Dohaish v. Tooley, No. 81-1607

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BARRETT, DOYLE and LOGAN; WILLIAM E. DOYLE
Citation670 F.2d 934
PartiesAbdullah DOHAISH, Plaintiff-Appellant, v. Dale TOOLEY, Defendant-Appellee.
Decision Date16 February 1982
Docket NumberNo. 81-1607

Page 934

670 F.2d 934
Abdullah DOHAISH, Plaintiff-Appellant,
v.
Dale TOOLEY, Defendant-Appellee.
No. 81-1607.
United States Court of Appeals,
Tenth Circuit.
Argued and Submitted Feb. 2, 1982.
Decided Feb. 16, 1982.

Page 935

R. J. Strong, Jr., Houston, Tex. (John E. Mosby, Denver, Colo., with him on the brief), for plaintiff-appellant.

Patricia M. Ayd, White & Steele, Denver, Colo., for defendant-appellee.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The appellant herein seeks reversal of a judgment of the District Court for the District of Colorado which dismissed an action which sought to compel the State District Attorney, Dale Tooley, to prosecute a man who allegedly killed appellant Dohaish's son. The district court dismissed the action against Tooley, finding that Dohaish lacked standing and secondly, that Tooley, as the prosecuting attorney in the case, was immune from suit.

The facts are these. Saud Dohaish, a Saudi Arabian student, was admitted to the

Page 936

United States in 1977 for the purpose of studying English at Colorado Women's College. On the night of July 28, 1978, Dohaish and several friends went to Caesar's Nite Club, a Denver bar, to play billiards. Dohaish played pool with other club patrons after his friends wandered to another part of the area. During a game with a man named Eddie Santistevan some difference arose. In the course of this Santistevan struck Dohaish on the forehead with a pool cue. Dohaish was taken to the hospital and became unconscious. He died about one week later on August 7, 1978. Following a police investigation Santistevan was arrested and was charged with first degree murder, which charge was later reduced to second degree. In a statement to police about the incident Santistevan alleged that he had acted in self defense. He struck Dohaish, he said, only after Dohaish lunged at him.

On October 16, 1978, a preliminary hearing was held in the County Court in and for the City and County of Denver, Chief Judge George Manerbino was presiding. Both the prosecution and the defense extensively examined the witnesses. After the hearing, Judge Manerbino bound the case over for trial. Immediately thereafter, prosecutor Lawrence Orr moved to dismiss the charge against Santistevan. Judge Manerbino, in accordance with that motion, dismissed the action. The prosecutor gave no particular reason for the action that was taken. However, in an exchange of letters between the Saudi Arabian Educational Attache and District Attorney Tooley, the latter stated that the prosecution's election to dismiss grew out of the difficulty of negating Santistevan's self defense claim.

In any event the father of Saud Dohaish, Abdullah Dohaish, sued in federal district court alleging that the district attorney's refusal to prosecute stemmed from prejudice against Saudi Arabians and violated the fourteenth amendment as well as provisions of the Civil Rights Act, 42 U.S.C. § 1981, et seq.: Damages were requested and injunctive relief as well. In response to this, District Attorney Tooley filed a motion to dismiss, urging that prosecutors were immune from suit for actions performed within the scope of prosecutorial duties. Following a hearing on the motion, the district court dismissed the action, noting that Dohaish lacked standing to bring suit and that Tooley was immune from such an action. We are called upon to review this determination.

The theory of appellant Abdullah Dohaish is that no standing problem exists. He maintains that he is the appropriate party to enforce in court protections from discrimination based upon race, religion, national origin or alienage; to uphold rights which are conferred on both himself and his son by the Constitution. He thus contends that the district court's finding that he lacked standing was itself unfounded.

The major obstacle to the Dohaish action, however, is the weaknesses in the suit itself. It is this deficiency which persuades us. It is quite true that there is also a lack of standing. When we say standing, we mean that the § 1983 civil rights action is a personal suit. It does not accrue to a relative, even the father of the deceased. (Note: It can descend to a relative under appropriate circumstances.)...

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109 practice notes
  • Debra Jones & Arden C. Post v. Norton, No. 2:09–CV–730–TC.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • March 7, 2014
    ...Moreover, Mr. Murray was dead by then and, consequently, did not have any constitutional rights to be violated. See Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.1982) (civil rights are personal and do not survive the person's death). As troublesome as Deputy Byron's action is, Deputy Watk......
  • Abon, Ltd. v. Transcontinental Ins. Co., 2005 Ohio 3052 (OH 6/16/2005), Case No. 2004-CA-0029.
    • United States
    • United States State Supreme Court of Ohio
    • June 16, 2005
    ...However, materiality "can be decided as a matter of law if reasonable minds could not differ on the question." Long, 670 F.2d at 934; see also Claborn v. Washington Nat'l Ins. Co., 910 P.2d 1046, 1049 (Okla.1996) (holding court should have directed verdict in light of undisputed e......
  • The Wilderness Society v. Kane County, Utah, No. 08-4090.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 31, 2009
    ...the right of action inquiry. As we have previously held, the standing and right of action inquiries are distinct. See Dohaish v. Tooley, 670 F.2d 934, 936-37 (10th Cir.1982). The dissent's contention that legally protected interests must be based in property or a specific statute is groundl......
  • Cavanaugh v. Cnty. of San Diego, Case No.: 3:18-cv-02557-BEN-LL
    • United States
    • U.S. District Court — Southern District of California
    • November 12, 2020
    ...rights are personal rights which, like some other constitutional rights, may not be vicariously asserted"); Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir. 1982) ("[T]he § 1983 civil rights action is a personal suit. It does not accrue to a relative...."); Torres, 105 F. Supp......
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109 cases
  • Murphy v. Bitsoih, No. CIV. 02-1185 MV/RHS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 1, 2004
    ...not the right of someone else. See Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir.1990) (citations omitted); see also Dohaish v. Tooley, 670 F.2d 934, 936 Page 1185 Cir.) ("It is quite true that there is also a lack of standing. When we say standing, we mean that the § 1983 civil rights a......
  • Dorato v. Smith, No. CIV 14–0365 JB/GBW.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 26, 2015
    ...that someone else suffered the wrong. See Motion at 11 (citing Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir.1990) ; Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.1982) ). Smith argues that the Plaintiffs must show that he deprived their constitutional rights and not third parties' righ......
  • Shaw v. Stroud, Nos. 92-2029
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 6, 1994
    ...728 F.Supp. 397, 400 (D.S.C.1989). See Harpole v. Arkansas Department of Human Services, 820 F.2d 923 (8th Cir.1987); Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982). Interestingly, the United States Supreme Court has never held th......
  • Abon, Ltd. v. Transcontinental Ins. Co., 2005 Ohio 3052 (OH 6/16/2005), Case No. 2004-CA-0029.
    • United States
    • United States State Supreme Court of Ohio
    • June 16, 2005
    ...(10th Cir.1982). However, materiality "can be decided as a matter of law if reasonable minds could not differ on the question." Long, 670 F.2d at 934; see also Claborn v. Washington Nat'l Ins. Co., 910 P.2d 1046, 1049 (Okla.1996) (holding court should have directed verdict in light of undis......
  • Request a trial to view additional results

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