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Warnick v. Cooley

United States Court of Appeals, Tenth Circuit

July 9, 2018

SILVAN WARNICK, Plaintiff - Appellant,


          Mark L. Shurtleff, (Steven A. Christensen, Christensen, Young & Associates, PLLC, with him on the opening brief), Shurtleff Law Firm, PC, Sandy, Utah, for Appellant.

          Jennifer Bailey, Deputy District Attorney (Sim Gill, Salt Lake County District Attorney, and David Quealy, Deputy District Attorney, with her on the brief), Salt Lake County District Attorney's Office, Salt Lake City, Utah, for Appellees.

          Before TYMKOVICH, Chief Judge, LUCERO, and HARTZ, Circuit Judges.


         Silvan Warnick brings this 42 U.S.C. § 1983 malicious prosecution case and a number of state law tort claims against several Salt Lake County prosecutors and investigators. He claims he was falsely accused of tampering with evidence that led to the filing of criminal charges against him that were later dismissed.

         The district court granted the defendants' motion to dismiss, and Warnick appealed. We affirm. Like the district court, we find that absolute prosecutorial immunity precludes Warnick from suing the prosecutors for filing charges, and that Warnick has failed to plead the rest of his allegations with sufficient factual specificity.

         I. Background

         We take all facts from Warnick's complaint, accepting them as true for purposes of our de novo review. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).

         Silvan Warnick served as a constable in Salt Lake County. A constable is the local vernacular for a county peace officer. Daniel Herboldsheimer worked for Warnick as a deputy constable. On August 24, 2011, Herboldsheimer was serving as bailiff for the South Salt Lake City Justice Court when a criminal defendant attempted to flee. Herboldsheimer pursued, and eventually both Herboldsheimer and Scott Hansen, another deputy constable, apprehended the defendant.

         After the fact, Herboldsheimer filed an incident report describing what had happened. According to the complaint, Warnick told Herboldsheimer that his report did not comport with county policy because it contained hearsay observations from others, and not Herboldsheimer's direct observations. In particular, Herboldsheimer's report made incorrect statements about Hansen's use of force to subdue the fleeing defendant.

         A. The Charges

         This case concerns what happened next. As Warnick alleges, Herboldsheimer took offense to Warnick's rebuke. Soon afterward, Herboldsheimer contacted the Salt Lake County Attorney's Office and falsely complained that Silvan Warnick and his staff member, Alanna Warnick (Silvan Warnick's wife), had instructed him to falsify his incident report. In addition, Herboldsheimer told the prosecutors that Warnick had made changes to his report-something he took to be falsification.

         Three prosecutors were later tasked with investigating this complaint: Bradford Cooley, Ethan Rampton, and Jeffrey Hall. Prosecutor Hall also asked Robin Wilkins and Mark Knighton-investigators for the County-to look into Herboldsheimer's complaint. Warnick contends the prosecutors and investigators together conducted an inadequate investigation even though they had a duty to investigate. He also claims they "encourage[d]" Herboldsheimer to provide "false information." App. 9 ¶ 26. All the parties involved "knew or should have known that the information provided by . . . Herboldsheimer was false and that Plaintiff Silvan Warnick had not committed a crime." Id.

         All the while knowing of Warnick's innocence, the prosecutors and investigators "conspired to file charges" against him. Id. ¶ 27. And, in fact, the prosecutors did bring charges-twice. Prosecutor Cooley first brought charges for witness and evidence tampering against both Silvan and Alanna Warnick. At this first hearing on March 13, 2012, the court dismissed one of the charges against Silvan Warnick for a reason unrelated to the merits, and Prosecutor Cooley moved to dismiss the other charge voluntarily. Warnick alleges Prosecutor Cooley moved to dismiss the charge because he "suspected that the Judge would dismiss that charge as well, because there was insufficient evidence to support the State's burden of proof." Id. 11 ¶ 33. As for Alanna Warnick-office manager and wife to Silvan Warnick-the court dismissed the charges for lack of probable cause.

         Some time later, the prosecutors again brought the same witness and evidence tampering charges against Silvan Warnick. At the probable cause hearing for this second round of charges, the court dismissed the charges for lack of probable cause.

         Though both charges were ultimately dismissed, Warnick did not go unscathed. Because of those charges, Warnick contends he lost his position as a constable and his reputation was damaged within the law enforcement community.

         B. The Lawsuit

         Silvan Warnick then sued Herboldsheimer, the prosecutors, and the investigators in the District of Utah.[1] He sought relief for (1) malicious prosecution under § 1983, [2] (2) conspiracy to violate his constitutional rights under ยง 1985, (3) malicious prosecution under state law, (4) negligence, (5) conspiracy, (6) defamation, (7) negligent ...

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