United States Court of Appeals, Tenth Circuit
Uploaded by
Scribd Government DocsUnited States Court of Appeals, Tenth Circuit
Uploaded by
Scribd Government Docs51 F.
3d 286
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Jo Ann SANDERS, Plaintiff-Counter-Defendant-Appellant,
v.
Kerry HOWLETT, Defendant-Appellee, The City of
Edwardsville,
Kansas; Larry S. McArthur, Terry L. Hammontree, and Tony
Novitch, d/b/a A & P Auto Repair and Tow, Defendants, Kathy
L. Benson, Defendant-Counterclaimant.
No. 93-3393.
United States Court of Appeals, Tenth Circuit.
March 30, 1995.
Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.*
ORDER AND JUDGMENT**
BALDOCK, Circuit Judge.
Plaintiff-appellant Jo Ann Sanders appeals from the granting of summary
judgment in favor of defendant-appellee Kerry Howlett. We exercise
jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.
The undisputed facts are as follows. Defendant was a member of the board of
directors of Grinter Place, a charitable organization. Grinter had granted the gas
company an easement on property adjacent to plaintiff's home to install a gas
regulator. Plaintiff claimed the regulator emitted noxious odors and made loud
noises. After her husband's death, which she blamed on the regulator, she
boarded up the house and left.
Plaintiff parked her vehicle in front of defendant's home. She placed a sign in
her window that stated "Grinter forced me out of my home. A senior."
Defendant asked plaintiff to leave. She refused. Defendant called the City of
Edwardsville Police Department. Several officers responded and asked her to
leave. When she declined to do so, they started having her car towed. She came
out of the car and a fight ensued with the officers.
Plaintiff was charged with disorderly conduct, resisting arrest, and battery to a
law officer. A municipal court found her guilty of all counts. On appeal to the
state district court, a jury found her guilty only of the battery count.
Plaintiff commenced this 42 U.S.C. Sec. 1983 action against defendant, the
City of Edwardsville, the arresting officers, and the tow truck company,
claiming their actions violated her constitutional rights in various respects. The
district court granted summary judgment to defendant.1 It concluded in relevant
part that defendant was not acting under color of law in causing plaintiff's
arrest, and that the municipal court conviction provided a complete defense to
plaintiff's false arrest and prosecution claims absent a showing it was obtained
by fraud or perjury. The court concluded plaintiff failed to show fraud or
perjury led to the conviction.
We review the grant of summary judgment de novo, applying the same legal
standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Universal
Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 115
S.Ct. 655 (1994). "Summary judgment is appropriate 'if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.' " Id.
(quoting Rule 56(c)). "[W]e examine the factual record and reasonable
inferences therefrom in the light most favorable to the party opposing summary
judgment." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d
1238, 1241 (10th Cir.1990). If there is no genuine issue of material fact in
dispute, then we next determine if the substantive law was correctly applied by
the district court. Id.
Plaintiff first contends the district court erred in determining that defendant was
not acting under color of law when he conspired with the arresting officers to
cause her unlawful arrest. To recover under Sec. 1983, a plaintiff must show
the defendant acted under color of law. Adickes v. S.H. Kress & Co., 398 U.S.
144, 150 (1970). Private persons who are jointly engaged with state officials in
prohibited conduct are acting under color of law. Id. at 152. However, "the
mere furnishing of information to police officers who take action thereon does
not constitute joint action under color of state law which renders a private actor
liable under Sec. 1983." Lee v. Town of Estes Park, 820 F.2d 1112, 1115 (10th
Cir.1987). Rather, the arrests must have " 'resulted from ... concerted action,
whether conspiracy, prearranged plan, customary procedure, or policy that
substituted the judgment of a private party for that of the police or allowed a
private party to exercise state power.' " Gallagher v. "Neil Young Freedom
Concert", No. 93-4122, 1995 WL 82681, at * 12 (10th Cir. Feb. 28, 1995)
(quoting Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th
Cir.1987)). A private party who reports conduct to the police has not acted
under color of law where the police make an independent decision to arrest. See
id.
8
The undisputed facts are that the officers decided to tow plaintiff's car because
a crowd of teenagers was gathering around and yelling, and the officers wished
to prevent a riot. The officers were trying to arrest plaintiff because, they
claimed, she was cursing and causing them trouble. In addition, Officer
McArthur had seen what he thought was a gas can in her car, and feared that
because she was picketing and was angry, she could cause someone harm.
McArthur also testified that the officers actually arrested plaintiff after she
came out of her car and became involved in an altercation with them. While
plaintiff was charged with disorderly conduct based on defendant's complaint,
she was also charged with resisting arrest and battery to a law enforcement
officer.
We conclude these undisputed facts establish that the officers made an
independent decision to arrest plaintiff. In this respect, the facts of this case are
distinguishable from those in Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423,
1430 (10th Cir.1984), vacated on other grounds by 474 U.S. 805 (1985), and
cert. denied, 474 U.S. 818 (1985), where we found a private person who
reported a crime acted under color of law because the police arrested the
suspects solely in reliance on the complainant's word. Such, we concluded,
allowed the private person's judgment to be substituted for that of the police. Id.
We agree with the district court that defendant did not act under color of state
law in causing plaintiff's arrest.
10
Plaintiff also claimed that defendant conspired with others to cause the filing of
false and groundless criminal charges to force her to abandon her legal claims
against defendants. Section 1983 provides a remedy only for deprivation of
rights protected by the Constitution. Collins v. City of Harker Heights, 503 U.S.
115, ----, 112 S.Ct. 1061, 1066 (1992). We have characterized the use of
criminal complaints by private parties to coerce a release of civil liability as a
malicious prosecution which qualifies as a deprivation of due process
cognizable under Sec. 1983. Lusby, 749 F.2d at 1431. It would appear that due
process no longer provides a basis for a malicious prosecution action under Sec.
1983 after the Supreme Court's recent decision in Albright v. Oliver, 114 S.Ct.
807 (1994). Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994).
11
Regardless of the appropriate constitutional basis for a malicious prosecution
claim, we conclude the claim was properly dismissed. The common law of torts
is the starting point for determining the contours of a Sec. 1983 claim. Heck v.
Humphrey, 114 S.Ct. 2364, 2370-71 (1994). Lack of probable cause to initiate
criminal proceedings is an essential element of the tort of malicious prosecution
in Kansas. Lindenman v. Umscheid, 875 P.2d 964, 974 (Kan.1994). A
municipal court's finding of guilt on the charges is conclusive evidence that
there was probable cause, although plaintiff was subsequently acquitted in
district court on appeal. Earley v. Harry's IGA No. 1, 2, 3, 4, Inc., 573 P.2d 572,
572 (Kan.1977).
12
Plaintiff correctly notes this rule is inapplicable if the municipal court
conviction was obtained by perjury or fraud. Id. She argues her convictions
were obtained by perjury or fraud because defendant and/or the arresting
officers falsely asserted that she was parked in front of defendant's mailbox,
that she used threatening language, and that she made threatening or obscene
phone calls to defendant.
13
Plaintiff made no showing to this court that defendant or the arresting officers
testified in municipal court to any of the matters which she claims are untrue.
All she provided us is a one-page excerpt from the municipal court trial in
which defendant testified that when he approached plaintiff's car and asked her
to move, she said she was not going to move, and that no one could make her
move. We conclude this showing is insufficient to establish that fraud or
perjury led to the municipal court convictions.
14
The judgment of the United States District Court for the District of Kansas is
AFFIRMED.
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument
**
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
The district court granted summary judgment dismissing the action against the
City and tow truck company. It granted partial summary judgment to the
arresting officers, and plaintiff settled her remaining claims against them
You might also like
- No ratings yetMark Allen v. Joe Lucero, Individually and in His Capacity as Sheriff in Fremont County, Wyoming John S. Coppock, AKA Jack Coppock, Individually and in His Capacity as Undersheriff in Fremont County, Wyoming Fremont County, Wyoming, by and Through Its Board of County Commissioners, 43 F.3d 1482, 10th Cir. (1994)5 pages
- No ratings yetRoland Lee Kelly, Sr. v. Robert Bencheck, Individually and in His Official Capacity Bradley R. Chandler, Individually and in His Official Capacity Brian Flannery, Individually and in His Official Capacity R.T. Bryant, Individually and in His Official Capacity Ronald Hansen, in His Official Capacity as Chief of Police the City of Fayetteville, and William Britton, 107 F.3d 866, 4th Cir. (1997)4 pages
- No ratings yetRichard H. Steinberg Sandra Steinberg Priority Development, Ltd., a Colorado Corporation Priority Development, Co., a Colorado Corporation v. Ken Allen, A/K/A Ken A. Allen, A/K/A Ken M. Allen Judy Allen Lincoln Theatre Production, Inc. Jerry F. Jager, and Thomas O. Murphy, Iii, and X-1 Through X-10, 979 F.2d 858, 10th Cir. (1992)6 pages
