* This order and judgment is not binding precedent, except under the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. 

** Honorable Myron H. Bright, Senior Circuit Judge, United States Court of

Appeals for the Eighth Circuit, sitting by designation. 

UNITED STATES COURT OF APPEALS

Filed 9/27/96

FOR THE TENTH CIRCUIT

GLEN LUNA, doing business as GI

Surplus & Pawnshop,

Plaintiff-Appellant,

v.

JERRY THOMASON,

Defendant-Appellee.

No. 96-7008

(D.C. No. CV-95-150)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO, BRIGHT,** and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral
1 The parties agreed to proceed under 28 U.S.C. § 636(c)(1). Thus, the

judgment of the magistrate judge constitutes the final judgment of the district

court in this case. 

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argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument. 

Plaintiff Glen Luna appeals from an order of the district court1 granting

defendant’s motion to dismiss or, in the alternative, for summary judgment. We

affirm.

Mr. Luna brought this action pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In his complaint,

Mr. Luna alleged that defendant, a special agent for the FBI, violated his Fourth

Amendment right to be free from warrantless seizures when he obtained a stolen

ring which was to be used as evidence in a federal criminal case from Mr. Luna’s

pawn shop. Mr. Luna further asserted that his Fifth Amendment right to due

process was violated when the ring was returned to the rightful owner after the

close of the criminal case without affording him an opportunity to be heard as to

his property interest in the ring.

Defendant moved to dismiss the complaint or for summary judgment based

on qualified immunity. The magistrate judge granted the motion holding that the

procedures established by Oklahoma law both for obtaining stolen property from a

licensed pawn broker and for returning stolen property do not apply to federal
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officers. The magistrate judge further noted that no federal statutes exist which

are comparable to the state statute, and, therefore, no similar duty exists as to

federal officers. The magistrate judge concluded that Mr. Luna had failed to

prove the presence of a clearly established constitutional right.

We review the district court’s grant of summary judgment de

novo. When a defendant asserts qualified immunity in a summary

judgment context, we apply special rules to determine whether the

motion was properly granted or denied. We must first ask if a

plaintiff has asserted the violation of a constitutional right at all, and

then assess whether that right was clearly established at the time of a

defendant’s actions. Thus, to avoid summary judgment on qualified

immunity grounds, a plaintiff must present facts which if true would

constitute a violation of clearly established law. Whether an asserted

federal right was clearly established at a particular time presents a

question of law that must be resolved de novo on appeal. 

Taylor v. Meacham, 82 F.3d 1556, 1559 (10th Cir. 1996)(quotations and citations

omitted).

The law prohibiting unreasonable warrantless seizures by government

agents is clearly established. See Pleasant v. Lovell, 876 F.2d 787, 795-96 (10th

Cir. 1989). However, the facts here do not show that a seizure occurred. Mr.

Luna does not contest defendant’s statement that Mr. Luna gave defendant the

ring upon his request. Because no seizure occurred, no clearly established

constitutional right was violated.

Mr. Luna’s reliance on Winters v. Board of County Commissioners, 4 F.3d

848 (10th Cir. 1993), cert. denied, 114 S. Ct. 1539 (1994), for the proposition that
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requesting the ring from a pawnbroker for use in a criminal proceeding

constituted a “seizure” is misplaced. Winters was filed on September 2, 1993,

and not published until sometime thereafter. Thus, even if Winters now controls,

it can hardly be considered “clearly established” law of which a reasonable person

would have known on October 13, 1993, the date on which the events in this case

took place. Qualified immunity was appropriately found to exist.

Mr. Luna did not contest defendant’s motion to dismiss or for summary

judgment as to his second issue that his due process rights were waived. We

consider that issue conceded before the district court and will not review the

district court’s ruling here. See Rademacher v. Colorado Ass'n of Soil

Conservation Dists. Medical Benefits Plan, 11 F.3d 1567, 1571 (10th Cir.

1993)(issues raised but not argued to the district court, "ordinarily will not be

considered on appeal").

The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. 

Circuit Judge