Roddy v. Suarez, et al

Filing 920101215

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

D e c e m b e r 15, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E T E N T H CIRCUIT
C l e r k of Court

I S A I A H RODDY, P l a i n t i f f - Appellant, v. E A R N E S T SUAREZ; ASHLEY C. H E F F R O N ; ADAM R. BARELA; R A Y M O N D G. MURPHY V E T E R A N ' S POLICE D E P A R T M E N T ; RICHARD L A R S O N , Sgt.; CAPTAIN MCMURRAY, D e f e n d a n t s - Appellees. N o . 10-2141 ( D . C . No. 1:10-CV-00527-WJ-LAM) (D.N.M.)

O R D E R AND JUDGMENT * B e f o r e KELLY, EBEL, and LUCERO, Circuit Judges. ** P l a i n t i f f appeals from the district court's dismissal of his claim brought p u r s u a n t to 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291 and

This order and judgment is not binding precedent, except under the d o c t r i n e s of law of the case, res judicata, and collateral estoppel. It may be cited, h o w e v e r , for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th C i r . R. 32.1. After examining the briefs and the appellate record, this three-judge p a n e l has determined unanimously that oral argument would not be of material a s s i s t a n c e in the determination of this appeal. See Fed. R. App. P. 34(a); 10th C i r . R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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w e affirm.

Background The parties are familiar with the facts, so we need not restate them in e n t i r e t y here. Plaintiff Isaiah Roddy is a federal inmate appearing pro se. Mr. R o d d y filed his civil rights complaint on May 28, 2010, against several employees o f the Raymond G. Murphy Veteran's Recreation Hall and Raymond G. Murphy V e t e r a n ' s Police Department. See 1 R. 3 (Complaint), 49 (Mem. Op. & Order at 2 ) . Mr. Roddy had been arrested and charged with aggravated assault with a d e a d l y weapon following a confrontation at the facility. In connection with this c h a r g e , Mr. Roddy pleaded guilty to embezzlement and was sentenced to the l e s s e r of 223 days or time served, and two years of supervised release. Aplt. Br. E x . 4. In an order dated June 7, 2010, the district court dismissed the civil rights c o mp l a i n t sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 1 2 ( b ) ( 6 ) , concluding that no relief was available to Mr. Roddy.

Discussion W e review de novo the district court's decision to dismiss for failure to s t a t e a claim, examining the sufficiency of the allegations contained in the c o mp l a i n t without weighing the evidence. Fletcher v. Burkhalter, 6 0 5 F.3d 1091, 1098 (10th Cir. 2010); see Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947
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( 2 0 0 9 ) . The same standard guides our review of dismissals under 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6): we accept the allegations contained in t h e complaint as true and draw all inferences in the light most favorable to the p l a i n t i f f . Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). In addition, we mu s t construe Mr. Roddy's complaint liberally. See Erickson v. Pardus, 551 U.S. 8 9 , 94 (2007) (per curiam). "Dismissal of a pro se complaint for failure to state a c l a i m is proper only where it is obvious that the plaintiff cannot prevail on the f a c t s he has alleged and it would be futile to give him an opportunity to amend." K a y , 500 F.3d at 1217 (internal quotation marks and citation omitted). On appeal, Mr Roddy argues that the district court did not properly c o n s i d e r his claims. Aplt. Br. 2, 4. Upon review of the record, we conclude that t h e district court correctly held that Mr. Roddy failed to allege a cognizable claim a n d appropriately dismissed his suit. The district court construed Mr. Roddy's c o mp l a i n t to allege claims of false arrest and false imprisonment, and concluded t h a t no relief was available to Mr. Roddy for either of these claims. We agree. His claim for false arrest was precluded because witnesses' statements indicating t h a t Mr. Roddy had used his knife as a threat formed the necessary probable cause t o support his arrest. See 1 R. 8-10 (Complaint at 6-8), 49 (Mem. Op. & Order 2 ) ; Grubbs v. Bailes, 445 F.3d 1275, 1278 (10th Cir. 2006) ("[A]s a general ma t t e r , a suspect's contradiction of a witness' accusation is not sufficient to v i t i a t e probable cause . . . ."). Likewise, to the extent Mr. Roddy may have
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a s s e r t e d a constitutional claim, the existence of probable cause in this case is g r o u n d for dismissal. M r . Roddy's claim for false imprisonment is without merit because there w a s no termination of the challenged criminal proceedings in Roddy's favor. 1 R. 5 0 (Mem. Op. & Order 3); see Mondragón v. Thompson, 519 F.3d 1078, 1082-83 ( 1 0 t h Cir. 2008) ("After the institution of legal process, any remaining c o n s t i t u t i o n a l claim is analogous to a malicious prosecution claim. . . . [A] due p r o c e s s claim for malicious prosecution arises only once `the original action,' w h a t e v e r form it has taken, has `been terminated in favor of the plaintiff.'" ( q u o t i n g Pierce v. Gilchrist, 359 F.3d 1279, 1294 (10th Cir. 2004))). W e therefore AFFIRM the judgment of the district court. We grant Mr. R o d d y ' s motion to proceed on appeal without prepayment of filing fees. We r e mi n d him of his obligation to continue making partial payments until the entire f e e has been paid. E n t e r e d for the Court P a u l J. Kelly, Jr. C i r c u i t Judge

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