* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Myron H. Bright, Senior Circuit Judge, Un ited States Court of Appeals for the Eighth Circuit, sitting by designat ion.

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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral1 The parties agreed to proceed under 28 U.S.C. § 636 (c)(1). Thus, the

judgment of the magistrate judge constitutes the fi nal judgment of the district court in this case. -2- argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff Glen Luna appeals from an order of the di strict court 1 granting defendant’s motion to dismiss or, in the alternativ e, 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 fo r the FBI, violated his Fourth Amendment right to be free from warrantless seizure s 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 anopportunity 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 grante d the motion holding that the procedures established by Oklahoma law both for obt aining stolen property from a licensed pawn broker and for returning stolen prope rty do not apply to federal-3-

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 jud gment de novo. When a defendant asserts qualified immunity in a summary judgment context, we apply special rules to determi ne whether the motion was properly granted or denied. We must fir st ask if a plaintiff has asserted the violation of a constitut ional right at all, and then assess whether that right was clearly establis hed at the time of a defendant’s actions. Thus, to avoid summary judgme nt on qualified immunity grounds, a plaintiff must present facts wh ich if true would constitute a violation of clearly established law. Whether an asserted federal right was clearly established at a particul ar time presents a question of law that must be resolved de novo on ap peal. Taylor v. Meacham , 82 F.3d 1556, 1559 (10th Cir. 1996)(quotations an d citations omitted). The law prohibiting unreasonable warrantless seizur es 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 th at 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 C ommissioners , 4 F.3d 848 (10th Cir. 1993), cert. denied , 114 S. Ct. 1539 (1994), for the proposition that-4-

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” l aw 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 f ound to exist. Mr. Luna did not contest defendant’s motion to dism iss or for summary judgment as to his second issue that his due proces s rights were waived. We consider that issue conceded before the district co urt 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 fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge