Lynch v. Bulman ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 15, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________
M ICHA EL R . LY N CH ,
Plaintiff - Appellant,
v.
No. 06-1018
LLO Y D T. B ULM A N , JO H N (D. Colorado)
LATHAM LATTA, individually and (D.Ct. No. 03-cv-2112-W YD-BNB)
as an Officer, Shareholder and/or
Agent of John L. Latta P.C., a
Professional corporation; JO H N
CASE, individually and as a Partner,
Shareholder and/or Agent of Benson &
Case, LLP, a Limited Liability
Partnership,
Defendants - Appellees.
____________________________
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, 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)(2); 10th Cir. R. 34.1(G). The case is
*
This order and judgment is not binding precedent except under the doctrines of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.
therefore ordered submitted without oral argument.
Plaintiff M ichael R. Lynch, an inmate in the custody of the State of
Colorado, appeals pro se from the district court’s dismissal of his civil rights
complaint. 1 W e affirm in part and reverse in part.
I. Background
In 1999, Everald Grace Nichols filed a complaint with the Denver District
Attorney’s Office claiming Lynch’s father stole money from her while acting as
her attorney in fact. Lloyd Bulman, an investigator for the D istrict Attorney’s
Office, investigated the complaint. During the investigation, Nichols and her
attorney, John Latta, provided information to Bulman concerning the alleged
theft. Based on Bulman’s investigation, the District Attorney’s O ffice decided to
prosecute not only his father, but Lynch as well, and filed an information
charging Lynch with theft and conspiracy to comm it theft. Bulman prepared an
affidavit in support of an arrest warrant for Lynch. The warrant was issued and
Lynch was arrested on July 7, 2000. In November 2001, a jury convicted him of
both counts. He w as subsequently sentenced to a total of fourteen years
imprisonment. The Colorado Court of Appeals affirmed his conviction and
sentence; the Colorado Supreme Court denied certiorari. In the meantime, in
1
We previously denied Lynch’s motion to proceed in forma pauperis on appeal
and required him to pay the full filing fee to avoid dismissal of his appeal. Lynch has
paid the fee.
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2000, Latta filed a civil complaint on Nichols’ behalf against Lynch and his
father. In M ay/June 2001, Nichols retained John Case to serve as co-counsel.
During the civil suit, Latta issued a subpoena to Community Choice Credit Union
for production of Lynch’s bank account records. The civil suit never proceeded
to trial because Lynch filed for bankruptcy on the eve of trial
In October 2003, Lynch filed suit against Bulman, Latta and Case
(D efendants) under 42 U.S.C. § 1983. He subsequently filed an amended
complaint alleging, in essence, (1) Bulman’s affidavit in support of the warrant
for Lynch’s arrest was fraudulent and therefore Lynch’s arrest and subsequent
detention in the Denver City Jail were unlaw ful and (2) Latta and Case illegally
obtained Lynch’s bank account records from Community Choice Credit Union
and provided them to Bulman. He asserted this conduct violated the Colorado
Constitution, various Colorado statutes, the Colorado Rules of Professional
Conduct, 18 U.S.C. §§ 241-242, the automatic stay provision of the United States
Bankruptcy Code (11 U.S.C. § 362) and the Fourth, Fifth and Fourteenth
Amendments of the United States Constitution. Defendants filed motions to
dismiss or in the alternative motions for summary judgment. The magistrate
judge recommended granting the motions. Lynch objected to the recommendation
and filed a motion for leave to file a second amended complaint. The district
court adopted the magistrate’s recommendation. It also denied Lynch’s motion
for leave to amend because (1) it was untimely, (2) Lynch had already been
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granted an opportunity to amend and (3) any amendment would be futile.
Lynch’s subsequent motions to vacate or modify the court’s order under Rules 59
and 60 of the Federal Rules of Civil Procedure were also denied.
II. Standard of Review
Lynch challenges the grant of Defendants’ motions to dismiss or in the
alternative motions for summary judgment, the denial of leave to amend his
complaint and the denial of his post-judgment motions. W hile the court did not
clarify whether it was reviewing Defendants’ motions as motions to dismiss or
motions for summary judgment, because the motions referred to materials outside
the complaint and the court relied upon those materials in ruling on the motions,
the court treated the motions as motions for summary judgment. Burnham v.
Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713 (10th Cir. 2005). 2 W e
review de novo a grant of summary judgment, applying the same legal standard
2
When a court converts a motion to dismiss into a motion for summary judgment,
“it must provide the parties with notice so that all factual allegations may be met with
countervailing evidence. However, if a party is not prejudiced by the conversion, the
court of appeals should proceed with the appeal, relying upon summary judgment
standards, without remanding.” Burnham, 403 F.3d at 713. Although the court did not
notify Lynch that it would be treating Defendants’ motions as motions for summary
judgment, Lynch was not prejudiced. Defendants’ motions were titled motions to dismiss
or in the alternative motions for summary judgment and referenced materials outside of
the complaint. Additionally, it is clear from Lynch’s responses to the motions that he was
aware the district court could convert them into motions for summary judgment.
Moreover, he had the opportunity to introduce evidence not contained in the complaint; in
fact, his responses to Defendants’ motions referred to materials outside of the complaint.
Id. at 714; see also Marquez v. Cable One, Inc., 463 F.3d 1118, 1121 (10th Cir. 2006);
Lamb v. Rizzo, 391 F.3d 1133, 1137 n.3 (10th Cir. 2004).
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used by the district court under Rule 56(c) of the Federal Rules of Civil
Procedure. Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1182 (10th Cir. 1995).
Summary judgment is appropriate “if the pleadings, depositions, answ ers 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.” F ED . R. C IV . P. 56(c). W e review for
an abuse of discretion the denial of Lynch’s m otion for leave to amend and his
post-judgment motions. The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084,
1086-87 (10th Cir. 2005) (motions to amend); Buchanan v. Sherrill, 51 F.3d 227,
230 (10th Cir. 1995) (post-judgment motions).
III. Discussion
A. 18 U.S.C. §§ 241 and 242
The district court properly rejected Lynch’s claim that Defendants violated
18 U.S.C. §§ 241 and 242. 3 These statutes do not provide him with a private
3
Section 241 provides in relevant part:
Conspiracy against rights
If two or more persons conspire to injure, oppress, threaten, or intimidate any
person . . . in the free exercise or enjoyment of any right or privilege secured to
him by the Constitution or laws of the United States, or because of his having so
exercised the same . . . [t]hey shall be fined under this title or imprisoned not more
than ten years, or both . . . .
Section 242 states in relevant part:
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cause of action and § 1983 does not allow him to pursue a violation of federal
criminal law. Newcomb v. Ingle, 827 F.2d 675, 676 n.1 (10th Cir. 1987) (holding
18 U.S.C. § 241 is a criminal statute w hich does not provide for a private civil
cause of action); see also Clements v. Chapman, 189 Fed. App. 688, 692 (10th
Cir. 2006) (unpublished) (federal criminal statutes do not provide private causes
of action and § 1983 does not allow a plaintiff to pursue violations of federal
criminal law ); Henry v. Albuquerque Police Dep’t, 49 Fed. App. 272, 273 (10th
Cir. 2002) (unpublished) (18 U.S.C. §§ 241 and 242 do not provide for a private
civil cause of action). 4
B. Bankruptcy Code’s Automatic Stay Provision
Lynch’s claim that Defendants violated the bankruptcy code’s automatic
stay provision (11 U.S.C. § 362) by obtaining copies of his bank account records
Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom,
willfully subjects any person . . . to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the United States,
or to different punishments, pains, or penalties, on account of such person being an
alien, or by reason of his color, or race, than are prescribed for the punishment of
citizens, shall be fined under this title or imprisoned not more than one year, or
both . . . .
4
Unpublished opinions are not binding precedent. We refer to Clements and
Henry as we would any other scholarly work and rely on them only to the extent they
have logical, persuasive value. See 10 TH C IR. R. A PP. P. 32.1(A).
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is also without merit. 5 Section 362(a)(1), (3) stays “the commencement or
continuation [of an] action or proceeding against the debtor” and “any act to
obtain possession of property of the estate or . . . to exercise control over
property of the estate.” (Emphasis added). Defendants obtained copies of the
bank account records through subpoenas issued to the bank. Nothing in the
record suggests the account was seized or even frozen. Defendants merely
obtained information about the account. Because the records do not constitute
“property of the estate” and the issuance of the subpoena was not an action
“against the debtor,” Defendants’ conduct in obtaining these records did not
violate § 362. Constitution Bank v. Levine, 151 F.R.D. 278, 280 (E.D. Pa. 1993)
(subpoena issued to bank for production of debtor’s bank records did not violate
5
The district court rejected Lynch’s claim that Defendants violated the bankruptcy
code’s automatic stay provision for two reasons. First, it concluded the automatic stay
provision did not provide Lynch with a private cause of action. The court was mistaken.
See 11 U.S.C. § 362(k) (2006) (“[A]n individual injured by any willful violation of a stay
provided by this section shall recover actual damages, including costs and attorneys’ fees,
and, in appropriate circumstances, may recover punitive damages.”). Nevertheless, the
circuits are divided as to whether district courts have original (as opposed to appellate)
jurisdiction over such actions. Compare Justice Cometh, Ltd. v. Lambert, 426 F.3d 1342,
1343 (11th Cir. 2005) (district courts have original jurisdiction over § 362(k) (formerly §
362(h)) actions), with Eastern Equip. & Servs. Corp. v. Factory Point Nat’l Bank, 236
F.3d 117, 121 (2d Cir. 2001) (bankruptcy courts, not district courts, have original
jurisdiction over § 362(k) (formerly § 362(h)) actions). We have yet to decide the issue.
Second, relying on a California district court case, the court determined a § 1983 action
could not be based on a violation of the bankruptcy code. We have not decided this issue
either. Due to the uncertainty surrounding the court’s conclusions, we choose to affirm
on a different basis. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (“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 the district court.”).
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automatic stay); In re Barsky, 11 B.R. 478, 479-80 (Bankr. E.D. Pa. 1981)
(Pennsylvania’s Department of Revenue’s issuance of subpoena to debtor’s
accountants for production of documents relating to preparation of debtor’s tax
returns did not violate automatic stay); see also Citizens Bank of M d. v. Strumpf,
516 U.S. 16, 21 (1995) (concluding a bank account does not consist of depositor’s
money but rather is a bank’s promise to pay depositor; therefore, bank’s
placement of administrative hold on debtor’s bank account for amount debtor
owed bank did not violate automatic stay because bank was not taking possession
of or exercising control over debtor’s property but rather merely refusing to
perform its promise to pay).
C. Federal C onstitutional Claims
Lynch’s federal constitutional claims also fail. Lynch failed to allege any
facts supporting his Fifth and Fourteenth Amendment due process claims and his
Fourteenth Amendment privileges and immunities and equal protection claims.
W ith regard to his Fourth Amendment unlawful arrest/detention claims, the
district court dismissed them without prejudice under Heck v. Humphrey, 512
U.S. 477, 487 (1994) (“[W ]hen a state prisoner seeks damages in a § 1983 suit,
the district court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.”). It concluded Lynch could
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not prove lack of probable cause for his arrest without first proving his conviction
was invalid. W e disagree. Although Defendants claimed in the district court that
Bulman’s statements in his affidavit in support of probable cause for the arrest
warrant were based on the same evidence used to convict Lynch, this claim was
unsupported and the court did not make such a finding. Therefore, it is unclear
whether a judgment in favor of Lynch on his unlaw ful arrest claim would
necessarily imply the invalidity of his conviction or sentence. Indeed, Heck
generally does not apply to unlawful arrest claims. See Beck v. City of M uskogee
Police Dep’t, 195 F.3d 553, 558-59 & n.4 (10th Cir. 1999) (finding Heck did not
apply to plaintiff’s unlawful arrest claim based on a lack of probable cause). 6
Nevertheless, we reject Lynch’s unlawful arrest/detention claims. See Smith v.
Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (“W e are free to affirm a district
court decision on any grounds for w hich there is a record sufficient to permit
conclusions of law , even grounds not relied upon by the district court.”).
“[A]n arrest w arrant must be supported by probable cause to comply with
the Fourth Amendment.” Taylor v. M eacham, 82 F.3d 1556, 1562 (10th Cir.
1996). “Probable cause for an arrest warrant is established by demonstrating a
6
An exception to the general rule exists when an individual convicted of resisting
arrest, i.e., intentionally preventing a police officer from effecting a lawful arrest, brings a
§ 1983 action challenging the legality of his arrest. Under these circumstances, in order
to prevail, the individual would have to negate an element of the offense of conviction.
See Heck, 512 U.S. at 486 n.6; Beck, 195 F.3d 553 at 558-59.
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substantial probability that a crime has been committed and that a specific
individual committed the crime.” Id. (quotations omitted). It is a Fourth
Amendment violation for a police officer to “knowingly, or with reckless
disregard for the truth,” include false statements in an affidavit in support of an
arrest warrant or to “knowingly or recklessly omit from the affidavit information
which, if included, would have vitiated probable cause.” Id. (quotations omitted).
Lynch has not presented any evidence suggesting Bulman included the allegedly
false statements, or omitted any facts, knowingly or with reckless disregard for
the truth. Id. at 1563 (concluding summary judgment appropriate on illegal arrest
claim, where, inter alia, plaintiff presented no evidence suggesting the officer
included the false statements or omitted any facts knowingly or with reckless
disregard for the truth). Furthermore, even were we to remove the allegedly false
statements and add the alleged omissions, see id., Bulman’s affidavit still would
have provided probable cause for the arrest w arrant. Specifically, it still would
have established, inter alia, (1) Lynch, without Nichols’ permission, withdrew
money from her bank accounts to pay off debts/loans not belonging to her, (2)
Lynch, without Nichols’ permission, issued checks from her bank accounts to
businesses linked w ith Lynch (Lynch had unlimited access to these businesses’
bank accounts and handled their finances) and (3) this money has never been paid
back. Because Lynch’s arrest w as lawful, his subsequent detention in the city jail
was valid. Therefore, Lynch’s unlaw ful arrest/detention claims w ere improperly
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dismissed without prejudice; Defendants were entitled to summary judgment on
these claims.
D. State Law Claim s
Lynch’s claims based on allegations Defendants violated the Colorado
Constitution, various Colorado statues and the Colorado Rules of Professional
Conduct are not cognizable under § 1983. “Section 1983 does not . . . provide a
basis for redressing violations of state law, but only for those violations of
federal law done under color of state law. Jones v. City & County of Denver,
Colo., 854 F.2d 1206, 1209 (10th Cir. 1988); see also 42 U.S.C. § 1983 (“Every
person who, under color of [state law,] . . . subjects . . . any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by
the Constitution and law s, shall be liable . . . .”). To the extent Lynch seeks to
bring claims directly under these provisions or other state law claims, the district
court did not abuse its discretion in declining to exercise supplemental
jurisdiction over them. Exum v. United States Olympic Comm., 389 F.3d 1130,
1138 (10th Cir. 2004). Because the court properly granted summary judgment to
Defendants on Lynch’s federal claims, the court was w ell within its discretion in
declining supplemental jurisdiction over his state law claims. See 28 U.S.C. §
1367(c)(3) (stating a district court may decline to exercise supplemental
jurisdiction over a state law claim if it “has dismissed all claims over which it has
original jurisdiction”); Exum, 389 F.3d at 1138-39.
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Given that Lynch’s claims are baseless, the court did not abuse its
discretion in denying Lynch’s motion for leave to amend and his post-judgment
motions.
IV. Conclusion
W e REV ER SE the district court’s dismissal without prejudice of Lynch’s
Fourth Amendment unlawful arrest/detention claims (Claims 1-4), AFFIRM the
court’s grant of summary judgment to Defendants as to the remainder of Lynch’s
claims and R EM A N D with instructions that the court enter summary judgment to
Defendants on Lynch’s Fourth Amendment unlawful arrest/detention claims
(C laims 1-4). Lynch’s “M otion to Permit Filing of Lynch’s Two Reply Briefs,”
“M otion To Supplement Lynch’s O pening and Reply Briefs” and “Supplement to
M otion to Supplement Lynch’s Opening and Reply Briefs” are GR ANTED . His
“M otion to Supplement, Correct, and Complete the Record on Appeal” and
“M otion for Limited Remand to Correct and Supplement the Record on Appeal”
are DENIED.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
Briscoe, J., concurring in the result.
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