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

### August 16, 2005 

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

TENTH CIRCUIT

RUDY STANKO, individually and on behalf of similarly situated cattle traders, Plaintiff - Appellant,

v. JIM MAHAR, individually and in his official capacity,

Defendant - Appellee. No. 04-8084

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. No. 04-CV-03-B)

Submitted on the briefs: Rudy Stanko, Gordon, Nebraska, Plaintiff-Appellant, Pro se. Patrick J. Crank, Attorney General, John W. Renneis en, Deputy Attorney General, Misha Westby, Senior Assistant Attorney General, David L. Delicath, Assistant Attorney General, Office of the Attorney General, C heyenne, Wyoming for Defendant-Appellee.

Before LUCERO , McKAY , andANDERSON , Circuit Judges.1 The case caption spells Mr. Maher’s name “Mahar” but it appears that the

correct spelling is “Maher.”

2 Mr. Stanko’s complaint recites that it is brought p ursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). Bivens creates a remedy for violations of constitutional rights committed by federal officials acting in their individual capaci ties. Mr. Maher is a state brand inspector. Therefore, this action arises, if at al l, pursuant to 42 U.S.C. § 1983 rather than Bivens

. 3 After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. McKAY , Circuit Judge.

Plaintiff Rudy Stanko, proceeding pro se, appeals f rom the district court’s order granting summary judgment to defendant Jim Maher 1 on Mr. Stanko’s complaint alleging violations of his constitutional rights. 2 We affirm the entry of summary judgment in favor of Mr. Maher. 3
FACTS Mr. Stanko is a resident of Gordon, Nebraska who op erates as a stock owner and drover in Fremont, Natrona, and Teton Cou nties, Wyoming. Mr. Maher is a brand inspector employed by the Stat e of Wyoming Livestock Board (Board).4 As originally captioned, Mr. Stanko’s complaint inc luded four unnamed

“John Doe” defendants. He later moved to amend his complaint, asserting that he had identified some of these defendants through the discovery process. The district court denied this motion, however, finding that Mr. Stanko had failed to comply with certain local rules in connection with the motion. -3- 1. Stanko’s complaint In his complaint, Mr. Stanko alleges that on or abo ut November 9, 2003, Mr. Maher went on land leased by Mr. Stanko south o f Jackson, Wyoming, without Mr. Stanko’s consent or a warrant, and seiz ed five head of livestock, consisting of two cow/calf pairs and one yearling. He further asserts that Mr. Maher, possibly acting in concert with others, 4 then transported the cattle to Fremont County and instructed that they be sold at the Riverton Livestock Exchange. Mr. Stanko asserts that he is the owner of the catt le and has not been compensated for them. He contends that Mr. Maher v iolated the United States and Wyoming Constitutions by infringing on his rights to due process and just compensation and by conducting an impermissible warrantless seizure. He further asserts that Mr. Maher abused his office in violati on of the Wyoming Constitution. 2. Maher’s motion for summary judgment In his motion for summary judgment, Mr. Maher state s that Mr. Stanko does business as Fish Creek Cattle Company (Fish Cr eek). Three separate brands-4-

are registered with the Board for use by Fish Creek . (Mr. Maher supplies a copy of the brand registrations for these brands.) Mr. Maher further recites that Fish Creek leases the Sherr-Thoss Ranch in Teton County, Wyoming for its cattle operation. In the fall of 2003, Fish Creek wanted to move its cattle to a location outside Teton County. Under the Wyoming Statutes, the cattle had to be brand inspected before they could be moved across county lines. Mr. Maher contends that Mr. Stanko arranged for the required inspectio n of the cattle he intended to remove from Teton County. Mr. Maher further contends that on November 6, 2003 , he and another brand inspector went to the Sherr-Thoss Ranch to in spect brands on the cattle Mr. Stanko wanted to remove from Teton County. Fiv e of the animals inspected – two cows, two calves and one steer -- did not bea r brands registered to Fish Creek. To be certain of the brands, Mr. Maher shav ed the animals on their right shoulder and right hip, but still did not find any Fish Creek brands. He did detect two brands on each of the cows: (1) the Double T br and belonging to the Mary Mead Revocable Trust, on each of their left shoulde rs, and (2) the A-Bar brand registered to Leland and Karen Turner, on each of t heir left ribs. The calves were not branded. The steer bore a mottled brand that M r. Maher believes may have been the Turner’s A-Bar, the Triangle brand registe red to the Estate of Marvin-5-

Taylor Lawrence, or some similar brand. Mr. Maher removed all five animals as estrays and completed an Estray Livestock Report. Mr. Maher states that Mr. Stanko telephoned him on November 9, 2003 and demanded return of the five cattle. He told Mr. St anko that he must produce proof of ownership of the animals; Mr. Maher conten ds that Mr. Stanko refused to do this. Because Mr. Stanko did not produce proof of ownership, Mr. Maher consigned the cattle to the Riverton Livestock Auct ion for sale. The animals were sold and the proceeds were deposited with the Board . Mr. Maher further contends that Mr. Stanko failed to petition the Board for a hearing concerning the Board’s actions. 3. Mr. Stanko’s response In Mr. Stanko’s response to Mr. Maher’s motion for summary judgment, he disagrees with some of the aforementioned facts. H e contends that he was the owner of the livestock, that he did not request that the animals be removed from Teton County, and that he did present his grievance before the Board at its meeting on December 11, 2003. He attaches a numberof documents that he contends show his ownership of the cattle, and a Wy oming Livestock Board Attendance Roster. As will be seen, none of these allegedly contested facts precludes the entry of summary judgment on Mr. Stan ko’s complaint.5 Mr. Stanko also maintains that the entry of summaryjudgment violated Art. (continued...) -6- ANALYSIS
1. Standard of review We review a district court’s grant or denial of sum mary judgment de novo. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving p arty is entitled to a judgment as a matter of law. In determining whethe r the evidence presents a genuine issue of material fact, we view it in the light most favorable to the party against whom summary judgment was entered. Petersen v. Farnsworth , 371 F.3d 1219, 1221 (10th Cir. 2004) (quotations and citations omitted). 2. Alleged Seventh Amendment violation Mr. Stanko contends that the district court deprive d him of a right to trial by jury in violation of the Seventh Amendment by en tering summary judgment against him. As we have stated on many occasions, however, “[t]he Seventh Amendment is not violated by proper entry of summary judgment . . . because such a ruling means that no triable issue exists to be submitted to a jury.” Shannon v. Graves , 257 F.3d 1164, 1167 (10th Cir. 2001). Nor did th e district court engage in impermissible fact-finding, as he c ontends; its entry of summary judgment was dependent on a determination that no g enuine issue of material fact existed for a jury to decide. See Fed. R. Civ. P. 56(c). 5 Mr. Stanko’s Seventh5 (...continued)

I, § 9 of the Wyoming Constitution. Federal law rather than state law governs the use of summary judgment in the federal courts. Deepwater Investments, Ltd. v. Jackson Hole Ski Corp ., 938 F.2d 1105, 1106 (10th Cir. 1991). Even if Wyoming law concerning the entry of summary judgment were r elevant, the Wyoming courts have held that the entry of summary judgmentin a proper case is appropriate, even though it may deprive a party of his right to jury trial. See Fiedler v. Steger , 713 P.2d 773, 776 (Wyo. 1986) (stating summary ju dgment “is a final judgment which denies parties the right to a trial before a jury of their peers”). -7- Amendment assertion is valid only if summary judgme nt was improperly entered in this case, an issue that we consider with regard to his other claims. 3. Alleged Fourth Amendment violation Mr. Stanko contends that Mr. Maher and/or the State of Wyoming needed an oath, affirmation and/or a warrant before they s eized cattle belonging to him. Mr. Maher responds that he seized the cattle as est rays, as he was permitted to do by the Wyoming statutes. The Wyoming brand inspection statutes provide that cattle may not be removed from one Wyoming county to another without inspection:

Except as hereafter provided or except as provided in W.S. 11-20-224 [governing livestock used for “rodeo, sho w, racing, pleasure or Wyoming farm or ranch work purposes” an d supplied with a permanent brand inspection certificate], it is unlawful for any person, firm, partnership, corporation, or associat ion to sell, change ownership or to remove or cause to be removed in any way from any county in Wyoming to any other county, state or cou ntry, any livestock unless each animal has been inspected forbrands and ownership at the time of delivery or removal by an authorized-8-

Wyoming brand inspector and a proper certificate of inspection or clearance has been issued. Wyo. Stat. § 11-20-203(a). The statutes further provide that a person wishing to remove his cattle across county lines must seasonably notify the bran d inspector and cooperate with the inspection:

Except as otherwise provided, before removing any l ivestock from any county of Wyoming, the person selling or i ntending to cause removal shall notify the inspector of the dat e of the intended removal and the time and place when and where the r equired inspection for brands and ownership can be made. Th e inspection shall be made within a reasonable time prior to shi pment. The person in charge of the livestock shall hold the livestockat the place designated until the livestock have been inspected and an official certificate of inspection is issued. The person in charge shall render the inspecting officer such assistance as is practi cable while the required inspection is being made.

Id. § 11-20-205(a). One of the purposes of the brand inspection is to d etermine whether the cattle to be removed across county lines contain any estrays. “Estrays, the ownership of which is unknown, shall not be removedfrom the county except by order of the inspector in accordance with W.S. 11-2 4-102.” Id. § 11-20-205(d). An estray is defined as follows: “Estray” means any animal found running at large up on public or private lands, fenced or unfenced, in Wyoming whose owner is unknown in the territory where found or the owner o f which cannot with reasonable diligence be found, or that is bran ded with two (2) or-9-

more brands the ownership of which is disputed, nei ther party holding a bill of sale. An estray includes any animal for which there is no sufficient proof of ownership found upon insp ection[.] Id. § 11-24-101(a)(ii) (emphasis added). A person who comes into possession of an estray is required to notify a brand inspector, who is to inspect and attempt to i dentify the animal: When any person takes up an estray he shall immediately notify an inspector who shall inspect or cause to be inspecte d the estray for brands and other evidence of ownership and make a d iligent effort to learn or determine ownership of the animal. The ins pector may cause any estray to be held for not more than ten (10) days after the inspection at a total expense of not more than fifty cents ($.50) per day to enable him to complete his investigation of ownership. . . . If the rightful owner cannot be found, or when found, refuses or fails to pay the charges for feed and care of the estray, th e inspector shall order the estray sent to the most feasible convenie nt public market designated by the inspector to be sold. Incurred ch arges for feed and care by the inspector and reasonable shipping and s ales expense shall be paid from the proceeds of sale. The net proceeds , if any, received from the sale of the estray after deduction of auth orized expenses, shall be forwarded to the estray fund of the board or its agency. The board or agency shall hold the proceeds in a specia l fund known as estray fund until paid to the rightful owner of the estray or otherwise disposed of according to law. Id. § 11-24-102(a). Mr. Maher contends that he complied with these proc edures by inspecting Mr. Stanko’s cattle after Mr. Stanko notified him t hat the cattle would be moved from Teton County. During the course of the inspec tion, he discovered cattle for which Mr. Stanko did not provide adequate proof of ownership. He seized these cattle and they were ultimately sold as estrays.6 The brand inspection statutes in a neighboring stat e contain a similar

provision that sheds light on the definition of “es tray” animals in the Wyoming Statute. The Colorado Statute states that if, whil e inspecting animals prior to shipment, a brand inspector “finds any animals bear ing marks and brands other than those of the owner of the other cattle in such shipment” and if the owner or shipper fails to provide proof of ownership, the br and inspector “shall forthwith declare them to be estrays .” Colo. Rev. Stat. § 35-53-107 (emphasis added). Thus, under both the Wyoming and Colorado statutes, an animal need not be found running at large or uncared for to be conside red an estray. -10- Mr. Stanko responds that the cattle belonged to him , not to Fish Creek, and the lack of a Fish Creek brand was therefore irrele vant. He states that the cattle were not branded because he does not brand his catt le, believing that this reduces their value. Assuming these facts are true, Mr. St anko was still responsible for providing sufficient proof of ownership upon inspec tion. Failure to do so meant that the cattle were defined as estrays under Wyo. Stat. § 11-24-101(a)(ii). Mr. Stanko contends, however, that the cattle could not have been “estrays” because they were not running at large, he was taki ng care of them, and he was known to be their owner. While an estray animal is generally one that has escaped from its owner and is running at large, § 11 -24-101(a)(ii) also defines as an “estray” anyanimal for which there is insufficient proof of ow nership upon inspection. 6 Thus, the fact that the cattle were not “running at large” and that Mr. Stanko was taking care of them is immaterial. Mr. Stanko’s claim that he was “known” to be the owner is not relevant proof of th at ownership in the form required by statute.7 Mr. Maher’s deposition transcript was attached to M r. Stanko’s “Pre-trial

Brief in Support of Injunction and Petition for Dec laratory Judgment. ” R. doc. 22. Both parties make reference to Mr. Maher’s dep osition in support of their factual allegations on appeal. Although the deposi tion was not, strictly speaking, submitted as part of the summary judgment record, i t was before the district court prior to the entry of summary judgment and we there fore consider it part of the record for purposes of summary judgment review. See Fed. R. Civ. P. 56(c) (authorizing entry of summary judgment based on “pl eadings, depositions, answers to interrogatories, and admissions on file ”) (emphasis added); cf. 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay K ane, Federal Practice & (continued...) -11- The Wyoming Statutes specify the type of proof of o wnership that is acceptable upon brand inspection. The person in ch arge of the livestock may be required to produce a “brand record, bill of sale o r the affidavits of at least two (2) responsible citizens of the county who are not interested financially in the animals.” Id. § 11-20-205(c). Mr. Stanko has failed to establis h that he provided any of the required types of proof, in a form accep table to the Livestock Board, upon inspection. Mr. Stanko also asserts that he did not intend to m ove the cattle from Teton County in the Fall of 2003, and did not want them b rand inspected. He contends that because of this, the search was not consensual and Mr. Maher had no right to be on his land. The uncontroverted evidence shows, however, that Mr. Maher performed the inspection because he was requested t o do so. In Mr. Maher’s deposition, he stated that he went on the Sherr-Tho ss property because he was requested to do a brand inspection that day. R doc. 22, ex. “A” at 89. 7A7 (...continued)

Procedure § 2722, at 378 (3d ed. 1998) (stating “an affidavi t submitted to support another motion may be taken into account on a motio n for summary judgment”); McCullough Tool Co. v. Well Surveys, Inc. , 395 F.2d 230, 236 n.7 (10th Cir. 1968) (“It is clear that a movant for summary judgm ent may rely upon affidavits already in the record.”). -12- memorandum of the Wyoming Livestock Board submittedby Mr. Stanko, and uncontroverted by appropriate factual evidence, further notes that the estray cattle “were taken out of the [Fish Creek] herd as legitim ate estrays during the course of arranged Brand Inspections as provided by law.” Id. , ex. “B.” (emphasis added). Although Mr. Stanko argued in his pleadings that he did not intend to move the seized cattle from Teton County, he did not spe cifically deny Mr. Maher’s contention that he called for a brand inspection. Even Mr. Stanko’s vague claims that he did not intend for the cattle to be moved a nd that Mr. Maher went on his land without permission are supported by nothing but unverified evidence. Under the admissible evidence in this case, see Fed. R. Civ. P. 56(e), it is undisputed that Mr. Stanko, or someone acting on his behalf, r equested an inspection of the seized cattle. Under the circumstances presented, the brand inspec tion statutes authorized Mr. Maher to inspect the cattle. There was no Fourth Amendment violation. A warrantless search of cattle about to be transporte d outside the county was authorized by statute to protect the urgent state i nterest of preventing trafficking-13-

in lost or stolen cattle. See, e.g., United States v. Biswell , 406 U.S. 311, 317 (1972) (authorizing warrantless regulatory searches ). The undisputed evidence shows that Mr. Stanko requested or consented to the search in order to be permitted to move the cattle. As for the seizure of the cattle, once they were in spected and Mr. Stanko did not provide the required proof of ownership, Mr . Maher was authorized by statute to seize them. Such a regulatory seizure, specifically authorized by statutes designed to protect the urgent state inter est of preventing trafficking in lost or stolen cattle, did not require Mr. Maher to obtain a warrant. See id . We conclude that Mr. Stanko has failed to demonstrate a Fourth Amendment violation. 4. Alleged Fifth Amendment due process violation “‘The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful mann er.’ Time and again, the Supreme Court has made clear that ‘some form of hea ring is required before an individual is finally deprived of a property interest.’” Lawrence v. Reed , 406 F.3d 1224, 1233 (10th Cir. 2005) ( quoting Mathews v. Eldridge , 424 U.S. 319, 333 (1976)). Property interests entitled to protectionare created not by the Constitution, but rather by sources independent of it such as state law. See-14-

Copelin-Brown v. New Mexico State Personnel Office , 399 F.3d 1248, 1254 (10th Cir. 2005). The owner of cattle or other livestock clearly has a property interest protected by the Fifth and Fourteenth Amendments ag ainst its seizure and disposition. See, e.g., Siebert v. Severino , 256 F.3d 648, 659-60 (7th Cir. 2001). Notwithstanding the fact that Mr. Stanko was unable to substantiate his ownership of the cattle to Mr. Maher’s satisfaction, he had asufficient claim of property interest to require due process protections againstseizure and disposition of the cattle. See, e.g., Wolfenbarger v. Williams , 774 F.2d 358, 362 (10th Cir. 1985) (holding pawnbroker had interest in stolen propertysufficient to warrant due process protection). Having determined that Mr. Stanko had a property in terest in the cattle, we must next address what sort of process he was entit led to in connection with their seizure and sale. The Supreme Court has identified three factors that should be considered in determining the specific dictates of due process: First, the private interest that will be affected b y the official action; second, the risk of an erroneous deprivation of suc h interest through the procedures used, and the probable value, if any , of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the f iscal and administrative burdens that the additional or subst itute procedural requirement would entail. Matthews , 424 U.S. at 335.-15-

Applying these criteria, we determine that the proc edure provided prior to the seizure of cattle in this case (the “pre-depriv ation process”) met due process requirements. While Mr. Stanko had a substantial i nterest in maintaining his rights to the seized cattle, see Siebert , 256 F.3d at 660, this interest was adequately served by the procedures provided. The risk of erroneous deprivation was low, because the statutes (1) limit the persons authorized to make a seizure to licensed brand inspectors; (2) provide the person i n charge of the cattle with an opportunity to avoid a proposed seizure by submitti ng proof of ownership; and (3) require that the inspection leading to seizure “sha ll be made by daylight in such manner as to enable the inspecting officer to make a thorough and efficient inspection.” Wyo. Stat. § 11-20-205(c). Additiona l procedural safeguards such as further verification of ownership or more elabor ate hearings prior to seizure would run the risk of unnecessarily delaying the sh ipment of cattle. Finally, the government’s interest is high, because the statutes are designed to prevent estray cattle from being transported to another county and sold or disposed of there. See Alfred v. Esser , 15 P.2d 714, 715 (Colo. 1932) (stating estray st atutes are “intended to protect the cattleman against loss of his cattle by wandering or theft.”). In sum, the procedures employed prior to seizure here provided adequate pre-deprivation process.-16-

The procedures provided after seizure and dispositi on also provided an adequate post-deprivation remedy. First, we note t hat the statutes did not place sole responsibility on Mr. Stanko to establish owne rship after seizure, but required the brand inspector to make a “diligent ef fort to learn or determine ownership of the animal.” Wyo. Stat. § 11-24-102(a ). Mr. Maher testified that he and other inspectors fulfilled this duty by attempt ing to verify the ownership of the seized cattle, traveling to Idaho to check out Mr. Stanko’s contention that he had bought the cattle at a sale barn there. As pro vided by the statutes, Mr. Maher caused the cattle to be held for five days while he completed his investigation. See id. He also completed an Estray Livestock Report iden tifying the cattle that had been seized. Second, Mr. Stanko was provided with an opportunityto prove his ownership of the cattle. When he failed to provide adequate proof of ownership, the cattle were transported to a public market and sold, the proceeds held by the Wyoming Livestock Board and made available to Mr. S tanko upon proof of ownership. See id. These proceeds were to be held for a year to permit Mr. Stanko to provide adequate proof that he was the owner of the cattle. Id. § 11-24-112. Mr. Stanko has failed to establish thatthe submissions he made to prove ownership satisfied the requirements of the s tatutes, but his opportunity to8 In support of his due process claim, Mr. Stanko cit es Bowden v. Davis , 289

P.2d 1100 (Ore. 1955) (en banc), a case in which th e Oregon Supreme Court declared unconstitutional a much more draconian statute than that at issue here. Bowden is easily distinguished from the facts in this cas e. In Bowden , the relevant statute gave the owner of a horse found on public lands only two days to pay a roundup charge or see his animal deemed aband oned and forfeited to the state. Id. at 1103. No provision was made for payment to the owner of any proceeds received from a forfeited horse. Id. at 1111. The defendants in Bowden admitted that animals they had seized running at la rge on public lands were owned by plaintiff. Id. at 1101. They nevertheless withheld the animals f rom plaintiff, because plaintiff had failed to pay the applicable roundup charge. Id. Here, by contrast, Mr. Stanko was given appropriate opportunities to provide acceptable proof of ownership and thereby to recove r the cattle or their proceeds, but apparently failed to do so. -17- do so certainly satisfied the requirements of due p rocess. These procedures provided adequate post-deprivation process. 8 5. Alleged Fifth Amendment just compensation violation Mr. Stanko further claims that Mr. Maher took his p roperty without providing just compensation. His argument on this point is extremely cursory. He cites the principle that private property may no t be taken without just compensation, then lists his own estimate of the va luation of the cattle, and states that he “has not receive[d] one penny for his prope rty from the State of Wyoming.” Aplt. Opening Br. at 21. Mr. Stanko doe s not address the effect of the Wyoming Statutes permitting him to provide proo f of ownership, and to receive the proceeds for the sale of the cattle. H is argument lacks merit.9 We further note that Mr. Stanko has failed to provi de any independent

constitutional analysis based on the Wyoming Consti tution, a prerequisite to assertion of greater protections than those provide d by the federal constitution. See, e.g., Kenyon v. State , 96 P.3d 1016, 1021 n.5 (Wyo. 2004), cert. denied, 125 S. Ct. 1389 (2005). -18- 6. Alleged violation of Art. I, § 7 of Wyoming constitution Mr. Stanko argues that he has stated a claim under Article I, Section 7 of the Wyoming Constitution, which provides that “Abso lute, arbitrary power over the lives, liberty and property of freemen exists n owhere in a republic, not even in the largest majority.” He also argues that the Wyo ming Constitution grants him certain greater protections of “basic common law ri ghts” than the United States Constitution. Aplt. Opening Br. at 16. An action under § 1983, however, cannot be maintained on the basis of alleged violations of state law. See, e.g., Rector v. City & County of Denver , 348 F.3d 935, 947-48 (10th Cir. 2003). 9 We therefore reject Mr. Stanko’s alleged state-law based claims for relief. The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith.