Joseph v. Libretti, Jr. v. George Miller, and Other Unknown Agents, in Their Individual and Official Capacities George (I) Miller, Individually

37 F.3d 1509, 1994 U.S. App. LEXIS 35684, 1994 WL 573936

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 19, 1994
• Docket: 94-1068
• Status: Published

Opinion

37 F.3d 1509
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Joseph V. LIBRETTI, Jr., Plaintiff-Appellant,
v.
George MILLER, and other unknown agents, in their individual
and official capacities; George (I) Miller,
individually, Defendants-Appellees.

No. 94-1068.

United States Court of Appeals, Tenth Circuit.

Oct. 19, 1994.

Before LOGAN and BARRETT, Circuit Judges, and RUSSELL,** District Judge.

ORDER AND JUDGMENT1

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.

Plaintiff Joseph V. Libretti, Jr. appeals the district court's order dismissing his Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), action alleging violations of his right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment and his right to due process guaranteed by the Fifth Amendment. The district court dismissed on two alternative grounds: (1)plaintiff failed to allege a legitimate expectation of privacy protected by the Fourth Amendment in the rental storage unit searched by defendants and (2)plaintiff failed to allege facts showing defendant George Miller executed the affidavit for the search warrant in knowing and intentional or reckless disregard for the truth.

Upon reading plaintiff's brief and the record on appeal, we agree with the district court's ruling dismissing because plaintiff failed to properly allege facts challenging the veracity of the supporting affidavit. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). We also note that plaintiff failed to allege facts showing defendants improperly executed the search warrant. Because we affirm for these reasons, we need not consider whether plaintiff had a legitimate expectation of privacy in the rental storage unit.

AFFIRMED.

The mandate shall issue forthwith.

** Honorable David L. Russell, District Judge, United States District Court for the Western District of Oklahoma, sitting by designation

1 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 court's General Order filed November 29, 1993. 151 F.R.D. 470