Powell v. Carter ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 19 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RODNEY POWELL,
Plaintiff-Appellant,
v. No. 98-2225
(D.C. No. CIV-97-1178)
DANNY RAY CARTER, individually (D. N.M.)
and as a member of the Hobbs Police
Department; CITY OF HOBBS,
Defendants-Appellees,
and
HOBBS POLICE DEPARTMENT;
JOHN DOES, I-V; KEELING
PETROLEUM, doing business as
Fina Truck Stop,
Defendants.
ORDER AND JUDGMENT *
Before TACHA , BARRETT , and MURPHY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Rodney Powell, an inmate appearing pro se, appeals from
the district court’s grant of summary judgment to defendants-appellees on his
42 U.S.C. § 1983 civil rights complaint for malicious prosecution and false arrest
and false imprisonment in violation of the Fourth Amendment. Mr. Powell was
arrested by Detective Danny Carter on a New Mexico robbery charge. He was
found not guilty following a jury trial, and he is presently incarcerated on an
unrelated matter. He sued the City of Hobbs and Detective Carter in his
individual and official capacities. 1
We affirm.
“[T]he common law elements of malicious prosecution [are] the ‘starting
point’ for the analysis of a § 1983 malicious prosecution claim.” Taylor v.
Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996). In order to establish a malicious
prosecution claim under § 1983, the plaintiff must also prove a Fourth
Amendment constitutional violation. See id. “Under New Mexico state tort law,
lack of probable cause to initiate criminal proceedings is an essential element
1
Mr. Powell’s complaint named various other parties, but those parties have
been dismissed by the district court and are not the subject of this appeal.
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of the tort of malicious prosecution.” Wolford v. Lasater , 78 F.3d 484, 489
(10th Cir. 1996). “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.” Id. Here, the district court granted
defendants’ motion for summary judgment, finding that, on the undisputed facts
before it, probable cause to arrest Mr. Powell existed as a matter of law, thereby
eliminating any constitutional basis for his false arrest, false imprisonment, and
malicious prosecution claims.
We review de novo the district court’s grant of summary judgment, viewing
the record in the light most favorable to the party opposing summary judgment.
See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998).
Summary judgment is appropriate if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. See Celotex Corp. v.
Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).
After a de novo review of the parties’ briefs and contentions, the district
court’s order, and the entire record on appeal, this court finds no reversible error.
We agree with the district court’s conclusion that defendants had probable cause
to arrest Mr. Powell for the robbery and that Mr. Powell failed to establish that
defendants knowingly or recklessly omitted from the arrest warrant information
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which was critical to the showing of probable cause. See Beard v. City of
Northglenn , 24 F.3d 110, 114 (10th Cir. 1994).
Mr. Powell contends on appeal that the district court erred in ruling on
the summary judgment motion without reviewing a videotape of the robbery and
other evidence he asserts are relevant to his claim. Defendants presented an
affidavit demonstrating that they conducted a diligent search, but were unable to
locate the videotape. There was no evidence that the videotape was lost or
destroyed in bad faith. In light of the defendants’ diligent, but ultimately
unsuccessful search, it was proper for the district court to consider the evidence
offered by the parties concerning the contents of the videotape, viewed in the
light most favorable to Mr. Powell. See Fed. R. Evid. 1004. As to the trial
transcripts and other materials Mr. Powell now argues on appeal should have been
considered by the district court, we note that Mr. Powell failed to file an affidavit
before the district court under Fed. R. Civ. P. 56(f) explaining why he could not
respond to the summary judgment motion without additional discovery. Because
Mr. Powell failed “to take advantage of the shelter provided by Rule 56(f) by
filing an affidavit, there [was] no abuse of discretion in granting summary
judgment” since it was otherwise appropriate. Pasternak v. Lear Petroleum
Exploration, Inc. , 790 F.2d 828, 832-33 (10th Cir. 1986).
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Mr. Powell’s motion for the appointment of counsel is DENIED. His
motions to present on appeal additional evidence which was not presented to the
district court are DENIED. The judgment of the United States District Court for
the District of New Mexico is AFFIRMED for substantially the same reasons set
forth in its order granting summary judgment dated July 17, 1998.
Entered for the Court
Michael R. Murphy
Circuit Judge
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