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Case Number: 19-4133
Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Utah
Plaintiff's Attorney: Dick J. Baldwin, Zimmerman Booher (Troy L. Booher and Beth E. Kennedy,
Zimmerman Booher, and Mark R. Moffat and Ann Marie Taliaferro, Brown
Bradshar & Moffat, and Lincoln Hobbs, Hobbs & Olson, with him on the briefs),
Salt Lake City, Utah, for Appellant.
Defendant's Attorney: Jefferson W. Gross (S. Ian Hiatt with him on the brief), Gross & Rooney, Salt
Lake City, Utah, for Appellees Orem City, Orem City Police Department, Officers
Thomas Wallace, William Crook, Orlando Ruiz, Art Lopez, and Todd Ferre.
Peter Stirba (Ciera Archuleta with him on the brief), Stirba, P.C., S
Description: Conrad Truman sued state prosecutor Craig Johnson and various Orem City
police officers for violating his civil rights by fabricating evidence that was used
against him in a murder prosecution. Mr. Truman was prosecuted twice for the
murder of his wife. According to Mr. Truman’s complaint, the prosecution
knowingly falsified measurements of the murder scene to rule out the possibility
of suicide or a self-inflicted accidental wound. As a result, the state medical
examiner deemed Mrs. Truman’s death a homicide and Mr. Truman was indicted
and successfully prosecuted for murder. After his conviction, he learned of the
mismeasurements and the state court granted him a new trial. In the second trial
where proper room measurements were admitted into evidence, Mr. Truman was
These events led Mr. Truman to file a 42 U.S.C. § 1983 action against the
prosecutor and the police. The district court found that the prosecutor was
entitled to qualified immunity as a matter of law and the claims against the police
officers were barred by previous holdings in state court.
Exercising jurisdiction under 28 U.S.C. § 1291, we disagree with the
district court that the prosecutor is entitled to qualified immunity at this stage in
the proceedings. At the motion to dismiss stage, the allegations in the amended
complaint plausibly allege the elements of a fabrication of evidence claim. As a
result, dismissal based on qualified immunity was inappropriate. But summary
judgment was appropriate as to the police officers because Mr. Truman forfeited
his argument regarding issue preclusion in state court and did not argue for plain
error review on appeal.
We therefore REVERSE the dismissal of the fabrication of evidence claim
against the prosecutor and AFFIRM the entry of summary judgment in favor of
the police officers.
Heidy Truman suffered a fatal gunshot wound to the head on September 30,
2012. She lived in a small residence with her husband, Conrad Truman, and they
were home alone when the shooting occurred.
At the time of the shooting, according to the amended complaint, Mrs.
Truman was in the area near the bathroom and bedroom and Mr. Truman was in
the kitchen. Mr. Truman alleges he heard a door open, and then a “pop.” He
walked towards the sound and found Mrs. Truman falling to the ground through
the hallway entry to the floor of the kitchen area. Mrs. Truman owned a gun and
it was located on the floor next to her. Mr. Truman tried to perform CPR on his
wife and then called 911. Paramedics and police officers arrived. Mrs. Truman
was transported to the hospital where she ultimately died. At the time, Mr.
Truman told police that she may have shot herself or perhaps a shot came from
outside the home.
After her death, based on what he knew, the medical examiner initially
listed Mrs. Truman’s manner of death as “could not be determined.” But nearly a
year later, Orem City police officers and state prosecutor Craig Johnson met with
the medical examiner and showed him a PowerPoint presentation outlining their
theory of the case—murder. It included a crime scene diagram depicting an
approximately seven-foot distance between Mrs. Truman’s feet and the hallway
entrance where Mr. Truman claimed the shot was fired. Another slide stated Mrs.
Truman’s body was found over twelve feet away from the spot where Mr. Truman
said he saw her after he heard the shot. Contrary to these representations, Mrs.
Truman’s feet were actually three-and-one-half feet from the hallway entrance
and she moved only about nine inches from the spot where Mr. Truman said he
first saw her after he heard the shot. Because it is physically impossible for
someone who has been shot in the head to walk more than a step or two before
collapsing, the medical examiner concluded someone else had shot Mrs. Truman.
He then changed her manner of death to homicide.1
After this meeting, Mr. Truman was charged with his wife’s murder and
with obstruction of justice. Mr. Truman alleges that, at trial, based on inaccurate
information provided by the Orem City police officers and the prosecutor in the
PowerPoint presentation, the medical examiner testified that Mrs. Truman’s
manner of death was homicide because she could not have moved the distance
from the hallway to where her body lay if the wound were self-inflicted.2
1 The medical examiner testified at the first trial and declared in an
affidavit attached to the amended complaint that someone shot in the head with
Mrs. Truman’s injuries would be able to take only a step or a step and one-half
before collapsing. See Aplt. App. 241.
2 Again, according to the medical examiner’s subsequent scene
reconstruction, Mrs. Truman only traveled approximately nine inches, a distance
that is possible if she shot herself as Mr. Truman maintains.
The prosecution also presented the jury a sketch of the layout of the house
showing the location of the bathroom, kitchen, and body. On the night of the
incident, Detective Thomas Wallace made a hand sketch of the house using a tape
measure. When Detective Wallace later prepared a computer diagram of the
scene, however, Mr. Truman alleges that Detective Wallace made a transcription
error and typed 13.9 feet instead of 139 inches as the length of the hallway in the
Truman home. This caused the diagram to inaccurately depict the length of the
hallway as being about two feet and four inches longer than it really is.
Significantly, the diagram also exaggerated the distance between the location of
Mrs. Truman’s body and the place where Mr. Truman claimed to have heard the
shot. The measurements were used to generate a trial exhibit misrepresenting the
dimensions of the rooms and the exact location of Mrs. Truman’s body. The
exhibit also significantly undermined the possibility of an accident or that Mrs.
Truman committed suicide because the inaccurate diagram depicted Mrs.
Truman’s body as far more than a step or two from the shot location. After
considering this evidence, the jury convicted Mr. Truman.
While imprisoned for his wife’s murder, Mr. Truman and his legal team
discovered the inaccuracies of the evidence used against him. They filed a
motion for a new trial in state court. The medical examiner filed an affidavit in
which he stated that he “concluded that the gunshot wound could not have been
self-inflicted . . . based upon the representation by law enforcement that Heidy
Truman traveled 12-feet from the location where the shot was fired to the final
resting place of her body.” Aplt. App. 200. He also explained that “based upon
[the] information I received from the prosecution team, in conjunction with what I
observed during the autopsy, it was my opinion that . . . [t]he wound would have
incapacitated Heidy Truman” and “[d]ue to the nature of the wound, Heidy would
not have been able to travel far after the wound was inflicted.” Id. The medical
examiner concluded that “[b]ased on the information provided in the PowerPoint
as well as the statements and explanations of members of the prosecution team, I
amended my manner of death classification . . . from ‘not determined’ to
‘homicide.’” Id. at 200–01. Upon consideration of the inaccurate diagram used
and the flawed testimony of the medical examiner given at the first trial, the state
court found that the prosecution introduced evidence such that “the incorrect
dimensions presented to the jury in essence removed from its members the issue
of reasonable doubt on the theory of suicide” and “had the accurate dimensions
been presented to the jury[,] a different result may have resulted.” Id. at 120,
608. A new trial was ordered.
Mr. Truman was tried a second time. This time, the medical examiner did
not testify and the prosecution did not use an inaccurate drawing of the scene and
body location. The second jury acquitted Mr. Truman.
Mr. Truman then brought this § 1983 action against the prosecutor and the
police officers involved in his criminal prosecution. He alleges many claims, but
relevant to his appeal are his fabrication of evidence claims against the prosecutor
and the police officers.
Mr. Truman contends the district court erred by dismissing his fabrication
of evidence claim against the prosecutor because it found he is entitled to
qualified immunity. Mr. Truman further asserts error in the district court’s grant
of summary judgment to the police officers on his fabrication of evidence claim.
As we explain, we agree as to the prosecutor, but not as to the police officers.
A. Fabrication of Evidence Claim
Mr. Truman appeals the dismissal of his fabrication of evidence claim
against Craig Johnson, the prosecutor in his first state criminal case. The district
court found the prosecutor is entitled to qualified immunity because Mr. Truman
failed to state a claim that the prosecutor violated a constitutional right.
Mr. Truman asserts that the prosecutor violated his constitutional right not
to be deprived of liberty as a result of the fabrication of evidence by a
government officer. As a result, he contends the district court erred in concluding
that the prosecutor is entitled to qualified immunity.
1. Applicable Law
We review a dismissal under Federal Rule of Civil Procedure 12(b)(6)
based on qualified immunity de novo. Wilson v. Montano, 715 F.3d 847, 852
(10th Cir. 2013). The Federal Rules require a complaint to contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). In reviewing a Rule 12(b)(6) motion to dismiss for failure to
state a claim, all well-pleaded allegations in the complaint must be accepted as
true and viewed “in the light most favorable to the plaintiff.” Alvarado v.
KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). While a complaint need
not recite “detailed factual allegations,” “a plaintiff’s obligation to provide the
grounds of his entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and
citations omitted; alteration in original). The pleaded facts must establish that the
claim is plausible. Id.
District courts may grant a motion to dismiss based on qualified immunity,
but “[a]sserting a qualified immunity defense via a Rule 12(b)(6) motion . . .
subjects the defendant to a more challenging standard of review than would apply
on summary judgment.” Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir.
2004). Specifically, the court analyzes “the defendant’s conduct as alleged in the
complaint.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal
quotation marks omitted). “In the context of a § 1983 action against multiple
individual governmental actors, it is particularly important . . . that the complaint
make clear exactly who is alleged to have done what to whom, to provide each
individual with fair notice as to the basis of the claims against him or her.”
Wilson, 715 F.3d at 852 (internal quotation marks omitted).
A § 1983 defendant’s assertion of qualified immunity is an “affirmative
defense [that] creates a presumption that the defendant is immune from suit.” Est.
of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020). To
overcome this presumption, the plaintiff must show (1) the defendant’s actions
violated a constitutional or statutory right, and (2) that right was clearly
established at the time of the defendant’s complained-of conduct. Thomas, 765
F.3d at 1194. A right is clearly established “when a Supreme Court or Tenth
Circuit decision is on point, or if the clearly established weight of authority from
other courts shows that the right must be as the plaintiff maintains.” Id. Thus,
“the contours of the right must be sufficiently clear [so] that a reasonable official
would understand that what he is doing violates that right.” Id. But “our analysis
is not a scavenger hunt for prior cases with precisely the same facts, and a prior
case need not be exactly parallel to the conduct here for the officials to have been
on notice of clearly established law.” Reavis v. Frost, 967 F.3d 978, 992 (10th
Cir. 2020) (internal quotation marks omitted). There can also be “the rare
obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear
even though existing precedent does not address similar circumstances.” D.C. v.
Wesby, 138 S. Ct. 577, 590 (2018) (internal quotation marks omitted).
The constitutional right at issue in this case is Mr. Truman’s due process
right not to be deprived of liberty as a result of the fabrication of evidence by a
government officer. To rise to the level of a constitutional violation, a plaintiff
must assert a causal connection between the fabrication of evidence and the
deprivation of liberty.3 See Warnick v. Cooley, 895 F.3d 746, 753 (10th Cir.
2018); see also Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). Thus, to state
a fabrication of evidence claim, a plaintiff must allege (1) the defendant
knowingly fabricated evidence, (2) the fabricated evidence was used against the
3 The parties present the constitutional right at issue to be the right not to
be deprived of liberty as a result of the fabrication of evidence by a government
officer. This has long been recognized as a constitutional right, see Pyle v.
Kansas, 317 U.S. 213, 216 (1942), but it often overlaps with malicious
prosecution claims, sometimes creating confusion about whether it is an
independent constitutional claim. See, e.g., Pierce v. Gilchrist, 359 F.3d 1279
(10th Cir. 2004); Wilkins v. DeReyes, 528 F.3d 790, 795 (10th Cir. 2008). But a
fabrication of evidence claim implicates the Constitution, notwithstanding its
failure to satisfy the elements of a malicious prosecution claim. So, even if that
overlap is present here, we only analyze the constitutional right as a fabrication of
evidence claim. Moreover, even if we analyze this as a malicious prosecution
claim, the record is insufficient to determine whether the elements of malicious
prosecution are met—namely, whether there was a lack of probable cause.
plaintiff,4 (3) the use of the fabricated evidence deprived the plaintiff of liberty,5
and (4) if the alleged unlawfulness would render a conviction or sentence invalid,
the defendant’s conviction or sentence has been invalidated or called into doubt.6
See Warnick, 895 F.3d at 753; Heck v. Humphrey, 512 U.S. 477, 478 (1994).
Although “[t]here is some disagreement . . . over what degree of intent the officer
must have,” Pierce, 359 F.3d at 1293, he necessarily must possess knowledge of
the evidence’s falsity. See Evidence, Black’s Law Dictionary (11th ed. 2019)
4 Where the alleged fabrication of evidence was performed by a member of
the executive branch, like the prosecutor here, the deprivation violates due
process only when it “‘can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.’” Crowson v. Washington Cnty., 983 F.3d
1166, 1190 (10th Cir. 2020) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,
5 To satisfy this element where, as here, the plaintiff was allegedly
deprived of a fair trial, the fabricated evidence must be material, meaning there is
a reasonable likelihood that without the use of the fabricated evidence, the
defendant would not have been deprived of a fair trial. Although a plaintiff’s
conviction based in part on the presentation of fabricated evidence at trial is
evidence that he or she was deprived of a fair trial, it is not crucial to a § 1983
fabrication of evidence claim. An acquitted plaintiff may have been deprived of
liberty due to fabricated evidence if there is a reasonable likelihood that without
the fabricated evidence, the plaintiff would not have been criminally charged.
6 More specifically, the Heck Court explained this can be satisfied with
proof “that the [defendant’s] conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” 512 U.S. 477, 486–87 (1994).
(defining “fabricated evidence” as “[f]alse or deceitful evidence that is unlawfully
created . . . in an attempt to achieve or avoid liability or conviction”).
Mr. Truman’s allegations are sufficient to overcome the prosecutor’s claim
of qualified immunity. He plausibly alleges (1) the prosecutor’s actions violated
his constitutional right not to be deprived of liberty as a result of the fabrication
of evidence by a government officer and (2) the right was clearly established at
the time of the prosecutor’s conduct. As relevant here, Mr. Truman alleges:
< The prosecutor was present in the Truman home during a crime
scene reconstruction walk-through on May 30, 2013. Aplt.
< The prosecutor reviewed photographs from the crime scene
reconstruction on May 30, 2013. Id. at 337.
< The prosecutor knew Mrs. Truman’s body was located close to
the hallway entrance just as Mr. Truman explained and
consistent with where she would have fallen from a
self-inflicted shot in that reported area. Id.
< Notwithstanding knowledge of the accurate location and size
of Mrs. Truman’s body, the prosecutor “fabricated, aided,
advised, and/or directed the fabrication of evidence, testimony,
diagrams and/or other depictions in order to corroborate a false
‘distance traveled.’” Id. at 337, 352.
< Notwithstanding knowledge of the accurate location and size
of Mrs. Truman’s body, the prosecutor shared the fabricated
distance-traveled evidence with the medical examiner in order
to influence him to change the manner of Mrs. Truman’s death
to homicide. Id. at 338, 352.
< The prosecutor, among others, met with the medical examiner
on July 17, 2013. Id. at 340.
< The prosecutor made representations to and answered
questions for the medical examiner in this meeting. Id.
< At the meeting, the medical examiner was presented with a
diagram of the crime scene with inaccurate dimensions. Id. at
< The prosecutor knew the diagram was inaccurate but still
presented it to, or allowed it to be presented to, the medical
examiner. Id. at 342.
< The fabricated diagram was a fundamental basis for the
medical examiner’s change in his manner of death
determination from undetermined to homicide. Id.
< During Mr. Truman’s first trial, state prosecutors presented the
medical examiner as an expert witness and “knowingly
presented his tainted opinion that this death was a homicide.”
Id. at 345.
< The fabricated distance-traveled evidence was presented to the
jury in the first trial and served as one of the foundational
bases for Mr. Truman’s conviction. Id. at 339.
< The prosecutor presented a PowerPoint presentation to the
medical examiner with false information, specifically that Mrs.
Truman traveled over twelve feet after she was shot. Id. at
< The prosecutor knew the diagram in the PowerPoint
presentation was false because he had been to the Truman
residence multiple times, attended a crime scene reconstruction
walk-through, and had seen a more accurate diagram created
by Jason Keller (Mrs. Truman’s brother-in-law). Id. at 354.
< After Mr. Truman’s new counsel presented the medical
examiner with accurate information and after the medical
examiner viewed the scene in person, he corrected his manner
of death opinion from the first trial and concluded he could not
rule out that Mrs. Truman’s death was a suicide. Id.
Mr. Truman also attached the declaration of the medical examiner to the amended
complaint,7 which includes the following assertions:
< The prosecutor attended a meeting regarding Mrs. Truman’s
death with the medical examiner, among others, on July 17,
2013. Id. at 238–39.
< Detective Wallace presented a PowerPoint presentation of
Orem City’s theory of the case. Id. at 239.
< The PowerPoint presentation indicated Mrs. Truman’s body
traveled more than twelve feet from the location where she was
shot to the location where her body was found. Id.
< The medical examiner relied on a PowerPoint slide to conclude
Mrs. Truman’s gunshot wound could not have been
self-inflicted because she could not have traveled over twelve
feet after being shot in the head. Id. at 241.
< The measurements in a PowerPoint slide presented to the
medical examiner and those in an exhibit presented to the jury
at trial are both incorrect and make the dimensions in the
Truman home appear larger than they are. Id. at 245.
a. Violation of a Constitutional Right
Accepting these allegations as plausibly true and viewing them in the light
most favorable to Mr. Truman, they establish the elements of a fabrication of
First, they plausibly allege the prosecutor fabricated evidence. Mr. Truman
repeatedly asserts the prosecutor knew the PowerPoint slide of the crime scene
7 Courts can consider not only the complaint but also attached exhibits and
documents incorporated into the complaint by reference. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009).
diagram presented to the medical examiner was inaccurate, yet it was still
presented to the medical examiner. He supports this with specific facts, like the
prosecutor’s multiple visits to the Truman home, his attendance at a crime scene
reconstruction, and his viewing of photos from the crime scene reconstruction.
These facts of course do not necessarily mean the prosecutor had knowledge that
the dimensions in the PowerPoint slide were inaccurate. But the motion to
dismiss standard requires the panel to draw the inference that these facts indicate
knowledge, an inference favorable to Mr. Truman. It may be that after discovery
these issues will be clarified.
Mr. Truman also supports his claim by specifically asserting the prosecutor
made materially false statements to the medical examiner and presented the
PowerPoint presentation to him with false information that Mrs. Truman traveled
over twelve feet after she was shot. The district court focused on the fact that the
medical examiner’s declaration attached to the amended complaint does not
attribute any specific statement to the prosecutor—but to require such specificity
is unreasonable considering no discovery has occurred at this stage of litigation.
The inferences in favor of Mr. Truman drawn from the specific allegations in the
amended complaint and the medical examiner’s declaration lead to the
conclusions that the prosecutor knew the PowerPoint presentation was inaccurate,
presented it to the medical examiner regardless, and put the medical examiner on
the stand in the first trial with knowledge that his opinion was based on fabricated
evidence. Mr. Truman sufficiently alleges the prosecutor fabricated evidence.
Second, the fabricated evidence was used in the criminal case against Mr.
Truman. Mr. Truman alleges, and the medical examiner declares, the fabricated
evidence formed a foundation for the medical examiner’s opinion that Mrs.
Truman’s manner of death was homicide. The prosecutor used the medical
examiner as an expert witness at Mr. Truman’s first trial, and the medical
examiner’s testimony was based on the fabricated evidence.
Third, the use of the fabricated evidence deprived Mr. Truman of a fair
trial. Mr. Truman was convicted in his first trial that included the medical
examiner’s flawed expert testimony but acquitted in his second trial that did not
include the medical examiner’s flawed expert testimony. This shows that the
allegedly fabricated evidence was material, as there was more than a reasonable
likelihood that without the use of the fabricated evidence, the defendant would
not have been deprived of a fair trial.
Fourth, Mr. Truman’s conviction has been invalidated. The state court
vacated his conviction from the first trial, and then he was acquitted in the second
Mr. Truman’s allegations paint a picture of arbitrary executive action that
shocks the conscience: the prosecutor intentionally presented false information to
the medical examiner to get him to change Mrs. Truman’s manner of death to
homicide and then put the medical examiner on the stand to testify based on that
false information in order to secure Mr. Truman’s conviction. Accordingly, Mr.
Truman sufficiently alleges the prosecutor’s actions violated his constitutional
due process right not to be deprived of liberty as a result of the fabrication of
evidence by a government officer, satisfying the first requirement to overcome the
presumption of qualified immunity.
b. Clearly Established Constitutional Right
We also conclude the right not to be deprived of liberty as a result of the
fabrication of evidence by a government officer was clearly established at the
time of the prosecutor’s conduct.
The constitutional violation at issue here was clearly established by our
decision in Pierce in 2004. In Pierce, a plaintiff wrongly convicted of rape sued
a police department forensic chemist under 42 U.S.C. § 1983 for the
constitutional tort of malicious prosecution. 359 F.3d at 1283–84. The complaint
there alleged that the forensic chemist performed a forensic analysis on hair
samples from the crime scene and concluded many were “microscopically
consistent” with the plaintiff. Id. at 1282. It further alleged the forensic
chemist’s findings were knowingly false, without a scientific basis, and led to the
plaintiff’s wrongful conviction. This court held the forensic chemist was not
entitled to qualified immunity. Citing Supreme Court precedent, we explained it
was clearly established that a criminal defendant’s due process rights are
implicated when the state knowingly uses false testimony to obtain a conviction.
Id. at 1299 (citing Pyle v. Kansas, 317 U.S. 213, 216 (1942)); see also Mooney v.
Holohan, 294 U.S. 103, 112 (1935) (“[P]resentation of testimony known to be
perjured . . . to procure the conviction and imprisonment of a defendant is as
inconsistent with the rudimentary demands of justice as is the obtaining of a like
result by intimidation.”). The Pierce court continued that a government officer’s
knowing or reckless fabrication of evidence is not objectively reasonable.
The alleged facts in this case are obviously not identical to those in Pierce:
prosecutor versus forensic analyst, incorrect dimension evidence versus faulty
hair sample evidence. Even so, there are consistent factual strands running
through these cases that put the prosecutor on notice that his alleged conduct
violated Mr. Truman’s constitutional rights. Just like in Pierce, Mr. Truman
alleges that the prosecutor knowingly used false evidence to convict Mr. Truman
and to deprive him of due process. Such consistency is enough to defeat qualified
The same constitutional right at issue in Pierce is at issue in this case.
Accordingly, the right not to be deprived of liberty as a result of the fabrication of
evidence by a government officer was clearly established by Pierce at the time of
the prosecutor’s actions in 2013, satisfying the second requirement to overcome
the presumption of qualified immunity.
This is also an “obvious case” of a constitutional violation. See Wesby, 138
S. Ct. at 590; Pierce, 359 F.3d at 1298. Any reasonable prosecutor understands
that providing a medical examiner materially false information that influences his
expert opinion as to whether a homicide occurred and then putting that medical
examiner on the stand to testify based on that false information prevents a fair
trial. See Mooney, 294 U.S. at 112. Such conduct is “obviously egregious,”
Pierce, 359 F.3d at 1298, and so the “unlawfulness of the officer’s conduct is
sufficiently clear even [if] existing precedent does not address similar
circumstances.” Wesby, 138 S. Ct. at 590; Whitlock v. Brueggemann, 682 F.3d
567, 585 (7th Cir. 2012) (“[T]he idea that an investigating prosecutor . . . should
know not to fabricate evidence in order to frame a suspect is . . . elementary[.]”).
A recent Supreme Court case, Taylor v. Riojas, 141 S. Ct. 52 (2020) (per
curium), is instructive. In Taylor, an inmate brought a § 1983 claim alleging
prison officials violated his Eighth Amendment rights by subjecting him to
inhumane conditions of confinement. Id. at 53. For six days he was confined to
“shockingly unsanitary cells,” one covered in feces, and the other “frigidly cold.”
Id. He went four days without eating or drinking because he was fearful anything
he consumed would be contaminated. Id. He also held his bladder for over a day
because the cold cell had only a clogged drain to dispose of waste. Id. He
eventually succumbed to his urges and involuntarily relieved himself, causing the
drain to overflow with raw sewage, which he was forced to sleep in naked. Id.
The Fifth Circuit held that even though this constituted a violation of the inmate’s
Eighth Amendment rights, the prison officials were entitled to qualified immunity
because it was not clearly established that “prisoners couldn’t be housed in cells
teeming with human waste for only six days.” Id. (internal quotation marks
The Supreme Court rejected the Fifth Circuit’s finding of qualified
immunity. The inmate in Taylor could not identify a case in which a court held
that an inmate confined to extremely unsanitary cells for six days offends the
Constitution. But the Supreme Court made clear that he did not have to. It
explained that “no reasonable correctional officer could have concluded that,
under the extreme circumstances of this case, it was constitutionally permissible
to house Taylor in such deplorably unsanitary conditions for such an extended
period of time.” Id. In support, the Court reasserted its holding in Hope v.
Peltzer, 536 U.S. 730, 741 (2002), for the proposition that “a general
constitutional rule already identified in the decisional law may apply with obvious
clarity to the specific conduct in question.” Id. at 53–54.
This proposition applies with equal force here. The right not to be deprived
of liberty as a result of the fabrication of evidence by a government officer is a
general constitutional rule identified in decisional law prior to the prosecutor’s
conduct. See, e.g., Mooney, 294 U.S. at 112; Whitlock, 682 F.3d at 585 (“[T]he
deliberate manufacture of false evidence contravenes the Due Process Clause.”);
id. at 585–86 (collecting cases); Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th
Cir. 2001) (“[T]he wrongfulness of charging someone on the basis of deliberately
fabricated evidence is sufficiently obvious . . . [so] that the right to be free from
such charges is a constitutional right.”). And it applied with obvious clarity to
the specific conduct in question— the prosecutor’s alleged fabrication of evidence
and use of it against Mr. Truman, resulting in his conviction. See Whitlock, 682
F.3d at 585–86 (denying qualified immunity to prosecutor who allegedly
fabricated evidence by encouraging and bribing witnesses to lie and then using
that perjured testimony at trial to secure a conviction because the
unconstitutionality of such acts was clearly established). Just like any reasonable
correctional officer should understand the inmate in Taylor’s conditions of
confinement offended the Constitution, so too should any reasonable prosecutor
understand that providing a medical examiner fabricated evidence and then
putting him on the stand to testify based on that false information offends the
As a result, Mr. Truman plausibly alleges a fabrication of evidence claim
against the prosecutor.8
8 The prosecutor asserts he is entitled to qualified immunity because he
reasonably relied on information given to him by Orem City police officers and
there was no reason for him to question the trustworthiness of this information.
This argument fails, however, because it is premised on the assumption that the
prosecutor lacked personal knowledge of the inaccurate evidence. This is
contrary to the allegations in the amended complaint that the prosecutor visited
the crime scene, which must be accepted as true at this stage.
We also note that although a prosecutor enjoys “absolute immunity from
suit for activities that are intimately associated with the judicial phase of the
criminal process,” see Bledsoe v. Vanderbilt, 934 F.3d 1112, 1117 (10th Cir.
2019) (internal quotations omitted), this immunity does not extend to “fabricating
evidence during the preliminary investigation of a crime,” as is alleged here.
Buckley v. Fitzsimmons (Buckley I), 509 U.S. 259, 261, 272–76 (1993); see also
Bledsoe, 934 F.3d at 1118. And this rule does not change even if a prosecutor
uses the evidence he or she fabricated during the preliminary investigation of a
crime at trial. See Bledsoe, 934 F.3d at 1118 (“[The prosecutor’s] potential
entitlement to absolute immunity is not tethered to his use of the fabricated
evidence at trial.”); id. at 1120. The Supreme Court has explained:
A prosecutor may not shield his investigative work with
the aegis of absolute immunity merely because, after a
suspect is eventually arrested, indicted, and tried, that
work may be retrospectively described as “preparation” for
a possible trial; every prosecutor might then shield himself
from liability for any constitutional wrong against innocent
citizens by ensuring that they go to trial. When the
functions of prosecutors and detectives are the same, . . .
the immunity that protects them is also the same.
Buckley I, 509 U.S. at 276. Thus, just as a detective who fabricates evidence
during the preliminary investigation of a crime is protected only by qualified
immunity, so too is a prosecutor who fabricates evidence during the preliminary
investigation of a crime. See Bledsoe, 934 F.3d at 1118–19.
B. Claims Against the Police Officers9
Although the district court granted summary judgment to the police officers
on Mr. Truman’s fabrication of evidence claim against them on three separate
grounds, we need only review the issue preclusion ground to affirm the district
court.10 The district court found the fabrication of evidence claim was barred
because the state court previously determined the allegedly fabricated evidence
was not intentionally inaccurate.11
We need not reach the merits of this argument because Mr. Truman
forfeited it by failing to argue in the district court that issue preclusion does not
bar his claim because the state court proceedings did not result in a judgment on
9 Although the allegations against the prosecutor are limited to his
fabrication of evidence, those against the police officers include, among other
allegations, the Utah County Attorney’s Office’s failure to train, its insufficient
customs that allowed the prosecutor and unnamed attorneys to deprive Mr.
Truman of his constitutional rights, and its knowledge of constitutional violations
without any remedy.
10 The three separate grounds include (1) issue preclusion barred the claim,
(2) there was not a lack of probable cause, an essential element for a malicious
prosecution claim, and (3) no reasonable jury could find for Mr. Truman based on
11 This finding may have a preclusive effect on the fabrication of evidence
claim against the prosecutor. But that issue was not presented in the motion to
dismiss arguments, and since we do not even reach the merits of it as to the police
officers, we decline to do so as to the prosecutor.
1. Applicable Law
A plaintiff may be precluded from bringing a § 1983 claim by a state
criminal judgment if “the state court . . . has given the parties a full and fair
opportunity to litigate federal claims.” Allen v. McCurry, 449 U.S. 90, 104
(1980). State preclusion rules govern the preclusive effect of a state judgment in
federal court. See Valley View Angus Ranch, Inc. v. Duke Energy Field Servs.,
Inc., 497 F.3d 1096, 1100 (10th Cir. 2007).12
Under Utah law, issue preclusion “prevents parties or their privies from
relitigating facts and issues in the second suit that were fully litigated in the first
suit.” Oman v. Davis Sch. Dist., 194 P.3d 956, 965 (Utah 2008) (internal
quotation marks omitted). The elements of issue preclusion include:
 the party against whom issue preclusion is asserted
must have been a party to or in privity with a party to
the prior adjudication;
 the issue decided in the prior adjudication must be
identical to the one presented in the instant action;
 the issue in the first action must have been
completely, fully, and fairly litigated; and
 the first suit must have resulted in a final judgment
on the merits.
12 The parties agree that Utah state preclusion rules govern here. See Br.
of Aplt. at 42; Br. of Orem Aples. at 28–29.
Despite some overlap, elements three and four are distinct. An issue is
completely, fully, and fairly litigated when “it is properly raised . . . and is
submitted for determination, and is determined.” State v. Sommerville, 297 P.3d
665, 675 (Utah App. 2013) (internal quotation marks omitted). A final judgment
is “on the merits” when “judgment is rendered only after a court has evaluated the
relevant evidence and the parties’ substantive arguments.” In re D.A., 222 P.3d
1172, 1179 (Utah 2009) (internal quotation omitted). It is thus a matter of
substance over form—“real or substantial grounds of action or defense as
distinguished from matters of practice, procedure, jurisdiction or form.”
Sommerville, 297 P.3d at 674. A judgment on the merits can be made at any point
in litigation as long as it is “based upon a proper application of the relevant law
to the facts of the case.” Miller v. USAA Cas. Ins. Co., 44 P.3d 663, 674 n.6
If an appellant fails to raise an argument before the district court it is
generally forfeited on appeal absent extraordinary circumstances. Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . . that a federal appellate
court does not consider an issue not passed upon below.”). Filings below are
“given a liberal reading,” but the appellate court will “not address bald-faced new
issues, theories that were discussed in a vague or ambiguous way, or issues that
were raised and then abandoned pre-trial.” In re Rumsey Land Co., LLC, 944
F.3d 1259, 1271 (10th Cir. 2019) (internal quotation marks omitted; alterations
incorporated). Moreover, fleeting and underdeveloped references to an argument
are also not preserved for appeal. Id.
“[A]n appellant must argue plain error” in order “[t]o urge reversal of an
issue that was forfeited in district court.” Id.13 “If an appellant does not explain
how [his] forfeited arguments survive the plain error standard, [he] effectively
waives those arguments on appeal.” Id.
The district court held summary judgment was appropriate on Mr. Truman’s
fabrication of evidence claim against the police officers because it is barred by
issue preclusion. The district court addressed many points raised by Mr. Truman,
but as relevant here, it noted state court findings that the incorrect measurements
used throughout the case were due to the police officers’ ineptitude and
carelessness. It further noted that the medical examiner’s testimony was not
intentionally falsified. Mr. Truman focuses on the state court’s decision on his
motion to dismiss based upon outrageous misconduct that explains that the state
13 The party seeking relief under the plain error standard must show
“(1) error (2) that is plain, which (3) affects substantial rights, and which
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Stender v. Archstone-Smith Operating Tr., 958 F.3d 938, 948 (10th
Cir. 2020) (internal quotation marks omitted).
court’s findings will not have a preclusive effect on other civil remedies. He
asserts this statement shows the state court’s intent for this and its previous
decisions not to have a preclusive effect on subsequent civil litigation and thus
they are not “on the merits.”
The police officers contend this argument was not preserved. In their view,
Mr. Truman only preserved for appeal a challenge to the district court’s
disposition of the third element of issue preclusion, whether the issue in the first
action was completely, fully, and fairly litigated. The district court agreed with
this assessment, see Aplt. App. 3107, and in fact Mr. Truman’s brief in opposition
to summary judgment only cited the third element and discussed the specific issue
of probable cause at any length. Id. at 1407–09.14
14 The exact language from Mr. Truman’s relevant lower court briefing is
First, Truman’s claims were never competently, fully, and fairly
litigated during the criminal proceedings as required. See Carpenter
v. Nova Casualty Co., 403 F. Supp.2d 1068, 1071 (D. Utah 2005). It
is true that Truman filed a number of motions. The state court
refused an evidentiary hearing and argument, and relied on the
previous testimony which Truman claimed to be faulty. In most
cases, the court denied the motion either claiming it was an issue for
the jury or denied the motion without prejudice in order for Truman
to have the opportunity to pose further questions at the
then-upcoming trial. See Plaintiff’s Collective Response to Def.
Statements of Fact 40[–]44, supra.
Aplt. App. 1407–08. And:
Mr. Truman disagrees, but his argument is unpersuasive. He says he makes
the same argument and cites the same facts and court language on appeal as he
did below, but he essentially contends elements three and four are the same.
Indeed, Mr. Truman asserts a different but related argument on appeal—whether
the first suit resulted in a final judgment on the merits—that is improper. We
explained this concept thoroughly in Okland Oil Co. v. Conoco Inc.:
We have consistently rejected the argument that raising
a related theory below is sufficient to preserve an issue
for appeal. Changing to a new theory on appeal that
falls under the same general category as an argument
presented at trial or discussing a theory only in a vague
and ambiguous way below is not adequate to preserve
issues for appeal. Indeed, the Court of Appeals is not a
second shot forum where secondary, back-up theories
may be mounted for the first time.
144 F.3d 1308, 1314 n.4 (10th Cir. 1998) (internal quotation marks and citations
[T]he court denied several of the motions without prejudice, allowing
Truman to further question officers at retrial, and often concluded the
jury could assess the facts of the officers’ intent and determine
whether the evidence was faulty or false. . . . [I]n denying Truman’s
Motion to Dismiss Based upon Outrageous Misconduct, the court
noted: “If defendant is exonerated, he will have administrative and
civil remedies rather than a remedy dismissal of this matter.”
Id. at 1375.
Even giving Mr. Truman’s lower court arguments a liberal reading, his
argument regarding the fourth element is fleeting and underdeveloped, which is
insufficient to preserve an issue for appeal. See In re Rumsey, 944 F.3d at 1271.
The same can also be said for the third element, as he barely touches on it below.
See supra n.14. Mr. Truman thus forfeited his issue preclusion argument, and
because he waived any argument regarding plain error review by failing to assert
it on appeal, we affirm the entry of summary judgment against the police officers.
Outcome: III. Conclusion
We REVERSE the dismissal of the claim against the prosecutor and
AFFIRM the district court’s grant of summary judgment to the police officers.