Marner v. City of Aurora ( 2015 )


Menu:
  •                                                                    FILED
                                                           United States Court of Appeals
                            UNITED STATES COURT OF APPEALS         Tenth Circuit
    
                                          TENTH CIRCUIT                        December 2, 2015
    
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
    
        ZACHARY MARNER,
    
              Plaintiff - Appellant,
    
        and
    
        M.M.; N.M.,
    
              Plaintiffs,
    
        v.                                                       No. 15-1335
                                                                (D. Colorado)
        CITY OF AURORA, a municipality;                 (D.C. No. 1:15-CV-00991-LTB)
        DANIEL J. OATES; STEVEN T.
        EVANS; MICHAEL QUIRK; JEFF
        LINDSEY; STATE OF COLORADO;
        CITY AND COUNTY OF DENVER,
        COLORADO; TERRY JONES;
        MARTIN F. EGELHOFF; ANNA
        LOKSHINA; KIM CORAZZA; DAVID
        A. GILL; MICHAEL HANCOCK;
        ELLEN GOLOMBEK,
    
              Defendants - Appellees.
    
    
    
                                       ORDER AND JUDGMENT*
    
    *
      After examining the briefs and appellate record, this panel has determined unanimously
    that oral argument would not materially assist in the determination of 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 This order and judgment is not binding precedent, except under
    the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited
    for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
    Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges.
    
    
           Zachary Marner, proceeding pro se, seeks review of the dismissal of his seven-
    
    count amended complaint, which sought relief under 42 U.S.C. § 1983 for alleged
    
    violations of his constitutional rights and of his rights under the Fair Credit Reporting
    
    Act, the Fair Debt Collections Practices Act, and the Civil Rights Act of 1964. The
    
    District Court for the District of Colorado sua sponte dismissed the amended complaint
    
    under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim.1
    
           We apply the same standard of review to dismissals under § 1915(e)(2) that we
    
    apply to dismissals under Fed. R. Civ. P. 12(b)(6). See Kay v. Bemis, 
    500 F.3d 1214
    ,
    
    1217 (10th Cir. 2007). We review de novo, see id., and “look to the specific allegations
    
    in the complaint to determine whether they plausibly support a legal claim for relief.” Id.
    
    at 1218 (internal quotation marks omitted). “Factual allegations in a complaint must be
    
    enough to raise a right to relief above the speculative level.” Id. (brackets and internal
    
    quotation marks omitted).
    
           Mr. Marner’s brief on appeal is short on both the law and the facts (as alleged in
    
    his complaint). But we do our best to determine what he is arguing, keeping in mind our
    
    
    
    1
      The district court also dismissed the amended complaint under 28 U.S.C. § 1915A. But
    that statute provides for the screening of only complaints filed by prisoners, and there is
    no evidence in the record that Mr. Marner was a prisoner at any time during this
    litigation.
                                                  2
    duty to construe pro se pleadings liberally. See Hall v. Witteman, 
    584 F.3d 859
    , 863
    
    (10th Cir. 2009). We discern six arguments on appeal. None has merit.
    
           First, Mr. Marner appeals the dismissal of his First Amendment claim, which is
    
    based on the allegation that an Aurora police officer told him he would be placed under
    
    arrest if “he didn’t shut up.” R., Vol. 2 at 6 (Am. Compl. at 21, Marner v. Lokshina,
    
    No. 1:15-cv-00991-LTB (D. Colo. July 7, 2015)). The district court incorrectly relied on
    
    precedents relating to prisoners in dismissing this claim. But its conclusion was correct.
    
    The First Amendment claim is inadequate because Mr. Marner failed to allege that his
    
    speech was altered or deterred by the officer’s threat. See Brammer-Hoelter v. Twin
    
    Peaks Charter Acad., 
    602 F.3d 1175
    , 1182–84 (10th Cir. 2010).
    
           Second, Mr. Marner claims a violation of his Fourth Amendment rights because
    
    Aurora police officers wrongfully searched one vehicle and impounded another. But he
    
    alleges only that he was a passenger in the first one and that the other was his parents’.
    
    Absent the requisite ownership or possessory interest in either vehicle, Mr. Marner has no
    
    Fourth Amendment claim. See United States v. Mosley, 
    743 F.3d 1317
    , 1322–23 (10th
    
    Cir. 2014). He also claims that he was wrongfully arrested on a warrant based on a false
    
    accusation by a private citizen. But he fails to allege that the officers knew the
    
    accusation was false or that there was not probable cause for the warrant. See Franks v.
    
    Delaware, 
    438 U.S. 154
    , 171–72 (1978).
    
           Third, Mr. Marner appeals the dismissal of his Sixth Amendment claim that the
    
    defendants denied him a fair trial, an attorney, and a change of venue in his state criminal
                                                  3
    trial. For the first time on appeal he further alleges that the defendants failed to process
    
    his appeal. The district court correctly concluded that this claim was barred by Heck v.
    
    Humphrey, 
    512 U.S. 477
    , 486–87 (1994), because a judgment for damages would
    
    necessarily imply the invalidity of his criminal conviction, which has not been
    
    invalidated.
    
           Fourth, Mr. Marner appeals the dismissal of his Fourteenth Amendment claim that
    
    he was treated differently from others in various ways. But he failed to allege facts
    
    showing that the others were similarly situated to him. See City of Cleburne v. Cleburne
    
    Living Ctr., 
    473 U.S. 432
    , 439 (1985).
    
           Fifth, Mr. Marner argues in his appellate brief that Aurora police officers failed to
    
    read him his Miranda rights. But he does not allege a Miranda claim in his amended
    
    complaint. And the officer’s alleged failure to read Miranda warnings would not in itself
    
    violate his constitutional rights. See Chavez v. Martinez, 
    538 U.S. 760
    , 772–73, 777–79
    
    (2003).
    
           Finally, Mr. Marner complains of the dismissal of his § 1983 claim based on
    
    alleged defamation when various defendants published an article incorrectly stating that
    
    he was part of a criminal enterprise. But, as pointed out by the district court, injury to
    
    reputation is not a deprivation of a constitutionally protected property or liberty right.
    
    See Paul v. Davis, 
    424 U.S. 693
    , 712 (1976).
    
    
    
    
                                                  4
          We AFFIRM the judgment below but GRANT the motion to proceed in forma
    
    pauperis.
    
                                        ENTERED FOR THE COURT
    
    
                                        Harris L Hartz
                                        Circuit Judge
    
    
    
    
                                          5