Shimomura v. Carlson ( 2015 )


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  •                                                                       FILED
                                                                   United States Court of
                                     PUBLISH                           Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    December 29, 2015
                          FOR THE TENTH CIRCUIT                    Elisabeth A. Shumaker
                          _________________________________            Clerk of Court
    
    TSUTOMU SHIMOMURA,
    
          Plaintiff - Appellant,
    
    v.                                                    No. 14-1418
    
    KENDRA CARLSON, an agent of
    the Transportation Security
    Administration, in her individual
    capacity; WADE DAVIS, a Denver
    Police Department officer, in his
    individual capacity,
    
          Defendants - Appellees,
    
    and
    
    TERRY CATES, an agent of the
    Transportation Security
    Administration, in her individual
    capacity; PATTI ZELLER, an agent
    of the Transportation Security
    Administration, in her individual
    capacity,
    
          Defendants.
                           _________________________________
    
                 Appeal from the United States District Court
                         for the District of Colorado
                    (D.C. No. 1:13-CV-00462-RBJ-MJW)
                         _________________________________
    
    Ty Gee, Haddon, (Laura G. Kastetter, with him on the briefs) Haddon,
    Morgan, and Foreman, P.C., Denver, Colorado, for Plaintiff-Appellant.
    Paul Farley, Assistant United States Attorney, (John F. Walsh, United
    States Attorney, with him on the brief) Office of the United States
    Attorney, Denver, Colorado, for Kendra Carlson, Defendant-Appellee.
    
    Andrew J. Carafelli, Pryor Johnson Carney Karr Nixon, P.C., Denver,
    Colorado, for Wade Davis, Defendant-Appellee.
                           _________________________________
    
    Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH,
    Circuit Judges.
                     _________________________________
    
    BACHARACH, Circuit Judge.
                      _________________________________
    
         Mr. Tsutomu Shimomura claims that an officer with the Denver
    
    Police Department (Wade Davis) and an agent with the Transportation
    
    Security Administration (Kendra Carlson) made an arrest without probable
    
    cause and conspired to fabricate grounds for the arrest. For these claims,
    
    Mr. Shimomura invoked 42 U.S.C. § 1983 and Bivens v. Six Unknown
    
    Named Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
     (1971),
    
    alleging that Officer Davis and Agent Carlson violated the Fourth, Fifth,
    
    and Fourteenth Amendments. 1 On the Fourth Amendment claims, the
    
    district court granted two motions: (1) Officer Davis’s motion for summary
    
    judgment based on qualified immunity and (2) Agent Carlson’s motion to
    
    dismiss based on failure to state a valid claim. On the causes of action
    
    involving the Fifth and Fourteenth Amendments, the court granted the
    
    
    1
          In the complaint, Mr. Shimomura also invoked the First Amendment.
    But the First Amendment claim is not involved in this appeal.
    
                                          2
    defendants’ motions to dismiss for failure to state a valid claim. Mr.
    
    Shimomura appeals; to decide his appeal, we address four issues:
    
         1.    Did Officer Davis have qualified immunity (arguable
               probable cause) for the arrest? Officer Davis arrested Mr.
               Shimomura for assault after seeing him push his roller bag
               toward Agent Carlson. Mr. Shimomura contends that Officer
               Davis lacked qualified immunity in determining that probable
               cause existed. Thus, we must decide whether Officer Davis
               enjoys qualified immunity.
    
               We conclude he does. Even if probable cause had been absent,
               Officer Davis would enjoy qualified immunity if probable
               cause had been at least arguable. In our view, probable cause
               was arguable because Officer Davis saw Mr. Shimomura push
               his roller bag toward Agent Carlson, observed her reaction by
               trying to avoid contact, and watched Mr. Shimomura move
               rapidly away. These observations could reasonably lead Officer
               Davis to believe there was probable cause involving an assault
               under a Denver city ordinance. Thus, Officer Davis enjoys
               qualified immunity on the claim of unlawful arrest.
    
         2.    Did Mr. Shimomura plead a plausible claim against Agent
               Carlson for fabrication and withholding of evidence to
               justify the arrest? Mr. Shimomura claims that Agent Carlson
               violated the Fourth Amendment by fabricating evidence and
               withholding exculpatory evidence to justify the arrest. On these
               claims, we must decide whether the allegations plausibly
               implicate Agent Carlson in the decision to arrest Mr.
               Shimomura.
    
               We conclude they do not. Agent Carlson’s conduct could not
               have caused the arrest because it would have taken place after
               the arrest. Accordingly, we conclude that Agent Carlson is
               entitled to dismissal of the unlawful arrest claim.
    
         3.    Did Mr. Shimomura plead a plausible claim of a conspiracy
               preceding the arrest? According to Mr. Shimomura, Officer
               Davis and Agent Carlson conspired to violate the Fourth
               Amendment by making the arrest without probable cause. We
               must decide whether this claim was plausible based on the
               factual allegations in the complaint.
    
                                          3
                  In our view, the claim fails under this test because Officer
                  Davis arrested Mr. Shimomura within seconds of the alleged
                  assault. Mr. Shimomura has not pleaded facts showing a
                  plausible opportunity for Officer Davis and Agent Carlson to
                  conspire in those few seconds.
    
          4.      Did Mr. Shimomura plead a plausible claim involving
                  deprivation of procedural due process? Mr. Shimomura
                  claims that the false arrest, initiation of false charges, and
                  conspiracy deprived him of procedural due process under the
                  Fifth and Fourteenth Amendments. We must decide whether the
                  allegations in the complaint state a viable claim.
    
                  In our view, they do not. The Fourth Amendment—not the Fifth
                  or Fourteenth Amendment’s protection of procedural due
                  process—generally governs pre-trial deprivations of liberty.
                  Because the sole source of protection is the Fourth Amendment,
                  we uphold dismissal of the claim involving deprivation of
                  procedural due process.
    
    I.    Officer Davis arrested Mr. Shimomura after seeing him push his
          roller bag toward Agent Carlson.
    
          In February 2011, Mr. Shimomura was going through security at the
    
    Denver International Airport, trying to catch a flight. At the security
    
    checkpoint, Mr. Shimomura presented his belongings for screening. When
    
    he did, a TSA agent conducted a test on Mr. Shimomura’s medication,
    
    using a sampling strip. Mr. Shimomura was afraid that the test would
    
    contaminate his medication. Based on this fear, Mr. Shimomura asked
    
    about the sterility and toxicity of the sampling strip. The TSA agent’s
    
    response did not satisfy Mr. Shimomura. So he asked for the agent’s
    
    supervisor.
    
    
    
    
                                           4
          Agent Carlson was the TSA supervisor who responded. She stated
    
    that the sampling strips were sterile for screening purposes. But Mr.
    
    Shimomura remained unsatisfied, and the conversation grew heated while
    
    Officer Davis watched from nearby.
    
          Eventually, Mr. Shimomura was told to leave the screening area. He
    
    complied and began walking away with his roller bag, with Agent Carlson
    
    and Officer Davis following closely behind. After taking a few steps, Mr.
    
    Shimomura stopped, and Officer Davis believed that the roller bag had hit
    
    Agent Carlson. A few seconds later, Officer Davis arrested Mr.
    
    Shimomura. Following Mr. Shimomura’s arrest, Officer Davis, Agent
    
    Carlson, and other TSA agents conferred for approximately 90 minutes.
    
    Officer Davis then served Mr. Shimomura with a summons and complaint,
    
    charging him with assault for pushing his roller bag into Agent Carlson.
    
    See Rev. Mun. Code of Denver § 38-93. After reviewing the evidence, the
    
    prosecutor dismissed the criminal complaint against Mr. Shimomura.
    
          This suit followed.
    
    II.   Officer Davis was entitled to qualified immunity on the Fourth
          Amendment claim because he had arguable probable cause for the
          arrest.
    
          Mr. Shimomura claims that he was arrested without probable cause.
    
    On this claim, the district court granted summary judgment to Officer
    
    Davis based on qualified immunity. This ruling was correct.
    
    
    
                                         5
          A.    We engage in de novo review based on our two-part test for
                qualified immunity.
    
          We review de novo the district court’s grant of summary judgment.
    
    Christiansen v. City of Tulsa, 
    332 F.3d 1270
    , 1278 (10th Cir. 2003). The
    
    court must grant summary judgment “if the movant 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).
    
          We apply this standard against the backdrop of our case law on
    
    qualified immunity. This immunity protects all government employees
    
    except those who are “plainly incompetent or those who knowingly violate
    
    the law.” Lewis v. Tripp, 
    604 F.3d 1221
    , 1225 (10th Cir. 2010) (quoting
    
    Malley v. Briggs, 
    475 U.S. 335
    , 341 (1986)). To overcome this assertion of
    
    qualified immunity, Mr. Shimomura must show that (1) Officer Davis
    
    violated a federal statute or the U.S. Constitution and (2) the underlying
    
    rights were “clearly established at the time of their alleged violation.” Id.
    
    To decide whether Mr. Shimomura made this showing, we view all
    
    evidence in the light most favorable to him as the nonmoving party. Estate
    
    of B.I.C. v. Gillen, 
    710 F.3d 1168
    , 1172 (10th Cir. 2013).
    
          Framed under these standards, “the salient Fourth Amendment
    
    questions presented are (1) whether [Officer Davis] possessed probable
    
    cause to arrest [Mr. Shimomura for assault]; and (2) whether extant clearly
    
    established law in [February 2011] would have placed a reasonable,
    
    
                                          6
    similarly situated police officer on notice that no probable cause existed.”
    
    Quinn v. Young, 
    780 F.3d 998
    , 1007 (10th Cir. 2015) (emphasis in
    
    original).
    
          B.      Probable cause was at least arguable based on Officer
                  Davis’s observation of the events.
    
          For the sake of argument, we can assume that probable cause was
    
    lacking. Even with this assumption, however, Officer Davis would enjoy
    
    qualified immunity if probable cause had been at least “arguable.”
    
    Kaufman v. Higgs, 
    697 F.3d 1297
    , 1300 (10th Cir. 2012). In our view,
    
    probable cause would have been at least arguable.
    
          To determine whether probable cause was arguable, we must begin
    
    with the standard for “probable cause.” Under this standard, probable cause
    
    would exist if Officer Davis had reasonably trustworthy information that
    
    would lead a prudent person to believe that Mr. Shimomura had committed
    
    an offense. Jones v. City & Cnty. of Denver, 
    854 F.2d 1206
    , 1210 (10th
    
    Cir. 1988).
    
          The threshold question involves identification of the alleged offense.
    
    On this question, Officer Davis identified Mr. Shimomura’s conduct as a
    
    third-degree assault under the Denver Municipal Code. Thus, we must
    
    determine what constituted a third-degree assault in February 2011.
    
          The municipal code defined third-degree assault to include the
    
    intentional or reckless commission of an assault. Rev. Mun. Code of
    
    
                                          7
    Denver, § 38-93. Rather than define the word “assault,” the municipal code
    
    referred to Colorado law. Under that law, third-degree assault required
    
    “bodily injury.” Colo. Rev. Stat. Ann. § 18-3-204(1)(a) (2011). The term
    
    “bodily injury” referred to physical pain, illness, or any impairment of
    
    physical or mental condition. Colo. Rev. Stat. Ann. § 18-1-901(3)(c)
    
    (2011). This definition was “broadly inclusive” and included physical
    
    injuries even when they might have been considered only “slight.” People
    
    v. Hines, 
    572 P.2d 467
    , 470 (Colo. 1977) (“broadly inclusive”); United
    
    States v. Paxton, 
    422 F.3d 1203
    , 1206 (10th Cir. 2005) (“slight”).
    
          In applying the municipal ordinance for assault, a reasonable police
    
    officer could have viewed probable cause as arguable. Mr. Shimomura
    
    relies largely on a video of the incident. The parties agree that this video is
    
    accurate, and Officer Davis acknowledged that it was consistent with what
    
    he had seen. 2 But we also note that Officer Davis’s vantage point of the
    
    incident differs from ours as we watch the video. From our vantage point,
    
    we can see that Officer Davis walked behind both Agent Carlson and Mr.
    
    Shimomura. Officer Davis saw the same events from a different angle. See
    
    Appellant’s App’x at 116 (TSA surveillance video at 2:03-2:06). Thus,
    
    when we watch the video, we see the events from in front of Mr.
    
    2
          Mr. Shimomura points out that the video does not show the earlier
    argument in the TSA screening area, does not contain audio, does not show
    Mr. Shimomura’s or Agent Carlson’s face, and Officer Davis is “barely
    visible.” But Mr. Shimomura does not contest the accuracy of the video.
    
                                           8
    Shimomura; Officer Davis saw the events more closely from only a few
    
    feet behind Agent Carlson:
    
    
    
    
         Though our vantage point differs from Officer Davis’s, we can
    
    identify at least four facts that Officer Davis would have known:
    
         1.    Mr. Shimomura was pulling his roller bag, which was between
               Mr. Shimomura and Agent Carlson.
    
         2.    Mr. Shimomura stopped and moved his roller bag in Agent
               Carlson’s direction.
    
                                         9
         3.    Agent Carlson moved suddenly after the roller bag was pushed
               in her direction.
    
         4.    Mr. Shimomura walked away more rapidly after he pushed the
               roller bag in Agent Carlson’s direction.
    
    Mr. Shimomura suggests we add a fifth undisputed fact: that he and Agent
    
    Carlson had engaged in a heated disagreement.
    
         Based on these five facts, Officer Davis could reasonably believe
    
    that Mr. Shimomura had intentionally or recklessly pushed his roller bag
    
    into Agent Carlson and caused her at least some slight physical injury.
    
    From our vantage point in watching the video, we cannot see the actual
    
    contact between Agent Carlson and the roller bag. But our view of the
    
    contact is impeded by the camera angle. Officer Davis had a different
    
    angle. See Bogie v. Rosenberg, 
    705 F.3d 603
    , 611 (7th Cir. 2013) (stating
    
    that “any . . . film shows only one perspective on a scene, so that
    
    additional perspectives, such as eyewitness testimony . . . , might reveal
    
    additional facts that would change the legal analysis”). And from his angle,
    
    Officer Davis had only a momentary opportunity to see what had taken
    
    place. (We have the luxury of watching the video repeatedly.) Officer
    
    Davis could then see Mr. Shimomura walking away more quickly after
    
    Agent Carlson had made a sudden movement. In these circumstances, a
    
    reasonable officer could believe that Mr. Shimomura had intentionally or
    
    recklessly caused at least some slight physical injury to Agent Carlson. As
    
    a result, probable cause was at least arguable.
    
                                         10
          C.       Probable cause would have remained arguable
                   notwithstanding Mr. Shimomura’s explanation for his
                   quickened pace and challenges to Agent Carlson’s
                   credibility.
    
          Mr. Shimomura argues that his quickened pace did not suggest guilt,
    
    for he might simply have had to hurry to catch his flight. But probable
    
    cause could have existed even if his conduct might also be interpreted as
    
    innocent. See United States v. Muñoz-Nava, 
    524 F.3d 1137
    , 1144 (10th Cir.
    
    2008) (“[S]imply because an activity has an innocent connotation does not
    
    mean that it is excluded from the court’s totality of the circumstances
    
    analysis.”).
    
          Mr. Shimomura also argues that Officer Davis should have
    
    discounted Agent Carlson’s description of the events, giving three reasons:
    
          1.       A heated argument had just taken place between Agent Carlson
                   and Mr. Shimomura.
    
          2.       Mr. Shimomura denied pushing his roller bag into Agent
                   Carlson.
    
          3.       Other witnesses did not say that Agent Carlson had been
                   injured.
    
    But these arguments would not preclude Officer Davis from reasonably
    
    believing that probable cause existed.
    
          Agent Carlson and the other witnesses made their statements after
    
    Mr. Shimomura’s arrest; thus, these statements could not have affected the
    
    decision to arrest. And Officer Davis could see for himself what had taken
    
    place when Mr. Shimomura pushed his roller bag toward Agent Carlson. In
    
                                           11
    observing the incident and Mr. Shimomura accelerating his pace afterward,
    
    Officer Davis could reasonably conclude that Mr. Shimomura had
    
    intentionally or recklessly pushed his roller bag into Agent Carlson to
    
    create at least some slight physical injury.
    
          That push might not have created probable cause for third-degree
    
    assault. But probable cause would have been at least arguable even if (1)
    
    Mr. Shimomura had an innocent explanation for walking away more
    
    quickly and (2) Officer Davis had discounted Agent Carlson’s description
    
    of events.
    
          D.     Mr. Shimomura’s characterization of the video recording
                 does not create a fact issue on arguable probable cause.
    
          Mr. Shimomura argues that Officer Davis is not entitled to qualified
    
    immunity because the video recording is inconsistent with the defendants’
    
    statements regarding the alleged assault. According to Mr. Shimomura, the
    
    video recording shows that Mr. Shimomura did not push his roller bag into
    
    Agent Carlson. But from where Officer Davis was positioned, he could
    
    reasonably believe that (1) he had seen Mr. Shimomura push his roller bag
    
    into Agent Carlson and (2) the contact resulted in at least slight physical
    
    injury. 3 The reasonableness of that belief made probable cause at least
    
    
    3
          Mr. Shimomura relies on Baptiste v. J.C. Penney Co., 
    147 F.3d 1252
    (10th Cir. 1998), to oppose qualified immunity for Officer Davis. In
    Baptiste, a police officer searched the plaintiff for stolen merchandise after
    watching surveillance video of a suspected theft. Baptiste, 147 F.3d at
    
                                          12
    arguable. Thus, even when we consider the evidence in the light most
    
    favorable to Mr. Shimomura, we conclude that Officer Davis is entitled to
    
    qualified immunity on the Fourth Amendment claim of unlawful arrest.
    
         E.    Probable cause would have remained arguable
               notwithstanding Mr. Shimomura’s allegations in the
               complaint and uncertainty about what Officer Davis could
               see.
    
         In reaching a contrary conclusion, the partial dissent points to
    
              Mr. Shimomura’s allegation in the complaint “that [Officer
               Davis] could not reasonably perceive evidence of bodily injury,
               such as pain” and
    
              uncertainty about what Officer Davis would have seen from his
               angle.
    
    Dissent at 1-2. In our view, these two points do not create a genuine fact-
    
    issue on whether probable cause was at least arguable.
    
         Because the issue involves summary judgment, we must rely on the
    
    summary judgment record rather than Mr. Shimomura’s allegations in the
    
    complaint. In support of the summary judgment motion, Officer Davis
    
    stated under oath that he had seen the roller bag strike Agent Carlson in
    
    the legs. Appellant’s App’x at 112. Mr. Shimomura responded to the
    
    motion, presenting affidavits by himself and Agent Carlson. Agent
    
    1254-55. We concluded that the police officer was not entitled to qualified
    immunity because the video did not suggest that a theft had occurred. Id. at
    1259-60. Mr. Shimomura’s circumstances are different, for the video
    recording does not preclude a reasonable belief that a crime (assault) had
    been committed. Thus, Baptiste does not preclude qualified immunity for
    Officer Davis.
    
                                         13
    Carlson’s affidavit said that Officer Davis had seen the contact between
    
    the roller bag and Agent Carlson. Id. at 176. Mr. Shimomura’s affidavit
    
    was silent about what Officer Davis could see. Thus, for purposes of
    
    summary judgment, we have undisputed evidence that Officer Davis was
    
    able to see the contact between Agent Carlson and Mr. Shimomura’s roller
    
    bag.
    
           Mr. Shimomura denies that Agent Carlson was physically injured,
    
    and Officer Davis believed there was physical injury. Neither individual
    
    could know for certain, but the sole issue on qualified immunity is whether
    
    Officer Davis could reasonably believe the contact resulted in at least some
    
    slight physical injury to Agent Carlson. Even if Officer Davis’s belief was
    
    wrong, he would have enjoyed qualified immunity as long as his belief was
    
    reasonable. See Stonecipher v. Valles, 
    759 F.3d 1134
    , 1141 (10th Cir.)
    
    (“Arguable probable cause is another way of saying the officers’
    
    conclusions rest on an objectively reasonable, even if mistaken, belief that
    
    probable cause exists.”), cert. denied, __ U.S. __, 
    135 S. Ct. 881
     (2014).
    
           In our view, Officer Davis’s belief was reasonable notwithstanding
    
    Mr. Shimomura’s contrary allegations in his complaint. In Mr.
    
    Shimomura’s affidavit, there is nothing casting doubt on Officer Davis’s
    
    belief that Agent Carlson had suffered at least some slight injury. As a
    
    result, Officer Davis would enjoy qualified immunity even if we fully
    
    credit everything in Mr. Shimomura’s affidavit.
    
                                         14
    III.   Agent Carlson could not incur liability under the Fourth
           Amendment for an unlawful arrest because her alleged
           misconduct would have taken place after the arrest.
    
           Mr. Shimomura argues that Agent Carlson violated the Fourth
    
    Amendment by withholding and fabricating evidence to justify the arrest. 4
    
    The district court dismissed this claim, concluding that Mr. Shimomura had
    
    not adequately pleaded causation between Agent Carlson’s conduct and the
    
    arrest. In a later order, the district court declined to vacate this dismissal.
    
    In our view, the court did not err in dismissing the claim against Agent
    
    Carlson.
    
           We review de novo the district court’s grant of a motion to dismiss
    
    for failure to state a claim. Christensen v. Park City Mun. Corp., 
    554 F.3d 1271
    , 1275 (10th Cir. 2009). Like the district court, we must determine
    
    whether the complaint contains sufficient facts, accepted as true, to state a
    
    plausible claim for relief. Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009). A
    
    claim is plausible “when the plaintiff pleads factual content that allows the
    
    court to draw the reasonable inference that the defendant is liable for the
    
    misconduct alleged.” Id. In determining whether the claim is plausible, we
    
    view all factual allegations in the light most favorable to Mr. Shimomura
    
    
    4
          Mr. Shimomura also contends that Agent Carlson incurred liability as
    an arresting officer because she had “acted in concert with Officer Davis to
    effect the illegal arrest lacking in probable cause.” Appellant’s Opening
    Br. at 35. This argument is identical to Mr. Shimomura’s argument
    underlying his conspiracy claim, which we reject below in Part IV.
    
                                           15
    as the nonmoving party. Tonkovich v. Kan. Bd. of Regents, 
    159 F.3d 504
    ,
    
    510 (10th Cir. 1998).
    
         As was previously stated, a warrantless arrest without probable cause
    
    violates the Fourth Amendment. Keylon v. City of Albuquerque, 
    535 F.3d 1210
    , 1216 (10th Cir. 2008). But nothing in the complaint would plausibly
    
    suggest Agent Carlson’s participation in the arrest.
    
         Mr. Shimomura disagrees, arguing that Agent Carlson caused the
    
    arrest by withholding exculpatory evidence and fabricating a sworn
    
    statement that she had suffered pain from her contact with the roller bag.
    
    Officer Davis allegedly relied on Agent Carlson’s fabricated account.
    
         This contention fails as a matter of law because Agent Carlson’s
    
    alleged misdeeds would have taken place after Officer Davis had already
    
    arrested Mr. Shimomura. Agent Carlson allegedly withheld exculpatory
    
    evidence and fabricated a sworn statement, but only after Officer Davis
    
    had already initiated Mr. Shimomura’s 90-minute detention. That detention
    
    constituted an arrest as a matter of law. See Manzanares v. Higdon, 
    575 F.3d 1135
    , 1148 (10th Cir. 2009) 5; see also Appellant’s App’x at 152-53
    
    (Mr. Shimomura’s argument that Officer Davis made an arrest by detaining
    
    5
          In Manzanares we stated: “As the Supreme Court has noted, it has
    never held a detention of 90 minutes or longer to be anything short of an
    arrest. [The defendant] points us to no case, and our independent research
    reveals none, construing a detention of 90 minutes or longer as an
    investigative detention.” Manzanares, 575 F.3d at 1148 (citation omitted).
    
    
                                         16
    Mr. Shimomura in the screening area). Thus, Agent Carlson’s misconduct
    
    could not have caused the arrest. In these circumstances, we conclude that
    
    Agent Carlson is entitled to dismissal on the unlawful arrest claim. 6
    
    IV.   Mr. Shimomura has not pleaded a plausible conspiracy claim
          based on the Fourth Amendment.
    
          Invoking 42 U.S.C. § 1983, Mr. Shimomura also claims that Officer
    
    Davis and Agent Carlson violated the Fourth Amendment by conspiring
    
    (1) to make the arrest without probable cause and (2) to fabricate their
    
    accounts for the initiation of criminal charges. We affirm the district
    
    court’s dismissal of these causes of action for failure to state a claim upon
    
    which relief can be granted. 7
    
          A.    We engage in de novo review, considering the plausibility of
                the allegations in the complaint.
    
          In reviewing the dismissal, we engage in de novo review. See p. 15,
    
    above. The ultimate question is whether Mr. Shimomura had alleged
    
    specific facts showing (1) an agreement and concerted action between
    
    
    6
          On the cause of action under the Fourth Amendment for unlawful
    arrest, Agent Carlson also asserts qualified immunity and unavailability of
    a Bivens claim. We need not reach these contentions.
    7
         On the conspiracy claim, Agent Carlson denies the availability of a
    Bivens cause of action and invokes qualified immunity. We need not
    address these arguments. The conspiracy claim against Officer Davis and
    Agent Carlson was brought under 42 U.S.C. § 1983, not Bivens. Therefore,
    we need not reach Agent Carlson’s Bivens argument. And because the
    conspiracy claim is facially deficient, we need not decide whether Agent
    Carlson is entitled to qualified immunity on this claim.
    
                                         17
    Officer Davis and Agent Carlson and (2) an actual deprivation of
    
    constitutional rights. Tonkovich v. Kan. Bd. of Regents, 
    159 F.3d 504
    , 533
    
    (10th Cir. 1998); Snell v. Tunnell, 
    920 F.2d 673
    , 701 (10th Cir. 1990).
    
    Conclusory allegations of conspiracy would not suffice. Tonkovich, 159
    
    F.3d at 534.
    
          B.    For the arrest, Mr. Shimomura has not pleaded facts
                creating a plausible claim of conspiracy prior to the arrest.
    
          The conspiracy allegations in the complaint involve conduct before
    
    the arrest. Thus, on the claims involving conspiracy to justify the arrest,
    
    we confine our review to the allegations involving conduct preceding the
    
    arrest. These allegations involve six facts 8:
    
          1.    Officer Davis saw Agent Carlson communicate with Mr.
                Shimomura in an “increasingly hostile and intimidating
                manner.” This conduct included Agent Carlson’s refusal to
                contact her supervisor or provide her supervisor’s name, angry
                threats to remove Mr. Shimomura from the airport, order for
                Mr. Shimomura to “get the hell out” of the TSA screening area,
                and statement that Mr. Shimomura had accused Agent Carlson
                of stealing. Appellant’s App’x at 11-12 ¶¶ 18-20.
    
          2.    Officer Davis refused to put Mr. Shimomura in contact with
                Agent Carlson’s supervisor. Id. at 12 ¶ 21.
    
    
    
    
    8
          In his appeal briefs, Mr. Shimomura alleges that Officer Davis failed
    to deescalate the increasingly hostile situation. But we decline to consider
    this argument because it had not been raised in district court. See United
    Steelworkers of Am. v. Or. Steel Mills, Inc., 
    322 F.3d 1222
    , 1228 (10th Cir.
    2003) (noting that we will decline to consider factual arguments that had
    not been raised in district court).
    
                                           18
         3.    Officer Davis and Agent Carlson threatened to have Mr.
               Shimomura arrested if he did not leave the screening area “in
               two seconds.” Id.
    
         4.    Officer Davis and Agent Carlson “crowded Mr. Shimomura in a
               threatening manner” and followed him “closely and
               aggressively” as he left the screening area. Id. at 12 ¶¶ 21-22.
    
         5.    Officer Davis and Agent Carlson “knew” that (1) Mr.
               Shimomura had not committed a crime, (2) there was no
               probable cause for Mr. Shimomura’s arrest, (3) Agent Carlson
               had been following Mr. Shimomura “too closely,” and
               (4) Agent Carlson had become even “further enraged” when she
               walked into the roller bag. Id. at 14 ¶ 28.
    
         6.    Officer Davis and Agent Carlson believed that Mr. Shimomura
               should be criminally punished for questioning TSA screening
               procedures. As a result, Officer Davis and Agent Carlson took
               “joint and concerted action” to arrest Mr. Shimomura. Id. at 15
               ¶ 29; Id. at 13 ¶ 24.
    
         For the sake of argument, we can assume that Mr. Shimomura has
    
    pleaded facts reflecting an agreement and concerted action by Officer
    
    Davis and Agent Carlson. But the alleged agreement could not plausibly
    
    have preceded Mr. Shimomura’s arrest. The video reflects the incident,
    
    which unfolded only a few seconds before Officer Davis detained Mr.
    
    Shimomura (constituting an arrest).
    
         It might have been theoretically possible for Officer Davis and Agent
    
    Carlson to conspire to arrest Mr. Shimomura without probable cause.
    
    Perhaps Officer Davis and Agent Carlson decided to arrest Mr. Shimomura
    
    even before his belongings were screened; or maybe Officer Davis and
    
    Agent Carlson conspired in the few seconds between the roller bag contact
    
    
                                          19
    and Mr. Shimomura’s arrest; or perhaps Officer Davis and Agent Carlson
    
    knew and understood one another so well that they immediately formed an
    
    unspoken agreement to unlawfully arrest Mr. Shimomura. But Mr.
    
    Shimomura does not allege facts that could plausibly explain how Officer
    
    Davis and Agent Carlson might have conspired in the moments preceding
    
    the arrest.
    
           Accordingly, Mr. Shimomura has not pleaded a plausible § 1983
    
    claim for conspiracy to arrest without probable cause in violation of the
    
    Fourth Amendment. We affirm the dismissal of this claim.
    
           C.     The district court did not err in disallowing amendment of
                  the Fourth Amendment claim.
    
           In responding to Agent Carlson’s motion to dismiss, Mr. Shimomura
    
    included a footnote requesting “leave to amend should the Court find his
    
    Complaint deficient.” Id. at 121 n.1. Though the district court suggested
    
    that Mr. Shimomura might amend the complaint, the court ultimately
    
    prevented amendment by making the dismissal with prejudice. Id. at 218,
    
    229.
    
           Mr. Shimomura alleges that the district court abused its discretion by
    
    preventing amendment of the complaint. We disagree. Mr. Shimomura
    
    alleges in the complaint that he was taken into custody by Officer Davis,
    
    not Agent Carlson. See id. at 12. Thus, amendment of the complaint would
    
    have been futile. In these circumstances, we conclude that the district court
    
    
                                          20
    had discretion to make the dismissal with prejudice. See Brereton v.
    
    Bountiful City Corp., 
    434 F.3d 1213
    , 1219 (10th Cir. 2006) (“A dismissal
    
    with prejudice is appropriate where a complaint fails to state a claim under
    
    Rule 12(b)(6) and granting leave to amend would be futile.”).
    
    V.   Mr. Shimomura has not pleaded a viable claim for deprivation of
         procedural due process.
    
         Finally, Mr. Shimomura claims deprivation of procedural due process
    
    under the Fifth and Fourteenth Amendments. The Fifth Amendment
    
    prohibits the federal government from depriving a person of “life, liberty,
    
    or property, without due process of law,” and the Fourteenth Amendment
    
    extends this prohibition to the states. U.S. Const. amend. V; Id. amend.
    
    XIV, § 1.
    
         On these claims, Mr. Shimomura alleges that Officer Davis and
    
    Agent Carlson withheld exculpatory evidence, fabricated inculpatory
    
    evidence, and engaged in a conspiracy. The district court dismissed these
    
    claims, reasoning that they “effectively mirror[]” Mr. Shimomura’s claims
    
    under the Fourth Amendment. Appellant’s App’x at 220. For this ruling,
    
    we engage in de novo review. See p. 15, above. In exercising de novo
    
    review, we uphold the district court’s dismissal because the Fourth
    
    
    
    
                                         21
    Amendment applies rather than the Fifth and Fourteenth Amendments’ Due
    
    Process Clauses. 9
    
          Mr. Shimomura is correct in asserting the constitutional requirement
    
    for probable cause before he could be arrested or charged. Wilkins v.
    
    DeReyes, 
    528 F.3d 790
    , 805 (10th Cir. 2008). But this right is protected by
    
    the Fourth Amendment, not by the Fifth or Fourteenth Amendments’ rights
    
    to procedural due process. The Supreme Court has held that “[b]ecause the
    
    Fourth Amendment provides an explicit textual source of constitutional
    
    protection against . . . physically intrusive governmental conduct, that
    
    Amendment, not the more generalized notion of ‘substantive due process,’
    
    must be the guide for analyzing these claims.” Graham v. Connor, 
    490 U.S. 386
    , 395 (1989); see Albright v. Oliver, 
    510 U.S. 266
    , 274-75 (1994)
    
    (plurality opinion) (stating that the right to be free of arrest and
    
    prosecution without probable cause is governed by the Fourth Amendment,
    
    not the constitutional protections for substantive due process). We have
    
    applied this holding when the alleged denial of due process is procedural
    
    rather than substantive. See Becker v. Kroll, 
    494 F.3d 904
    , 919 (10th Cir.
    
    
    9
          Agent Carlson also makes four other arguments: (1) an adequate
    post-deprivation remedy exists; (2) Agent Carlson is not subject to the
    Fourteenth Amendment because she is not a state actor; (3) a Bivens action
    does not exist for claims involving airport screening or violation of the
    Fourteenth Amendment; and (4) Agent Carlson is entitled to qualified
    immunity. We need not address these arguments because the claim against
    Agent Carlson is deficient on other grounds.
    
                                          22
    2007) (“[W]e find Albright’s reasoning regarding substantive due process
    
    equally persuasive with regard to the Fourteenth Amendment’s procedural
    
    component. . . . The more general due process considerations of the
    
    Fourteenth Amendment are not a fallback to protect interests more
    
    specifically addressed by the Fourth Amendment . . . .”).
    
          It is true that “at some point in the prosecutorial process, due process
    
    concerns can be sufficient to support claim under § 1983.” Id. at 920; see
    
    also Pierce v. Gilchrist, 
    359 F.3d 1279
    , 1285-86 (10th Cir. 2004) (“[A]t
    
    some point after arrest, and certainly by the time of trial, constitutional
    
    analysis shifts to the Due Process Clause.”). But Mr. Shimomura’s factual
    
    allegations do not cross into the due-process realm.
    
          In Becker v. Kroll, 
    494 F.3d 904
     (10th Cir. 2007), we
    
    “acknowledge[d] that the Fourteenth Amendment’s protections encompass
    
    harms to liberty outside the scope of the Fourth Amendment’s concern with
    
    freedom from restraint.” Becker, 494 F.3d at 920. But Mr. Shimomura has
    
    confined his allegation of injury to the deprivation of his physical liberty.
    
    Thus, his claim is governed by the Fourth Amendment rather than the Due
    
    Process Clauses.
    
          Because the Fourth Amendment provides the sole source of
    
    constitutional protection, Mr. Shimomura has not asserted a valid claim of
    
    procedural due process. As a result, the district court properly dismissed
    
    the claims involving procedural due process.
    
                                          23
    VI.   Conclusion
    
          The district court’s judgment is affirmed.
    
    
    
    
                                         24
    No. 14-1418, Shimomura v. Carlson
    
    TYMKOVICH, Chief Judge, concurring in part and dissenting in part:
    
          I join the majority except as to its holding that Officer Davis is entitled to
    
    qualified immunity.
    
          In concluding that a reasonable officer with Officer Davis’s vantage point
    
    could have thought there was probable cause, the majority decides a factual
    
    dispute that should be submitted to a jury. Shimomura alleges that Officer Davis
    
    could not reasonably perceive evidence of intent or recklessness. He also alleges
    
    that the officer could not reasonably perceive evidence of bodily injury, such as
    
    pain. If that version of the facts is true, then there was neither actual nor arguable
    
    probable cause to believe Shimomura had committed assault within the agreed-
    
    upon meaning of the ordinance. That satisfies Shimomura’s initial burden to
    
    allege a clearly established violation of a constitutional right. See Fogarty v.
    
    Gallegos, 
    523 F.3d 1147
    , 1158–59 (10th Cir. 2008) (“In the context of an
    
    unlawful arrest our analysis is simple, for the law was and is unambiguous: a
    
    government official must have probable cause to arrest an individual.” (brackets
    
    and internal quotation marks omitted)). It also places a new burden on Officer
    
    Davis, on his motion for summary judgment based on qualified immunity, to show
    
    that Shimomura’s version of the facts is wrong—that is, that an officer could have
    
    reasonably perceived evidence of bodily injury and intent or recklessness.
    
    Officer Davis has not met that burden.
          The majority concludes that a person standing at Officer Davis’s vantage
    
    point could have perceived the requisite evidence, but that is not beyond dispute.
    
    Recently, in Tolan v. Cotton, 
    134 S. Ct. 1861
     (2014), the Supreme Court reversed
    
    a finding of qualified immunity because the appellate court had resolved disputed
    
    factual propositions in favor of the moving officer. Most notably, the Court
    
    indicated that disputed questions about what facts an officer should have
    
    perceived are appropriate for a jury:
    
                 The court noted, and the parties agree, that while Cotton
                 was grabbing the arm of his mother, Tolan told Cotton,
                 “[G]et your [f***ing] hands off my mom.” But Tolan
                 testified that he “was not screaming.” And a jury could
                 reasonably infer that his words, in context, did not amount
                 to a statement of intent to inflict harm.
    
    Id. at 1867 (emphasis added) (citations omitted). This illustrates the divide
    
    between determining whether there was probable (or arguable probable) cause and
    
    determining the facts that support probable cause. Just as a jury in Tolan should
    
    have decided whether the undisputed words, in context, seemed threatening, a
    
    jury here should decide whether the undisputed contact, in context, seemed
    
    intentional or capable of causing bodily injury.
    
          We do not know what Officer Davis saw from his angle. All we have is the
    
    video, Shimomura’s complaint, and affidavits presented on summary judgment.
    
    Those materials do not definitively settle the facts in Officer Davis’s favor. A
    
    jury could find that even given his angle and how little time he had to process
    
    
                                             2
    what had happened, it was unreasonable to think the contact was intentional or
    
    reckless. And a jury most certainly could find that there was no evidence of
    
    bodily injury. Having watched the video, I find it dubious that anyone viewing
    
    the contact from any angle could have reasonably thought that Agent Carlson felt
    
    pain. Although she later reported pain, it appears that this was not until after
    
    Shimomura’s arrest.
    
          For those reasons, I respectfully dissent as to the conclusion that Officer
    
    Davis is entitled to qualified immunity.
    
    
    
    
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