Lewis v. Nelson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 2 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk

ANTHONY LEWIS,

Plaintiff - Appellant,

v. No. 96-3400
(D.C. No. 96-2081-KHV)
RICK NELSON; DONALD (D. Kan.)
WOOLLEY; and MIKE MCCALL,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before BRORBY, EBEL, and KELLY, Circuit Judges.

Plaintiff - Appellant Anthony Lewis (“Lewis”) appeals the district court’s

grant of summary judgment to Defendants - Appellees on his claims that the

Defendants, as members of the Kansas City, Kansas Police Department, violated

*The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. 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judgment is not binding precedent, except under the doctrines of law of the case,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.
his constitutional and civil rights when they arrested him on February 15, 1996. 1

Lewis also appeals the district court’s dismissal of his cross-motion for summary

judgment. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

BACKGROUND

The uncontroverted facts in this case are as follows. On December 20,

1995, Michael Peterson (“Peterson”) filed an aggravated assault and criminal

damage report against Anthony Lewis with the Kansas City, Kansas Police

Department (the “Police Department”). (Defendant’s Motion for Summary

Judgment (Doc. # 43), hereinafter “DMSJ”, at 2 -- uncontroverted by Plaintiff in

his response (Doc. # 45)). Peterson reported that Lewis had driven a late model

Toyota Tercel alongside his vehicle and then fired a hand gun toward his vehicle.

(Id.) Defendant Rick Nelson, a detective with the Police Department investigated

the incident. (Id.)

1
We construe this action to be one brought under 42 U.S.C. § 1983, which
provides in relevant part:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress.

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 As part of the investigation, the Police Department’s ALERT computer

system informed officers on December 29, 1995 that if Anthony Lewis was found,

he was to be stopped and Detective Nelson was to be notified. (Id.) The ALERT

order also advised officers that Lewis was to be considered armed and dangerous.

(Id.)

Sometime after the ALERT order was issue, Detective Nelson compiled a

prosecutive summary and turned it over to the District Attorney’s Office of

Wyandotte County, Kansas, for further action. (Id.) On February 2, 1996, the

District Court of Wyandotte County, Kansas, issued a warrant for Lewis’ arrest on

charges of aggravated assault against Peterson. (Doc #45, Exhibit E). Two

weeks later, on February 15, 1996, an informant advised Defendant Sergeant Don

Woolley that Lewis, who was driving a red Toyota Tercel, would be arriving soon

in the area around 1901 North 76th Street, Kansas City, Kansas. (DMSJ, at 3 --

uncontroverted by Plaintiff in his Response). The informant also stated that

Lewis had a warrant out for his arrest. (Id.)

Sgt. Woolley located the red Tercel, determined through dispatch that the

car was registered to Lewis, and then confirmed that there was a warrant out for

Lewis’ arrest. (Id.) Defendant Officer Mike McCall and Officer Timothy Hylton

were called in to assist Sgt. Woolley on his stop of Lewis’ vehicle, and based on

the arrest warrant, they took Lewis into custody. (Id.) While at the scene, Officer

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Hylton looked into Lewis’ vehicle and noticed in plain view a fully loaded speed

loader and the butt of a handgun under the driver’s seat. (Id. -- controverted by

the conclusory allegation that because Sgt. Woolley’s name appeared on the

complaint summons, Woolley must have been the one to conduct the search, see

Aplt. Brief, at 3 -- attachment) These observations led to the discovery of a .38

caliber handgun, two speed loaders, and eighteen .38 caliber hollow point rounds.

(Id.) Officer Hylton seized these items as evidence. (Id. at 3-4)

Lewis was ultimately charged with “knowingly carrying or possessing a

pistol or other firearm on the person or any land, water or air vehicle, loaded or

unloaded,” in violation of Kansas City, Kansas, Municipal Ordinance § 22-

106(a)(4). (Id. at 4) On March 18, 1996, Lewis entered a plea of guilty to this

charge, at which time Kansas City, Kansas, Municipal Court Judge William Cook

sentenced Lewis to 15 days in jail, gave him a fine of $150, and charged him $20

for costs. (Id.) Lewis received parole on the jail time for one year contingent

upon no further violations. (Id.) The court also ordered the weapons seized and

destroyed. (Id.) Lewis did not appeal his sentence, nor did he move to withdraw

his guilty plea, and thus those matters are not before us. (Id.)

Rather, we consider Lewis’ civil action which Lewis initiated against

Defendants Nelson, Woolley, and McCall on February 20, 1996. (Doc #1) In this

action, Lewis seeks $3,000,000,000,000 ($3 trillion) in damages resulting from

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the deprivation of his constitutional rights, and $1,000 for a bond payment. (Id.)

Specifically, Lewis asserted below: (1) that his arrest was illegal because

defendants failed to show him a warrant at the time of his arrest; (2) that

defendant McCall failed to read him his Miranda rights at the time of his arrest;

and (3) that defendant Woolley seized his .38 caliber handgun, two speed loaders,

and eighteen .38 caliber hollow point rounds without due process of law. (Id.)

On November 26, 1996, the District Court granted Defendants’ motion for

summary judgment with regard to Lewis’ presentation of warrant claim and his

Miranda warnings claim. (Doc #51) The District Court dismissed Lewis’ motion

for summary judgment motion as untimely filed. (Id.) Also in the November 26,

1996 Order, the District Court denied Defendants’ motion for summary judgment

with regard to the unreasonable seizure claim after determining that fact issues

remained as to whether the seizure was governed by the “plain view” exception to

the warrant requirement. (Id. at 9-10). However, in a Minute Order dated

November 27, 1996, the District Court granted the Defendants’ summary

judgment with regard to the unreasonable search and seizure claim after

determining that Officer Timothy Hylton, who was not a party to the action, had

conducted the allegedly unreasonable search and seizure. (Doc # 52)

Lewis now appeals under 28 U.S.C. § 1291, and we AFFIRM.

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 DISCUSSION

We review the grant of summary judgment de novo, applying the same legal

standard used by the district court pursuant to Fed. R. Civ. P. 56(c). We grant

summary judgment when “‘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 the moving party is entitled to judgment

as a matter of law.’” Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996)

(quoting Wolf v. Prudential Ins. Co. of America, 50 F.3d 793 (10th Cir. 1995)).

1. Failure to Present the Warrant at Lewis’ Arrest.

Lewis’ claim that the Defendants violated his constitutional rights by

failing to present an arrest warrant at his arrest must fail. Lewis does not contest

the validity of the arrest warrant, but only asserts that he should have been shown

the warrant at his arrest. However, under neither federal statutory law, nor under

Constitutional law, is Lewis provided the right to be shown an arrest warrant at

the time of arrest.

Indeed, Rule 4(d)(3) of the Federal Rules of Criminal Procedure

specifically denies the obligation of an arresting officer to present an arrest

warrant at the time of arrest. Rule 4(d)(3) provides in relevant part that:

[t]he officer need not have the warrant at the time of the arrest but
upon request shall show the warrant to the defendant as soon as

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 possible. If the officer does not have the warrant at the time of the
arrest, the officer shall then inform the defendant of the offense
charged and of the fact that a warrant has been issued.

Fed. R. Crim. P. (4)(d)(3).

Further, several courts have refused to characterize an arrest as unlawful

simply because the arrestee was not shown an arrest warrant upon arrest. See

e.g., United States v. Buckner, 717 F.2d 297, 301 (6th Cir. 1983) (the failure of

the officers to have the warrant in hand is of “no consequence” where arresting

officers have reliable knowledge that warrant has been issued); United States v.

Turcotte, 558 F.2d 893, 896 (8th Cir. 1977) (an arrest is not unlawful due to the

failure of the arresting officer to serve arrestee with a copy of the arrest warrant);

Bradley v. Extradition Corp. Of America, 758 F. Supp. 1153, 1156 (W.D. La.

1991)(same). Finally, although the Sixth Amendment provides that a state must

inform an arrestee of any charges brought against him, this right does not attach

until the state has instituted a formal prosecution. Kladis v. Brezek, 823 F.2d

1014, 1018 (7th Cir. 1987).

For these reasons, we AFFIRM the district court’s grant of summary

judgment to the Defendants on Lewis’ warrant presentation claim.

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 2. Failure to Read Miranda Warnings Claim.

Lewis’ second claim is that he is owed monetary damages because of the

Defendants’ failure to read him his Miranda rights prior to his arrest. See

Miranda v. Arizona, 384 U.S. 436, 467 (1966). The law in this circuit is clear,

however, that the only remedy available for a Miranda violation is the suppression

of any incriminating statements. Bennet v. Passic, 545 F.2d 1260, 1263 (10th Cir.

1976). As we explained in Bennet:

The Constitution and laws of the United States do not guarantee
Bennett the right to Miranda warnings. They only guarantee him the
right to be free from self-incrimination. The Miranda decision does
not even suggest that police officers who fail to advise an arrested
person of his rights are subject to civil liability; it requires, at most,
only that any confession made in the absence of such advise be
excluded from evidence. No rational argument can be made in
support of the notion that the failure to give Miranda warnings
subjects a police officer to liability under the Civil Rights Act.

Id. Accord Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir.), cert. denied, 116

S. Ct. 1267 (1996) (“The remedy for a Miranda violation is the exclusion from

evidence of any ensuing self-incriminating statements. The remedy is not a

§ 1983 action.”) (internal citations omitted).

Thus, we AFFIRM the district court’s grant of summary judgment to the

Defendants on Lewis’ Miranda rights claim.

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 3. Unreasonable Search and Seizure Claim

Lewis’ final claim is that Sgt. Woolley violated his Fourth Amendment

rights when Officer Timothy Hylton searched his vehicle and seized certain pieces

of evidence without a warrant. Lewis argues that because Officer Woolley’s

name appeared on the uniform complaint summons, Officer Woolley, and not

Officer Hylton, is the proper defendant for this claim. We disagree. There is

simply no authority for the proposition that a police officer named on a complaint

summons can be held liable for any resulting Fourth Amendment violations that

occur at a subsequent arrest.

We have determined that a supervisor of officers who conduct an

unreasonable search may be liable under 42 U.S.C. § 1983 where there are

“‘allegation of personal direction or actual knowledge and acquiescence,’” Kaul

v. Stephan, 83 F.3d 1208, 1213 n. 3 (10th Cir. 1996) (quoting Woodward v. City

of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992)). However, in this case, Lewis

has failed to allege that Sergeant Woolley acted as a supervisor to Officer Hylton

during the search and seizure, and there are no allegations of personal direction or

actual knowledge and acquiescence. We are mindful of the fact that Lewis is a

pro se litigant, and thus, we “construe his pleadings liberally.” Riddle v.

Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). However, our “‘ . . . broad

reading of the plaintiff’s complaint does not relieve the plaintiff of the burden of

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alleging sufficient facts on which a recognized legal claim could be based.’” Id.

(quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

In this case, the allegedly unreasonable search was conducted by Officer

Timothy Hylton, who is not a party to this action, and no facts have been alleged

upon which Sergeant Woolley can be held liable for Officer Hylton’s search.

Accordingly, we AFFIRM the district court’s grant of summary judgment to the

Defendants with regard to Lewis’ Fourth Amendment claim.

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s order. 2

ENTERED FOR THE COURT

David M. Ebel
Circuit Judge

2
Lewis also appeals the district court’s dismissal of his summary judgment
motion as untimely filed. Because we affirm the district court’s grant of summary
judgment to the Defendants in this case, we necessarily determine that Lewis’
motion for summary judgment is denied on the merits.

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