management program" that "enable[s] employees . . . to determine . . . whether a particular phone is eligible for activation." Aplt. App. at 22, ¶ 70 (internal quotation marks omitted). A store employee entered what he thought was the phone's IMEI number into the diagnostic program, and the program flagged the phone as a "locked insurance claim phone." Id. at 10, ¶ 6 (internal quotation marks omitted). The program's response led the employee to believe Plaintiff "had committed a fraud." Id. at 23, ¶ 77. The purchaser contacted Plaintiff, who denied wrongdoing. The purchaser then called the Cheyenne, Wyoming police department.

Officer Eddy responded to a call from the store, where the purchaser and employee reported their understanding that the phone was a "locked insurance claim phone" ineligible for activation. Id. at 10, ¶ 6 (internal quotation marks omitted). Officer Eddy took no immediate action.

Later that day, Plaintiff called the store. She initially told the employee she had a Sprint account but when asked for her account number, she admitted she had never been a Sprint customer. The employee later sent Officer Eddy a written statement reporting Plaintiff's inconsistent statements about whether she was a Sprint customer and providing a screenshot of the diagnostic program result. The screenshot showed an IMEI number that had 13, not 15, digits. Officer Eddy logged the phone into evidence, noting the 15-digit IMEI number.

Officer Eddy attempted to contact Plaintiff using the phone number the purchaser had provided for her, but she did not answer. Because she did not use her full name when she listed the phone for sale, Officer Eddy did not yet know her identity. At his request another officer posted information about her on the department's Facebook page, identifying her as a suspect and asking for help locating her. Soon thereafter, she called the department, identified herself, and told the officer with whom she spoke (Officer Womack) that she had had an account with Sprint, had made an insurance claim for a damaged phone, cancelled her account with Sprint, and sometime later sold the replacement phone. The department then took down the Facebook post.

Plaintiff later went to the police station, but she did not have an appointment and Officer Eddy was unavailable. When Sergeant Solberg called her that evening to address her concerns about the Facebook posting, she told him she was innocent and that she had a receipt from when she purchased the phone. He told her to return the purchaser's money and, according to Plaintiff, said he did not care about the receipt.

Officer Eddy recommended to prosecutors that Plaintiff be charged with the misdemeanor offense of obtaining property by false pretenses. She was then arrested, charged, and held in jail for two days.

At the suggestion of her criminal-defense attorney, Plaintiff took the box the phone came in, which listed the phone's IMEI number, to a Sprint store. The store manager ran the number through the diagnostic program, which reported that the phone could be activated. Plaintiff showed the manager the screenshots of the previous diagnostic reports flagging the phone as a fraud, and he determined that the system had produced inconsistent results because the store employee had omitted the last two digits of the 15-digit IMEI number when he typed it into the...

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