F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 17 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    GUILLERMO R. ZUNIGA,

                Plaintiff-Appellee,

    v.                                              Nos. 01-6303 & 02-6076
                                                   (D.C. No. 00-CV-1435-M)
    THE CITY OF MIDWEST CITY,                            (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant-appellant City of Midwest City, Oklahoma (Midwest), appeals

the judgment entered against it on plaintiff-appellee Guillermo R. Zuniga’s


*
      This order and judgment is not binding precedent, except under the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.
unlawful arrest and search claims under 42 U.S.C. § 1983. Midwest also appeals

the district court’s award of attorney’s fees to Zuniga under 42 U.S.C. § 1988 and

its award of costs to Zuniga under Fed. R. Civ. P. 54(d)(1). Our jurisdiction

arises under 28 U.S.C. § 1291. We conclude that Zuniga presented insufficient

evidence at trial to support the jury’s finding of municipal liability under § 1983,

and that the district court therefore erred in failing to grant Midwest’s motion

under Fed. R. Civ. P. 50(a) for judgment as a matter of law. Accordingly, we

reverse the judgment entered against Midwest on Zuniga’s § 1983 claims, and

we remand this matter to the district court with directions to enter judgment in

favor of Midwest on the § 1983 claims.    1
                                               In light of this disposition, we also

vacate the awards of attorney’s fees and costs to Zuniga.      2




                                              I.

       On the evening of September 21, 1999, Midwest police officers responded

to the scene of an alleged theft of water from a city fire hydrant. Officer Pamela

Wilson was the first officer to arrive at the scene, and she was told by an

employee of the Midwest water department that he had observed a fire hose

1
      Midwest is not appealing the judgment entered against it on Zuniga’s state
claim for false arrest. Zuniga is not appealing the judgment entered in favor of
Midwest on his federal and state claims for illegal search of his vehicle. Those
judgments are therefore not at issue as part of this appeal.
2
       We leave any further consideration of awards of costs or attorney’s fees to
the district court on remand.

                                              -2-
hooked up to the hydrant and two men, who were later identified as Fidencio

De La Rosa and Cordero Castillo, turning off the hydrant with a wrench. Officer

Wilson observed a fire hose laying on the ground next to the hydrant, a truck

parked next to the hydrant with a trailer containing a water tank, and water on the

ground near the hydrant. Officer Wilson asked De La Rosa and Castillo what

they were doing, and De La Rosa told her they were taking water.

      Detective Kenneth Sloan of the Midwest Police Department subsequently

arrived at the scene. After determining that De La Rosa was able to speak some

English and that Castillo spoke no English, Detective Sloan asked De La Rosa

who had given them permission to take water from the hydrant. De La Rosa

responded that “Memo” had given them permission “[a]nd then eventually he said

either ‘supervisor’ or ‘boss.’” Aplt. App., Vol. II, at 237.

      Zuniga, De La Rosa, and Castillo were employees of a company called

Bill’s Parking Lot Maintenance, and their supervisor, Mike Larsen, subsequently

arrived at the scene. Larsen told Detective Sloan that “Memo” was a nickname

for Zuniga, and he confirmed that Zuniga was the immediate supervisor of De La

Rosa and Castillo. Larsen also stated that he and Zuniga were working at a job

site that evening, and that he had directed Zuniga to call De La Rosa and Castillo

and have them fill the water tank and bring it to the job site. Larsen denied that

he had instructed Zuniga to have De La Rosa and Castillo take water from the


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hydrant. Instead, according to Larsen, they were to get the water from a water

tank located on the premises of Bill’s Parking Lot Maintenance.

       In the meantime, Sergeant Kenny Wynns of the Midwest Police Department

and Zuniga arrived at the scene. After learning what De La Rosa had told

Detective Sloan, Sergeant Wynns told Zuniga that De La Rosa had told Detective

Sloan that Zuniga was the one who gave the instructions to take water from the

hydrant. According to Sergeant Wynns, Zuniga then confirmed that “possibly two

to three times he’s done that.”      

Sergeant Wynns interpreted Zuniga’s

statement as verifying that he had instructed De La Rosa and Castillo to take

water from the hydrant that night.      

200. Zuniga denies that he told

Sergeant Wynns at the scene that he had instructed De La Rosa and Castillo to

take water from the hydrant that night.      

III, at 508-09, 528.

       Although they believed, based on the information they learned at the scene,

that they had probable cause to arrest Zuniga for the felony offense of conspiring

to commit an offense against the State of Oklahoma,        see Okla. Stat. Ann. tit. 21,

§ 424, Sergeant Wynns and Detective Sloan did not intend to have Zuniga

arrested and taken into custody. Instead, they only wanted to have him

transported to the police station so that he could give a voluntary statement.

However, because of mistakes made at the scene and a breakdown in

communication among the responding officers, an unidentified officer handcuffed


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Zuniga and placed him under arrest. Zuniga was then transported in handcuffs to

the city jail, and he was placed in a processing room and searched. After being

informed by another officer that Zuniga had been mistakenly transported to the

jail, Sergeant Wynns had him removed from the jail and taken to the police

station so that he could be interviewed by Detective Sloan.

      Zuniga was never charged with a crime in connection with the events that

occurred on September 21, 1999. Although De La Rosa and Castillo were

arrested and charged with the misdemeanor offenses of petty larceny and

tampering with city utilities, they were subsequently released to the Immigration

and Naturalization Service, and they were never prosecuted for the misdemeanor

charges.

      In this § 1983 case, Zuniga asserted the following claims against Midwest:

(1) federal and state claims for false arrest; (2) a federal claim for illegal search

of his person; and (3) federal and state claims for illegal search of his vehicle.

The claims were tried to a jury, and the jury returned a verdict in favor of Zuniga

on his federal and state claims for false arrest and his federal claim for illegal

search of his person. The jury awarded Zuniga no actual damages and nominal

damages of $1.00 on his § 1983 claims. Zuniga then moved for an award of costs

and attorney’s fees as the prevailing party in terms of the overall success achieved




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in the litigation, and the district court awarded him $89,350.25 in attorney’s fees

under § 1988 and $2,786.19 in costs under Rule 54(d)(1).


                                            II.

       “A plaintiff suing a municipality under section 1983 for the acts of one of

its employees must prove: (1) that a municipal employee committed a

constitutional violation, and (2) that a municipal policy or custom was the moving

force behind the constitutional deprivation.”     Myers v. Okla. County Bd. of

County Comm’rs , 

, 1316 (10th Cir. 1998). A plaintiff can “use a

municipality’s failure to train as one way to make the required showing that a

municipal policy or custom was the ‘moving force’ behind an already established

constitutional deprivation.”   

However, “the failure to train must

amount to deliberate indifference to the rights of persons with whom the police

come into contact.”   

(quotation omitted).

       At trial, Zuniga asserted two grounds for imposing municipal liability on

Midwest under § 1983: (1) that he was arrested without probable cause pursuant

to a policy or custom of Midwest; and (2) that he was arrested without probable

cause as the result of Midwest’s failure to adequately train its police officers.

The district court properly instructed the jury regarding the required elements for

both of Zuniga’s claims, and Midwest only claims that Zuniga failed to put forth

sufficient evidence to support his claims. After carefully reviewing the trial

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testimony and evidence and the pertinent legal authorities, we agree with Midwest

that there was insufficient evidence to support Zuniga’s municipal liability

claims.

      At the conclusion of Zuniga’s case and at the close of all the evidence,

Midwest moved under Rule 50(a) for judgment as a matter of law (JMOL) on

Zuniga’s § 1983 claims, arguing that, even if Zuniga was placed in a full

custodial arrest, there was insufficient evidence that he was arrested without

probable cause in violation of the Fourth Amendment.   3
                                                           In the alternative,

Midwest argued that, even if the arrest, and the related search incident to the

arrest, were unlawful, there was insufficient evidence to impose municipal

liability under § 1983 because there was no evidence that the arrest was the result

of a policy or custom of Midwest or a lack of police training. The district court

denied Midwest’s Rule 50(a) motion, and Zuniga’s municipal liability claims

were submitted to the jury.

      “Rule 50(a)(1) permits judgment as a matter of law during trial when a

party has been fully heard on an issue and ‘there is no legally sufficient


3
       Under the Fourth Amendment, “[a] police officer may arrest a person
without a warrant if he has probable cause to believe that person committed a
crime.” Romero v. Fay , 

, 1476 (10th Cir. 1995). “Probable cause
exists if the facts and circumstances within the arresting officer’s knowledge and
of which he or she has reasonably trustworthy information are sufficient to lead a
prudent person to believe that the arrestee has committed or is committing an
offense.” 

                                         -7-
evidentiary basis for a reasonable jury to find for that party on that issue.’”

Century 21 Real Estate Corp. v. Meraj Int’l Inv. Corp.   , 

, 1278

(10th Cir. 2003) (quoting Fed. R. Civ. P. 50(a)(1)).

      This court reviews de novo the denial of a motion for JMOL. In
      reviewing the district court’s refusal to grant JMOL, this court draws
      all reasonable inferences in favor of the nonmoving party. Further,
      this court does not weigh the evidence, pass on the credibility of the
      witnesses, or substitute its conclusions for that of the jury. The
      district court’s refusal to grant JMOL will only be reversed if the
      evidence points but one way and is susceptible to no reasonable
      inferences supporting the party opposing the motion.

Minshall v. McGraw Hill Broad. Co.     , 

, 1279 (10th Cir. 2003)

(citation and quotations omitted).

      We agree with the district court that Zuniga presented sufficient evidence at

trial to overcome Midwest’s Rule 50(a) motion with respect to the first prong of

his municipal liability claim, that is, that one or more of the Midwest police

officers violated his Fourth Amendment rights by arresting him without probable

cause. Specifically, construing the evidence in the light most favorable to

Zuniga, the jury could have found that: (1) the officers could not reasonably have

relied on De La Rosa’s statement to Detective Sloan to establish probable cause

to arrest Zuniga because it was established at trial that De La Rosa spoke very

little English and Detective Sloan admitted in his trial testimony that he had

difficulty understanding De La Rosa when he spoke to him at the scene,      see Aplt.

App., Vol. II, at 237, 270; and (2) the officers could not reasonably have relied on

                                           -8-
Zuniga’s statement at the scene to Sergeant Wynns because Sergeant Wynns

admitted during his trial testimony that he only made an “assumption” that Zuniga

was referring to the evening in question when he said he had instructed De La

Rosa and Castillo to take water from the hydrant,         see 

In addition,

Zuniga denied during his trial testimony that he told Sergeant Wynns that he had

instructed De La Rosa and Castillo to take water from the hydrant that night.            See

III, at 508-09, 528, 586. Consequently, the testimony of Wynns and

Zuniga was in conflict, and the district court acted correctly in submitting the

credibility determination of who to believe to the jury.

       Nonetheless, we disagree with the district court that Zuniga presented

sufficient evidence to overcome Midwest’s Rule 50(a) motion with respect to the

second prong of his municipal liability claim, that is, that he was unlawfully

arrested as the result of a municipal policy or custom, and/or that he was

unlawfully arrested as the result of inadequate police training. First, Zuniga

presented no evidence showing that Midwest had an unconstitutional or illegal

policy or custom that was the moving force behind his arrest as is required to

establish municipal liability under § 1983.         See Barney v. Pulsipher , 

, 1307 (10th Cir. 1998) (noting that municipality may be held liable under

§ 1983 “only for its own unconstitutional or illegal policies”). To the contrary,

the undisputed evidence at trial established that Zuniga was arrested by mistake,


                                              -9-
and, as the Chief of Police, Brandon Clabes, testified, Zuniga’s mistaken arrest

was apparently the first such incident of its kind that the Midwest Police

Department had ever experienced.      See Aplt. App., Vol. III, at 45. Thus, while

other testimony at trial established that the police officers at the scene may have

violated certain internal departmental policies or procedures requiring that

officers use interpreters when interrogating non-English speaking persons, that

officers know the charges that are going to be filed against an arrested suspect

before transporting the suspect to jail, and that officers not arrest and take into

custody a suspect who has agreed to provide a voluntary statement, Zuniga put

forth no evidence showing that the officers acted in an unconstitutional manner

pursuant to an official municipal policy or custom.    Camfield v. City of Okla.

City , 

, 1229 (10th Cir. 2001) (noting that a “plaintiff must show

that the unconstitutional actions of an employee were representative of an official

policy or custom of the municipal institution”).

       Second, while the parties stipulated to the admission of certain training

records for Sergeant Wynns, Detective Sloan, Officer Wilson, and other officers

involved in Zuniga’s arrest,   see Aplt. App., Vol. I, at 288-311, Zuniga made no

effort during the trial to specifically link the actual training provided to these

officers, or any alleged lack of training, to the events surrounding his arrest.

Further, Zuniga made no showing of any deliberate indifference on the part of the


                                           -10-
Midwest Police Department with respect to training. Instead, Zuniga simply

asserted in conclusory fashion that, because the Midwest police officers made a

mistake in arresting Zuniga and thereby may have violated certain internal

departmental policies, they were not adequately trained. This is not sufficient for

purposes of imposing municipal liability under § 1983 for a failure to train.    See

Barney , 143 F.3d at 1307 (noting that a municipality’s failure to train “must

reflect a deliberate or conscious choice by the municipality”) (quotation omitted).

       The judgment entered against Midwest on Zuniga’s § 1983 claims is

REVERSED, and we REMAND this matter to the district court with directions to

enter judgment in favor of Midwest on the § 1983 claims. We also VACATE the

awards of attorney’s fees and costs to Zuniga.


                                                        Entered for the Court


                                                        Mary Beck Briscoe
                                                        Circuit Judge




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