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

### AUG 23 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL ED ERIKSON,

Plaintiff-Appellant,

v. PAWNEE COUNTY BOARD OF COUNTY COMMISSIONERS, Pawnee County, an Oklahoma political subdivision, ex rel.; LARRY STUART, in his official capacity as District Attorney for Osage and Pawnee Counties; HARLAND STONECIPHER, individually and as President of the Oklahoma Sportsman's Association; OKLAHOMA SPORTSMAN'S ASSOCIATION; MICHAEL TURPEN, individually and as an employee and shareholder of the law firm Riggs, Abney, Neal, Turpen, Orbison & Lewis, Inc.; RIGGS, ABNEY, NEAL, TURPEN, ORBISON, & LEWIS, INC., an Oklahoma professional corporation, Defendants-Appellees. No. 00-51901 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially assist 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 ora l argument. -2- APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 99-CV-786-BU)

Submitted on the briefs: Brett D. Sanger of Brett D. Sanger, P.C., Oklahoma City, Oklahoma, for Plaintiff-Appellant. S.M. Fallis, Jr., of Nichols, Wolfe, Stamper, Nally , Fallis & Robertson, Inc., and Douglas A. Wilson of Riggs, Abney, Neal, Turpen, Orbison & Lewis, Inc., Tulsa, Oklahoma, for Defendants-Appellees.

Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

SEYMOUR , Circuit Judge.

Plaintiff Michael Ed Erikson is appealing the distr ict court’s dismissal of his civil rights claims brought under 42 U.S.C. § 1983. 1 The district court dismissed plaintiff’s case under Fed. R. Civ. P. 12 (b)(6) for failure to state a claim. We review the district court’s dismissal de novo “accepting the well-pleaded allegations of the complaint as true a nd construing them in the-3-

light most favorable to the plaintiff.” Yoder v. Honeywell, Inc. , 104 F.3d 1215, 1224 (10th Cir. 1997) (quotation omitted). We affi rm.

I. On June 26, 1992, plaintiff shot and killed Tony Mc Collum and Fred Head on his family’s ranch property. Although plaintiff claimed he killed McCollum and Head in self defense, he was subsequently charg ed with two counts of first degree murder in Pawnee County, Oklahoma. At plaintiff’s trial, the jury was instructed on murder, voluntary manslaughter, and s elf defense, and acquitted plaintiff on all charges for the death of Head. Th e jury could not reach a unanimous verdict with respect to the charges for the death of McCollum, and a mistrial was declared. Plaintiff was retried on th e charge of voluntary manslaughter for the death of McCollum. At the sec ond trial, the jury again failed to reach a unanimous verdict on the manslaug hter charge, and another mistrial was declared. A third prosecution on the charge of voluntary manslaughter for the death of McCollum was dismisse d without prejudice. Plaintiff then filed suit against defendants under § 1983 alleging that they violated his federal civil rights by conspiring to prosecute him for the deaths of Head and McCollum without probable cause or suffici ent evidence. Plaintiff further alleged that his federal due process rights were violated because the private defendants (the Oklahoma Sportsman’s Associ ation (OSA), Harland2 Plaintiff alleges that Oklahoma law prohibited defe ndant Stuart from

accepting assistance from the private defendants inprosecuting plaintiff. We agree with the conclusion of the magistrate judge t hat, without more, any such violation of state law is not actionable under § 19 83. -4- Stonecipher, who is the president of the OSA, and attorney Michael Turpen and his law firm, who represented the Head and McCollumfamilies) actively participated in and influenced the state prosecutio n. Specifically, plaintiff alleged the OSA raised in excess of $25,000 from its member ship and contributed the money to defendant Turpen for use in providing rese arch assistants and investigators to assist defendant Stuart in prosecuting plaintiff. 2 Plaintiff also asserted state law claims against defendants for ma licious prosecution, malicious abuse of process, civil conspiracy, intentional inf liction of emotional distress, and punitive damages. Defendants filed motions to dismiss under Fed. R. C iv. P. 12(b)(6). The magistrate judge recommended that the district court grant the motions on the grounds that: (1) under Oklahoma law, a district attorney is an arm of the state and thus defendant Pawnee County is not liable for the official acts of defendant Stuart, see Arnold v. McClain , 926 F.2d 963, 965-66 (10th Cir. 1991); (2) as a state officer under Oklahoma law, defendant Stuart is entitled to Eleventh Amendment immunity from actions against him in his official capacity, see id. at 966; (3) defendant Stuart is not liable to plaintif f in his individual capacity3 Plaintiff contends he could have overcome defendantStuart’s

qualified immunity defense if the district court ha d permitted him to file an amended complaint. However, after defendants filed their motions to dismiss, plaintiff only sought leave to amend with respect t o defendant Stuart to assert a claim against him in his individual capacity withou t requesting leave to amend any of the substantive allegations in his complaint . Moreover, plaintiff has failed to identify any additional relevant facts that he c ould have included in an amended complaint to defeat defendant Stuart’s qual ified immunity defense. -5- because: (a) he is entitled to absolute prosecutor ial immunity from suits under § 1983, see Imbler v. Pachtman , 424 U.S. 409, 427 (1976), and (b) he is entitled to qualified immunity because plaintiff failed to a llege sufficient facts showing he violated a clearly established federal statutory or constitutional right, see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); 3 and (4) plaintiff failed to state a claim against the private defendants under § 1983 because he failed to allege sufficient facts to show their conduct violated a federal stat utory or constitutional right. The district court accepted the magistrate judge’s recommendations and granted defendants’ motions to dismiss.

II. We agree with the magistrate judge’s analysis. Foradditional reasons not expressly articulated by the magistrate judge, we a lso agree that plaintiff has failed to allege a federal constitutional violation . First, the participation of a privately-retained attorney in a state criminal pro secution does not violate the defendant’s right to due process under federal law unless the private attorney4 In Young v. United States ex rel. Vuitton et Fils S.A. , 481 U.S. 787,

809 (1987), the Supreme Court held that an attorneyfor a party in a position to gain from a criminal contempt proceeding cannot be appointed by the district court to prosecute the party charged with contempt. The Court determined that, because of the inherent conflict of interest and po tential for misconduct, the use of an interested private attorney to prosecute a co ntempt citation is fundamental error. Id. at 814. Young is distinguishable because, unlike the situation h ere, the private attorney was the government’s sole representative in the contempt trial, see East , 55 F.3d at 1000 n.2, and he had complete authority over all aspects of the prosecution, see Person , 854 F.2d at 662-63. Young is also distinguishable on the grounds that the Supreme Court decided the case under its supervisory power over the federal courts, and not as a matter of federal constitutional law. See Young, 481 U.S. at 790; East , 55 F.3d at 1000 n.2. -6- effectively controlled critical prosecutorial decisions. See East v. Scott , 55 F.3d 996, 1000-01 (5th Cir. 1995); Person v. Miller , 854 F.2d 656, 663-64 (4th Cir. 1988). Such decisions include “whether to prosecut e, what targets of prosecution to select, what investigative powers to utilize, wh at sanctions to seek, plea bargains to strike, or immunities to grant.” Person , 854 F.2d at 664. Plaintiff has not alleged that defendant Turpen exercised control over any critical prosecutorial decisions. Instead, plaintiff only alleges that de fendant Turpen, acting on behalf of the OSA, provided research assistants and invest igators to assist defendant Stuart. This is insufficient to state a claim for a federal due process violation. 4 Second, plaintiff has failed to allege sufficient f acts to support a Fourth Amendment claim for malicious prosecution under § 1 983. In this circuit, state law provides the starting point for analyzing a Fou rth Amendment claim for malicious prosecution under § 1983. See Taylor v. Meacham , 82 F.3d 1556,5 Plaintiff has also failed to state a claim under fe deral law for abuse

of process. As with claims for malicious prosecuti on, state law provides the elements for a claim of abuse of process under § 1983. See Cook v. Sheldon , 41 F.3d 73, 79-80 (2d Cir. 1994). Under Oklahoma l aw, an “ulterior or improper purpose” is an essential element of the tort of abuse of process. Callaway v. Parkwood Village, L.L.C. , 1 P.3d 1003, 1004 (Okla. 2000). Because plaintif f has failed to allege facts showing that defendants cons pired to prosecute him with an ulterior or improper motive separate and apart fromthe alleged desire to obtain first degree murder convictions without probable cause, plaintiff’s allegations should only be analyzed in terms of an attempt to p lead a claim for malicious prosecution. See Wolford v. Lasater , 78 F.3d 484, 490 (10th Cir. 1996) (explaining differences between abuse of process an d malicious prosecution and holding that challenge to allegedly baseless crimin al prosecution is more appropriately characterized as claim for malicious prosecution). -7- 1561-62 (10th Cir. 1996). Under Oklahoma law, a la ck of probable cause to bring a criminal prosecution is an essential element of t he tort of malicious prosecution. See Parker v. City of Midwest City , 850 P.2d 1065, 1067 (Okla. 1993). Here, beyond the conclusory allegation in his complaint t hat no probable cause existed, plaintiff has not alleged any specific facts showin g there was a lack of probable cause for his arrest and prosecution on the charges of first degree murder. Plaintiff’s conclusory allegation is insufficient t o survive defendants’ motions to dismiss. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (stating that “conclusory allegations without supporting factual averments are insufficient to state a claim”); Bryson v. City of Edmond , 905 F.2d 1386, 1390 (10th Cir. 1990) (stating that district court is not required to acc ept “footless conclusions of law” in ruling on motion to dismiss). 56 The district court’s order of dismissal did not spe cifically address

plaintiff’s state law claims. However, plaintiff h as not raised any issues on appeal with respect to his state law claims, and we will assume that, pursuant to 28 U.S.C. § 1367(c)(3), the district court has d eclined to exercise supplement jurisdiction over the state law claims. Cf. Taylor , 82 F.3d at 1564, n.11 (affirming district court order granting defendant summary judgment in § 1983 case even though district court failed to specifica lly address plaintiff’s state law claims). -8- Finally, plaintiff has alleged a number of addition al wrongs in connection with his criminal prosecution, including that: (1) state law enforcement officials contorted his voluntary statements; (2) the OSA iss ued false media releases; (3) unidentified OSA members disrupted plaintiff’s trials and made death threats to plaintiff; (4) the hold-out juror for a convicti on in plaintiff’s first trial was a friend of McCollum’s and he perjured himself to b ecome a juror; and (5) defendants caused a groundless civil suit to be filed against plaintiff. While these allegations are troubling, plaintiff ha s failed to articulate a federal constitutional claim based on any of these alleged wrongs, and/or he has failed to link any of the named defendants to the alleged mis conduct. We AFFIRM the district court’s order of dismissal. 6