Sack v. Lowder
| Citation | 951 F.2d 1260 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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 |
| Decision Date | 29 November 1993 |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Before STEPHEN H. ANDERSON, TACHA and BRORBY, 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 appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Mr. Sack appeals the dismissal of his pro se § 1983 complaint.
Mr. Sack was involved in an automobile accident that resulted in a fatality. He subsequently pleaded guilty to murder in the second degree and knowingly possessing an Oklahoma driver's license with a photograph of a person other than the named person.
This civil rights suit emanates from the happenings following the accident. Mr. Sack was arrested for DUI, exceeding the speed limit, open container violation, and driving under suspension. Generally speaking, his suit complains of the treatment afforded him while confined in a hospital, while being transported, and while incarcerated in the county jail.
Defendants filed motions to dismiss the complaint as against all defendants for lack of specificity to support the allegations of a constitutional violation or an action under color of law. Defendants also claimed qualified immunity and asserted other defenses.
The district judge granted defendants' motion to dismiss, explaining his rationale in two commendably thorough orders. The district court denied Mr. Sack leave to proceed with the appeal in forma pauperis.
Mr. Sack appeals this dismissal pro se. He asserts: (1) He should be allowed to amend his complaint as he was innocent of the crimes to which he pleaded guilty; and (2) there existed a conspiracy to convict him. Mr. Sack presents numerous exhibits that he contends prove his innocence as well as support his civil rights claim. The general thrust of his appeal to us is that defendants conspired to wrongfully convict him.
We grant Mr. Sack permission to proceed with his appeal in forma pauperis. Having done so, we AFFIRM the judgment of the district court for substantially the same reasons set forth in its orders of June 10, 1991, and September 17, 1991, copies of which are attached.
v.
JIM LOWDER, et al., Defendants.
July 10, 1991
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Plaintiff instituted this pro se civil rights action pursuant to 42 U.S.C. § 1983 seeking to redress alleged constitutional violations in connection with his arrest and confinement on February 7, 1990. On such date, plaintiff was involved in an automobile accident which resulted in the death of another individual. Plaintiff was arrested on various charges, including driving under the influence, and eventually plead guilty to one count of second degree murder and one count of knowingly possessing an Oklahoma driver's license with a photograph of a person other than the named person.
Defendants Jim Lowder (Lowder), James Hiesley (Hiesley), Tommy Taylor (Taylor), the Oklahoma Highway Patrol (OHP), and an unnamed OHP officer have moved the court to dismiss plaintiff's complaint 1 Lowder, Hiesley, and Taylor are all OHP officers who were involved in plaintiff's arrest and confinement on February 7, 1990. Essentially, plaintiff asserts three counts against these defendants. First, plaintiff alleges his rights were violated when Lowder ordered a hospital nurse to withdraw blood from him, over his objection, after he had been arrested and transported to a local hospital. Second, plaintiff contends defendants obtained incriminating statements and evidence from him without properly advising him of his Miranda rights and Oklahoma's implied consent laws. Finally, plaintiff claims the unnamed OHP officer used excessive force when transporting him to the Wagoner County Jail.
Plaintiff's allegations with respect to his claim of excessive force are patently insufficient. These allegations are simply bald conclusory statements against unknown and unnamed individuals without any factual foundation or basis. The Tenth Circuit of Appeals has consistently held that bald conclusions, unsupported by allegations of fact, are legally insufficient; and pleadings containing only such conclusory language may be summarily dismissed or stricken without a hearing, Lorraine v. United States, 444 F.2d 1 (10th Cir.1971); Atkins v. Kansas, 386 F.2d 819 (10th Cir.1967); Hilliard v. United States, 345 F.2d 252 (10th Cir.1965); Martinez v. United States, 344 F.2d 325 (10th Cir.1965). In Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981), the following appears:
"...
In Wells v. Ward, 470 F.2d 1185 (10th Cir.1972), the court quoted from the opinion of Judge Breitenstein in Freeman v. Flake, 448 F.2d 258 (10th Cir.1971), cert. denied, 405 U.S. 1032 (1972), in part as follows:
"... The existence of the § 1983 remedy does not require that federal courts entertain all suits in which constitutional deprivations are asserted. A federal constitutional question must exist 'not in mere form, but in substance, and not in mere assertion, but in essence and effect.' Cuyahoga River Power Co. v. Northern Ohio Traction & Light Co., 252 U.S. 388 (1920).
While the court views the complaint in the light most favorable to the plaintiff in considering a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, the court distinguishes between well-pleaded facts and conclusory allegations. The court disregards unsupported conclusions, Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Therefore, the court finds that plaintiff's allegations of excessive force in connection with his transportation to the Wagoner County Jail do not state a claim for any constitutional deprivation.
Plaintiff claims a constitutional violation with respect to statements and evidence obtained from him by defendants without proper Miranda warnings or advice of Oklahoma's implied consent laws. Even assuming deficient warnings or advice, the court finds that plaintiff has failed to state a claim upon which relief can be granted. It is well settled that a failure to give Miranda warnings does not give rise to a cognizable § 1983 claim.
(citation omitted).
Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir.1976). Clearly, any failure to give Miranda warnings or the giving of inadequate warnings does not subject officers, such as defendants Lowder, Hiesley, and Taylor, to liability in this § 1983 action. Likewise, absent a statutory directive to the contrary, any failure to advise of implied consent laws does not subject defendants to liability herein.
Plaintiff's final claim involves the forcible withdrawal of his blood by a hospital nurse at the request of defendant Lowder subsequent to the automobile accident. In sum, plaintiff alleges this incident amounts to an impermissible search and seizure of his person in violation of the Fourth Amendment to the United States Constitution. 2 Defendant Lowder contends that he is entitled to qualified immunity on this claim in that he was in compliance with Oklahoma law in requiring a blood sample from plaintiff under the circumstances of plaintiff's arrest. The court agrees that defendant Lowder is entitled to qualified immunity on this claim.
The affirmative defense of qualified immunity is available to all government officials. Harlow v. Fitzgerald, 457 U.S. 800 (1982). This immunity is an immunity from suit and not merely a defense to liability. Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 644-45 (10th Cir.1988) and England v. Hendricks, 880 F.2d 281 (10th Cir.1989), cert. denied, 110 S.Ct. 1130 (1990). The question of whether a defendant is entitled to qualified immunity is a legal question for the court. Losavio, 847 F.2d at 646. The test the court must apply is an objective one which inquires into the objective reasonableness of the official's actions. Harlow, 457 U.S. at 816. Government officials performing discretionary functions will not be held liable for their conduct unless their actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. In this context, the law to be examined is the law existing at the time of the official's actions. Id.
It is plaintiff's burden to show that the law was clearly established. Lutz v. Weld County School Dist., 784 F.2d 340, 342-43 (10th Cir.1986), cert. denied 484 U.S....
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