Oliver v. State of Oklahoma, 10th Cir. (2000)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
MAY 3 2000
PATRICK FISHER
Clerk
RENARD E. OLIVER,
Plaintiff-Appellant,
v.
STATE OF OKLAHOMA,
No. 99-6141
(D.C. No. 98-CV-330-A)
(W.D. Okla.)
Defendant,
and
BILL R. WEAVER, II; VANCE W.
ALLEN; J.D. SHARP,
Defendants-Appellees.
ORDER AND JUDGMENT
Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

Plaintiff appeals the district courts dismissal of his federal civil rights
claims arising out of his arrest and detention on murder charges that were
subsequently dismissed. Plaintiff sued the State of Oklahoma, the arresting
police officers, Vance Allen and Bill Weaver, and the former sheriff, J.D. Sharp,
pursuant to 42 U.S.C. 1983, alleging that he had been falsely arrested and
imprisoned without probable cause and that he had been subjected to cruel and
unusual punishment during his pretrial detention.
The State moved to dismiss plaintiffs claims on Eleventh Amendment
immunity grounds, and plaintiff conceded that dismissal of the State was proper.
That disposition is not before us on appeal. Sheriff Sharp moved to dismiss
plaintiffs claims on the grounds that he had not been properly served, that
plaintiff did not allege any personal participation by the sheriff, that the sheriff
was entitled to qualified immunity, and that plaintiffs complaint was frivolous.
Sheriff Sharp submitted various documents in support of his motion, including
copies of the arrest warrant, the criminal information, and the court orders
binding plaintiff over for trial following preliminary hearing. Detective Allen
also filed a motion to dismiss, arguing that plaintiffs action was barred by the
two-year statute of limitations. Detective Weaver filed an answer to the
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complaint, but did not file a dispositive motion. The district court gave plaintiff
notice of his duty to respond to the motions to dismiss. The court also advised
plaintiff that he could not depend upon the allegations of his complaint to oppose
a dispositive motion that is supported by matters outside the pleadings, but must
respond with his own materials establishing the existence of a material issue of
fact. Plaintiff responded to the motions to dismiss and attached copies of police
investigation notes and pleadings from the state criminal proceedings to support
his claims.
Thereafter, the magistrate judge issued a report recommending that Sheriff
Sharps motion to dismiss be denied to the extent it was based on improper
service, but that plaintiffs action be dismissed. The magistrate judge concluded
that plaintiffs claim for false arrest was barred by the statute of limitations, and
that plaintiff had failed to allege personal participation by any defendant in any
constitutional violation. The magistrate judge further concluded that, to the
extent Sheriff Sharps oversight of the county jail implicated him in plaintiffs
claim for false imprisonment, he was entitled to summary judgment on qualified
immunity grounds. The magistrate judge also concluded that, even if plaintiff
could allege personal participation of Detectives Allen and Weaver in his claim
for false imprisonment, plaintiff could not state a claim for relief against them.
Finally, the magistrate judge concluded that plaintiffs claim for cruel and
-3-
unusual punishment was legally frivolous because the Eighth Amendment does
not apply to pretrial detainees.
After plaintiff filed objections to the magistrate judges report and
recommendation, the district court conducted a de novo review. The district court
then issued an order that adopted the report and recommendation of the magistrate
judge and dismissed plaintiffs action with prejudice.
The district court rejected
plaintiffs contention that the statute of limitations on his false arrest claim
should have been tolled during the pendency of his incarceration, and concluded
that the claim was untimely. The district court also concluded that plaintiffs
claim for false imprisonment failed because it did not allege personal
participation by any of the named defendants and because the undisputed evidence
showed that plaintiffs detention was supported by probable cause. The court also
determined that the existence of probable cause was fatal to any claim for
malicious prosecution the court might liberally construe from plaintiffs
objections to the magistrate judges report. Finally, the court concluded that
plaintiffs claim for cruel and unusual punishment failed to state a claim for relief
Although Detective Weaver did not file a dispositive motion, the district
court dismissed plaintiffs action as to all defendants. Plaintiff does not
challenge the dismissal of his claims against Detective Weaver on the ground that
the detective did not file a dispositive motion, so we need not consider that
argument on appeal.
-4-
under the Fourteenth Amendment, which governs conditions of confinement for

pretrial detainees.
At the outset, we must determine whether we have jurisdiction over
this appeal. The district court entered judgment in favor of defendants on
January 28, 1999. Plaintiff then had until March 1, 1999, to file his notice of
appeal. See Fed. R. App. P. 4(a)(1)(A), 26(a)(1), (3). The district court stamped
plaintiffs notice of appeal as filed on March 22, 1999, well outside the appeal
period. We directed the parties to file supplemental briefs addressing whether
we have jurisdiction to hear this appeal.
See, e.g., Steel Co. v. Citizens for a
Better Envt, 523 U.S. 83, 95 (1998) (discussing federal appellate courts duty
to examine its own jurisdiction even when not challenged by parties). In his
response, plaintiff presented evidence that he deposited his notice of appeal in the
prison mail, properly addressed to the clerk of the district court, on February 22,
1999. Therefore, we conclude that plaintiffs notice of appeal was timely filed,
and that we have jurisdiction over this appeal.
See Fed. R. App. P. 4(c)(1)
(providing that an inmates notice of appeal is timely filed if deposited in the

prisons internal mail system on or before the last day for filing).
We review the district courts disposition of plaintiffs claims de novo.
See Perkins v. Kansas Dept of Corrections
, 165 F.3d 803, 806 (10th Cir. 1999)
(dismissal under either Fed. R. App. P. 12(b)(6) or 28 U.S.C. 1915(e)(2)(B)(ii));

-5-
Taylor v. Meacham , 82 F.3d 1556, 1559 (10th Cir. 1996) (grant of summary
judgment). To the extent the district court dismissed plaintiffs claims for failure
to state a claim, we may uphold the dismissal only if we conclude that no relief
could be granted under any set of facts that could be proved consistent with the
allegations.
Hishon v. King & Spalding , 467 U.S. 69, 73 (1984). To the extent
the district court granted summary judgment on plaintiffs claims, we may uphold
the grant of summary judgment only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
Based upon our review of the record, the parties appellate briefs, and the
pertinent law, we conclude the district court did not err in dismissing plaintiffs
action. Therefore, we AFFIRM the judgment of the district court for substantially
the reasons stated in the magistrate judges report and recommendation of
December 17, 1998, and the district courts order of January 28, 1999. Plaintiff
is reminded that he is obligated to continue making partial payments of his filing
fee in this case until the fee is paid in full.
-6-
The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe

Circuit Judge
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Oliver v. State of Oklahoma, 10th Cir. (2000)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

The district court rejected

under the Fourteenth Amendment, which governs conditions of confinement for

See, e.g., Steel Co. v. Citizens for a

See Fed. R. App. P. 4(c)(1)

(providing that an inmates notice of appeal is timely filed if deposited in the

, 165 F.3d 803, 806 (10th Cir. 1999)

(dismissal under either Fed. R. App. P. 12(b)(6) or 28 U.S.C. 1915(e)(2)(B)(ii));

The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

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