FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       February 6, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DAVID GARCIA,

             Plaintiff-Appellant,

v.                                                         No. 13-2093
                                              (D.C. No. 1:12-CV-00265-LFG-KBM)
BERNALILLO COUNTY SERGEANT                                  (D. N.M.)
ESCALANTE; BERNALILLO
COUNTY SHERIFF’S OFFICER,
R. GARCIA,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before HARTZ, McKAY, and BACHARACH, Circuit Judges.


      Plaintiff David Garcia appeals the district court’s order granting summary

judgment to Bernalillo County Sheriff’s Officer R. Garcia and his supervisor,

Sergeant Escalante, on Plaintiff’s civil-rights claims under 42 U.S.C. § 1983.

Plaintiff asserted claims that his Fourth Amendment rights were violated by an


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
unreasonable arrest and by his prosecution without probable cause, and that his First

Amendment rights were violated when he was arrested in retaliation for protected

speech. The magistrate judge, sitting by consent of the parties, see 28 U.S.C.

§ 636(c), granted Defendants’ motion for summary judgment, ruling that, based

on the undisputed facts, Defendants were entitled to qualified immunity on all claims

because there had been no constitutional violation. We have jurisdiction under

28 U.S.C. § 1291. We hold that there is a genuine dispute of material fact regarding

whether Defendants had probable cause to arrest and charge Plaintiff, and therefore

reverse on the Fourth Amendment claims. We affirm on the First Amendment

claims, however, because Plaintiff presented no evidence of a retaliatory motive.

                                    BACKGROUND

      In March 2009, Plaintiff entered a New Mexico state courthouse with a metal

vial attached to his key chain. Officer Garcia, working security, opened the vial and

found a number of pills, including hydrocodone pills. The parties do not dispute that

hydrocodone is a controlled substance, or that Plaintiff’s mother, who was with

Plaintiff, left the courthouse with another officer, Officer McCauley, and returned

with prescription records. The parties do dispute, however, whether any of the

prescriptions was for hydrocodone. Officer Garcia arrested Plaintiff for possessing a

controlled substance without a valid prescription, see N.M. Stat. Ann. § 30-31-23(A)

(“It is unlawful for a person intentionally to possess a controlled substance unless the




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substance was obtained pursuant to a valid prescription . . . .”), and later filed a

criminal complaint. The charge was eventually dismissed.

       Plaintiff’s complaint alleged that Officer Garcia lacked probable cause to

arrest him because at the time of his arrest he and his mother provided Officer Garcia

with a valid prescription for the hydrocodone. Defendants moved for summary

judgment based on Officer Garcia’s affidavit stating that Plaintiff did not have a valid

prescription for hydrocodone with him at the time of his arrest. In response, Plaintiff

relied upon his deposition testimony and documents showing that he had filled

hydrocodone prescriptions on three occasions before his arrest (in October 2007,

January 2008, and February 2008) and twice after his arrest (in April and September

2009). We quote the relevant deposition testimony. When asked if he had provided

the January 2008 prescription to Officer Garcia, Plaintiff answered:

       This exact label? Or – I have a label that I did provide that looks very
       similar. I did not provide a bottle. I did provide a label, a label that had
       this exact same information on it. Maybe not the exact date, but, you
       know, the date proves – actually, it must have been – well, no, it wasn’t
       from this date. And it was from this date; and then even after this
       incident, I was still prescribed hydrocodone.


R. Doc. 41-5 at 5. Later in the deposition he was shown Exhibit M (which consisted

of six prescriptions, none for hydrocodone, that had been tagged into evidence at his

arrest) and was asked about the absence of a hydrocodone prescription:

       Q. . . . After you got arrested, your mom left the courthouse to go
       obtain a copy of your prescriptions. Is that correct?
       A. Followed by Officer McCauley, correct.


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      Q. Okay. And she provided, then, some documentation to law
      enforcement about your prescriptions, the pills that were contained in
      the vial.
      A. She brought back – yes, she did, in fact, bring back this information,
      what you’re presenting in Exhibit M.
      Q. Okay.
      A. But it’s not complete.
      Q. You’re saying she brought back an additional prescription that’s not
      contained in Exhibit M?
      A. Let me – Let me go ahead and go through them. My attorney did.
      Okay. Correct. Hydrocodone was provided.
      Q. So you’re saying a prescription for hydrocodone was provided.
      A. That is correct.
      ***
      A. . . . Well, I’m telling you that hydrocodone was, in fact, provided.
      Q. You’re saying a prescription for hydrocodone was provided.
      A. Correct.

R. Doc. 41-5 at 6 (emphasis added).

      The magistrate judge ruled that Plaintiff failed to submit any admissible

evidence that he or his mother provided a valid prescription for hydrocodone to

Officer Garcia. He concluded that it was “undisputed” that Officer Garcia

“discovered that [Plaintiff] possessed a controlled substance without a valid

prescription for the medication,” and therefore he had probable cause to arrest

Plaintiff. R. Doc. 63 at 15. He also ruled that Plaintiff had presented no evidence

that his arrest was in retaliation for his exercise of First Amendment rights.

Accordingly, the magistrate judge granted summary judgment to Defendants.

Plaintiff filed a Motion to Alter or Amend a Judgment under Fed. R. Civ. P. 59(e),

but it was denied.




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                                       ANALYSIS

      “Qualified immunity shields government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” See Romero

v. Story, 

, 882 (10th Cir. 2012) (internal quotation marks omitted).

“When a [§ 1983] defendant asserts qualified immunity at summary judgment, the

burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional

right and (2) the constitutional right was clearly established.” Courtney v. Okla.

ex. rel, Dep’t of Pub. Safety, 

, 1222 (10th Cir. 2013) (internal quotation

marks omitted). The magistrate judge based his summary judgment on Plaintiff’s

failure to make the first showing, so he did not need to address whether the

applicable law was clearly established. We review the magistrate judge’s grant of

summary judgment de novo. See 

may make a warrantless arrest if there is probable cause to

believe a criminal offense has been or is being committed.” 

“Whether

probable cause exists depends upon the reasonable conclusion to be drawn from the

facts known to the arresting officer at the time of the arrest.” 

marks omitted). On appeal Plaintiff contends that he presented evidence sufficient to

create a genuine issue of material fact on whether the prescriptions provided to




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Officer Garcia included one for hydrocodone, and thus whether there was probable

cause to arrest him.1

      It is unclear why the magistrate judge decided that Plaintiff had presented no

admissible evidence that his mother had provided the officers a hydrocodone

prescription. The magistrate judge wrote: “There is no affidavit statement from

Plaintiff’s motion in support of [his] assertions, and a party may not rely on hearsay.”

R. Doc. 63 at 8. But Plaintiff’s deposition testimony was not hearsay. It was based

on his personal knowledge, just as much as Officer Garcia’s contrary affidavit was

based on his personal knowledge of what Plaintiff’s mother showed the officers.

There is no reason to believe that Plaintiff could not see the documents provided by


1
       In contravention of Fed. R. App. P. 30(a)(1)(B) and (C), and 10th Cir. R.
30.1(A)(1) and 10.3(D)(2), Plaintiff’s Appendix fails to include any of the orders
being appealed or many of the briefs filed in the district court related to the issues he
raises on appeal, including his response to the motion for summary judgment,
Defendants’ reply thereto, Defendants’ motion for bill of costs, or Plaintiff’s
response thereto. Further, in contravention of Fed. R. App. P. 30(d), Plaintiff’s
Appendix failed to present the record in the Appendix chronologically. As examples,
the transcript of Plaintiff’s deposition found in the Record at Doc. 41-5, was placed
in the Appendix between R. Docs. 37 and 38, see Aplt. App. at 95-106, and R. Doc.
41 was placed in the Appendix before Doc. 39, see Aplt. App. at 114, 134. Finally,
the end of the Appendix is not numbered consecutively. See Aplt. App. at 224-38.
       Counsel for Defendants supplemented the record, and we accessed other
missing pleadings through the district court’s docket. But we admonish counsel for
Plaintiff that “[i]t is not this court’s burden to hunt down the pertinent materials.
Rather, it is Plaintiff’s responsibility as the appellant to provide us with a proper
record on appeal.” Rios v. Bigler, 

, 1553 (10th Cir. 1995). “Our
procedural rules should not be considered empty gestures, as we have repeatedly
enforced them.” Burnett v. Sw. Bell Tel., L.P., 

, 910 (10th Cir. 2009)
(brackets and internal quotation marks omitted).


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his mother to the officers. A sworn statement from his mother was not required. At

summary judgment, “evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 

, 255 (1986). Corroboration is unnecessary. Further, “if ‘reasonable persons

could differ as to whether the witness had an adequate opportunity to observe, the

witness’s testimony is admissible.” Strong v. Valdez Fine Foods, 

,

1045 (9th Cir. 2013) (quoting 1 McCormick on Evidence § 10 (Kenneth S. Broun,

ed., 7th ed. rev. 2013)).

       Defendants argue that even if Plaintiff’s mother had given Officer Garcia the

January or February 2008 prescriptions for hydrocodone, they would not have been

valid prescriptions. Defendants rely on 21 U.S.C. § 829(b), which states that

prescriptions for a controlled drug such as hydrocodone “may not be filled or refilled

more than six months after the date thereof.” But Plaintiff was not trying to fill a

prescription. He was simply showing that his drugs had been obtained with a

prescription. The statute cited by Defendants does not require the patient to consume

all the medication within six months of the prescription date. In our view, Plaintiff

submitted sufficient evidence to support his claim that his arrest was without

probable cause.

       On the other hand, the magistrate judge correctly ruled that Plaintiff failed to

produce evidence that his arrest was in retaliation for exercising his First Amendment

rights. He asserts in his pleadings that the officers were retaliating against him


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because he had said that he had come to the courthouse to file a lawsuit against other

law-enforcement officers. But the deposition testimony on which he relies says only

that he told the officers that he had come to file a lawsuit — with no mention of

whom he was suing.

      Plaintiff’s motion to proceed in forma pauperis is granted. Defendants’

motion for sanctions and Plaintiff’s motion to expand and modify the record are

denied. We affirm the judgment below on Plaintiff’s First Amendment claims but

reverse and remand for further proceedings on his Fourth Amendment claims. The

district court may reconsider whether to grant further discovery.


                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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