Loftis v. Eades

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 18, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
EMBRY JAY LOFTIS,
Plaintiff - Appellant,
v. No. 16-7009
(D.C. No. 6:14-CV-00344-RAW)
BILLY EADES; GAIL WILHITE, (E.D. Okla.)
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
_________________________________
Embry Jay Loftis, proceeding pro se,1 claims two police officers, Billy Eades
and Gail Wilhite, violated his constitutional rights. He appeals from a summary
judgment entered against him. We affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Because Loftis appears pro se, we liberally construe his pleadings. Mayfield
v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). But we may not act as his
attorney by searching the record and constructing arguments for him. Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
I. Background
Eades and Wilhite are police officers in Ardmore, Oklahoma. On January 2,
2009, Officer Eades stopped Loftis for driving a truck with a defective tail light.
Loftis did not have a valid driver’s license, so Eades arrested him and asked Officer
Wilhite to transport him to the station. According to Officer Eades’ report, he
searched Loftis’ truck before having it towed. In doing so, he found a small baggie
containing a white substance, which preliminary tests identified as cocaine. Officers
searched Loftis during booking, finding and seizing over four hundred dollars in cash
from his pocket. Loftis was charged with possession of cocaine, driving without a
driver’s license, and operating a defective vehicle, but the state dismissed all charges
on March 26, 2009.
On March 23, 2011, Loftis sued Officers Eades and Wilhite under 42 U.S.C.
§§ 1983 and 1985 in federal district court. At Loftis’ request, the district court later
dismissed the lawsuit without prejudice, and Loftis refiled his claims in Oklahoma
state court. The defendants then removed the case to federal court. His complaint
charges that the defendants, acting in their individual and official capacities, arrested
him “by means of false report” and denied him “his right to be secure in his person[],
to be free from unlawful search and seizure[,] his right not to be enslaved [or]
deprived of life or property . . . other than by due process of law, and finally, his right
to travel the public highways/roads without restraint.” R. at 12; see id. at 16-17.
2
II. Standard of Review
We review the grant of summary judgment de novo. Felkins v. City of
Lakewood, 774 F.3d 647, 650 (10th Cir. 2014). A party is entitled to summary
judgment if he “shows that there is no genuine dispute as to any material fact and
[he] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). At this stage,
we view the facts in the light most favorable to the nonmoving party and draw all
reasonable inferences in his favor. Leatherwood v. Welker, 757 F.3d 1115, 1119
(10th Cir. 2014).
III. Analysis
The district judge concluded the applicable statute of limitations barred Loftis’
claims. Alternatively, he decided: 1) the defendants were entitled to qualified
immunity on Loftis’ claims against them in their individual capacities, and 2) Loftis
failed to present sufficient evidence to support his claims against them in their
official capacities. Loftis fails miserably in his assault on the alternate basis of
decision. For that reason, we affirm the summary judgment without addressing the
statute of limitations. See Starkey ex rel. A.B. v. Boulder Cty. Soc. Servs., 569 F.3d
1244, 1252 (10th Cir. 2009) (“When an appellant does not challenge a district court’s
alternate ground for its ruling, we may affirm the ruling.”).
A. Claims Against Defendants in their Individual Capacities
After the defendants raised a qualified immunity defense it became Loftis’
burden to show they 1) violated a constitutional right and 2) the right was clearly
established. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). The summary
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judgment rested on the first prong. Loftis offered no evidence of his truck having
had two functioning tail lights and he admitted to not having a valid driver’s license.
That said, there was no dispute over probable cause to arrest him. Likewise, he
presented no evidence suggesting the searches of his truck and person were
impermissible inventory searches, or that a substance testing positive for cocaine was
not recovered from his vehicle.
Loftis’ appellate briefs include no meaningful argument. He accuses the
defendants of “conjuring up facts to create the illusion of probable cause,” Aplt.
Opening Br. Attach. B, but he identifies no record evidence supporting this claim, see
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (pro se
parties must “follow the same rules of procedure that govern other litigants”);
Fed. R. App. P. 28(a)(8)(A) (appellant’s brief must contain “citation to the authorities
and parts of the record on which the appellant relies”). He also claims the defendants
violated an Oklahoma statute by failing to give him a traffic citation before
transporting him to the station, but cites no authority suggesting their failure to do so
violated a constitutional right. Although we hold pro se briefs to a less stringent
standard than those drafted by lawyers, we may not serve as Loftis’ attorney by
searching the record and constructing arguments for him. See Garrett, 425 F.3d at
840. Because Loftis does not adequately challenge the district court’s qualified
immunity determination in his briefs, we conclude he has waived any argument on
this issue. See id. at 841 (“Issues will be deemed waived if they are not adequately
briefed.” (brackets and internal quotation marks omitted)).
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B. Claims Against Defendants in their Official Capacities
As the district court recognized, official capacity claims actually target
employers.2 See McDonald v. Wise, 769 F.3d 1202, 1215 (10th Cir. 2014).
However, a municipality is not liable under § 1983 simply because its employee(s)
may have caused injury. Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir.
2015). Rather, a plaintiff must show a municipal policy or custom caused his injury.
Id. According to the district judge, Loftis failed to present evidence of a policy or
custom of the city caused him harm. Loftis does not challenge that conclusion and
has, therefore, waived argument on this issue as well. See Toevs v. Reid, 685 F.3d
903, 911 (10th Cir. 2012) (“Arguments not clearly made in a party’s opening brief
are deemed waived.”).
IV. Conclusion
The summary judgment is affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
2
Loftis does not claim the defendants’ were policy makers or supervisors.
5