F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 18 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
RONALD R. MOLINA,
Plaintiff-Appellant,
v. No. 98-4119 (D.C. No. 96-CV-23-K) MIKE SPANOS, ROBERT J. (D. Utah) LUCKING, PERRY ROSE, KEN VAN WAGONER, and WASATCH COUNTY SHERIFF’S DEPARTMENT,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and BRISCOE , 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 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.
This action arose out of a drug investigation of plaintiff Robert R. Molina
and Clifford Molina, plaintiff’s brother. The investigation led to their subsequent
arrest, a search of plaintiff’s property, the seizure of plaintiff’s home, the
initiation of criminal drug charges, and the filing of a forfeiture proceeding.
Plaintiff appeals from the district court’s entry of summary judgment in favor of
defendants Mike Spanos, the sheriff of Wasatch County, Utah; Robert J. Lucking,
Perry Rose, and Ken Van Wagoner, law enforcement officers working with the
Wasatch Area Drug Enforcement Network (a multi-jurisdictional drug task force
known as WADEN); the Wasatch County Sheriff’s Department; and John Does 1
through 10, on his federal claims under 42 U.S.C. §§ 1982 and 1983 that
defendants violated his constitutional rights and his state claims of false arrest,
false imprisonment, intentional infliction of emotional distress, defamation,
conversion, and violation of property rights under the Utah Constitution. He also
appeals the district court’s orders refusing to compel production of requested
discovery, excluding certain evidence, and denying his motion for partial
summary judgment. We affirm in part, reverse in part, and remand for further
proceedings.
-2- I. BACKGROUND
In 1990, plaintiff, who is of Hispanic descent, moved to Heber City, Utah,
from Miami, Florida. As a self-employed certified public accountant, writer, and
real estate finance expert, he conducted his business from his home. Shortly after
relocating, plaintiff began to suspect that his house was under police surveillance.
In 1992, when plaintiff was visiting in another state, his teenaged son
called the police for assistance in removing two acquaintances from the house.
Upon responding to the call, defendant Rose, a Heber City police officer, arrested
the son, along with the other two individuals, for use and possession of a
controlled substance. Subsequently, police obtained a search warrant and
returned to the Molina home to search it. The son eventually pleaded guilty to
attempted use of a controlled substance. Somewhat later, plaintiff’s brother
Clifford Molina, who “has a serious drug problem,” Appellant’s App., Vol. 1
at 460 (plaintiff’s deposition), moved into plaintiff’s home.
A. The Investigation
In 1994, the owner of a bar in Heber City expressed to defendant Lucking,
a deputy with the Wasatch County sheriff’s office and the WADEN coordinator,
and defendant Van Wagoner, also a deputy sheriff and the former coordinator, her
suspicions that plaintiff and Clifford Molina were involved in drug activity. She
indicated that plaintiff “flashes money” and “buys girls gifts” and, possibly, that
-3- she had observed Clifford Molina participate in a drug transaction. Addendum to
Brief of Appellees Spanos, Lucking, Van Wagoner and Wasatch County Sheriff’s
Dept. (Addendum), Tab 2 (Lucking deposition at 64). Based on this information,
Lucking launched a WADEN investigation. He placed Barbara McClure, a
confidential informant employed by WADEN, in the bar as a part-time employee
and instructed her to become acquainted with the Molinas.
McClure followed instructions and became friendly with plaintiff and his
brother. Soon, however, McClure came to believe that Clifford, not plaintiff,
“was doing the buying and the selling [of drugs]. . . . and was the dealer.”
Appellant’s App., Vol. 1 at 309 (McClure deposition). When she told Lucking of
her conclusion, he began to distrust her, thinking that she was getting
“[p]ersonally involved” and “too close to Ron Molina.” Id. at 368 (Lucking
deposition). He added another confidential informant, James McDaniel, to the
investigation.
Rose was assigned to monitor the informants’ activities. Before planned
buys, Rose and other WADEN team members generally conducted searches of the
informants and wired them with transmission devices. During the transactions,
WADEN maintained visual and audio contact. Afterwards, they searched and
debriefed the informants. To document their observations, Rose and Lucking
wrote incident reports. See Addendum at tabs 10-12.
-4- The informants involved the Molinas in the purchase of cocaine on three
occasions, August 26 and 27, and September 4, 1994. In all instances, McClure
provided WADEN money for an eighth of an ounce of cocaine, or an “eight ball,”
id. , and McDaniel drove Clifford Molina, in Clifford’s car, to Salt Lake City to
make a purchase. Upon their return, McClure obtained WADEN’s share of the
drugs. Plaintiff’s alleged involvement, however, varied. WADEN reports state
that, in connection with the August 26 buy, plaintiff delivered the cocaine to
McClure’s home. The next day, he allegedly participated in dividing up the
purchased cocaine in his home, discussed its characteristics, and ingested some.
Although McClure attempted to give the money for WADEN’s share to plaintiff,
he insisted that she pay his brother instead. For the final transaction, plaintiff
allegedly watched silently while his brother, McClure, and McDaniel exchanged
the drugs.
B. The arrest and search
On September 6, 1994, Lucking decided to execute a warrant for the arrest
of plaintiff and Clifford Molina. Magistrate Fern Spanos, who is married to
defendant Spanos, issued the warrant. Lucking gathered teams of officers to
serve the warrants, and also conscripted defendant Van Wagoner, a neighbor of
the Molinas, to “keep an eye on [the Molinas’] home to let us know if they were
indeed there.” Addendum, tab 2 (Lucking deposition at 202). When McClure
-5- learned that the arrest warrants had been issued, she continued to dispute
Lucking’s conclusion that plaintiff was involved in drug transactions.
That afternoon, the arresting officers knocked, announced their presence,
and entered plaintiff’s residence, causing considerable damage to the door. They
found plaintiff in his upstairs bedroom and Clifford Molina in the shower. After
both were handcuffed and taken out to the front yard, Lucking and Rose
conducted protective sweeps of the residence.
The officers then turned their attention to plaintiff's property. Lucking
directed that plaintiff's car, which was parked on the street, be impounded and
held for safekeeping while plaintiff was under arrest. The residence was secured
until a warrant to search the residence could be obtained.
Rose signed the affidavit in support of the warrant request. In it, he cited
to the transactions of August 26, 27 and September 4, and added that during his
protective sweep he saw “a beer can formed into a pipe of the type normally used
to smoke < rock’ cocaine or marijuana” and “a white power residue on a glass top
covering a night stand.” Id. at tab 14. Based on this affidavit, Magistrate Spanos
issued a search warrant. The home was searched, and although items which could
be considered drug paraphernalia were confiscated, no drugs were found.
-6- Plaintiff was charged with distribution of a controlled substance, arranging
the distribution of a controlled substance, and conspiring to distribute a controlled
substance. Clifford Molina was also charged with drug-related offenses.
Plaintiff was released on bail on the evening of his arrest. Defendants
Lucking and Rose did not permit him to return to his home. Instead, they took
him there to gather clothing and other necessities, then drove him to a local hotel.
Although he retrieved his car from the impound lot the next morning, he did not
have access to his home. Allegedly with the approval of defendant Spanos,
WADEN task force members had arranged to change the locks on the doors,
change the utilities, and post a sign stating that the property had been seized by
order of the sheriff.
On September 8, the county attorney filed a lis pendens and civil forfeiture
complaint under Utah state law, asserting that Molina’s real property had been
“used to store, distribute and/or manufacture a controlled substance.” Id. at tab
16. Later, the attorney determined that the complaint was invalid because the
value of drugs in the WADEN transactions did not meet the statutorily-required
amount of $1,000. Accordingly, he moved to dismiss the forfeiture action.
Possession of the home and its contents was returned to plaintiff on September
26.
-7- The criminal charges against plaintiff remained pending. During plea
bargaining, the county offered to dismiss the charges in return for an agreement
that he would not sue and that he would immediately move out of Utah. Although
plaintiff did not accept the agreement, all charges against both plaintiff and his
brother were eventually dismissed. Plaintiff then filed this civil rights lawsuit.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo,
applying the same legal standard the district court used pursuant to Fed. R. Civ. P.
56(c). See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995).
Summary judgment is appropriate “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.” Rule 56(c). “When applying this
standard, we examine the factual record and reasonable inferences therefrom in
the light most favorable to the party opposing summary judgment.” Wolf , 50 F.3d
at 796 (quotation omitted). “[W]e can consider only admissible evidence in
reviewing an order granting summary judgment.” Gross v. Burgraff Constr. Co. ,
53 F.3d 1531, 1541) (10th Cir. 1995).
With regard to plaintiff's civil rights claims, qualified immunity protects
public officials from individual liability for damages unless the officials violated
-8- “clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). To pierce
this shield, “the plaintiff must demonstrate that the defendant’s actions violated a
constitutional or statutory right” and that the rights allegedly violated “were
clearly established at the time of the conduct at issue.” Albright v. Rodriguez ,
51 F.3d 1531, 1534 (10th Cir. 1995).
Applying the above rules to the matter before us, we discuss each of
plaintiff’s seventeen appellate issues. Because these issues are overlapping,
we group them into seven categories.
A. Rulings on admissibility of evidence, discovery, and deferral of summary judgment under F.R.C.P. 56(f)
As an initial matter, plaintiff asserts that the district court’s procedural
rulings undermined the presentation of his underlying theory that, in line with
their custom of forcing minorities from their community, defendants conspired to
make him move out of state because he is Hispanic. The first of these rulings
relates to the admissibility of a transcript of a telephone call with informant
McClure. The telephone call was initiated on August 14, 1995 by plaintiff’s then-
attorney. Plaintiff participated in the interview and taped it. According to
plaintiff, McClure’s statements demonstrate that WADEN's actions were taken to
further this conspiracy. Specifically, he asserts that the transcript reveals that
-9- Lucking went forward with the investigation, arrest, search, and seizure despite
an awareness that plaintiff was not involved with drugs. See Appellant’s Br. at 7.
At her deposition, taken approximately a year later, McClure maintained
that plaintiff was unfairly targeted for a WADEN investigation. She testified,
however, that plaintiff had lent her money so that his brother could go to Salt
Lake City to pick up cocaine, had dropped a packet of cocaine off at her house,
and had used cocaine in her presence four or five times. On cross-examination,
she stated that in the transcribed telephone call she was truthful “as far as [she]
knew,” but did not recall saying that she was “not aware of any instance where
[she] had witnessed Ron Molina doing illegal drugs.” Appellant’s App, Vol. 2 at
887.
Plaintiff submitted the transcript of the telephone call as an exhibit to his
memorandum in response to defendants’ motion for summary judgment. The
district court refused to consider it.
A “nonmoving party need not produce evidence in a form that would be
admissible at trial, but the content or substance of the evidence must be
admissible.” Thomas v. IBM , 48 F.3d 478, 485 (10th Cir.1995) (quotations
omitted). Rule 56(e) of the Federal Rules of Civil Procedure lists appropriate
documents for supporting an opposition to a motion for summary judgment:
affidavits made on personal knowledge, depositions, and answers to
-10- interrogatories. Hearsay testimony, such as “a third party’s description of a
witness’ supposed testimony is not suitable grist for the summary judgment mill.”
To successfully oppose a motion for summary judgment, “generalized,
unsubstantiated, non-personal” testimony is insufficient. Id. (quotations omitted).
Unquestionably, McClure’s deposition testimony, which severely undercuts
the impact of the transcript, is in a form admissible on summary judgment. The
unsigned, unauthenticated transcript is not. Moreover, even if we looked beyond
form and evaluated content, we would still conclude that the transcript is
inadmissible. The primary subject of discussion is McClure’s recitation of
Lucking’s testimony and her conclusory evaluation of his motives.
Plaintiff also appeals the district court’s determination that it would not
consider a newspaper article submitted by plaintiff. The article constitutes
inadmissible hearsay. The district court's evidentiary rulings were not erroneous.
In a similar vein, plaintiff argues that the district court’s unfavorable orders
on his discovery motions and request for deferral of a summary judgment ruling
under Rule 56(f) were erroneous. He fails, however, to furnish legal argument
demonstrating that the district court abused its discretion in making the
questioned rulings. See Burks v. Oklahoma Publ’g Co. , 81 F.3d 975, 981
(10th Cir. 1996) (discovery rulings reviewed under abuse of discretion standard);
Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1553-54
-11- (10th Cir. 1993) (Rule 56(f) denial reviewed for abuse of discretion). We note
that discovery was conducted in this case for more than a year and a half.
Notwithstanding plaintiff’s generalized claim of a cover-up, he was afforded
adequate time and opportunity to unearth the specific facts necessary to oppose
summary judgment.
B. Legality of 1992 search
As both a separate claim and background support for the conspiracy claim,
plaintiff asserts that on November 15, 1992, defendants Rose and Van Wagoner
searched his home without a warrant, or with a facially-invalid warrant. The
record demonstrates, however, that a warrant was issued and that it authorized a
search of the home. See Appellant’s App., Vol. 2 at 808; see also id. , Vol. 1 at 37
(verified complaint alleging that a search warrant was issued before the search).
Summary judgment was the proper disposition of this claim.
C. Constitutionality of arrest
Plaintiff makes several assertions of error concerning entry of summary
judgment on the claim that the September 6, 1994, arrest violated his
constitutional rights. He argues that the arrest warrant was invalid because:
(1) there were misstatements and omissions in the affidavit supporting the
warrant; (2) the magistrate issuing the warrant was not neutral; and (3) the
warrant was not obtained until after the arrest. Two related claims are that he is
-12- entitled to a jury determination on whether there was probable cause to arrest and
that his claim for a violation of the “knock and announce” rule.
Plaintiff’s first argument implicates the long-established principle that “the
Fourth Amendment’s warrant requirement is violated when < a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included
by the affiant in the warrant affidavit’ if the false statement is necessary to a
finding of probable cause.” Clanton v. Cooper , 129 F.3d 1147, 1154 (10th Cir.
1997) (quoting Franks v. Delaware , 438 U.S. 154, 155-56 (1978); see also Kaul v.
Stephan , 83 F.3d 1208, 1213 n.4 (10th Cir. 1996) (“A state officer is not
automatically shielded from Section 1983 liability merely because a judicial
officer approves a warrant.”) (citing Malley v. Briggs , 475 U.S. 335, 344-46
(1986)).
For several reasons, however, this principle has no application to the
alleged misstatements and omissions at issue here. “Probable cause for an arrest
warrant is established by demonstrating a substantial probability that a crime has
been committed and that a specific individual committed the crime.” Taylor v.
Meachum , 82 F.3d 1556, 1562 (10th Cir. 1996) (quoting Wolford v. Lasater ,
78 F.3d 484, 489 (10th Cir. 1996)). “Probable cause need not be based on actual
guilt.” Breidenbach v. Bolish , 126 F.3d 1288, 1293 (10th Cir. 1997). “While the
existence of probable cause is often a jury question, summary judgment is
-13- appropriate when there is no room for a difference of opinion concerning the facts
or the reasonable inferences to be drawn from them.” Qian v. Kautz , 168 F.3d
949, 953 (7th Cir. 1999). Plaintiff has not raised a jury question on the existence
of probable cause for his arrest.
It is unquestioned that the core statements about plaintiff’s drug activities
were accurate reflections of information supplied by McClure and McDaniel, the
confidential informants. These statements were consistent with the officers’ own
observations during the WADEN investigation. Even if the informants’
statements could be proven false, “it is the deliberate falsity or reckless disregard
< of the affiant, not of any nongovernmental informant’ that is unconstitutional.”
Clanton , 129 F.3d at 1154 (quoting Franks , 438 U.S. at 171). In addition, there
was no need to include a statement that the two informants were unreliable. All
concerns as to the reliability of McClure worked to the favor of plaintiff, not
WADEN. Furthermore, unfavorable information on McDaniel’s background, later
unearthed by plaintiff, was irrelevant to defendants’ good faith reliance at the
time the affidavit was drafted. 1
In a related vein, plaintiff argues that Magistrate Spanos, who issued the
arrest warrant, was married to the sheriff and thus was not the detached and
1 Other alleged errors, such as discrepancies concerning the amount of money exchanging hands and description of the electronic equipment, are so minor that they do not merit discussion.
-14- neutral magistrate required by the Fourth Amendment. Plaintiff, however,
provides no evidence demonstrating that Magistrate Spanos was unable to make a
detached probable cause determination. We decline to formulate a per se rule that
an individual in a personal relationship with a law enforcement official cannot be
considered a neutral magistrate.
Plaintiff also asserts that the arrest in his home was invalid because no
warrant was issued until after he was taken into custody. The evidence in the
record belies this assertion. At most, plaintiff’s claim is that the first time he saw
a warrant, he was already in custody. There is no requirement that an arrestee
must be shown the warrant before the arrest or even that the arresting officers
have the warrant in hand. See Fed. R. Crim. P. 4(d)(3) (“The 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 possible.”).
Finally, plaintiff alleges that arresting officers announced their presence,
then immediately broke down his door, in violation of the “knock and announce”
rule. “[I]n some circumstances an officer’s unannounced entry into a home might
be unreasonable under the Fourth Amendment.” Wilson v. Arkansas , 514 U.S.
927, 934 (1995). We have recently explained that,
[a]lthough certain circumstances may justify entry without knocking and announcing, the Fourth Amendment includes a general presumption that police officers executing a search warrant for a residence must announce their presence and authority before
-15- entering. If the occupants do not admit the officers within a reasonable period of time after they have knocked and announced their presence and purpose, the officers may be deemed to be constructively refused admittance, and they may then enter by force.
United States v. Jenkins , 175 F.3d 1208, 1213 (10th Cir. 1999) (citations and
quotations omitted).
Wilson was decided in 1995; plaintiff’s arrest occurred in 1994. Although
it is now established that the “knock and announce” requirement is incorporated
into the Fourth Amendment, it was not so clearly established in the law of this
circuit in 1994. See United States v. Cervera , No. 93-8062, 1994 WL 123332
(10th Cir. Apr. 12, 1994) (declining to decide whether the Fourth Amendment
mandated state officers’ compliance with the “knock and announce” requirement
of 18 U.S.C. § 3109); United States v. Moland , 996 F.2d 259, 260 (10th Cir.
1993) (same); see also Aponte Matos v. Toledo Davila , 135 F.3d 182, 191
(1st Cir. 1998) (“[T]he requirement that officials identify themselves to the
subject of a search or seizure, absent exigent circumstances, was not clearly of
constitutional dimension until the Supreme Court decided Wilson in 1995.”)
(quotation omitted). Thus, any failure to wait a reasonable period after knocking
did not violate a clearly-established law in effect at the time, and defendants are
entitled to qualified immunity on plaintiff’s “knock and announce” theory.
-16- In short, plaintiff has provided no evidence in support of a legally
cognizable civil rights claim concerning events surrounding his arrest. We affirm
the grant of summary judgment on his arrest claims.
D. Constitutionality of post-arrest searches
Plaintiff also claims that his constitutional rights were violated when
(1) Lucking and Rose conducted five to twenty-minute protective sweeps of his
residence while he was handcuffed and standing in his front yard; (2) Lucking
obtained a warrant to search his home based on misstatements and material
omissions; and (3) WADEN members searched his automobile without a warrant.
“A ‘protective sweep’ is a quick and limited search of premises, incident to
an arrest and conducted to protect the safety of police officers or others.”
Maryland v. Buie , 494 U.S. 325, 327 (1990). Such a search is limited to a
“cursory visual inspection of those places in which a person might be hiding.” Id.
It is constitutional if the officers had “a reasonable belief based on specific and
articulable facts which, taken together with the rational inferences from those
facts, reasonably warranted the officer in believing that the area swept harbored
an individual posing a danger to the officer or others.” Id. (internal quotations
omitted).
Here, plaintiff asserts that the sweeps were unnecessary, because he and his
brother were already outside of the home. He also argues that the sweeps
-17- exceeded the time necessary to dispel a suspicion of danger. We find no merit to
these contentions. Other individuals besides plaintiff and his brother could have
been present in the home. Additionally, the protective sweeps were not
unreasonably long in light of the size of plaintiff's residence.
Concerning the search warrant, plaintiff again asserts that the supporting
affidavit contained misstatements and omissions, and that the warrant itself was
signed by a non-neutral magistrate. In concluding that the arrest warrant was
valid, we have already rejected much of this argument. We also reject his
additional attacks on the search warrant, including his objections to the truth of
statements that the arresting officers saw, in plain view, drug paraphernalia and a
white powder residue on a glass-topped nightstand.
We recognize that plaintiff has raised a disputed issue of fact concerning
the validity of these statements. We also note that plaintiff's version of the facts
is corroborated by the record, in that no drug residue was found in the home and
no white powder taken into evidence. The disputed issue, however, is not a
material one.
If an affidavit supporting a warrant contains false statements, “ < the
existence of probable cause is determined by setting aside the false information
and reviewing the remaining contents of the affidavit.’” Taylor , 82 F.3d at 1562
(quoting Wolford , 78 F.3d at 409). Plaintiff is incorrect in believing that,
-18- “because nothing was found, there could not have been probable cause to
search the houses unless that probable cause was based on false information. . . .
[P]robable cause to obtain a search warrant is based on a showing of a reasonable
degree of suspicion that the suspected items will be found--not an actual showing
that such items will be found.” Breidenbach , 126 F.3d at 1293.
The bedrock of this case is that the WADEN investigation culminated in
informants’ telling the task force that they had participated in drug transactions in
plaintiff's home. Although plaintiff attacks the truth of informants' statements,
the record clearly shows that they were made to WADEN team members. These
statements, along with other background information about the investigation, were
sufficient to establish probable cause for the search of plaintiff’s residence.
The final search issue concerns the inventory search of plaintiff’s
automobile, made in connection with its impoundment. “An inventory search is a
well-defined exception to the warrant requirement of the Fourth Amendment,
designed to effect three purposes: protection of the owner’s property, protection
of the police against claims of lost or stolen property, and protection of the police
from potential danger.” United States v. Haro-Salcedo , 107 F.3d 769, 772
(10th Cir. 1997) (citations omitted). To be reasonable under the Fourth
Amendment, an inventory search must be conducted according to standardized
procedures. See id.
-19- Plaintiff does not contest defendants’ assertion that they had an oral policy
relating to the impoundment and inventory search of an arrested subject’s
property. Instead, he would have us interpret the Haro-Salcedo requirement of a
standardized procedure to mean a written policy. We decline to do so. After
reviewing the entire record, we agree with the district court that defendants were
entitled to summary judgment on issues relating to the searches of plaintiff’s
property.
E. Constitutionality of the seizure of plaintiff’s residence and personal property left in the residence
Plaintiff also asserts that the seizure of his home and its contents was
illegal. A seizure of property “occurs when ‘there is some meaningful
interference with an individual’s possessory interests in that property.’” Soldal
v. Cook County , 506 U.S. 56, 61 (1992) (quoting United States v. Jacobsen ,
466 U.S. 109, 113 (1984)). “ < When officers have reason to believe that criminal
evidence may be destroyed, or removed, before a warrant can be obtained, the
circumstances are considered sufficiently critical to permit officers to enter a
private residence in order to secure the evidence while a warrant is sought.’”
United States v. Wicks , 995 F.2d 964, 970 (10th Cir. 1993) (quoting United States
v. Chavez , 812 F.2d 1295, 1299 (10th Cir. 1987) (further quotation omitted)).
However, a “[f]ailure timely to return seized material which is without
-20- evidentiary value and which is not subject to forfeiture may state a constitutional
or statutory claim.” Davis v. Gracey , 111 F.3d 1472, 1477 (10th Cir. 1997).
Accordingly, defendants made a satisfactory showing on summary judgment
that they did not violate the Fourth Amendment when they kept plaintiff out of his
house until they could conduct a lawful search. WADEN task force members,
however, interfered with plaintiff's access to his home for an additional three
weeks. There are material issues of fact concerning defendants' liability for their
exercise of continued possession and control over plaintiff's home.
The fact that a forfeiture action had been filed in state court does not justify
the extended seizure of the home. In United States v. James Daniel Good Real
Property , 510 U.S. 43, 62 (1993), the Supreme Court held that “[u]nless exigent
circumstances are present, the Due Process Clause requires the Government to
afford notice and a meaningful opportunity to be heard before seizing real
property subject to civil forfeiture.” The Court reasoned that the immobility
of real property ordinarily eliminates grounds for dispensing with preseizure
proceedings. Id. at 57. Because Good was decided in 1993, it was
clearly-established law by the time plaintiff’s home was seized.
-21- Defendants have not come forward with any evidence demonstrating
exigent circumstances for the precipitous seizure of plaintiff’s home. 2 As a
result, this claim should have survived summary judgment.
F. Cognizability of claims alleging racial conspiracy, failure to train officers, and custom and practice of violating rights of minorities
Another category of plaintiff’s claims relates to a racial conspiracy under
42 U.S.C. § 1985, a failure to train officers in the protection of civil rights, and
a custom and practice of violating the constitutional rights of minorities. These
speculative and conclusory claims are insufficient to establish a constitutional
violation.
G. Cognizability of claims under Utah state law
As a final matter, we review the district court’s entry of summary judgment
on plaintiff’s state law claims of false arrest and false imprisonment, intentional
infliction of emotional distress, defamation, conversion, and violation of property
rights under the Utah Constitution. We find no error in the district court’s
determination that these causes of action are barred under Utah’s Governmental
Immunity Act. See Utah Code Ann. §§ 63-30-1 to -38.
2 It is immaterial that the county attorney, who is not a defendant in this action, filed the forfeiture action on behalf of the State. Plaintiff has shown that it was the defendants who prohibited plaintiff's access to his home and its contents.
-22- III . CONCLUSION
We AFFIRM in part, REVERSE in part, and REMAND. The district
court’s entry of summary judgment on all claims is affirmed except on those
related to the extended seizure of his residence. The case is remanded to the
district court for further proceedings consistent with this order and judgment.
Plaintiff’s motions to supplement the record and file reply briefs are granted; his
motion to strike or correct brief and appendix of appellees Spanos, Lucking, Van
Wagoner and the Wasatch County Sheriff’s Department is denied; the motion of
appellee Perry Rose to file supplemental appendix is granted and his motion to
strike is denied. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-23-