Petersen v. Carbon County ( 1998 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    AUG 6 1998
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    BRYON D. PETERSEN,
    Plaintiff-Appellant,
    v.                                                  No. 98-4010
    (D.C. No. 92-CV-951-B)
    CARBON COUNTY, a subdivision of                      (D. Utah)
    the State of Utah; GENE STRATE,
    Carbon County Attorney; RICK
    ANDERSON, Confidential Informant
    14, Carbon County Drug Task Force;
    WILLIAM D. BARNES, Sargeant,
    Price City Police Dept., Carbon
    County Drug Task Force; DON
    KELLY, Supervisor, Carbon County
    Drug Task Force; SCOTT
    JOHANSEN, Emery County Attorney;
    TERRY MARSHALL, Adult Probation
    and Parole; JOHN SCHINDLER,
    Chief Deputy Carbon County
    Attorney,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    *
    This order and judgment is not binding precedent, except under the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.
    Before BALDOCK, EBEL, 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.
    Plaintiff Bryon D. Petersen, proceeding pro se, appeals from orders of the
    district court granting summary judgment to all defendants, except defendant Rick
    Anderson, against whom it entered a default judgment and awarded Mr. Petersen
    $1,000.00. We affirm.
    The issues in this case arise from events that occurred after Mr. Petersen
    was charged in 1990 with four counts of distributing or arranging the distribution
    of a controlled substance, in violation of 
    Utah Code Ann. § 58-37-8
    (1)(a)(ii).
    The charges were dismissed without prejudice when Mr. Petersen was convicted
    on unrelated felony charges. On appeal the conviction was reversed and the
    charges were dismissed with prejudice. See State v. Petersen, 
    810 P.2d 421
    , 427
    (Utah 1991). The District Attorney then refiled the section 58-37-8(1)(a)(ii) drug
    charges. However, the state court dismissed the drug charges because possibly
    exculpatory physical evidence had been destroyed. See State v. Petersen
    Amended Order of Dismissal, No. 91-25 (April 1, 1992) (dismissing charges and
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    noting that the state had exclusive control of evidence “which Defendant claims
    is exculpatory and/or would show that the State’s primary witness was not
    truthful or at least biased in this matter [and which] was destroyed by the
    Plaintiff”).
    Mr. Petersen then commenced this action pursuant to 
    42 U.S.C. § 1983
    .
    He alleged that defendants had violated his rights to equal protection, due
    process, and to be free from cruel and unusual punishment because they had
    refiled the charges, destroyed the evidence, and used a confidential informant.
    Mr. Petersen appeals the grants of summary judgment on these claims. He
    argues that the district court should not have granted defendants immunity. He
    also contends that the district court should have (1) permitted him to amend his
    complaint to cure any deficiencies, (2) appointed counsel, and (3) entered default
    judgment against defendant Marshall because his answer was untimely.
    I. Immunity Rulings
    We review the district court’s immunity rulings de novo. See Gagan v.
    Norton, 
    35 F.3d 1473
    , 1475 (10th Cir. 1994) (absolute immunity); Radecki v.
    Barela, No. 96-2297, 
    1998 WL 334490
    , at *2 (10th Cir. June 24, 1998) (qualified
    immunity).
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    A. Absolute Immunity
    Mr. Petersen sued Gene Strate and John Shindler, attorneys for Carbon
    County, because they filed the drug charges twice and because they authorized
    destruction of the evidence after the charges were initially dismissed.
    Mr. Petersen sued Scott Johansen, attorney for Emery County, for conspiring to
    have his “parole legally violated” despite knowing material evidence supporting
    the drug charges had been destroyed. R. Vol. 1, doc. 2 at 11.
    The district court granted these defendants absolute immunity on the basis
    that their acts were taken in pursuit of their prosecutorial duties. See Imbler v.
    Pachtman, 
    424 U.S. 409
    , 427 (1976). We agree that the actions Mr. Petersen
    complains of were taken in the defendants’ performance of “the traditional
    functions of an advocate.” Kalina v. Fletcher, 
    118 S. Ct. 502
    , 510 (1997). No
    error occurred.
    B. Qualified Immunity
    Mr. Petersen sued William Barnes, a Sargeant with a city police department
    who participated in drug investigations, and Don Kelley, supervisor of the
    Carbon County Drug Task Force, on the basis that they did not fully investigate
    the facts, made no tapes of his actual involvement in drug deals, conspired to
    have the section 58-37-8(1)(a)(ii) charges filed against him, and retaliated against
    him for having his felony charges reversed by refiling the drug charges. He also
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    alleged they violated his constitutional rights by using a confidential informant
    who was a felon and who is no longer being used as a confidential informant.
    Mr. Petersen alleged Terry Marshall, a parole agent for the state department of
    corrections, improperly initiated parole revocation proceedings against him based
    on the drug charges. The district court granted these defendants qualified
    immunity.
    To determine whether the district court correctly granted these defendants
    qualified immunity, we must first examine whether Mr. Petersen “allege[d] the
    violation of a clearly established constitutional right.” Siegert v. Gilley, 
    500 U.S. 226
    , 231 (1991). If Mr. Petersen has alleged such a violation, we will then look
    at whether the constitutional right was clearly established at the time the alleged
    violation occurred. See 
    id. at 232
    ; County of Sacramento v. Lewis, 
    118 S. Ct. 1708
    , 1714 n.5 (1998).
    None of the acts taken by defendants Barnes and Kelley indicate any
    constitutional violation. They investigated possible drug violations. The record
    contains no information that they conducted these investigations in any
    unconstitutional manner. The Constitution does not require that drug
    transactions be taped. The use of a confidential informant with a criminal history
    does not violate constitutional strictures. See, e.g., United States v. Wesevich,
    
    666 F.2d 984
    , 985 (5th Cir. 1982) (noting that as “confidential informants are
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    generally involved in illegal activities themselves and hence are not model
    citizens whose trustworthiness is above reproach,” any testimony given by these
    individuals at trial must “be carefully scrutinized” with “full cross examination”).
    Defendant Marshall’s initiation of parole revocation proceedings prior to
    any conviction on the charges leading to his action did not violate any
    constitutional guarantees. See, e.g., United States v. Cantley, 
    130 F.3d 1371
    ,
    1376 (10th Cir. 1997) (noting that, as defendant had not yet been convicted, state
    had to set forth additional evidence to show he violated his parole conditions) ,
    cert. denied, 
    118 S. Ct. 1098
     (1998); Perry v. United States Parole Comm’n, 
    831 F.2d 811
    , 813 (8th Cir. 1987) (Parole Commission may consider dismissed
    charges as grounds for parole revocation).
    Defendants did not violate any clearly established law. Therefore, the
    district court properly granted qualified immunity to these defendants.
    Mr. Petersen appears to have sued Carbon County on the grounds that it
    was responsible for instituting the policies which lead to the county employee
    defendants’ unconstitutional acts. As these defendants engaged in no
    unconstitutional acts, Mr. Petersen cannot show any government policy or custom
    that lead to a constitutional violation for which the county should be held
    responsible. See Winters v. Board of County Comm’rs, 
    4 F.3d 848
    , 855 (10th
    Cir. 1993) (county’s liability can be established by showing constitutional
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    violation was the “result of a government custom or policy”) (citing Monell v.
    Department of Social Servs., 
    436 U.S. 658
    , 694 (1978)).
    II. Motions Rulings
    A. Motion to Amend
    Mr. Petersen correctly asserts that the district court never explicitedly ruled
    on his motion to amend his complaint   . However, the district court’s order
    granting defendants’ motions for summary judgment and entering default
    judgment against defendant Anderson impliedly denied his motion to amend. See
    Drake v. City of Fort Collins, 
    927 F.2d 1156
    , 1163 (10th Cir. 1991).
    Fed. R. Civ. P. 15(a) requires that leave to amend a complaint “shall be
    freely given.” Therefore, the “district court must justify its denial of a motion to
    amend with reasons such as futility of amendment or undue delay.”       Bauchman ex
    rel. Bauchman v. West High Sch. , 
    132 F.3d 542
    , 559 (10th Cir. 1997) (citing
    Foman v. Davis , 
    371 U.S. 178
    , 182 (1962)),     cert. denied, 
    118 S. Ct. 2370
     (1998).
    However, the court’s failure to give reasons is considered harmless error where
    the reason for the denial is apparent. See Drake, 
    927 F.2d at 1163
    . Further, we
    are “free to affirm a district court decision on any grounds for which there is a
    record sufficient to permit conclusions of law, even grounds not relied upon by
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    the district court.” United States v. Sandoval, 
    29 F.3d 537
    , 542 n.6 (10th Cir.
    1994).
    The record supports denial of the motion to amend. Mr. Petersen did not
    include a copy of the proposed amended complaint, but stated in his motion that
    he wished to add more details regarding the defendants’ involvement in the
    complained of acts. As we have already determined that none of the acts Mr.
    Petersen complained of involved constitutional violations, the addition of more
    details could not assist Mr. Petersen’s cause. “[A]ny amendment would be
    futile.” Grossman v. Novell, Inc., 
    120 F.3d 1112
    , 1126 (10th Cir. 1997). The
    district court did not abuse its discretion in denying Mr. Petersen’s motion to
    amend his complaint.
    B. Motion for Default
    We review the denial of a motion for default judgment for abuse of
    discretion. See Panis v. Mission Hills Bank, N.A., 
    60 F.3d 1486
    , 1494 (10th Cir.
    1995). The entry of a default judgment is a harsh sanction and resolution of
    disputes on the merits is strongly favored. See Ruplinger v. Rains (In re Rains),
    
    946 F.2d 731
    , 732 (10th Cir. 1991) . Therefore, default judgment is normally
    “available only when the adversary process has been halted because of an
    essentially unresponsive party” and “the diligent party must be protected lest he
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    be faced with interminable delay and continued uncertainty as to his rights.” 
    Id. at 732-33
     (quotation omitted).
    Mr. Petersen moved for default before defendant Marshall had been served.
    Marshall was not timely served because Mr. Petersen had not provided his correct
    address. Until a defendant is properly served, the defendant has no duty to
    answer or make other motions. See Fed. R. Civ. P. 12(a)(1)(A) (defendant must
    serve answer “within 20 days after being served with the summons and
    complaint”). As defendants have no duty to plead until properly served, entry of
    default prior to service is improper. See Fed. R. Civ. P. 55(a) (clerk shall enter
    default, when party against whom judgment is sought has failed to plead); see,
    e.g., Camp v. Guercio, 
    464 F. Supp. 343
    , 346 (W.D. Pa. 1979) (court would not
    enter default judgment for failure to file timely answer where evidence was
    conflicting as to whether amended complaint was ever served on defendant). The
    district court did not abuse its discretion in denying the motion for default
    judgment.
    C. Motion for Appointment of Counsel
    “We review the denial of appointment of counsel in a civil case for an
    abuse of discretion.” Rucks v. Boergermann, 
    57 F.3d 978
    , 979 (10th Cir. 1995).
    The district court may appoint counsel for an indigent plaintiff if, under the
    totality of the circumstances, the denial of counsel would result in a
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    fundamentally unfair proceeding, see McCarthy v. Weinberg, 
    753 F.2d 836
    ,
    839-40 (10th Cir. 1985), considering the merits of the claims, the nature of the
    factual issues, the litigant’s ability to present the claims, and the complexity of
    the legal issues, see Rucks, 
    57 F.3d at 979
    .
    The district court did not abuse its discretion in denying Mr. Petersen’s
    motion for appointment of counsel. His claims are without merit and, therefore,
    the proceeding was not fundamentally unfair absent appointment of counsel.
    The judgment of the United States District Court for the District of Utah is
    AFFIRMED. The mandate shall issue forthwith.
    Entered for the Court
    David M. Ebel
    Circuit Judge
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