Marner v. City of Aurora

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 2, 2015
Elisabeth A. Shumaker
Clerk of Court
ZACHARY MARNER,
Plaintiff - Appellant,
and
M.M.; N.M.,
Plaintiffs,
v. No. 15-1335
(D. Colorado)
CITY OF AURORA, a municipality; (D.C. No. 1:15-CV-00991-LTB)
DANIEL J. OATES; STEVEN T.
EVANS; MICHAEL QUIRK; JEFF
LINDSEY; STATE OF COLORADO;
CITY AND COUNTY OF DENVER,
COLORADO; TERRY JONES;
MARTIN F. EGELHOFF; ANNA
LOKSHINA; KIM CORAZZA; DAVID
A. GILL; MICHAEL HANCOCK;
ELLEN GOLOMBEK,
Defendants - Appellees.
ORDER AND JUDGMENT*
*
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 This order and judgment is not binding precedent, except under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. But it may be cited
for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges.
Zachary Marner, proceeding pro se, seeks review of the dismissal of his seven-
count amended complaint, which sought relief under 42 U.S.C. § 1983 for alleged
violations of his constitutional rights and of his rights under the Fair Credit Reporting
Act, the Fair Debt Collections Practices Act, and the Civil Rights Act of 1964. The
District Court for the District of Colorado sua sponte dismissed the amended complaint
under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim.1
We apply the same standard of review to dismissals under § 1915(e)(2) that we
apply to dismissals under Fed. R. Civ. P. 12(b)(6). See Kay v. Bemis, 500 F.3d 1214,
1217 (10th Cir. 2007). We review de novo, see id., and “look to the specific allegations
in the complaint to determine whether they plausibly support a legal claim for relief.” Id.
at 1218 (internal quotation marks omitted). “Factual allegations in a complaint must be
enough to raise a right to relief above the speculative level.” Id. (brackets and internal
quotation marks omitted).
Mr. Marner’s brief on appeal is short on both the law and the facts (as alleged in
his complaint). But we do our best to determine what he is arguing, keeping in mind our
1
The district court also dismissed the amended complaint under 28 U.S.C. § 1915A. But
that statute provides for the screening of only complaints filed by prisoners, and there is
no evidence in the record that Mr. Marner was a prisoner at any time during this
litigation.
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duty to construe pro se pleadings liberally. See Hall v. Witteman, 584 F.3d 859, 863
(10th Cir. 2009). We discern six arguments on appeal. None has merit.
First, Mr. Marner appeals the dismissal of his First Amendment claim, which is
based on the allegation that an Aurora police officer told him he would be placed under
arrest if “he didn’t shut up.” R., Vol. 2 at 6 (Am. Compl. at 21, Marner v. Lokshina,
No. 1:15-cv-00991-LTB (D. Colo. July 7, 2015)). The district court incorrectly relied on
precedents relating to prisoners in dismissing this claim. But its conclusion was correct.
The First Amendment claim is inadequate because Mr. Marner failed to allege that his
speech was altered or deterred by the officer’s threat. See Brammer-Hoelter v. Twin
Peaks Charter Acad., 602 F.3d 1175, 1182–84 (10th Cir. 2010).
Second, Mr. Marner claims a violation of his Fourth Amendment rights because
Aurora police officers wrongfully searched one vehicle and impounded another. But he
alleges only that he was a passenger in the first one and that the other was his parents’.
Absent the requisite ownership or possessory interest in either vehicle, Mr. Marner has no
Fourth Amendment claim. See United States v. Mosley, 743 F.3d 1317, 1322–23 (10th
Cir. 2014). He also claims that he was wrongfully arrested on a warrant based on a false
accusation by a private citizen. But he fails to allege that the officers knew the
accusation was false or that there was not probable cause for the warrant. See Franks v.
Delaware, 438 U.S. 154, 171–72 (1978).
Third, Mr. Marner appeals the dismissal of his Sixth Amendment claim that the
defendants denied him a fair trial, an attorney, and a change of venue in his state criminal
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trial. For the first time on appeal he further alleges that the defendants failed to process
his appeal. The district court correctly concluded that this claim was barred by Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994), because a judgment for damages would
necessarily imply the invalidity of his criminal conviction, which has not been
invalidated.
Fourth, Mr. Marner appeals the dismissal of his Fourteenth Amendment claim that
he was treated differently from others in various ways. But he failed to allege facts
showing that the others were similarly situated to him. See City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985).
Fifth, Mr. Marner argues in his appellate brief that Aurora police officers failed to
read him his Miranda rights. But he does not allege a Miranda claim in his amended
complaint. And the officer’s alleged failure to read Miranda warnings would not in itself
violate his constitutional rights. See Chavez v. Martinez, 538 U.S. 760, 772–73, 777–79
(2003).
Finally, Mr. Marner complains of the dismissal of his § 1983 claim based on
alleged defamation when various defendants published an article incorrectly stating that
he was part of a criminal enterprise. But, as pointed out by the district court, injury to
reputation is not a deprivation of a constitutionally protected property or liberty right.
See Paul v. Davis, 424 U.S. 693, 712 (1976).
4
We AFFIRM the judgment below but GRANT the motion to proceed in forma
pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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