DiCesare v. Stuart
| Decision Date | 20 December 1993 |
| Docket Number | No. 93-5019,93-5019 |
| Citation | 12 F.3d 973 |
| Parties | Joseph Angelo DiCESARE, Plaintiff-Appellant, v. Larry D. STUART; Rene P. Henry, Jr.; The County of Osage County, Oklahoma; Unknown County Commissioners, Three Unknown County Commissioners; Unknown Osage County Sheriffs, Unknown Sheriff & Deputies of the Osage County Sheriff's Department, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Joseph Angelo DiCesare, pro se.
Susan B. Loving, Atty. Gen. of Oklahoma, and Linda K. Soper, Asst. Atty. Gen., Oklahoma City, OK, for defendants-appellees Larry D. Stuart and Rene P. Henry, Jr.
David W. Lee and Gayla I. Fields, of David W. Lee, P.C., Oklahoma City, OK, for defendants-appellees Sheriff, Deputies, and Com'rs of Osage County and Terry Hargis.
Before LOGAN and BRORBY, Circuit Judges, and KANE, * District 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 case is therefore ordered submitted without oral argument.
Plaintiff-appellant Joseph Angelo DiCesare appeals the district court's entry of summary judgment in favor of defendants on his civil rights complaint, brought pursuant to 42 U.S.C. Sec. 1983. Because the district court erred in concluding that defendants complied with the law, and because several factual issues remain, we reverse and remand for further proceedings.
On November 5, 1990, the Osage County Sheriff's Department received a complaint about a stray horse. Upon investigation, Deputy Sheriff Ferguson and Undersheriff Williams were directed to the pasture from which the complainant believed the horse had strayed. The premises identified by the complainant belonged to plaintiff DiCesare. Trying to locate the horse's owner, Ferguson and Williams climbed over the gate and walked down a driveway to a house. There, they saw three horses in pens and approximately eight dogs running loose. When no one answered the door, Ferguson and Williams left a note for the occupant.
The following day, Ferguson returned to the property, climbed the gate, and approached the house. There, he discovered a dead horse being eaten by the dogs. When he checked the license plate numbers of several vehicles on the premises, he obtained plaintiff's name. Ferguson located plaintiff's parents but they accepted no responsibility for the animals. That afternoon, Ferguson and Williams returned to the property, where they discovered several more dead horses and a dead dog. Upon checking the horses in the pens, they noted that two of them were very thin. A number of emaciated horses then emerged from a wooded area near the residence. The animals were barely able to walk.
The next morning, Ferguson, Williams, Deputy Lansdown, and Deputy Metcalf arrived at the property and used a master key to open the padlock on the gate. They were met by Tulsa County Deputy O'Dell and veterinarian Terry Hargis. After Dr. Hargis determined that the horses were suffering from malnutrition, they were seized and taken to the Collinsville Sale Barn to be fed and treated. Twelve of the horses were in poor condition, but a thirteenth horse appeared healthy.
On November 9, 1990, Assistant District Attorney Rene P. Henry, Jr. applied to the court for an order directing the care and treatment of the horses. Thereafter, several of the horses were euthanized. On January 4, 1991, Henry issued a notice indicating that the horses would be sold on January 15, 1991, to satisfy a lien held by the Osage County Sheriff's Department for the care, feed, and services provided. The notice was sent to all persons believed to have an interest in the horses, including plaintiff DiCesare, who was incarcerated at the Oklahoma State Reformatory. Although the notice was received at the reformatory on January 10, 1991, plaintiff did not receive it until Friday, January 12, 1991.
The horses were sold for a total of $2,730. From this amount, the livestock commission, insurance, feed, yardage, and veterinary services were paid, resulting in a net loss to the sheriff's department of $390.40. No prosecution has been commenced against DiCesare.
On April 27, 1991, the Osage County District Attorney's office received a tort claim from DiCesare, which was stamped "received" by that office. On March 31, 1992, DiCesare filed a complaint against district attorneys Stuart and Henry, the sheriff and deputies of the Osage County Sheriff's Department, the County of Osage County, certain unknown county commissioners, the unknown owners of the Collinsville Sales Barn, and the unknown veterinarians involved in the case.
Defendants Stuart and Henry immediately moved for summary judgment on immunity grounds. Because their motion identified several of the previously unknown defendants, DiCesare moved for leave to amend his complaint to add the additional parties and to add at least one claim against Stuart and Henry. The motion was denied because it would cause undue prejudice to the district attorneys.
The district court granted Stuart and Henry summary judgment on DiCesare's damages claims, on prosecutorial immunity grounds. The court denied qualified immunity on the claims for equitable relief, however, finding that plaintiff's allegations, if true, sustained the conclusion that his constitutional rights had been violated by the seizure and sale of the horses. The court also ordered that an investigative report be prepared as to the events underlying DiCesare's claims.
After the report was completed, defendants Stuart, Henry, and the sheriff, deputies, and commissioners of Osage County filed motions for summary judgment. Finding that the facts in the special report were undisputed, the district court granted summary judgment. The court first held that, based on the undisputed facts, defendants had complied with the law. Concluding that plaintiff's allegations were without merit, the court entered judgment in favor of all defendants. 1
DiCesare filed this appeal, raising sixteen issues. Because many of his issues overlap, we combine them as follows: (1) whether the district court erred in granting Stuart and Henry absolute immunity; (2) whether the court erred in granting summary judgment when DiCesare presented viable claims and several factual disputes remain; (3) whether the court abused its discretion in not appointing counsel for DiCesare and in not helping him pursue his claims; (4) whether the court erred in granting summary judgment before discovery was completed; (5) whether the court abused its discretion in denying leave to amend the complaint; (6) whether the court erred in granting judgment under 28 U.S.C. Sec. 1915(d) when DiCesare had paid the filing fees; (7) whether DiCesare's Seventh Amendment right to a jury trial was violated; (8) whether the court erred in granting summary judgment in favor of Terry Hargis without giving DiCesare ten days to respond; and (9) whether the court erred in denying DiCesare's motion to rescind the dismissal of several defendants.
Assistant District Attorney Henry performed two functions in this case: he obtained a court order for the feeding and care of the horses and he issued a notice that the horses would be sold to satisfy the sheriff's department's lien on the animals. It is unclear whether District Attorney Stuart participated in these actions. The district court found that both these actions were taken in a prosecutorial capacity and were, therefore, insulated by prosecutorial immunity.
A prosecutor is entitled to absolute immunity when his activities are intimately associated with the judicial phase of a criminal process. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). When a prosecutor is engaged in administrative duties, however, he is entitled only to qualified immunity. Buckley v. Fitzsimmons, --- U.S. ----, ----, 113 S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993). The Id. (quoting Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33) (citations omitted).
Here, while we agree that obtaining care for the horses could be construed as preserving evidence in preparation for criminal proceedings, we do not agree that issuing the notice of sale related to the district attorneys' judicial functions. Instead, this case is controlled by our decision in Coleman v. Turpen, 697 F.2d 1341 (10th Cir.1982), in which we held that a prosecutor who assisted in the sale of "seized property not used as evidence that the State did not intend to keep," was acting as an administrator, not an advocate, and was entitled only to qualified immunity. Id. at 1346. The district attorneys, therefore, are entitled only to qualified immunity for the act of issuing the notice of sale.
DiCesare next argues that the district court erred in granting summary judgment on his substantive claims. Based on the undisputed facts, the court concluded that defendants had complied with the law, citing a number of Oklahoma statutes. Because the case was terminated at this step, the district court never considered whether any or all of defendants were entitled to qualified or state tort immunity. We conclude that the district court erred in finding no violations of law. However, based on this record, the case must be remanded for a further determination whether defendants are entitled to immunity based on the apparent legitimacy of the statutes.
DiCesare contends that his Fourth Amendment rights were violated when his horses were seized without a warrant. It is beyond...
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