*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 7/29/96

TENTH CIRCUIT

ROBERT E. COTNER,

Plaintiff-Appellant,

 v.

LARRY FUGATE, and

DOUG NICHOLS,

Defendants-Appellees.

No. 95-5256

(D.C. No. 92-C-1182-H)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRISCOE, 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); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Robert E. Cotner appeals the district court's dismissal of his 42 U.S.C. § 1983

action. Cotner sought monetary damages for illegal searches and seizures and for illegal
2

arrest and malicious prosecution. We have jurisdiction under 28 U.S.C. § 1291.

The district court dismissed the action for failure to state a claim. The court found

Cotner's claims challenged the validity of his criminal convictions and the sentence he

was serving, and that, under Heck v. Humphrey, 114 S. Ct. 2364 (1994), such claims

cannot be brought under § 1983 in the absence of proof that the convictions and sentence

had been reversed or otherwise held invalid. Cotner contends his claims were not

dependent on the invalidity of his convictions. Although we agree with Cotner that his

claims, if proved, would not necessarily demonstrate the invalidity of his convictions and

sentence, see id. at 2372-73, n. 7; Braxton v. Scott, 905 F. Supp. 455, 458 (N.D. Ohio

1995), we may affirm the district court for any reason supported by the record. See In re

Courtesy Inns, 40 F. 3d 1084, 1087 (10th Cir. 1994).

The court liberally construes pro se complaints. See Haines v. Kerner, 404 U.S.

519, 520-22 (1972). A constitutional civil rights claim should be dismissed only if it

appears beyond doubt that plaintiff could prove no set of facts in support of the claim that

would entitle plaintiff to relief. In reviewing a dismissal under Fed. R. Civ. P. 12(b)(6),

all allegations in the complaint must be accepted at face value and must be construed in

the light most favorable to plaintiff. See Meade v. Grubbs, 841 F. 2d 1512, 1526 (10th

Cir. 1988). However, claims that are supported only by vague and conclusory allegations

should be dismissed. Hall v. Bellmon, 935 F. 2d 1106, 1110 (10th Cir. 1991).

Cotner seems to base his false arrest and malicious prosecution claim on the

dismissal and subsequent expungement of seven of the thirteen counts originally charged;

however, Cotner was convicted of the other six counts and sentenced to life in prison. 

The dismissal and expungement of the seven counts do not establish that Cotner's arrest
3

and prosecution for those counts were wrongful. Contrary to his argument, Oklahoma

law permits law enforcement officers to arrest for felonies committed outside their

presence. See Okla. Stat. Ann. tit. 22, §196 (West 1992). Cotner alleged no other facts to

support his claim of wrongful arrest and prosecution and his conclusory allegations were

insufficient to state a claim.

Cotner argues he raised claims of two illegal searches in July 1991 and March

1992 in which his property was seized without a warrant. The district court correctly

dismissed any claim based on the March 1992 search and seizure as Cotner made only a

cursory reference to that search and alleged no supporting facts. Cotner also failed to

state a claim that the July 1991 search and seizure were unlawful. He appears to base his

argument largely on the seizure of many items of property not listed on the warrant for the

July 1991 search and on a state court order for the return of some of the seized items. The

order for return adopted an agreement between Cotner and the state settling an action

commenced by the state to forfeit the seized property as property acquired during the

period in which drug laws were violated. The state court ordered the remainder of the

property forfeited to the state.

Oklahoma law requires return of property not listed on a warrant. See Okla. Stat.

Ann. tit. 22, §1237 (West 1986); Huggins v. State, 861 P.2d 1007, 1009 (Okla. App.

1993). Cotner contends the order to return some of the seized property establishes the

search and seizure were unlawful. But see State ex rel. Macy v. Thirty Thousand Seven

Hundred Eighty One Dollars & No/100, 865 P.2d 1262, 1265 (Okla. App. 1993)

(improper seizure does not immunize seized property from forfeiture). Assuming without

deciding that the seizure of some of the property was unlawful under Oklahoma law, we
4

conclude this violation of state law alone will not support a § 1983 claim. See Malek v.

Haun, 26 F. 3d 1013, 1016 (10th Cir. 1994). Cotner was required to allege facts showing

a violation of federal law.

Under federal law, when law enforcement officers grossly exceed the scope of a

search warrant in seizing property, the particularity requirement of the warrant clause of

the Fourth Amendment is undermined and a valid warrant is transformed into a general

warrant in violation of the constitution. See United States v. Medlin, 842 F.2d 1194,

1199 (10th Cir. 1988). However, seizure of property not listed on a warrant during an

otherwise lawful search does not violate the Fourth Amendment if the property was in

plain view and its incriminating character was immediately apparent. See Horton v.

California, 496 U.S. 128 (1990).

Cotner alleged no facts tending to show the property was seized in violation of

federal law. It is undisputed the search resulted in the discovery of illegal drugs. The

Oklahoma Uniform Controlled Dangerous Substances Act provides that a broad range of

property associated with drug offenses is subject to seizure and forfeiture, including

books and records used in violation of the Act, any property furnished or intended to be

furnished in exchange for an illegal drug, proceeds of such exchanges, all money used or

intended to be used to facilitate any violation of the Act, all weapons available for use in

any manner to facilitate a violation of the Act, and any property acquired during or within

a reasonable time after the violation of the Act if there was no likely source for the

property other than the violation. Okla. Stat. Ann. tit. 63, § 2-503 (West 1996 Supp.). 

Property subject to forfeiture under the Act may be seized by any law enforcement officer

incident to a search warrant or when probable cause exists to believe the property has
5

been used or will be used in violation of the Act. Okla. Stat. Ann. tit. 63, § 2-504 (West

1984). Because Cotner alleged no facts tending to show the property was not in plain

view or that it was not immediately apparent there was probable cause to believe it was

subject to seizure and forfeiture under §§ 2-503 and 2-504, he failed to state a claim that

the seizure violated federal law.

Cotner also failed to state § 1983 claims based on disposal of the seized property

without due process. He alleged that Larry Fugate failed to place seized property in the

sheriff's department property room and disposed of it unlawfully, and that another deputy

stole property that was placed in the property room.

Random and unauthorized deprivation of property does not deny due process if the

state provides adequate post-deprivation remedies. See Hudson v. Palmer, 468 U.S. 517,

533 (1984). Cotner asserted no facts to show the acts of the deputies were anything other

than random unauthorized acts. Although Cotner alleged the sheriff was personally

involved in the search and initial seizure of the property, Cotner did not allege the sheriff

was personally involved in the failure to place property in the property room or in the

theft of property from the property room. Thus, Cotner alleged no facts tending to show

the sheriff authorized or approved of the disposal of the property.

There are state post-deprivation remedies for unlawful deprivation of property. 

See Okla. Stat. Ann. tit. 12, § 1571 (West 1993) (replevin); Okla. Stat. Ann. tit. 22, 

§ 1237 (West 1986) (return of seized property not described in warrant); Okla. Stat. Ann.

tit. 51, §§ 151-171 (West 1988) (Governmental Tort Claims Act); Wolfe v. Faulkner, 628

P.2d 700 (Okla. 1981) (conversion). See also Okla. Stat. tit. 63, § 2-506 (West 1996

Supp.) (requiring notice and hearing for forfeiture of property associated with drug crimes
6

and placing burden of proof on state). Cotner has not alleged that these remedies are

inadequate. Consequently, he has failed to state a § 1983 claim.

Cotner's objection to the appearance of appellees' attorney is DENIED. Cotner has

not shown that the attorney has been found ineligible to practice before this court. See

Fed. R. App. P. 46(b). The judgment is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge