Eden v. Voss ( 2004 )

  •                                                                           F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               JUL 9 2004
                                FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
        JAMES W. EDEN,
        v.                                                  No. 03-2030
                                                    (D.C. No. CIV-02-423-JP/LFG)
        LANCE VOSS; PETER MAGGIORE;                           (D. N.M.)
        UNKNOWN DOES 1-10,
                                ORDER AND JUDGMENT            *
    Before EBEL , HENRY , and MURPHY , 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          This order and judgment is not binding precedent, except under the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.
    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 James W. Eden, proceeding pro se, brought a civil rights action
    under 42 U.S.C. § 1983 against defendants Peter Maggiore, the Secretary of the
    New Mexico Environment Department (NMED); Ana Marie Ortiz, an attorney
    with NMED; and two private corporations, Eberline Analytical Corp. and
    Rinchem Co., Inc.   1
                            based upon an application for an administrative search warrant
    to search Mr. Eden’s property for hazardous waste materials and the subsequent
    search of the property. Mr. Eden asserted that Mr. Maggiore and Ms. Ortiz
    conspired to violate his civil rights, Ms. Ortiz prepared the application for the
    administrative search warrant in violation of his civil rights, and Eberline and
    Rinchem unreasonably searched and seized his property without due process and
    engaged in trespass and conversion. The district court granted Eberline’s,
    Ms. Ortiz’s and Mr. Maggiore’s motions to dismiss for failure to state claims for
    relief under Fed. R. Civ. P. 12(b)(6) and granted Rinchem’s motion for summary
    judgment under Fed. R. Civ. P. 56.
          Mr. Eden also named Lance Voss, an Environment Specialist with NMED,
    and Does 1-10 as defendants. The district court dismissed Mr. Voss without
    prejudice, because he was never properly served. The court also dismissed Does
    1-10 without prejudice, because Mr. Eden had not identified them and all claims
    against the other defendants had been dismissed.
          The primary questions we address in this appeal are (1) did the district
    court err in taking judicial notice of matters of public record when granting
    Eberline’s motion to dismiss; (2) did the district court err in holding that
    Rinchem, a private party, is entitled to qualified immunity for its search and
    seizure of Mr. Eden’s property; (3) did the district court err in holding that
    Ms. Ortiz is entitled to absolute immunity for filing the application for the
    administrative search warrant; (4) did the district court err in holding Mr. Eden
    failed to plead sufficient facts to set forth supervisor liability and conspiracy
    claims against Mr. Maggiore; (5) should Mr. Eden be allowed to amend his
    complaint; and (6) did the district court err in awarding attorney’s fees and costs
    under Fed. R. Civ. P. 16(f), after specifically declining to award a sanction. We
    liberally construe Mr. Eden’s pro se pleadings.   See Haines v. Kerner , 
    404 U.S. 519
    , 520-21 (1972). In doing so, we affirm in part and vacate in part the
    dismissal of Mr. Maggiore, affirm in part and vacate in part the grant of summary
    judgment in favor of Rinchem, reverse the dismissal of Eberline, reverse the
    dismissal of Ms. Ortiz, and vacate the award of costs and attorney’s fees under
    Rule 16(f). We remand for further proceedings concerning Eberline, Rinchem,
    Mr. Maggiore, Ms. Ortiz, and the award of costs and attorney’s fees.
    I. FACTS
           Our review of the district court’s rulings as to the specific defendants
    requires us to view the allegations and evidence in the light most favorable to
    Mr. Eden. See Witt v. Roadway Express , 
    136 F.3d 1424
    , 1428 (10th Cir. 1998).
    Therefore, we present the facts in the light most favorable to him, drawing all
    reasonable inferences in his favor.   See id.
           Mr. Eden owns two parcels of property in Albuquerque, New Mexico. The
    City of Albuquerque attempted to work with Mr. Eden to help him clean up the
    trash on his property. While doing so, City employees found possible hazardous
    waste on the property and contacted NMED. After Mr. Eden failed to respond to
    NMED’s request to inspect the property for hazardous waste, Ms. Ortiz prepared
    an application for an administrative warrant to search the property in order to
    determine if Mr. Eden was storing or transporting hazardous waste. Mr. Voss
    signed the application and submitted it to a state court judge. The judge issued an
    inspection and seizure order and an administrative search warrant. The warrant    2
    permitted NMED and its agents, accompanied by law enforcement officers, to
    inspect Mr. Eden’s property to determine if hazardous waste was being stored,
           The warrant was attached to Mr. Eden’s complaint, along with the
    application, the supporting affidavits, the inventory compiled after Rinchem
    observed the property at the City of Albuquerque’s request, and the letter NMED
    sent to Mr. Eden requesting permission to inspect the property.
    transported or managed on the premises in violation of N.M. Stat. Ann. §§ 74-4-1
    through 74-4-14, the New Mexico Hazardous Waste Act, and, if so, whether the
    waste posed a hazard to public health, safety and the environment. The warrant
    also permitted the inspectors to sample unknown materials and to seize any
    hazardous waste likely to pose an imminent hazard to human health and safety.
          Pursuant to the warrant, Mr. Voss, representatives of Eberline and
    Rinchem, and Does 1-10 entered Mr. Eden’s property. While there, they seized
    and destroyed property. Rinchem remains in possession of the seized property.
          Following the administrative search and seizure, Mr. Eden filed his
    complaint in district court denying having any connection to hazardous waste. In
    his first cause of action, the conspiracy claim against Ms. Ortiz and
    Mr. Maggiore, Mr. Eden alleged that Ms. Ortiz should not have prepared the
    application for the inspection warrant because she either knew or should have
    known there was no basis for any hazardous waste claim made by Mr. Voss,
    NMED had no jurisdiction, the warrant application was based on improper
    standards and the state court had no jurisdiction to issue a search warrant broader
    than permitted by the Hazardous Waste Act. He also alleged that defendants
    either knew or should have known that “entering, searching, and seizing [his]
    property through obtaining a bogus search warrant would violate [his] rights
    under the Fourth and Fourteenth Amendments.” R. doc. 1 at 3. Mr. Eden
    contended that Mr. Maggiore “approved and ratified” Mr. Voss’ signing of the
    affidavit for the administrative search warrant, Ms. Ortiz’s preparation of the
    application, and both of their use of an improper legal standard.   Id. In his second
    cause of action, Mr. Eden asserted Eberline and Rinchem violated his Fourth,
    Fifth and Fourteenth Amendment rights by unreasonably searching, destroying
    and/or seizing his property and depriving him of his property without due process.
    He maintained that the warrant was issued without probable cause and was
    invalid, because it was general and gave those executing it complete discretion to
    search and seize. He further complained that defendants destroyed his property
    while executing the warrant and mostly seized ordinary items available for
    purchase at grocery, hardware, automotive parts and home improvement stores.
    In his third cause of action, Mr. Eden alleged state-law claims that Eberline and
    Rinchem trespassed on and converted his property without his consent.     3
           The district court granted (1) Eberline’s motion to dismiss with prejudice
    on the ground that Eberline was not involved in the search and, therefore, was
    improperly joined as a party under Fed. R. Civ. P. 21; (2) Rinchem’s motion for
    summary judgment determining that Rinchem was entitled to qualified immunity;
    (3) Ms. Ortiz’s motion to dismiss concluding she was entitled to absolute
          In his fourth cause of action, Mr. Eden sought special damages for
    attorney’s fees for his efforts in bringing this lawsuit.
    immunity; and (3) Mr. Maggiore’s motion to dismiss because the doctrine of
    respondeat superior did not apply and the conspiracy claim lacked specificity.
          A. EBERLINE
          Mr. Eden argues that the district court erred in dismissing Eberline pursuant
    to Rule 12(b)(6). Specifically, he contends that the district court did not accept
    the allegations of his complaint that Eberline participated in the search of his
    property and that the district court improperly considered matters outside the
    complaint by taking judicial notice of matters of public record.
          Rinchem and Benchmark Environmental Corp. had entered into a teaming
    agreement under which Benchmark, as contractor, and Rinchem, as subcontractor,
    bid on a contract with NMED to help remediate hazardous waste environmental
    conditions.   4
                      Apparently, Benchmark and Rinchem obtained the contract. In its
    motion to dismiss, Eberline asserted that it was a separate corporation distinct
    from either Benchmark or Rinchem and had no connection to the search and
    seizure. To support the assertion, Eberline attached to its motion Corporate
    Information Inquiry reports from the New Mexico Public Regulation Commission
    indicating that Eberline, Rinchem and Benchmark are separate corporations.
           Support for this is provided by a document attached to Rinchem’s
    alternative motion to dismiss or for summary judgment. Mr. Eden does not object
    to the information contained in this document.
    Taking judicial notice of the New Mexico Public Regulation Commission’s
    records, the district court granted Eberline’s Rule 12(b)(6) motion and dismissed
    Eberline from the action with prejudice, holding that Eberline was mistakenly
    named as a defendant.
          We review the Rule 12(b)(6) dismissal de novo.          Duran v. Carris , 
    238 F.3d 1268
    , 1270 (10th Cir. 2001). Even assuming the district court properly took
    judicial notice of the existence of the public record, nothing specifically proved
    Eberline was not involved in the search, as Mr. Eden asserted. The public record
    merely stated that Eberline was a separate corporation with no legal connection to
    Benchmark or Rinchem. We do not accept the facts set forth in the public record
    as true. See Oxford Asset Mgmt. , Ltd. v. Jaharis , 
    297 F.3d 1182
    , 1188 (11th Cir.
    2002), cert. denied , 
    124 S. Ct. 205
     (2003);      Lee v. City of Los Angeles , 
    250 F.3d 668
    , 689-90 (9th Cir. 2001);   Bryant v. Avado Brands, Inc. , 
    187 F.3d 1271
    , 1278
    (11th Cir. 1999); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group
    Ltd. , 
    181 F.3d 410
    , 426-27 & n.7 (3d Cir. 1999);       Kramer v. Time Warner Inc. ,
    937 F.2d 767
    , 774 (2d Cir. 1991).   5
                                            Therefore, we remand to the district court for
           Although Eberline maintains it is a separate and distinct legal entity from
    Benchmark, an affidavit provided by Rinchem indicates Eberline was formerly
    known as Benchmark. R. doc. 5, ex. A. Mr. Eden indicates that he could present
    evidence from a state government record of Eberline’s “involvement.” Aplt. Br.
    at 11.
    further proceedings on the complaint allegations.    See Mihos v. Swift , 
    358 F.3d 91
    , 101 (1st Cir. 2004) (recognizing facts in complaint still control).
           B. RINCHEM
           Mr. Eden argues the district court erred in granting summary judgment to
    Rinchem and in deciding Rinchem was entitled to qualified immunity even though
    Rinchem is a private party. Mr. Eden asserts the district court erred by applying
    qualified immunity to Rinchem, because Rinchem presented no evidence showing
    entitlement to qualified immunity and the district court did not address whether
    qualified immunity would apply under the limited circumstances set forth in
    Richardson v. McKnight , 
    521 U.S. 399
                 We review a grant of summary judgment de novo , applying the
           same legal standard as the trial court. Summary judgment is
           appropriate when there is no genuine issue as to any material fact
           and the moving party is entitled to judgment as a matter of law.
           Fed. R. Civ. P. 56(c). We view the factual record and reasonable
           inferences therefrom in the light most favorable to the party opposing
           summary judgment.
    Eagon ex rel. Eagon v. City of Elk City   , 
    72 F.3d 1480
    , 1484 (10th Cir. 1996)
    (citation omitted).   6
           Mr. Eden makes two preliminary assertions. We reject his first assertion
    that he did not receive notice that the district court would treat Rinchem’s motion
    to dismiss as a motion for summary judgment. Rinchem’s motion was pled in the
    alternative, and Mr. Eden acknowledged this in his district court and appellate
    court filings. See R. doc. 10; Aplt. Opening Br. at 2.
          In resolving the qualified immunity issue, the district court first considered
    whether Mr. Eden alleged a deprivation of an actual constitutional right and
    concluded that Mr. Eden failed to do so.   7
                                                   In reaching this conclusion, the court
    first decided that ample evidence established probable cause to issue the search
    warrant. The court found that (1) the facts listed in the warrant application were
    sufficient to enable the state court judge to conclude that a violation of the New
    Mexico Hazardous Waste Law may be occurring, (2) the application included the
    sources for this information, (3) Mr. Voss indicated how he and NMED had
    verified the information received from the Albuquerque Police Department and
            Next, Mr. Eden challenges the district court’s consideration of the
    complaint in a separate state-court case filed by NMED against Mr. Eden. In that
    case, NMED sought injunctive relief requiring Mr. Eden to stop disposing of or
    storing hazardous waste on his property, costs for its activity concerning the
    hazardous waste, and civil and punitive damages for violating hazardous waste
    statutes and regulations. In a summary judgment context, it is appropriate for the
    district court to take judicial notice of pleadings in another case.  See, e.g. ,
    St. Louis Baptist Temple, Inc. v. FDIC , 
    605 F.2d 1169
    , 1171-72 (10th Cir. 1979).
    However, no pleadings the district court considered from this separate case appear
    in the record before us for review. Through our own efforts, we learned that the
    state case was dismissed on June 6, 2003, for lack of prosecution. This occurred
    after the district court entered its order granting summary judgment to Rinchem,
    so it was not error for the district court to consider the separate state-court action
    at the time it ruled.
           In resolving qualified immunity cases, courts first consider whether the
    plaintiff alleged a deprivation of an actual constitutional right and, if so, whether
    the plaintiff showed the right was clearly established at the time of the alleged
    violation. See Conn v. Gabbert , 
    526 U.S. 286
    , 290 (1999). Because the district
    court concluded Mr. Eden did not prove a violation of his constitutional rights,
    the court found it unnecessary to reach the second inquiry.
    Rinchem, and (4) the application and warrant specified the scope of the search,
    the time for the warrant’s execution, and the persons allowed to access the
    property. See R. doc. 29 at 11-12 (citing    Marshall v. Horn Seed Co. , 
    647 F.2d 96
    102-03 (10th Cir. 1981)). Also, the district court decided that there was no
    constitutional violation because the administrative warrant was not overbroad and,
    under the circumstances, described with sufficient particularity the items that
    could be seized. Additionally, the court determined the warrant was lawful in that
    the New Mexico Hazardous Waste Act authorizes the acts specified in the warrant
    to be carried out by NMED officers and agents. Because Rinchem acted pursuant
    to a lawful and constitutional warrant, the district court held that Rinchem did not
    violate Mr. Eden’s constitutional rights and was therefore entitled to qualified
          We agree for substantially the same reasons stated by the district court that
    Mr. Eden has failed to prove a constitutional violation for which § 1983 provides
    a remedy with respect to his claims of lack of probable cause and an overbroad
    warrant. Without a constitutional violation, Rinchem cannot be liable under
    § 1983 regardless of whether Rinchem, a private company, may assert a qualified
    immunity defense.   See Parratt v. Taylor , 
    451 U.S. 527
    , 535 (1981) (requiring
    plaintiff seeking § 1983 relief to prove both that conduct complained of was
    committed by person acting under color of state law    8
                                                               and that conduct deprived
    person of constitutional right),   overruled on other grounds by Daniels v.
    Williams , 
    474 U.S. 327
     (1986). With no constitutional violation, we need not
    address Richardson ’s applicability to these claims.
           Mr. Eden made other assertions against Rinchem. He also contended that
    the warrant was not reasonably executed and that he was denied due process
    during the deprivation of his property. The district court did not address these
    issues. We remand to the district court to allow that court to consider these
    claims in the first instance.
           In remanding, we note that contrary to the district court’s conclusion, not
    all private contractors acting under color of state law are engaged in
    governmental functions eligible for qualified immunity. In       Richardson v.
    McKnight , the Supreme Court addressed whether prison guards employed by a
    private prison management firm were entitled to qualified immunity and held they
    were not. 521 U.S. at 401. The Court limited its holding in       Richardson to “a
    private firm, systematically organized to assume a major lengthy administrative
    task . . . with limited direct supervision by the government, [which] undertakes
           There is no dispute that Rinchem’s conduct constituted state action.    See
    Scott v. Hern , 
    216 F.3d 897
    , 906 (10th Cir. 2000);   see also R., doc. 1 at 4
    (complaint assertion that Rinchem was acting under color of state law).
    that task for profit and potentially in competition with other firms.”    Richardson ,
    521 U.S. at 413. The Court specifically noted that its holding “d[id] not involve a
    private individual briefly associated with a government body, serving as an
    adjunct to government in an essential governmental activity, or acting under close
    official supervision.”   Id. ; see also Bartell v. Lohiser , 
    215 F.3d 550
    , 557 (6th Cir.
    2000) (recognizing private party closely supervised by state may assert qualified
           The record here provides no relevant facts to discern whether Rinchem was
    closely supervised by NMED and, therefore, entitled to assert qualified immunity.
    At best, the record indicates that NMED representatives were present when the
    warrant was executed. Thus, there is a genuine issue of fact whether Rinchem
    acted autonomously or under the close supervision and control of NMED. If, on
    remand, the district court concludes that Mr. Eden stated a constitutional violation
    with respect to his warrant execution and due process claims, the court must
    consider whether Rinchem is protected by qualified immunity under the test set
    forth in Richardson .
           Lastly, Mr. Eden asserts state-law conversion and trespass claims against
    Rinchem. “Conversion is the unlawful exercise of dominion and control over
    property belonging to another in defiance of the owner’s rights, or acts
    constituting an unauthorized and injurious use of another’s property, or a
    wrongful detention after demand has been made.”       Sec. Pac. Fin. Servs. v.
    Signfilled Corp. , 
    956 P.2d 837
    , 842 (N.M. Ct. App. 1998). Trespass is the
    “unauthorized entry upon the land of another.”     North v. Pub. Serv. Co. of N.M. ,
    608 P.2d 1128
    , 1129 (N.M. Ct. App. 1980). The district court granted summary
    judgment on these claims because all alleged activities by Rinchem occurred
    during the execution of a lawful warrant. We agree with the district court that
    Rinchem acted pursuant to a valid administrative search and seizure warrant.     9
    The affidavits supporting the application for the warrant set forth probable cause
    for issuance of the warrant. And the Hazardous Waste Act permitted seizure of
    hazardous wastes.   See N.M. Stat. Ann. § 74-4-4.3. Thus, there was no
    conversion or trespass by Rinchem.
          In summary, we affirm the district court’s conclusions that Mr. Eden failed
    to present a constitutional claim concerning probable cause to issue the search
    warrant and the lawfulness of the warrant. We also affirm the court’s decision
    that there was no trespass or conversion. We remand to the district court to
    consider Mr. Eden’s claims that the warrant was unconstitutionally executed and
    he was denied due process during the deprivation of his property.
           Even Mr. Eden suggests the warrant may “possibly” be valid and the
    validity of the warrant is “irrelevant,” because most items Rinchem seized were
    not listed in the warrant. Aplt. Reply Br. at 3.
           C. MS. ORTIZ
                  1. ABSOLUTE IMMUNITY
           Mr. Eden argues the district court improperly granted absolute immunity to
    Ms. Ortiz for her application for the search warrant. In granting Ms. Ortiz’s
    motion to dismiss, the district court held that her actions were within the
    prosecutorial duties of initiating an agency enforcement action and therefore
    entitled to absolute immunity. We conclude that the district court erred in
    granting Ms. Ortiz’s motion to dismiss on the ground of absolute immunity.
           We review the district court’s dismissal and its absolute immunity
    determination de novo.     See Duran , 238 F.3d at 1270 (Rule 12(b)(6) dismissal);
    Scott , 216 F.3d at 908 (absolute immunity). To decide whether Ms. Ortiz’s
    actions are entitled to absolute immunity, we apply a functional approach, looking
    at the type of function she performed; we do not consider her identity.   See Kalina
    v. Fletcher , 
    522 U.S. 118
    , 127 (1997);   Buckley v. Fitzsimmons , 
    509 U.S. 259
    , 269
    (1993). Ms. Ortiz “bears the burden of showing that such immunity is justified
    for the function in question.”   Burns v. Reed , 
    500 U.S. 478
    , 486 (1991).
                  “[S]tate attorneys and agency officials who perform functions
           analogous to those of a prosecutor in initiating and pursuing civil and
           administrative enforcement proceedings” are “absolutely immune
           from suit under section 1983 concerning activities ‘intimately
           associated with the judicial . . . process.’” Pfeiffer v. Hartford Fire
           Ins. Co. , 
    929 F.2d 1484
    , 1490 (10th Cir. 1991) (quoting    Imbler v.
           Pachtman , 
    424 U.S. 409
    , 430-31 . . . (1976)). Absolute immunity
           does not extend to actions “that are primarily investigative or
          administrative in nature,” though it “may attach even to such
          administrative or investigative activities ‘when these functions are
          necessary so that a prosecutor may fulfill his function as an officer of
          the court.’” Id. (quoting Snell v. Tunnell , 
    920 F.2d 673
    , 693
          (10th Cir. 1990)). . . . “The more distant a function is from the
          judicial process and the initiation and presentation of the state’s case,
          the less likely it is that absolute immunity will attach.” Id. (citing
          Snell , 920 F.2d at 687).
    Scott , 216 F.3d at 908-09. It is not always easy to identify acts entitled to
    absolute immunity; advocacy, however, is the determinative factor.       Rex v.
    Teeples , 
    753 F.2d 840
    , 843 (10th Cir. 1985);    see also Imbler , 424 U.S. at 431
    n.33 (recognizing it will be difficult to draw line between advocacy and other
    functions); Prince v. Hicks , 
    198 F.3d 607
    , 612 (6th Cir. 1999) (whether
    prosecutor acts as investigator or as advocate depends on specific circumstances
    of case).
          In this case, we must decide whether Ms. Ortiz’s conduct was
    administrative or investigative in nature or whether she engaged in conduct of an
    advocate. Relying on the holding in    Burns v. Reed , 
    500 U.S. 478
    , Ms. Ortiz
    argues she acted as an advocate and was entitled to absolute immunity. In         Burns ,
    the Court held that a prosecuting attorney’s participation in a probable cause
    hearing, which was held after an arrest, by appearing before the judge and
    presenting evidence to support an application for a search warrant, was entitled to
    absolute immunity. The Court reasoned that the prosecutor acted as an advocate,
    the judge’s issuance of a search warrant was a judicial act, and the prosecutor’s
    appearance at the probable cause hearing was “intimately associated with the
    judicial phase of the criminal process.” 500 U.S. at 491-92 (quotation omitted).
    Notably, however, the Burns decision concerned only the prosecutor’s
    “participation in the hearing and not . . . his conduct outside of the courtroom
    relating to the warrant.”   Id. at 487. 10
           In this case, Ms. Ortiz did not participate in the hearing. R. doc. 1, ex. A
    (indicating Mr. Voss submitted application for warrant to state-court judge).
    Rather, only at issue is her preparation and signing of the application for the
    administrative search warrant. We are convinced that absolute immunity is
    unavailable under the specific circumstances presented here.
           While we agree with Ms. Ortiz’s assertion that obtaining an administrative
    search warrant was a preliminary step before initiating civil proceedings under the
    New Mexico Hazardous Waste Act, Aplee. Br. at 29, the step was so preliminary
    as to be an investigatory and not an advocacy step. There is a difference between
    evaluating evidence in order to prepare for trial and searching for evidence that
    might give probable cause to bring an action.       See Buckley , 509 U.S. at 273;   see
    also Burns , 500 U.S. at 495 (rejecting notion that absolute immunity is expansive
           Just as the Supreme Court has not clarified whether preparation of an
    application for an administrative warrant is prosecutorial or investigative activity,
    other courts also have not definitively decided the issue. See generally
    Annotation, Immunity of Prosecutor from Suit, 67 A.L.R. Fed. 640, 652-57 (1984
    & Supp. 2003).
    enough to include any action by prosecutor that relates to ultimate decision to
    prosecute); Smith v. Garretto , 
    147 F.3d 91
    , 94 (2d Cir. 1998) (“Although all
    investigative activity could be considered in some sense to be ‘preparing for the
    initiation of judicial proceedings,’ the Supreme Court has sought to draw a line
    between those preparatory steps that a prosecutor takes to be an effective
    advocate of a case already assembled and those investigative steps taken to gather
    evidence.”) (quoting Buckley , 509 U.S. at 273). An attorney engages in an
    investigatory function if the attorney makes a “preliminary gathering of evidence
    that might ripen into a potential prosecution.”    Snell , 920 F.2d at 692 (quotation
           Ms. Ortiz’s conduct occurred before she could possibly claim to be acting
    as an advocate.   See Buckley , 509 U.S. at 275; see also Milstein v. Cooley ,
    257 F.3d 1004
    , 1011 (9th Cir. 2001) (investigating done as detective, after filing
    crime report and before empaneling grand jury, rather than as advocate, is not
    protected by absolute immunity);     Prince , 198 F.3d at 612-13 (holding prosecutor
    was not entitled to absolute immunity because investigation was not intimately
    associated with judicial phase of criminal process). She was not evaluating
    evidence already assembled.      See Buckley , 509 U.S. at 273. At most, she was
    engaged in the preliminary gathering of evidence that potentially could result in
    further NMED action against Mr. Eden.        Cf. Malley v. Briggs , 
    475 U.S. 335
    340-43, 344 n.6 (1986) (holding that police officer who applies for warrant is not
    absolutely immune from suit because applying for warrant precedes first phase of
    criminal proceedings, which is seeking indictment);      Rex , 753 F.2d at 844 (holding
    prosecutor’s interrogation of suspect was type of police work and therefore not
    subject to absolute immunity). Thus, she did not act as an advocate in preparing
    and submitting the application.
           Ms. Ortiz does not contend that she had cause to initiate an action against
    Mr. Eden before the investigation. And her later initiation of an action did not
    retroactively transform the investigative work into prosecution.     See Buckley ,
    509 U.S. at 275-76.
           Additionally, Ms. Ortiz’s actions are not absolutely immune because she is
    an agency attorney.   See id. at 273. Her title as a Special Assistant Attorney
    General and Assistant General Counsel to NMED is not dispositive to a
    consideration of whether she acted as an advocate.      See id. at 269.
           Absolute prosecutorial immunity is justified “only for actions that are
    connected with the prosecutor’s role in judicial proceedings, not for every
    litigation-inducing conduct.”    Burns , 500 U.S. at 494. We therefore hold that
    absolute immunity is unavailable to Ms. Ortiz’s activity of applying for an
    administrative search warrant, because she was acting in an investigative and not
    a prosecutorial capacity at the time of application. Accordingly, we reverse the
    district court’s grant of absolute immunity to Ms. Ortiz.
                  2. QUALIFIED IMMUNITY
           Ms. Ortiz argues that if she is not entitled to absolute immunity, she is
    entitled to qualified immunity. An attorney acting in an investigative capacity
    may be entitled to qualified immunity.      See Buckley , 509 U.S. at 273; Scott ,
    216 F.3d at 908-09. Once a defendant asserts qualified immunity, the plaintiff
    bears the burden of showing that the defendant’s conduct violated a constitutional
    right and that the right was clearly established.    Snell , 920 F.2d at 696.
           Because the district court decided Ms. Ortiz was entitled to absolute
    immunity, the court did not reach her alternative argument that she was entitled to
    qualified immunity. Mr. Eden did not address qualified immunity in either the
    district court or on appeal. Qualified immunity issues should “be resolved in the
    first instance by the trial court,” because qualified immunity is an “objective legal
    inquiry,” which is “fact-specific.”     Id. Accordingly, we remand to the district
    court to address the qualified immunity issue in the first instance.
           D. MR. MAGGIORE
           Mr. Eden argues the district court wrongly concluded the allegations of
    conspiracy against Mr. Maggiore were insufficient. He also argues that his
    allegation that Mr. Maggiore “approved and ratified” Ms. Ortiz’s and Mr. Voss’
    actions sufficiently alleged both a conspiracy by Mr. Maggiore with Mr. Voss and
    Ms. Ortiz to violate his rights and supervisory liability because Mr. Maggiore was
    in a supervisory position over Mr. Voss and Ms. Ortiz. The district court decided
    that the doctrine of respondeat superior did not apply, that Mr. Eden did not
    allege that Mr. Maggiore caused Ms. Ortiz to violate Mr. Eden’s constitutional
    rights, and that the bare allegation that Mr. Maggiore approved Ms. Ortiz’s
    actions failed to state a claim upon which relief could be granted under Rule
    12(b)(6). Also, the court dismissed the conspiracy claim because it lacked the
    requisite specificity to state a claim.
           As we noted before, we review the district court’s Rule 12(b)(6) dismissal
    de novo. Duran , 238 F.3d at 1270. “The court’s function on a Rule 12(b)(6)
    motion is not to weigh potential evidence that the parties might present at trial,
    but to assess whether the plaintiff’s complaint alone is legally sufficient to state a
    claim for which relief may be granted.”      Dubbs v. Head Start, Inc. , 
    336 F.3d 1194
    , 1201 (10th Cir. 2003) (quotation omitted),       cert. denied , 
    124 S. Ct. 1411
    (2004). “Dismissal is inappropriate ‘unless it appears beyond doubt that the
    plaintiff can prove no set of facts in support of [his] claim which would entitle
    [him] to relief.’”   Murrell v. Sch. Dist. No. 1 , 
    186 F.3d 1238
    , 1244 (10th Cir.
    1999) (quoting Conley v. Gibson , 
    355 U.S. 41
    , 45-46 (1957)). In making this
    review, courts take the complaint’s factual allegations as true.     Zinermon v.
    Burch , 
    494 U.S. 113
    , 118 (1990). “The issue in reviewing the sufficiency of a
    complaint is not whether the plaintiff will prevail, but whether the plaintiff is
    entitled to offer evidence to support [his] claims.”    Ruiz v. McDonnell , 
    299 F.3d 1173
    , 1181 (10th Cir. 2002),    cert. denied , 
    123 S. Ct. 1908
           Supervisor liability “requires allegations of personal direction or of actual
    knowledge and acquiescence.”       Woodward v. City of Worland , 
    977 F.2d 1392
    1400 (10th Cir. 1992) (quotation omitted). Mr. Eden “must demonstrate an
    affirmative link between [Mr. Maggiore’s] conduct and the constitutional
    deprivation; liability based upon respondeat superior will not do.”      Snell , 920 F.2d
    at 700. Mr. Eden must show that Mr. Maggiore “expressly, or otherwise,
    authorized, supervised, or participated in conduct which caused the constitutional
    deprivation.”   Id. Mr. Eden asserted that Mr. Maggiore “approved and ratified”
    the actions of Ms. Ortiz and Mr. Voss. Under the liberal standards afforded to
    pro se litigants, the assertion is legally sufficient to state a claim for relief under
    Rule 12(b)(6). We therefore vacate the district court’s dismissal of Mr. Maggiore
    based on supervisory liability.
           For a conspiracy claim, a plaintiff “must allege specific facts showing an
    agreement and concerted action among the defendants.”         Tonkovich v. Kan. Bd. of
    Regents , 
    159 F.3d 504
    , 533 (10th Cir. 1998);      see also Salehpoor v. Shahinpoor ,
    358 F.3d 782
    , 789 (10th Cir. 2004) (requiring plaintiff to allege by direct or
    circumstantial evidence that defendants had meeting of minds or agreement).
    “Conclusory allegations of conspiracy are insufficient to state a valid § 1983
    claim.” Tonkovich , 159 F.3d at 533 (quotation omitted);      see also Steele v. Fed.
    Bureau of Prisons , 
    355 F.3d 1204
    , 1214 (10th Cir. 2003) (holding conclusory
    conspiracy allegations are not sufficient to state a constitutional claim). Although
    we recognize that the nature of conspiracy is such that it is often impossible to
    provide details at the pleading stage,   Brever v. Rockwell Int’l Corp.   , 
    40 F.3d 1119
    , 1128 (10th Cir. 1994), read liberally, the complaint here states only
    conclusory allegations of conspiracy, which are insufficient to state a claim for
    relief. Accordingly, we affirm the district court’s determination that the
    conspiracy allegations failed to state a claim upon which relief could be granted.
           Mr. Eden argues the district court erred in dismissing his complaint with
    prejudice without considering granting him leave to amend. Apart from a one line
    request in his response to Mr. Maggiore’s motion to dismiss, Mr. Eden never
    requested the district court’s permission to amend his complaint. This court has
    held that the district court does not abuse its discretion in failing to grant a
    plaintiff leave to amend if the plaintiff never properly sought leave to amend.
    See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs.      , 
    181 F.3d 1180
    , 1186-87
    (10th Cir. 1999) (normally, district court need not grant leave to amend when
    plaintiff fails to make formal motion; informal request to amend in response to
    motion to dismiss is insufficient if it fails to give grounds for proposed
    amendment and merely “dangl[es]” at end of response). Mr. Eden’s first
    suggestion that he should be granted leave to amend his complaint in the entirety
    was made to this court. Yet he does not indicate how he would amend his
    complaint. Accordingly, we reject Mr. Eden’s assertion that the district court
    erred in failing to grant him leave to amend his complaint.
          F. UNKNOWN DOES 1-10
          Mr. Eden argues the district court’s dismissal without prejudice of the
    unknown Does 1-10 should be reversed with the direction that he be allowed to
    conduct sufficient discovery to determine their identities and to allow time to
    amend the complaint once he discovers their identities. In light of our remand on
    other issues, we conclude Mr. Eden will have an opportunity to conduct
          Mr. Eden argues the district court erred in awarding defense counsel
    attorney’s fees and costs under Fed. R. Civ. P. 16(f) when the court specifically
    stated it would not impose sanctions against him. Mr. Eden did not appear for a
    Rule 16 scheduling conference due to car trouble. Accepting that Mr. Eden’s
    failure to attend was a matter outside his control, the district court declined to
    impose sanctions against him under Rule 16(f). Instead, the court ordered,
    pursuant to Rule 16(f), that Mr. Eden reimburse opposing counsel for one hour of
    attorney time at the rate of $150.00 per hour and travel costs of $42.34.
           An award of attorney’s fees and expenses is part of a broad range of
    sanctions available to a district court under Rule 16(f)    11
                                                                     to impose on a party for
    that party’s failure to appear at a scheduling conference. 3 James Wm. Moore et
    al., Moore’s Federal Practice ¶ 16.15[1] (3rd ed. 2003);         see Comcoa, Inc. v. NEC
    Tels., Inc. , 
    931 F.2d 655
    , 667 (10th Cir. 1991) (referring to award of attorney’s
    fees and expenses as sanction);     see also Olcott v. Del. Flood Co.     , 
    76 F.3d 1538
    1555 (10th Cir. 1996) (recognizing punitive purpose of Rule 16(f)).
           Thus, under Rule 16, the district court had authority to impose attorney’s
    fees and expenses as a sanction. It was therefore inconsistent for the district
    court to impose attorney’s fees and expenses against Mr. Eden and to declare it
           Rule 16(f) provides in pertinent part:
           Sanctions . If . . . no appearance is made on behalf of a party at a
           scheduling . . . conference, . . . the judge . . . may make such orders
           with regard thereto as are just, and among others any of the orders
           provided in Rule 37(b)(2)(B), (C), (D).     In lieu of . . . any other
           sanction , the judge shall require the party . . . to pay the reasonable
           expenses incurred because of any noncompliance with this rule,
           including attorney’s fees, unless the judge finds that the
           noncompliance was substantially justified or that other circumstances
           make an award of expenses unjust.
    Fed. R. Civ. P. 16(f) (emphasis added).
    was not imposing a sanction. Accordingly, on de novo review, we vacate the
    award of attorney’s fees and expenses.   See Utah Women’s Clinic, Inc. v. Leavitt   ,
    136 F.3d 707
    , 709 (10th Cir. 1998) (reviewing de novo legal analysis underlying
    sanction imposition). We remand to the district court for further proceedings.
          We reverse the district court’s dismissal of Eberline, affirm in part and
    vacate in part the dismissal of Rinchem after granting Rinchem summary
    judgment, reverse the dismissal of Ms. Ortiz, affirm in part and vacate in part the
    dismissal of Mr. Maggiore, and vacate the award of attorney’s fees and costs. We
    remand for further proceedings concerning Eberline, Rinchem, Ms. Ortiz,
    Mr. Maggiore, and the award of attorney’s fees and costs. In remanding, we
    make no comment upon the merits of any of Mr. Eden’s claims. On remand, the
    district court may take any necessary steps to consider Mr. Eden’s claims.
          The judgment of the district court is AFFIRMED in part, REVERSED in
    part and VACATED in part, and the action is REMANDED to the district court
    for further proceedings. The mandate shall issue forthwith.
                                                         Entered for the Court
                                                         David M. Ebel
                                                         Circuit Judge