Oliver v. Nielsen ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 24, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
D. BRUCE OLIVER,
Plaintiff - Appellant,
v. No. 19-4064
(D.C. No. 1:16-CV-00155-JNP-BCW)
LARRY G. NIELSEN, Deputy; BRENT (D. Utah)
E. PETERS, Deputy; KEVIN P.
FIELDING, Deputy; M. DAVIS, Deputy;
ALAN BLACK, Deputy,
Defendants - Appellees,
and
JANE AND JOHN DOES, 1-10; BLACK
CORPORATIONS, and/or entities,
Defendants.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges.
_________________________________
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In this civil-rights case, D. Bruce Oliver appeals pro se 1 from a district court
order that granted the defendants’ motion for summary judgment on the basis of
qualified immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm for
substantially the same reasons as the district court.
BACKGROUND
In 2012, Deputies Larry Nielsen, M. Davis, and Alan Black of the Davis
County, Utah, Sheriff’s Department arrested Oliver for disorderly conduct after he
angrily confronted a social worker about the custody of his grandniece. The
confrontation occurred outside the Davis County Courthouse and was caught on a
security camera.
When Oliver was booked into jail, Deputies Brent Peters and Kevin Fielding
seized roughly $172 cash he was carrying. He was released several hours later with a
debit card instead of cash.
Oliver later filed a 42 U.S.C. § 1983 action against the deputies, alleging two
claims: unlawful arrest and unlawful seizure of property. On the deputies’ motion,
the district court applied qualified immunity and entered summary judgment.
1
Although we liberally construe pro se litigants’ pleadings, we generally
decline to do so for pro se litigants who are “licensed attorneys.” Mann v. Boatright,
477 F.3d 1140, 1148 n.4 (10th Cir. 2007). Mr. Oliver is an attorney who is
suspended from practicing in this court. Regardless of how we construe his
pleadings, however, the result in this case is the same.
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DISCUSSION
I. Standards of Review
“We review summary judgment de novo, applying the same legal standard as
the district court.” Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016). A “court
shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When a defendant moves for summary judgment on the ground
of qualified immunity, a court “must grant qualified immunity unless the plaintiff can
show (1) a reasonable jury could find facts supporting a violation of a constitutional
right, which (2) was clearly established at the time of the defendant’s conduct.”
Gutierrez, 841 F.3d at 900-01.
II. Unlawful Arrest
The district court determined that qualified immunity barred Oliver’s unlawful
arrest claim because the deputies had probable cause to arrest him for disorderly
conduct under Utah Code Ann. § 76-9-102. 2 See United States v. Turner, 553 F.3d
1337, 1344 (10th Cir. 2009) (“A warrantless arrest by a law officer is reasonable
under the Fourth Amendment where there is probable cause to believe that a criminal
offense has been or is being committed.” (brackets and internal quotation marks
omitted)). Specifically, the district court noted it was undisputed that Oliver
2
Among other things, the statute proscribes “refus[ing] to comply with the
lawful order of a law enforcement officer to move from a public place” or behaving
in a threatening or unreasonably noisy manner “to cause public inconvenience,
annoyance, or alarm.” Utah Code Ann. § 76-9-102(1).
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was involved in an intense verbal altercation with a [social worker],
asked to take a minor who was in [protective] custody, raised his voice
at the [social worker], and was loud and obnoxious to the deputies when
they responded to the scene. Oliver additionally refused to comply with
the deputies’ orders and this behavior occurred in [a] parking lot outside
of [a] courthouse in the presence of several people.
Aplt. App. at 616 (footnotes and internal quotation marks omitted).
Oliver argues that summary judgment based on these facts was improper. He
states that “it seems doubtful if the District Court reviewed [his] Objection to [the
deputies’] Motion, or the facts [he] objected to.” Aplt. Opening Br. at 6. But in
granting summary judgment, the district court explained that it had “review[ed] the
citations to the record provided by Oliver” and found no support for his factual
assertions. Aplt. App. at 611. Moreover, our review is de novo, and we reach the
same conclusion as the district court.
Oliver also argues that the deputies did not raise qualified immunity in the
district court. He is incorrect. The deputies extensively asserted that defense in their
summary judgment motion. See Aplt. App. at 145-47, 150-51, 154.
Further, Oliver contends that his arrest was unlawful because (1) he was not
told prior to his arrest to stop acting disorderly; and (2) the deputies were confused as
to which disorderly-conduct statute applied. Neither contention has merit.
First, Oliver is correct that under Utah law, disorderly conduct is merely an
infraction, punishable by a fine, if there was no “request by a person to desist.” Utah
Code Ann. § 76-9-102(4); see also id. § 76-3-205. But Oliver testified in his
deposition that Deputy Nielsen warned him to stop “being disorderly” or he would be
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arrested. Aplee. App., Vol. I at 192. Thus, Oliver’s offense was not merely an
infraction, as there was a request to desist.
Second, Oliver is also correct that he was cited for “[§] 76-10-1506 Disorderly
Conduct” but booked for “[§] 76-9-102 . . . Disorderly Conduct.” Aplt. App. at 340;
Aplee. App., Vol. I at 162. Both statutes cover disorderly conduct, but § 76-10-1506
governs such conduct “on a bus,” Utah Code Ann. § 76-10-1506(1)(a). Clearly, as no
bus was involved here, the reference to § 76-10-1506 was a mistake. The Fourth
Amendment does not “require a connection between the offense establishing
probable cause and the offense identified at the time of the arrest.” Turner, 553 F.3d
at 1344.
The district court correctly determined that qualified immunity barred Oliver’s
unlawful arrest claim.
III. Unlawful Seizure of Property
Oliver contends qualified immunity does not bar his claim that Deputies Peters
and Fielding acted unlawfully by returning his money on a debit card. The district
court determined the claim was barred because Oliver identified no clearly
established authority holding that a detainee must be given cash, rather than a debit
card, upon release from jail. On appeal, Oliver fails to identify any such authority.
We agree with the district court’s application of qualified immunity to this
claim.
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CONCLUSION
We affirm for substantially the same reasons provided by the district court in
its March 26, 2019 decision granting summary judgment.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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