UNITED STATES COURT OF APPEALS February 28, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

WALT JASPER SAMUEL SHRUM,

Plaintiff - Appellant,

v. No. 21-3150

DUSTIN COOKE, Investigator, Kingman County, Kansas Sheriff’s Office in his official and individual capacities; TRAVIS SOWERS, Sergeant, City of Kingman, Kansas Police Department in his official and individual capacities; KINGMAN COUNTY, KANSAS; CITY OF KINGMAN KANSAS; RANDY L. HILL, Sheriff, Kingman County, Kansas in his official and individual capacities; DAVID LUX, Chief, City of Kingman, Kansas Police Department in his official and individual capacities,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 6:20-CV-01314-JWB-GEB) _________________________________

Brian F. McCallister, The McCallister Law Firm, P.C., Kansas City, Missouri, for Plaintiff-Appellant.

Lyndon W. Vix (Brooks Severson with him on the brief), Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, Kansas, for Defendant-Appellees Travis Sowers, David Lux and City of Kingsman, Kansas. Appellate Case: 21-3150 Document: 010110818915 Date Filed: 02/28/2023 Page: 2

Allen G. Glendenning, Watkins Calcara, CHTD, Great Bend, Kansas, for Defendants- Appellees Dustin Cooke, Randy Hill and Kingman County.

_________________________________

Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

TYMKOVICH, Circuit Judge. _________________________________

While investigating the overdose death of Walter Shrum’s wife, law enforcement

officers searched Mr. Shrum’s home and discovered drugs, firearms, and ammunition.

He was charged with various crimes in federal court. Before trial he argued the officers

had illegally searched his home, and that the evidence discovered could not be used

against him at trial. The district court disagreed, and Mr. Shrum entered a conditional

plea of guilty, reserving the right to appeal the suppression order. On appeal, we

concluded the search violated the Constitution, and any resulting evidence should have

been excluded.

Without this evidence, the government dismissed its prosecution. Shrum then

sued various state and federal law enforcement officials for civil rights violations arising

from the illegal search and subsequent prosecution. The district court dismissed the

action as time-barred and insufficiently pled.

We agree. First, the district court did not plainly err by dismissing Shrum’s

§ 1983 search, seizure, and false arrest claims as time barred. Shrum fails to prove he is

entitled to equitable tolling under Kansas or federal law. Second, reviewing de novo, we

agree with him that the district court erred in concluding that his malicious prosecution

2 Appellate Case: 21-3150 Document: 010110818915 Date Filed: 02/28/2023 Page: 3

claim failed because he did not demonstrate the prosecution terminated in a way that

demonstrated his innocence. But while that was true at the time the court reviewed the

complaint, an intervening change in Supreme Court case law altered Tenth Circuit

precedent to allow malicious prosecution claims to proceed when the government

dismisses charges as it did here. Nevertheless, because Shrum’s complaint inadequately

alleges all of the requirements for a malicious prosecution claim agai