* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally 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 

### DEC 11 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROY DON ROBERTSON, Plaintiff-Appellant,

v. PRICE CITY POLICE DEPARTMENT; ALEX SHIALOS, Price City Police Chief; CHAD FEIEHKO; GENE STRATE, 7th District court attorney, Defendants-Appellees. No. 03-4088 (D.C. No. 02-CV-546-DB)

(Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.
Roy Roberston, proceeding pro se , brings this appeal challenging the district court’s dismissal of his civil rights acti on against Price City, Utah, its police department, various city police and attorney s, and a Utah state district1 Mr. Robertson initiated his civil rights action whi le he was in Utah State

Prison, but has been released since he filed this appeal.

2As a result of our decision to affirm the district court’s order, we deny as moot Mr. Robertson’s motion for service of process against the defendants for a jury trial. Likewise, we do not address Mr. Robert son’s “Motion Appling [sic] Information to My Case,” as the information thereindoes not alter our disposition on appeal. -2- court. 1 We affirm. 2 Proceeding in forma pauperis , 28 U.S.C. § 1915(b), Mr. Robertson filed suit under 42 U.S.C. § 1983, alleging the defendant s violated his right to liberty without due process of law. Mr. Robertson claims h is rights were violated as a result of the extended period of time which elapsedbetween the filing of informations against him in Utah state court and hi s arraignments for the crimes alleged. During the time he was waiting to be arra igned, Mr. Robertson was already in jail for a separate parole violation. The district court liberally construed Mr. Robertso n’s pleadings and filings, as we must also do, Haines v. Kerner , 404 U.S. 519, 520 (1972), and determined Mr. Robertson’s claims presented no arguable basis for relief in either law or fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989). It therefore dismissedhis action as frivolous under 28 U.S.C. § 1915(e)(2). We revi ew the district court’s ruling for abuse of discretion. Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995). Piecing together the record before us, as well as d eciphering Mr. Robertson’s appellate brief, it appears Mr. Roberts on was arrested on February 6,-3-

2002, and detained in the Price City jail pursuant to parole board warrant. Mr. Robertson does not challenge the validity of his arrest, nor the lawfulness of the detention resulting from it. While he was in jail, county prosecutors filed an information against Mr. Robertson on February 16, a lleging that on or about December 17, 2001, he committed the crime of receiv ing stolen property. Prosecutors filed a subsequent information against Mr. Robertson on September 10, 2002, for assaulting another prisoner, which ar ose out of an incident on June 26, 2002. Mr. Robertson alleges he had to wait sixty-five day s to be arraigned for the receipt of stolen property charge, and eighty-nine days for the assault charge, and that these delays denied him liberty without due pr ocess of law. In dismissing his claims as frivolous, the district court stated Mr. Robertson “did not have a ‘liberty interest’ in the time [he] spent in jail awaiting arraignment on the assault and stolen property charges because [he] never allege[d ] that the warrant for his parole violation was improper.” Rec., doc. 19 at 2

. We acknowledge there are instances in which an exte nded pre-arraignment delay may implicate a defendant’s rights and requir e judicial review. See e.g., Strunk v. United States , 412 U.S. 434, 440 (1973) (unreasonable delay betw een prisoner’s indictment and arraignment violated his right to a speedy trial); United States v. Padilla-Mendoza , 157 F.3d 730, 731-32 (9th Cir. 1998) (confession-4-

given during pre-indictment delay may be suppressed ); United States v. Grimmond, 137 F.3d 823, 827 n.1 (4th Cir. 1998) (delay betw een indictment and arraignment may violate defendant’s right to due pr ocess where actual prejudice is shown); Oviatt v. Pearce , 954 F.2d 1470, 1475 (9th Cir. 1992) (arrestee’s r ights were violated where arrestee was detained for 114 d ays before being arraigned, and state statute created liberty interest in being free from incarceration without prompt pretrial and trial procedures); United States v. Comosona , 848 F.2d 1110, 1114 (10th Cir. 1988) (pre-indictment delay may pro vide grounds for speedy trial violation). Certainly, the elapsed time between th e filing of the informations against Mr. Robertson, his arrests, and his eventua l arraignments, does appear somewhat extended. However, regardless of this ext ended time, such a delay cannot support Mr. Robertson’s contention that his liberty rights were violated. As the district court correctly noted, Mr. Robertso n was already being detained by the state for his parole violation, the validity of which has not been challenged. The pre-indictment delays associated with the charg es levied against Mr. Robertson for receipt of stolen property and assaul t do not undermine the lawfulness of his parole violation detention. Because Mr. Robertson was appropriately restrained by his parole violation de tention, the delays resulting from the other charges had no impact on his liberty . Therefore, the district court did not abuse its discretion in finding Mr. Roberts on’s claims presented no-5-

arguable basis in either law or fact. Neitzke , 490 U.S. at 325. Accordingly, the district court is AFFIRMED

. ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge