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
                                                                               Clerk


    JAMES W. EDEN,

                Plaintiff-Appellant,

    v.                                                  No. 03-2030
                                                (D.C. No. CIV-02-423-JP/LFG)
    LANCE VOSS; PETER MAGGIORE;                           (D. N.M.)
    ANA MARIE ORTIZ; EBERLINE
    ANALYTICAL CORPORATION;
    RINCHEM COMPANY INC. and
    UNKNOWN DOES 1-10,

                Defendants-Appellees.


                            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      This order and judgment is not binding precedent, except under the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.




1
      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.

                                            -2-
      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 , 

, 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.




                                           -3-
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 , 

, 1428 (10th Cir. 1998).

Therefore, we present the facts in the light most favorable to him, drawing all

reasonable inferences in his favor.   See 

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,



2
       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.

                                           -4-
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


                                         -5-
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.   

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



3
      In his fourth cause of action, Mr. Eden sought special damages for
attorney’s fees for his efforts in bringing this lawsuit.

                                            -6-
immunity; and (3) Mr. Maggiore’s motion to dismiss because the doctrine of

respondeat superior did not apply and the conspiracy claim lacked specificity.

II. ANALYSIS

      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.


4
       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.

                                           -7-
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 , 

, 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 , 

, 1188 (11th Cir.

2002), cert. denied , 

(2003);      Lee v. City of Los Angeles , 

, 689-90 (9th Cir. 2001);   Bryant v. Avado Brands, Inc. , 

, 1278

(11th Cir. 1999); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group

Ltd. , 

, 426-27 & n.7 (3d Cir. 1999);       Kramer v. Time Warner Inc. ,

, 774 (2d Cir. 1991).   5
                                        Therefore, we remand to the district court for




5
       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.

                                            -8-
further proceedings on the complaint allegations.    See Mihos v. Swift , 

, 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 , 

(1997).

             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   , 

, 1484 (10th Cir. 1996)

(citation omitted).   6




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.

                                                                          (continued...)

                                           -9-
      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

6
 (...continued)
        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 , 

, 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.
7
       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 , 

, 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.

                                           -10-
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. , 

,

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

immunity.

      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 , 

, 535 (1981) (requiring

plaintiff seeking § 1983 relief to prove both that conduct complained of was




                                            -11-
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 , 

(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 

. 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



8
       There is no dispute that Rinchem’s conduct constituted state action.    See
Scott v. Hern , 

, 906 (10th Cir. 2000);   see also R., doc. 1 at 4
(complaint assertion that Rinchem was acting under color of state law).


                                          -12-
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.”   

also Bartell v. Lohiser , 

, 557 (6th Cir.

2000) (recognizing private party closely supervised by state may assert qualified

immunity).

       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


                                            -13-
wrongful detention after demand has been made.”       Sec. Pac. Fin. Servs. v.

Signfilled Corp. , 

, 842 (N.M. Ct. App. 1998). Trespass is the

“unauthorized entry upon the land of another.”     North v. Pub. Serv. Co. of N.M. ,

, 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.




9
       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.

                                          -14-
       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 , 

, 127 (1997);   Buckley v. Fitzsimmons , 

, 269

(1993). Ms. Ortiz “bears the burden of showing that such immunity is justified

for the function in question.”   Burns v. Reed , 

, 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. , 

, 1490 (10th Cir. 1991) (quoting    Imbler v.
       Pachtman , 

, 430-31 . . . (1976)). Absolute immunity
       does not extend to actions “that are primarily investigative or

                                           -15-
      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.’” 

v. Tunnell , 

, 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.” 

, 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 , 

, 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 , 

, 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 , 

, 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

                                          -16-
appearance at the probable cause hearing was “intimately associated with the

judicial phase of the criminal 

(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.”   

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


10
       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).

                                             -17-
enough to include any action by prosecutor that relates to ultimate decision to

prosecute); Smith v. Garretto , 

, 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

omitted).

       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 ,

, 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 , 

,


                                            -18-
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 

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 

       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




                                           -19-
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.”     

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’


                                             -20-
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. , 

, 1201 (10th Cir. 2003) (quotation omitted),       cert. denied , 

(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 , 

, 1244 (10th Cir.

1999) (quoting Conley v. Gibson , 

, 45-46 (1957)). In making this

review, courts take the complaint’s factual allegations as true.     Zinermon v.


                                            -21-
Burch , 

, 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 , 

, 1181 (10th Cir. 2002),    cert. denied , 

(2003).

       Supervisor liability “requires allegations of personal direction or of actual

knowledge and acquiescence.”       Woodward v. City of Worland , 

,

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.”   

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 , 

, 533 (10th Cir. 1998);      see also Salehpoor v. Shahinpoor ,

, 789 (10th Cir. 2004) (requiring plaintiff to allege by direct or


                                            -22-
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 , 

, 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.   , 

, 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.

       E. DISMISSAL WITH PREJUDGE WITHOUT LEAVE TO AMEND THE
       COMPLAINT

       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.      , 

, 1186-87

(10th Cir. 1999) (normally, district court need not grant leave to amend when

                                           -23-
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

discovery.

      G. FAILURE TO APPEAR AT PRETRIAL CONFERENCE

      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


                                         -24-
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. , 

, 667 (10th Cir. 1991) (referring to award of attorney’s

fees and expenses as sanction);     see also Olcott v. Del. Flood Co.     , 

,

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


11
       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).

                                            -25-
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   ,

, 709 (10th Cir. 1998) (reviewing de novo legal analysis underlying

sanction imposition). We remand to the district court for further proceedings.

III. CONCLUSION

      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



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