Thomas Mink v. Susan Knox, 08-1250.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation613 F.3d 995
Docket NumberNo. 08-1250.,08-1250.
PartiesThomas MINK, Plaintiff-Appellant, v. Susan KNOX, a Deputy District Attorney working for the 19th Judicial District Attorney's Office, in her individual capacity, Defendant-Appellee.
Decision Date19 July 2010

613 F.3d 995

Thomas MINK, Plaintiff-Appellant,
Susan KNOX, a Deputy District Attorney working for the 19th Judicial District Attorney's Office, in her individual capacity, Defendant-Appellee.

No. 08-1250.

United States Court of Appeals,Tenth Circuit.

July 19, 2010.

613 F.3d 996


613 F.3d 997


613 F.3d 998

Marcy G. Glenn of Holland & Hart LLP, Denver, CO, (A. Bruce Jones of Holland & Hart LLP, Denver, CO, and Mark Silverstein of American Civil Liberties Union Foundation of Colorado, Denver, CO, with her on the briefs), for Plaintiff-Appellant.

Andrew D. Ringel (David R. Brougham with him on the brief) of Hall & Evans, L.L.C., Denver, CO, for Defendant-Appellee.

Before O'BRIEN, SEYMOUR and GORSUCH, Circuit Judges.

SEYMOUR, Circuit Judge.

Thomas Mink appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint against Susan Knox, a deputy district attorney, on qualified immunity grounds. We reverse.


Mr. Mink, a student at the University of Northern Colorado (“UNC”), created a fictional character, “Junius Puke,” for the editorial column of his internet-based journal, The Howling Pig. 1 Mink v. Suthers, 482 F.3d 1244, 1249 (10th Cir.2007), cert. denied, 552 U.S. 1165, 128 S.Ct. 1122, 169 L.Ed.2d 949 (2008) (“ Mink I ”). The editorial column displayed altered photographs of Junius Peake, a UNC professor, wearing dark sunglasses and a Hitler-like mustache. Id. at 1249. Junius Puke's editorial column addressed subjects on which Mr. Peake would be unlikely to write, in language he would be unlikely to use, asserting views that were diametrically opposed to Mr. Peake's. See id.

Mr. Peake, who was not amused, contacted the Greeley police, who started investigating a potential violation of Colorado's criminal libel statute, Colo.Rev.Stat. § 18-13-105. See Mink v. Knox, 566 F.Supp.2d 1217, 1220 (D.Colo.2008) (“ Mink II ”). In conformance with

613 F.3d 999

Colorado Revised Statute § 20-1-106.1, the detective in charge prepared a search warrant affidavit to submit to the office of the district attorney for legal review. The deputy district attorney, Susan Knox, reviewed and approved the search warrant affidavit, which was identical to the warrant with respect to the eleven paragraphs listing the items to be seized. The search warrant and affidavit were both attached to Mr. Mink's amended complaint, and are attached to this opinion as Exhibits A and B. 2 The affidavit and warrant were presented to and approved by a magistrate judge. The Greeley police then searched the home where Mr. Mink lived with his mother and confiscated their personal computer, as well as written materials referencing The Howling Pig. See Mink I, 482 F.3d at 1249.

Mr. Mink and his mother subsequently filed suit in federal district court against the City of Greeley, Colorado, the district attorney, Detective Ken Warren, and a “John Doe” assistant district attorney, seeking damages for the search and seizure, among other things. The district court granted Mr. Mink's motion for a temporary restraining order and ordered the City of Greeley to return “to the Plaintiffs the computer, and all contents thereof, seized following the search of Plaintiffs' home.” Id. at 1250 (quoting Dist. Ct. Order, Jan. 9, 2004, at 1). Thereafter, the district attorney issued a written “No File” decision, concluding that the statements contained in The Howling Pig could not be prosecuted under the Colorado criminal libel statute.

Mr. Mink then amended his complaint, removing his mother as a plaintiff and adding Ms. Knox as a defendant. 3 The district court granted Ms. Knox's motion to dismiss the suit in its entirety, holding in part that Mr. Mink's constitutional claims against Ms. Knox were barred by absolute immunity. We reversed, determining that

a prosecutor is entitled to absolute immunity for those actions that cast him in the role of an advocate initiating and presenting the government's case. Absolute immunity, however, does not extend to those actions that are investigative or administrative in nature, including the provision of legal advice outside the setting of a prosecution.

Id. at 1261-62. We concluded that Ms. Knox “was not wearing the hat of an advocate,” id. at 1262, when she reviewed the affidavit in support of the warrant, and “thus, is not entitled to absolute prosecutorial immunity.” Id. at 1263. Nevertheless, we noted that Ms. Knox “may be entitled to qualified immunity if she reasonably concluded probable cause existed to support the warrant application, or that the application of the Supreme Court's First Amendment cases to the criminal libel statute was not clearly established under the circumstances here.” Id.

On remand the district court granted Ms. Knox's motion to dismiss the amended complaint, holding that (1) “a reasonable official in Knox's position could believe that the statements in The Howling Pig were not protected statements under the First Amendment-and, accordingly, that Plaintiff's actions in publishing such statements could subject him to criminal prosecution under the Colorado libel statute,” and (2) although the search warrant violated the Fourth Amendment's particularity

613 F.3d 1000

requirement, it was not clearly established that Ms. Knox's authorization of the search warrant affidavit lacking particularity violated the Fourth Amendment. Mink II, 566 F.Supp.2d 1217, 1223-24, 1228-29. The district court concluded that Ms. Knox was entitled to qualified immunity.

On appeal, Mr. Mink asks us to decide whether the district court erred when it dismissed,

on the basis of qualified immunity, Mr. Mink's claim alleging an unlawful search and seizure in violation of the Fourth Amendment, where the search lacked probable cause because clearly-established First Amendment law protected Mr. Mink's speech, and because the overbroad affidavit and warrant violated clearly-established Fourth Amendment law[.]

Aplt. Br. at 2.


“[F]ederal courts engage in de novo review when mulling defamation issues that are tinged with constitutional implications.” Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127 (1st Cir.1997). “This requirement of independent appellate review is not a procedural directive, but, rather, ‘a rule of federal constitutional law’ that ‘reflects a deeply held conviction that judges ... must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.’ ” Id. (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 510-11, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

To determine whether a motion to dismiss was properly granted, we apply a plausibility standard to ascertain whether the complaint includes enough facts that, if assumed to be true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). See also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-1224 (10th Cir.2009). We accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party, here the plaintiff. See Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir.2008); Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir.2008).

We also review de novo the district court's decision regarding qualified immunity. Archuleta, 523 F.3d at 1282. “[G]overnment officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 1282-83 (quoting Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). “Once the qualified immunity defense is asserted, ... the plaintiff must demonstrate that the defendant's actions violated a constitutional or statutory right” and that “the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue.” 4 Id. In determining whether a constitutional right was clearly established, we look at the specific context of the case. Bowling v. Rector, 584 F.3d 956, 964 (10th Cir.2009).

613 F.3d 1001

A plaintiff can demonstrate that a constitutional right is clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits. There need not be precise factual correspondence between earlier cases and the case at hand, because general statements of the law are not inherently incapable of giving fair and clear warning. The right must only be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

Archuleta, 523 F.3d at 1283 (internal citations, quotation marks, and alterations omitted).

In dismissing Mr. Mink's amended complaint, the district court considered whether: (1) there was a causal connection between Ms. Knox's actions and the alleged violation of Mr. Mink's constitutional rights; (2) Mr. Mink's constitutional rights were violated; and (3) the violated constitutional rights were clearly established at the time the violation occurred. We address each of these questions in turn.

The Causal Connection

Mr. Mink alleged that Ms. Knox caused the issuance of a search warrant that lacked probable cause and particularity, thereby causing a violation of his Fourth Amendment rights. The district court held that in order to recover on this claim, Mr. Mink was required to allege Ms. Knox's direct participation in the constitutional violation, and that he had failed to do so:

Plaintiff does not, however, allege that Knox issued the

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