991 F.2d 805 (10th Cir. 1993), 92-2089, Chamberlain v. City of Albuquerque

Docket Nº:92-2089.
Citation:991 F.2d 805
Party Name:Merrill Burrous CHAMBERLAIN, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE; Ken Shultz, Mayor; Sam Baca, Chief of Police; J.G. Gallegos, Sgt.; John A. Carillo, Officer; John Messimer, Defendants-Appellees.
Case Date:March 29, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 805

991 F.2d 805 (10th Cir. 1993)

Merrill Burrous CHAMBERLAIN, Plaintiff-Appellant,

v.

CITY OF ALBUQUERQUE; Ken Shultz, Mayor; Sam Baca, Chief of Police; J.G. Gallegos, Sgt.; John A. Carillo, Officer; John Messimer, Defendants-Appellees.

No. 92-2089.

United States Court of Appeals, Tenth Circuit

March 29, 1993

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)

D.N.M., No. 89-CV-101.

D.N.M.

AFFIRMED.

Before LOGAN, MOORE and BRORBY, Circuit Judges.

ORDER AND JUDGMENT [*]

BRORBY, Circuit Judge.

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. Chamberlain, a pro se litigator, appeals the dismissal of his 42 U.S.C.§ 1983 complaint.

Mr. Chamberlain was tried, convicted and sentenced on criminal charges arising out of the circumstances basically described by Mr. Chamberlain in his complaint, which the district court summarized as follows:

On February 21, 1987, Albuquerque Police Department (APD) received a[ ] call from a woman who claimed that Plaintiff was physically assaulting her. The woman called APD from Plaintiff's home. Upon the arrival of Officers Messimer and Carrillo at the address, Plaintiff agreed to a search of his home. During the search, Carrillo received APD's confirmation that the emergency call did originate from Plaintiff's address. Carrillo also discovered evidence of the recent presence of a woman in a bedroom in the house. The officers requested to search again. Plaintiff declined to consent to a further search and requested the presence of his lawyer. Carrillo and Messimer permitted Plaintiff to go upstairs and use the telephone to call his lawyer but continued to search the house. At some point, Plaintiff retrieved a briefcase with a gun in it. Carrillo and Messimer permitted Plaintiff to go into the bathroom unescorted, to which he carried the briefcase with the hidden gun. When Plaintiff attempted to leave the bathroom, Carrillo blocked his exit and held a gun leveled at Plaintiff's chest. Shortly thereafter, Plaintiff engaged the officers in a gun battle in which Carrillo was shot to death.

Mr. Chamberlain filed this pro se action against the City of Albuquerque, its police department and various officers claiming the violation of his constitutional rights originating in the above described circumstances. 1 Specifically, plaintiff contended that his Fourth, Fifth and Sixth Amendment 2 rights were violated during the incident.

The district court, in a thorough and well written twenty-four-page Memorandum Opinion and Order filed on April 10, 1992, dismissed the complaint. We attach a copy of this Memorandum Opinion and Order hereto. On September 28, 1992, pursuant to Fed.R.Civ.P. 60(b)(1) and (b)(6), plaintiff filed a motion for relief from judgment. The district court found on October 7, 1992 that it was without jurisdiction to consider the motion since plaintiff had already appealed.

It is difficult to either characterize or summarize Mr. Chamberlain's brief to this court accurately. The essence of the appeal is that the district court made erroneous factual findings "that contradict the substantive facts known to both officers." Additionally, Mr. Chamberlain petitioned for a writ of mandamus to compel consideration of his Rule 60(b) motion.

Regarding dismissal, the district court liberally construed Mr. Chamberlain's pleadings and viewed them in the appropriate light: " '[A]ll well-pleaded facts, as distinguished from conclusory allegations, must be taken as true,' Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984)." The district court concluded Mr. Chamberlain could prove no set of facts in support of his claim that would entitle him to relief. We review the dismissal for failure to state a claim de novo. Miller v. Glanz, 948 F.2d 1563, 1565 (10th Cir.1991).

In regard to the excessive force claim, the officers' conduct even according to plaintiff's facts was objectively reasonable. See Graham v. Connor, 490 U.S. 386, 396 (1989). Allegations such as "both officers agreed to allow me to enter my bathroom alone"; "one [officer] was not wearing a bullet-proof vest"; "one [officer] left the room of the other five times"; "instead of leaving me alone in my bathroom the second time, he could have continued eye contact," do not constitute facts showing excessive force. We agree with the district court that any alleged seizure was justified by the legitimate interests of minimizing the risk of harm to the officers and other potential occupants, and the facilitation of the orderly completion of the search. See Michigan v. Summers, 452 U.S. 692, 702-03 (1981). Further, plaintiff has alleged no facts that would indicate an interrogation took place in violation of his Fifth Amendment rights. An interrogation requires the officers to make statements which would be "reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301 (1990). Finally, because plaintiff has failed to state a claim for a constitutional violation by a police officer, there can be no action against the officer's supervisors for failing to train or supervise the officer. Apodaca v. Rio Arriba County Sheriff's Dept., 905 F.2d 1445, 1447 (10th Cir.1990).

Mr. Chamberlain's numerous other arguments do not warrant discussion. Mr. Chamberlain has failed to persuade us that he has stated a claim for which relief may be granted.

Mr. Chamberlain's petition for writ of mandamus to direct the district court to consider his Rule 60(b) motion must also be denied. Technically, the district court was incorrect in its Order of October 7, 1992, when it stated it did not have jurisdiction to consider the Rule 60(b) motion. Actually, the district court lacks jurisdiction only to grant a Rule 60(b) motion once an appeal has been filed. Aldrich Enters., Inc. v. United States, 938 F.2d 1134, 1143 (10th Cir.1991). The court was free to consider the motion and then deny it on its merits, or it could notify us of its intention to grant the motion upon remand. Id. The issues raised by Mr. Chamberlain's Rule 60(b) motion, however, were addressed in the court's Memorandum and Order of April 10, 1992. In Plaintiff's Rule 60(b) motion he requests leave to replace "Section C. Cause of Action," in the complaint with eight pages of reworded claims containing many conclusory allegations. A motion under Rule 60(b) must present a matter that is material and of such importance that it would likely alter the outcome. Id. Excluding the conclusory allegations, none of the actual facts brought forth in Mr. Chamberlain's motion state a claim for which relief may be granted.

The judgment of the district court is AFFIRMED for substantially the same reasons set forth therein, and the writ of mandamus is DENIED. The mandate shall issue forthwith.

ATTACHMENT

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

MERRILL BURROUS CHAMBERLAIN, Plaintiff,

vs.

CITY OF ALBUQUERQUE, et al., Defendants.

No. CIV 89-0101 M/SGB

APRIL 10, 1992

MEMORANDUM OPINION AND ORDER

This matter comes before the court pursuant to Defendants' various motions to dismiss and George Carrillo's Suggestion of Death and accompanying motion to substitute parties.

I. SUMMARY OF CASE

This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding in forma pauperis.

On February 21, 1987, Albuquerque Police Department (APD) received an call from a woman who claimed that Plaintiff was physically assaulting her. The woman called APD from Plaintiff's home. Upon the arrival of Officers Messimer and Carrillo at the address, Plaintiff agreed to a search of his home. During the search, Carrillo received APD's confirmation that the emergency call did originate from Plaintiff's address. Carrillo also discovered evidence of the recent presence of a woman in a bedroom in the house. The officers requested to search again. Plaintiff declined to consent to a further search and requested the presence of his lawyer. Carrillo and Messimer permitted Plaintiff to go upstairs and use the telephone to call his lawyer but continued to search the house. At some point, Plaintiff retrieved a briefcase with a gun in it. Carrillo and Messimer permitted Plaintiff to go the bathroom unescorted, to which he carried the briefcase with the hidden gun. When Plaintiff attempted to leave the bathroom, Carrillo blocked his exit and held a gun leveled at Plaintiff's chest. Shortly thereafter, Plaintiff engaged the officers in a gun battle in which Carrillo was shot to death.

Plaintiff claims violations of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments; all of which claims originate in the circumstances surrounding his arrest in his home. Plaintiff names as defendants the City of Albuquerque, former mayor Ken Schultz, Police Chief Sam Baca, Police Sergeant John B. Gallegos, and unknown policy makers (collectively referenced in this opinion as "City defendants"), as well as Officers Carrillo and Messimer.

Plaintiff alleges that Carrillo and Messimer, the officers at the scene of the arrest, and Defendant Gallegos, their immediate supervisor, violated his right to be free from unreasonable seizure. Plaintiff complains that City defendants violated his substantive due process rights by failing to adequately train or supervise Carrillo and Messimer. Plaintiff alleges that Carrillo...

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