F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
FRANK MEHDIPOUR; ALI
MEHDIPOUR; LADONNA
MEHDIPOUR,
Plaintiffs-Appellants, No. 97-6070
v. (D.C. No. 95-CV-312)
(W.D. Okla.)
THE CITY OF OKLAHOMA CITY, a
municipality and political subdivision
of the State of Oklahoma; PATRICK
BYRNE, as public officer and
individual; WINFORDE W. MARTIN,
as public officer and individual,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK, BARRETT, and MURPHY, 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 appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Plaintiffs Frank Mehdipour, Ali Mehdipour, and LaDonna Mehdipour
appeal the district court’s grant of summary judgment to defendants City of
Oklahoma City and Patrick Bryne 1 on their civil rights complaint, alleging
violations of their rights under 42 U.S.C. §§ 1983 and 1985, the Fourth, Fifth,
Seventh, and Fourteenth Amendments to the Constitution and certain state law
claims. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
BACKGROUND
The facts in this case, which were set forth by defendants and not disputed
by plaintiffs, are thoroughly incorporated in the district court’s order. Therefore,
we will repeat here only those facts necessary to our disposition.
In May 1990, defendant Officer Patrick Byrne was advised by Kelly
Mehdipour, the wife of plaintiff Frank Mehdipour, that there were stolen vehicles
and other stolen property being stored at two of Frank’s places of business in
Oklahoma City. After checking records on several of the alleged stolen vehicles,
Officer Byrne prepared three affidavits of probable cause and obtained warrants
to search the two properties.
Upon execution of the warrants, Officer Byrne found the alleged stolen
property and a quantity of hashish. Officer Byrne arrested Frank and his brother,
1
Defendant Winforde W. Martin was dismissed from the suit by stipulation
of the parties.
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plaintiff Ali Mehdipour. Plaintiff LaDonna Mehdipour, wife of Ali, was
questioned and released. Frank and Ali were charged with eleven counts of
possession of stolen property and one count of possession of hashish with intent
to distribute. On February 28, 1991, a jury acquitted Frank and Ali on all counts.
While Frank and Ali were incarcerated awaiting trial, defendant City of
Oklahoma City (the City) notified Kelly and Frank that certain property owned by
them was considered dilapidated and would be the subject of a hearing to
determine whether demolition was appropriate. Following the hearing, the
property was declared dilapidated and was ordered demolished. Frank and Kelly
were billed for the demolition cost.
On June 5, 1992, plaintiffs originally brought suit against defendants in
federal district court. In dismissing without prejudice for failure to comply with
court orders, the court held that if plaintiffs filed a future action arising out of the
same set of facts, they would be required to pay all of defendants’ attorney fees
and costs.
Plaintiffs filed this action on February 28, 1995, claiming violations of
their rights under 42 U.S.C. §§ 1983, 1985, the Fourth, Fifth, and Fourteenth
Amendments, and certain state law violations in relation to their arrests. They
also claimed that the City’s demolition of their property violated their due process
rights. Specifically, plaintiffs alleged that they were falsely arrested; that the
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search of their property was illegal; that plaintiffs’ civil rights were violated by
Officer Byrne’s failure to act on alleged exculpatory information given him by
plaintiffs after the arrests; that Officer Byrne’s conduct surrounding the arrests
was discrimination because of Frank’s prior felony conviction; that the arrests
were the result of an unconstitutional policy or practice of the City; and that the
City unconstitutionally caused certain buildings belonging to defendants to be
demolished. In addition, they brought state law claims for trespass, assault,
malicious prosecution, and false imprisonment.
Because the claims in this action arose out of the same set of facts
underlying the 1992 suit, before allowing plaintiffs to proceed, the court ordered
them to post a bond in the amount of the costs and fees expended by defendants in
the 1992 case. Plaintiffs posted the bond, and on April 12, 1996, the court
granted the City’s application for payout of the bond. 2 The district court then
granted defendants’ motions for summary judgment, and this appeal followed.
DISCUSSION
“We review de novo the district court’s grant of qualified immunity on
summary judgment, viewing the evidence in the light most favorable to the
2
Plaintiffs’ appeal of the order to pay out the bond was procedurally
terminated by this court as an appeal of a nonfinal order. Plaintiffs do not raise
this issue in this appeal.
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nonmoving party.” Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997).
In order to prevail against a defense of qualified immunity in a summary
judgment motion, plaintiffs must first assert the violation of a constitutional or
statutory right. See id. Second, plaintiffs must show that the “‘right was clearly
established such that a reasonable person in the defendant’s position would have
known that [his] conduct violated the right.’” Id. (quoting Garramone v. Romo,
94 F.3d 1446, 1449 (10th Cir. 1996)). If the court determines that the defendant’s
conduct did not violate a constitutional right, the inquiry ends and qualified
immunity is appropriate. See id.
In response to Officer Byrne’s motion for summary judgment, plaintiffs
conceded the failure of their state tort claims. Moreover, the court found that
plaintiffs had abandoned their separate due process claim against the City
regarding the destruction of their property. Plaintiffs further conceded that they
were no longer challenging Officer Byrne’s probable cause to search the property
and make the arrests. Plaintiffs continued to assert, however, that their
constitutional rights were violated by Officer Byrne when he failed to undertake
an adequate follow-up investigation after arresting the plaintiffs. They
specifically alleged that Officer Byrne ignored exculpatory evidence which
plaintiffs brought to his attention.
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The district court held that plaintiffs failed to cite any authority for their
contention that they had a constitutionally protected right to a post-arrest
investigation. See Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995) (in order
to determine whether defendant is entitled to qualified immunity, court must first
ascertain whether plaintiff has adequately asserted the violation of a
constitutional right). Moreover, the court held that even if plaintiffs’ allegations
were sufficient to constitute a constitutional violation, they had failed to assert
any facts which would demonstrate that Officer Byrne acted with the necessary
“‘deliberate or reckless intent.’” R. Supp. Vol. I, tab 65 at 7 (quoting Romero,
45 F.3d at 1478). 3 The district court subsequently denied plaintiffs’ motion to
reconsider, amended motion to reconsider, and a motion to dismiss the judgment.
Plaintiffs’ first appellate issue, that Office Byrne acted without probable
cause when he searched their premises and arrested Frank and Ali, was conceded
by plaintiffs in their response to Officer Byrne’s motion for summary judgment.
3
The district court also held that plaintiffs failed to sustain their burden of
establishing the deprivation of a constitutional right due to a policy or custom of
the City, see City of Canton v. Harris, 489 U.S. 378, 385 (1989); and that
plaintiffs failed to provide any authority which would suggest that “prior-
convicted felons” were a protected class for purposes of plaintiffs’ claim that
Officer Byrne’s actions constituted discrimination based on Frank’s prior felony
conviction. Plaintiffs do not challenge these holdings on appeal, and therefore,
we deem these issues waived. See Abercrombie v. City of Catoosa, 896 F.2d
1228, 1231 (10th Cir. 1990) (issue not argued in opening brief deemed waived).
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Although they attempted to reassert the issue in their motions to reconsider, a
Rule 59(e) motion cannot be used to raise issues that were not before the district
court. 4 See Steele v. Young, 11 F.3d 1518, 1520 n.1 (10th Cir. 1993) (“Rule
59(e) cannot be used to expand a judgment to encompass new issues which could
have been raised prior to issuance of the judgment.”). Therefore, because this
issue was never properly raised, argued, and ruled on by the district court, we will
not consider it for the first time on appeal. See Lyons v. Jefferson Bank & Trust,
994 F.2d 716, 721, 722 (10th Cir. 1993) (an issue raised but not pursued in
district court is deemed waived on appeal); O’Connor v. City & County of
Denver, 894 F.2d 1210, 1214 (10th Cir. 1990) (appellate court will not consider
on appeal claims abandoned in the district court).
We now turn to plaintiffs’ only remaining contention--that Officer Byrne’s
failure to conduct a post-arrest investigation violated a constitutional or statutory
right, redress for which is available under 42 U.S.C. § 1983. Applying the
two-pronged test for granting qualified immunity, see Davis, 111 F.3d at 1478,
the district court granted Officer Byrne summary judgment, finding that plaintiffs’
allegations amounted to nothing more than “what they perceive to be a poorly
4
A “motion to reconsider” is not among the motions recognized by the
Federal Rules of Civil Procedure. If, as here, a “motion to reconsider” is filed
within ten days of entry of judgment, it is treated as a motion under Fed. R. Civ.
P. 59(e). See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
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conducted investigation,” and therefore, plaintiffs failed to assert a constitutional
violation. 5 R. Supp. I, tab 65 at 8. We agree.
In Romero, this court considered a constitutional violation claim for an
“unreasonable post-arrest investigation.” 45 F.3d at 1478. We determined that
because the plaintiff had failed to set forth conduct which constituted a
constitutional violation, it was not necessary to reach the issue of whether
plaintiff had a “clearly established right to a reasonable post-arrest investigation.”
Id. Here, as the district court determined, plaintiff failed to allege that Officer
Byrne acted with “deliberate or reckless intent.” Id. Therefore, plaintiffs’ claim
that Officer Byrne failed to conduct an adequate investigation after their arrests
describes nothing more than negligent conduct which is not actionable under
§ 1983. See id. (allegations of police officer’s negligent conduct do not state
a cognizable § 1983 action).
5
Insofar as plaintiffs are attempting to argue on appeal that Officer Byrne’s
conduct was in violation of state statutory law, we conclude that because this
issue was not raised and ruled on in the district court, it is not properly before this
court on appeal. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th
Cir. 1992) (as a general rule, appellate court will not consider an issue on appeal
that was not raised below).
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Accordingly, we hold that the district court was correct in granting
defendants summary judgment on each of plaintiffs’ claims. Plaintiffs’ motion
for oral argument and defendants’ motion to strike plaintiffs’ reply brief are
DENIED. The judgment of the United States District Court for the Western
District of Oklahoma is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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