Brian Gooden v. Calvin Lovorn , 32 F. App'x 179 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2326
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Brian Gooden, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas
Calvin Lovorn; Alfonso Davenport; *
Willie Gilmore; Bobbie Irvins; Ray * [UNPUBLISHED]
Chappelle; Gene McKissic; Josephine *
Bell; Harvey Jones; Department of *
Public Safety of the University of *
Arkansas at Pine Bluff; Board of *
Trustees of the University of Arkansas, *
*
Appellees. *
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Submitted: March 14, 2002
Filed: April 5, 2002
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Before McMILLIAN, BOWMAN, and BYE, Circuit Judges.
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PER CURIAM.
Brian Gooden appeals from the final judgment entered in the District Court1 for
the Eastern District of Arkansas, granting summary judgment in and dismissing his
42 U.S.C. § 1983 action. Gooden claimed University of Arkansas at Pine Bluff
(UAPB) defendants and his criminal defense attorney violated his constitutional
rights in connection with his arrest and suspension from school for theft of UAPB
property. For reversal he argues, inter alia, that the UAPB defendants were not
protected by Eleventh Amendment immunity and that his Fourth Amendment claims
were not barred by his theft conviction (for which he has served a prison term). For
the reasons discussed below, we affirm the judgment of the district court.
We conclude that the district court rightly dismissed Gooden’s claim against
his attorney, who did not act under color of state law when he represented Gooden on
the theft charges. See Taylor v. United States, 248 F.3d 736, 737 (8th Cir. 2001) (de
novo standard of review); Myers v. Vogal, 960 F.2d 750, 750 (8th Cir. 1992) (per
curiam) (attorneys--whether appointed or retained--who represented plaintiff in
criminal proceeding did not act under color of state law and were not subject to suit
under § 1983).
We also conclude upon de novo review, see Adams ex rel. Harris v. Boy Scouts
of America-Chickasaw Council, 271 F.3d 769, 775 (8th Cir. 2001), that the court
properly granted summary judgment. First, the federal claims against the individual
UAPB defendants in their official capacities--as well as the claims against the Board
of Trustees and the Public Safety Department--were barred by the Eleventh
Amendment, and Gooden failed to show that the individuals acted maliciously. See
Ark. Code Ann. § 19-10-305(a) (Michie 1998) (immunity of state officers and
employees); Okruhlik v. Univ. of Ark., 255 F.3d 615, 622 (8th Cir. 2001) (University
of Arkansas has Eleventh Amendment immunity); Treleven v. Univ. of Minn., 73
1
The Honorable Henry Woods, late a United States District Judge for the
Eastern District of Arkansas.
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F.3d 816, 818 (8th Cir. 1996) (Eleventh Amendment prohibits § 1983 suit seeking
monetary damages from individual state officers in their official capacities). Second,
Gooden’s failure-to-train claims failed because there was no resulting constitutional
violation, as we explain below. See Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir.
2001) (supervisor liability).
We conclude the Fourth Amendment claims lacked merit independent of
whether they were barred by Heck v. Humphrey, 512 U.S. 477 (1994). Gooden was
arrested pursuant to a warrant, and his allegation that the UAPB defendants failed to
execute the warrant according to Arkansas state procedures did not amount to a
§ 1983 claim. See Williams v. Hopkins, 130 F.3d 333, 337 (8th Cir.) (alleged
violation of state law does not by itself state claim redressable by § 1983 action), cert.
denied, 522 U.S. 1010 (1997). Additionally, Gooden’s guilty plea foreclosed any
claim that he was arrested without probable cause, see Williams v. Schario, 93 F.3d
527, 528-29 (8th Cir. 1996) (per curiam); he did not allege, in connection with his
Miranda claim, that any statements were used against him; and no UAPB defendants
were responsible for the timing of his arraignment. Gooden has abandoned his
assault claim by not raising it on appeal. See Lockley v. Deere & Co., 933 F.2d 1378,
1386 (8th Cir. 1991).
Assuming without deciding that Gooden’s temporary suspension from UAPB
deprived him of a liberty or property interest, we find that he received due process.
In connection with a prior charge, he received a hearing after which UAPB officials
placed him on disciplinary probation. Officials later discussed the theft allegations
with him. When he was arrested for theft, he was informed by letter that he was being
suspended for violating the terms of his probation. He acknowledged receipt of this
letter by asking that his suspension take effect immediately, and he chose not to
appeal the suspension. See Goss v. Lopez, 419 U.S. 565, 579 (1975) (students facing
suspension for disciplinary reasons must be given “some kind of notice and afforded
some kind of hearing”).
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Accordingly, we affirm. We decline to address the new claims Gooden has
raised on appeal, and we deny his motion to stay the appeal.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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