Dohaish v. Tooley, No. 81-1607
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before BARRETT, DOYLE and LOGAN; WILLIAM E. DOYLE |
| Citation | 670 F.2d 934 |
| Parties | Abdullah DOHAISH, Plaintiff-Appellant, v. Dale TOOLEY, Defendant-Appellee. |
| Decision Date | 16 February 1982 |
| Docket Number | No. 81-1607 |
Page 934
v.
Dale TOOLEY, Defendant-Appellee.
Tenth Circuit.
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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...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......
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...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......
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Abon, Ltd. v. Transcontinental Ins. Co., 2005 Ohio 3052 (OH 6/16/2005), Case No. 2004-CA-0029.
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