UNITED STATES COURT OF APPEALS
Filed 4/9/96
TENTH CIRCUIT
JOYCE L. JACKSON,
Plaintiff - Appellant,
v. No. 95-7153
MARVIN MAC HOLDRIDGE dba (D.C. No. CV-95-184-S)
Custom One; TERESA HOLDRIDGE (E.D. Oklahoma)
dba Custom One; GARRY
WEATHERFORD, individually;
GARRY WEATHERFORD, in his
official capacity as Inspector for the City
of Muskogee; CITY OF MUSKOGEE,
OKLAHOMA, a municipal corporation;
and MIKE MALLOY dba Mike Malloy
& Associates,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
*
This order and judgment is not binding precedent, except under the doctrines of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 the 10th Cir. R. 36.3.
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This cause is therefore ordered
submitted without oral argument.
Joyce L. Jackson brought this action alleging that the defendants deprived her of
her constitutional rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments in
violation of 42 U.S.C. §§ 1983, 1985, 1986, and the Community Development Act, 42
U.S.C. § 5301-5321. In this pro se appeal of the district court’s grant of summary
judgment against her, Jackson contends that the court erred in 1) finding facts which were
disputed; 2) finding that the municipality enjoyed immunity; and 3) finding that Jackson
was required to exhaust administrative and other remedies. We affirm.
In the fall of 1992, Jackson applied to participate in a Community Development
Block Program which the City of Muskogee administered pursuant to the Community
Development Act. Following Jackson’s acceptance into the program, Custom One
Construction bid for and received the contract to perform certain enumerated repairs. As
early as March 22, 1993, Jackson appeared before the City Council to complain about the
repairs. Nonetheless, when the city conducted an inspection of the repairs on March 26,
1993, the work was approved, and on March 29, 1993, the city authorized payment to
Custom One on its contract. However, Jackson was still dissatisfied with the work, and
continued to raise her complaints in letters to the Muskogee Housing and Review Board
(the “Review Board”) and in additional appearances before it and the City Council.
During this period, on April 7, the city conducted a follow-up inspection, at which time
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the city again certified the work as satisfactory. On April 14, 1993, Jackson again
addressed the Review Board, and finally, on April 28, 1993, Custom One returned to
perform warranty repairs on seven listed items.
Although Jackson continued to complain about the work, she never filed a notice
of tort claim against the city as required by Okla. Stat. Ann. tit. 51, § 156 (West Supp.
1996), nor did she appeal the city’s decision to approve payment on the contract to either
Muskogee County Court or the Housing and Urban Development Department which has
authority for enforcing the Community Development Act. Instead, on April 24, 1995,
Jackson filed the present civil rights action.
In its grant of summary judgment, the district court found that any civil rights
cause of action would have accrued by March 29, 1993, the date that the city approved
the repairs and authorized payment on the contract, and that therefore Jackson’s filing on
April 24, 1995, was untimely. Alternatively, the court also ruled on the merits, finding
that Jackson’s complaint failed to state a civil rights cause of action on which relief could
be granted. Specifically, the court held that the Community Development Act does not
create a private cause of action, that Jackson had alleged no facts to establish a
connection between the allegedly shoddy work and a discriminatory purpose, nor had she
alleged any facts to show a conspiracy to deprive her of any constitutional right, and,
finally, that an adequate state post-deprivation remedy satisfied her Fifth and Fourteenth
procedural due process guarantees.
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We review a summary judgment de novo, applying the same standard as the trial
court under Fed. R. Civ. P. 56. Lancaster v. Air Line Pilots Ass’n Int’l., 76 F.3d 1509,
1516 (10th Cir. 1996). While we resolve any factual doubt in favor of the party opposing
summary judgment, that party’s conclusory allegations are not sufficient to defeat a
properly supported motion. Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995).
Additionally, although we liberally construe a pro se plaintiff’s pleadings, Haines v.
Kerner, 404 U.S. 519, 520 (1972), we will not supply additional facts, nor will we
construct a legal theory. Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert.
denied, 493 U.S. 1059 (1990); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Thus, we will not manufacture an argument on appeal when a party has failed to
draw our attention to the error below. National Commodity & Barter Ass’n, Nat’l
Commodity Exch. v. Gibbs, 886 F.3d 1240, 1244 (10th Cir. 1989).
Jackson asserts that the district court incorrectly decided facts related to immunity,
statute of limitations,1 exhaustion of remedies, and summary judgment. However, even if
all of Jackson’s allegations were taken as true, her action still fails.
1
Jackson does not state what facts were improperly decided, nor does she indicate
which facts should properly govern the decision. In any event, our review of the record
demonstrates, that at the very latest, her action would have accrued on April 7, when the
city inspector made his last inspection and certified the work as adequate. That the
contractor may have made minor warranty repairs afterwards does not change the fact
that, at the latest, her alleged injury arose when the city finally inspected and approved the
contractor’s performance on April 7.
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In addition to her general request that we review all facts and evidence, Jackson
raises two specific legal issues related to immunity and exhaustion of remedies. As the
city correctly notes, the district court did not base its order on any defense of qualified or
absolute immunity; therefore, that issue is not before us. Similarly, Jackson’s argument
on exhaustion of remedies also misinterprets the court’s ruling. The court did not find
that Jackson was barred from her action for failure to exhaust state and administrative
remedies. Rather, the court correctly held that the requirements of due process were
satisfied by adequate state post-deprivation remedies. Archuleta v. Colorado Dept. of
Insts., 936 F.2d 483, 491 (10th Cir. 1991). Accordingly, we affirm the district court’s
grant of summary judgment.2
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
2
We note an apparent typographical error in one of the court’s conclusions of law.
At paragraph 7, the court cites Dixon v. City of Lawton, OK, 898 F.2d 1443, 1449 (10th
Cir. 1990) for the proposition that, among other elements, a § 1985 conspiracy claim
requires state action. As Dixon properly notes, however, state action is a component of
claims under § 1983, and not of claims under § 1985. Id. at 1447. In any event, the
district court correctly states the pertinent point, that a plaintiff asserting a conspiracy
claim under either section must prove an agreement or conspiracy between actors. See id.
at 1447-49. Jackson offered no facts sufficient to create a material issue of fact on this
essential element.
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