*The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 2 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY LEWIS, Plaintiff - Appellant,

v. RICK NELSON; DONALD WOOLLEY; and MIKE MCCALL, Defendants - Appellees. No. 96-3400 (D.C. No. 96-2081-KHV) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and KELLY , Circuit Judges.

Plaintiff - Appellant Anthony Lewis (“Lewis”) appea ls the district court’s grant of summary judgment to Defendants - Appellees on his claims that the Defendants, as members of the Kansas City, Kansas P olice Department, violated1 We construe this action to be one brought under 4 2 U.S.C. § 1983, which

provides in relevant part:

Every person who, under color of any statute, ordin ance, regulation, custom, or usage, of any State . . . su bjects, or causes to be subjected any citizen of the United States or ot her person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, sh all be liable to the party injured in an action at law, suit in equi ty, or other proper proceeding for redress. - 2 - his constitutional and civil rights when they arres ted him on February 15, 1996. 1 Lewis also appeals the district court’s dismissal o f his cross-motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1 291 and AFFIRM.

BACKGROUND The uncontroverted facts in this case are as follow s. On December 20, 1995, Michael Peterson (“Peterson”) filed an aggrav ated assault and criminal damage report against Anthony Lewis with the Kansas City, Kansas Police Department (the “Police Department”). (Defendant’s Motion for Summary Judgment (Doc. # 43), hereinafter “DMSJ”, at 2 -- u ncontroverted by Plaintiff in his response (Doc. # 45)). Peterson reported that Lewis had driven a late model Toyota Tercel alongside his vehicle and then fired a hand gun toward his vehicle. (Id. ) Defendant Rick Nelson, a detective with the Poli ce Department investigated the incident. (Id. )- 3 -

As part of the investigation, the Police Department ’s ALERT computer system informed officers on December 29, 1995 that if Anthony Lewis was found, he was to be stopped and Detective Nelson was to be notified. (Id. ) The ALERT order also advised officers that Lewis was to be co nsidered armed and dangerous. (Id. ) Sometime after the ALERT order was issue, Detective Nelson compiled a prosecutive summary and turned it over to the Distr ict Attorney’s Office of Wyandotte County, Kansas, for further action. (Id. ) On February 2, 1996, the District Court of Wyandotte County, Kansas, issued a warrant for Lewis’ arrest on charges of aggravated assault against Peterson. (D oc #45, Exhibit E). Two weeks later, on February 15, 1996, an informant adv ised Defendant Sergeant Don Woolley that Lewis, who was driving a red Toyota Te rcel, would be arriving soon in the area around 1901 North 76th Street, Kansas C ity, Kansas. (DMSJ, at 3 -- uncontroverted by Plaintiff in his Response). The informant also stated that Lewis had a warrant out for his arrest. (Id. ) Sgt. Woolley located the red Tercel, determined thr ough dispatch that the car was registered to Lewis, and then confirmed that there was a warrant out for Lewis’ arrest. (Id. ) Defendant Officer Mike McCall and Officer Timothy Hylton were called in to assist Sgt. Woolley on his stop o f Lewis’ vehicle, and based on the arrest warrant, they took Lewis into custody. (Id. ) While at the scene, Officer- 4 -

Hylton looked into Lewis’ vehicle and noticed in pl ain view a fully loaded speed loader and the butt of a handgun under the driver’s seat. (Id. -- controverted by the conclusory allegation that because Sgt. Woolley ’s name appeared on the complaint summons, Woolley must have been the one t o conduct the search, see Aplt. Brief, at 3 -- attachment) These observation s led to the discovery of a .38 caliber handgun, two speed loaders, and eighteen .3 8 caliber hollow point rounds. (Id. ) Officer Hylton seized these items as evidence. ( Id. at 3-4) Lewis was ultimately charged with “knowingly carryi ng or possessing a pistol or other firearm on the person or any land, water or air vehicle, loaded or unloaded,” in violation of Kansas City, Kansas, Mun icipal Ordinance § 22- 106(a)(4). (Id. at 4) On March 18, 1996, Lewis entered a plea of guilty to this charge, at which time Kansas City, Kansas, Municipa l Court Judge William Cook sentenced Lewis to 15 days in jail, gave him a fine of $150, and charged him $20 for costs. (Id. ) Lewis received parole on the jail time for one y ear contingent upon no further violations. (Id. ) The court also ordered the weapons seized and destroyed. (Id. ) Lewis did not appeal his sentence, nor did he mo ve to withdraw his guilty plea, and thus those matters are not bef ore us. (Id. ) Rather, we consider Lewis’ civil action which Lewis initiated against Defendants Nelson, Woolley, and McCall on February 20, 1996. (Doc #1) In this action, Lewis seeks $3,000,000,000,000 ($3 trillion ) in damages resulting from- 5 -

the deprivation of his constitutional rights, and $ 1,000 for a bond payment. (Id. ) Specifically, Lewis asserted below: (1) that his ar rest was illegal because defendants failed to show him a warrant at the time of his arrest; (2) that defendant McCall failed to read him his Mirandarights at the time of his arrest; and (3) that defendant Woolley seized his .38 calib er handgun, two speed loaders, and eighteen .38 caliber hollow point rounds withou t due process of law. (Id. ) On November 26, 1996, the District Court granted De fendants’ motion for summary judgment with regard to Lewis’ presentation of warrant claim and his Mirandawarnings claim. (Doc #51) The District Court dism issed Lewis’ motion for summary judgment motion as untimely filed. (Id. ) Also in the November 26, 1996 Order, the District Court denied Defendants’ m otion for summary judgment with regard to the unreasonable seizure claim afterdetermining that fact issues remained as to whether the seizure was governed by the “plain view” exception to the warrant requirement. (Id. at 9-10). However, in a Minute Order dated November 27, 1996, the District Court granted the D efendants’ summary judgment with regard to the unreasonable search and seizure claim after determining that Officer Timothy Hylton, who was no t a party to the action, had conducted the allegedly unreasonable search and sei zure. (Doc # 52) Lewis now appeals under 28 U.S.C. § 1291, and we AF FIRM.- 6 - DISCUSSION We review the grant of summary judgment de novo, ap plying the same legal standard used by the district court pursuant to Fed . R. Civ. P. 56(c). We grant summary judgment when “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit s, if any, show that there is no genuine issue as to any material fact and the movin g party is entitled to judgment as a matter of law.’” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quoting Wolf v. Prudential Ins. Co. of America , 50 F.3d 793 (10th Cir. 1995)).

1. Failure to Present the Warrant at Lewis’ Arrest

. Lewis’ claim that the Defendants violated his const itutional rights by failing to present an arrest warrant at his arrest must fail. Lewis does not contest the validity of the arrest warrant, but only assert s that he should have been shown the warrant at his arrest. However, under neither federal statutory law, nor under Constitutional law, is Lewis provided the right to be shown an arrest warrant at the time of arrest. Indeed, Rule 4(d)(3) of the Federal Rules of Crimin al Procedure specifically denies the obligation of an arresting officer to present an arrest warrant at the time of arrest. Rule 4(d)(3) provid es in relevant part that: [t]he officer need not have the warrant at the time of the arrest but upon request shall show the warrant to the defendan t as soon as- 7 -

possible. If the officer does not have the warrantat the time of the arrest, the officer shall then inform the defendantof the offense charged and of the fact that a warrant has been iss ued. Fed. R. Crim. P. (4)(d)(3). Further, several courts have refused to characteriz e an arrest as unlawful simply because the arrestee was not shown an arrestwarrant upon arrest. See
e.g. , United States v. Buckner , 717 F.2d 297, 301 (6th Cir. 1983) (the failure of the officers to have the warrant in hand is of “no consequence” where arresting officers have reliable knowledge that warrant has b een issued); United States v.
Turcotte , 558 F.2d 893, 896 (8th Cir. 1977) (an arrest is n ot unlawful due to the failure of the arresting officer to serve arrestee with a copy of the arrest warrant); Bradley v. Extradition Corp. Of America , 758 F. Supp. 1153, 1156 (W.D. La. 1991)(same). Finally, although the Sixth Amendmentprovides that a state must inform an arrestee of any charges brought against h im, this right does not attach until the state has instituted a formal prosecution . Kladis v. Brezek , 823 F.2d 1014, 1018 (7th Cir. 1987). For these reasons, we AFFIRM the district court’s g rant of summary judgment to the Defendants on Lewis’ warrant presen tation claim.- 8 -

2. Failure to Read Miranda Warnings Claim. Lewis’ second claim is that he is owed monetary dam ages because of the Defendants’ failure to read him his Mirandarights prior to his arrest. See Miranda v. Arizona , 384 U.S. 436, 467 (1966). The law in this circui t is clear, however, that the only remedy available for a Miran daviolation is the suppression of any incriminating statements. Bennet v. Passic , 545 F.2d 1260, 1263 (10th Cir. 1976). As we explained in Bennet : The Constitution and laws of the United States do n ot guarantee Bennett the right to Mirandawarnings. They only guarantee him the right to be free from self-incrimination. The Mira ndadecision does not even suggest that police officers who fail to a dvise an arrested person of his rights are subject to civil liability ; it requires, at most, only that any confession made in the absence of suc h advise be excluded from evidence. No rational argument can b e made in support of the notion that the failure to give Mira ndawarnings subjects a police officer to liability under the Ci vil Rights Act. Id. AccordNeighbour v. Covert , 68 F.3d 1508, 1510 (2d Cir.), cert. denied , 116 S. Ct. 1267 (1996) (“The remedy for a Mirandaviolation is the exclusion from evidence of any ensuing self-incriminating statemen ts. The remedy is not a § 1983 action.”) (internal citations omitted). Thus, we AFFIRM the district court’s grant of summary judgment to the Defendants on Lewis’ Mirandarights claim.- 9 -

3. Unreasonable Search and Seizure Claim Lewis’ final claim is that Sgt. Woolley violated hi s Fourth Amendment rights when Officer Timothy Hylton searched his veh icle and seized certain pieces of evidence without a warrant. Lewis argues that b ecause Officer Woolley’s name appeared on the uniform complaint summons, Off icer Woolley, and not Officer Hylton, is the proper defendant for this cl aim. We disagree. There is simply no authority for the proposition that a poli ce officer named on a complaint summons can be held liable for any resulting Fourth Amendment violations that occur at a subsequent arrest. We have determined that a supervisor of officers wh o conduct an unreasonable search may be liable under 42 U.S.C. § 1983 where there are “‘allegation of personal direction or actual knowle dge and acquiescence,’” Kaul v. Stephan , 83 F.3d 1208, 1213 n. 3 (10th Cir. 1996) (quoting Woodward v. City of Worland , 977 F.2d 1392, 1400 (10th Cir. 1992)). However, in this case, Lewis has failed to allege that Sergeant Woolley acted as a supervisor to Officer Hylton during the search and seizure, and there are no all egations of personal direction or actual knowledge and acquiescence. We are mindful of the fact that Lewis is a pro se litigant, and thus, we “construe his pleadin gs liberally.” Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996). However, ou r “‘ . . . broad reading of the plaintiff’s complaint does not relie ve the plaintiff of the burden of2 Lewis also appeals the district court’s dismissal of his summary judgment

motion as untimely filed. Because we affirm the di strict court’s grant of summary judgment to the Defendants in this case, we necessa rily determine that Lewis’ motion for summary judgment is denied on the merits

. - 10 - alleging sufficient facts on which a recognized leg al claim could be based.’” Id. (quoting Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991)). In this case, the allegedly unreasonable search was conducted by Officer Timothy Hylton, who is not a party to this action, and no facts have been alleged upon which Sergeant Woolley can be held liable for Officer Hylton’s search. Accordingly, we AFFIRM the district court’s grant o f summary judgment to the Defendants with regard to Lewis’ Fourth Amendment c laim.

CONCLUSION For the reasons stated above, we AFFIRM the distric t court’s order. 2
ENTERED FOR THE COURT

David M. Ebel Circuit Judge