* This order and judgment is not binding precedent, e xcept under the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

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

### NOV 21 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

SHIRLEY MAXEY,

Plaintiff-Appellant,

v. FAYE BANKS; STEVE EASON; SHANE FRIX; POLICE DEPARTMENT OF THE CITY OF MUSKOGEE,

Defendants-Appellees. No. 00-7137 (D.C. No. 99-CV-259-B) (E.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , 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 oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Shirley Maxey, proceeding pro se, appeals the district court’s order granting summary judgment to defendants Faye Banks, Steve Eason, Shane Frix, and the Police Department of the City of Musk ogee. Plaintiff also appeals the district court’s order denying her amended moti on to reconsider. Our jurisdiction arises under 12 U.S.C. § 1291. We aff irm.

I. Plaintiff is a black resident of Muskogee, Oklahoma . Defendants Banks, Eason, and Frix are police officers employed by the Police Department of the City of Muskogee. Plaintiff filed suit against defendants under 42 U.S.C. § 1983, claiming that they failed to properly inves tigate the shooting death of her son because he was black. Plaintiff claims that de fendants thereby violated her rights to due process and equal protection because they failed to provide her with the same type of police services that are provided to other residents of Muskogee. Plaintiff also claims that the police department ha d a policy and custom of failing to properly investigate the deaths of black residents, and she has asserted a separate claim under § 1983 against the City of Mus kogee for municipal liability. The district court entered summary judgment in favo r of defendants on all of plaintiff’s claims, finding that the individual def endants are entitled to qualified immunity with respect to plaintiff’s due process an d equal protection claims and-3-

that plaintiff failed to put forth sufficient evide nce to establish that the police department had a policy or custom of failing to inv estigate the deaths of blacks.

II. “We review the grant . . . of summary judgment de n ovo, applying the same legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c).” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation om itted). Summary judgment is appropriate “if the pleadings, depositi ons, answers to interrogatories, and admissions on file, together with the affidavit s, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). “When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Kaul, 83 F.3d at 1212 (quotation omitted). However, because the party opposing a motion for summary judgment must set forth “specific facts” to defeat the motion, Fed. R. Civ. P. 56(e), “[u]nsupported conclusory allegation s . . . do not create a genuine issue of fact.” L&M Enters., Inc. v. BEI Sensors & Sys. Co. , 231 F.3d 1284, 1287 (10th Cir. 2000). As set forth above, the district court entered summ ary judgment in favor of the individual defendants based on their qualified immunity. “Because of the underlying purposes of qualified immunity, we revie w summary judgment orders-4-

deciding qualified immunity questions differently f rom other summary judgment decisions.” Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001). Most importantly, “[a]fter a defendant asserts a qualifi ed immunity defense, the burden shifts to the plaintiff,” and “[t]he plaintiff mustfirst establish that the defendant’s actions violated a constitutional or statutory right.” Id. (quotation omitted). If the plaintiff fails to satisfy this threshold burde n, the inquiry ends, and the defendant is entitled to summary judgment. Id.

III. For the reasons set forth below, we affirm: (1) the district court’s entry of summary judgment in favor of defendants on plaintif f’s due process, equal protection, and municipal liability claims; (2) the district court’s denial of plaintiff’s request under Fed. R. Civ. P. 56(f) fora continuance to conduct additional discovery; (3) the district court’s deni al of plaintiff’s motion to compel certain discovery; and (4) the district court’s den ial of plaintiff’s amended motion to reconsider. 1. Due Process, Equal Protection, and Municipal Li ability Claims Plaintiff does not have a federal due process rightto a police investigation. See DeShaney v. Winnebago County Dep’t of Soc. Serv. , 489 U.S. 189, 195-97 (1989) (holding that Due Process Clause generally d oes not impose affirmative1 There are two recognized exceptions to this rule: f irst, where a governmental actor creates the danger to which a ci tizen is exposed; and second, where a special custodial relationship is created between state and citizen. Armijo v. Wagon Mound Pub. Sch. , 159 F.3d 1253, 1260 (10th Cir. 1998). Neither of these exceptions apply here. -5- duty on states to aid or protect their citizens). 1 It is well established, however, that local municipalities and individual police off icers violate the Equal Protection Clause if they selectively discriminate against racial minorities in providing police protection or services. Id. at 197 n.3; Watson v. City of Kan. City, 857 F.2d 690, 694 (10th Cir. 1988). Nonetheless, p laintiff has failed to put forth sufficient evidence to support her claim thatdefendants failed to properly investigate her son’s death because of his race, an d defendants were therefore entitled to summary judgment on plaintiff’s equal protection claim. See Gomez v. Whitney , 757 F.2d 1005, 1006 n.1 (9th Cir. 1985) (affirmin g entry of summary judgment against plaintiff on claim that local poli ce department performed inadequate investigation of son’s death where plaintiff failed to show that alleged failure to investigate was motivated by son’s race as required to prove equal protection violation). “Proof of racially discriminatory intent or purpose is required to demonstrate a race-based violation of the Equal Protection Clause,” Villanueva v.
Carere , 85 F.3d 481, 485 (10th Cir. 1996), and “a plainti ff in an equal protection action has the burden of demonstrating discriminatory intent,” Watson , 857 F.2d2 Plaintiff alleges that, immediately after her son’s death, the individual

defendants interrogated the three juveniles who wer e with her son at the time of the shooting without their parents or a lawyer bein g present. According to plaintiff, defendants thereby violated the juvenile s’ constitutional rights and any evidence obtained from them was rendered inadmissib le. -6- at 694. Although “[t]he discriminatory purpose nee d not be the only purpose, . . . it must be a motivating factor in the decision.” Villanueva, 85 F.3d at 485 (quotation omitted). Thus, to survive summary judg ment, plaintiff must go beyond the allegations in her pleadings, and she mu st set forth specific facts showing that race was a motivating factor in defend ants’ alleged failure to properly investigate her son’s death. See Watson , 857 F.2d at 694. Plaintiff has failed to meet this burden. In fact, plaintiff alleges that the

“ true reason and motive ” for the individual defendants’ failure to conducta proper investigation of her son’s death was the fac t that they were attempting to cover up the fact that they botched the investigation. See plaintiff’s Opening Brief at 3 (emphasis added). 2Even if this allegation is true, the officers’ co nduct was not a violation of plaintiff’s right to equal p rotection unless there was also a racially motivated animus, and plaintiff has failedto put forth such evidence. Instead, plaintiff’s equal protection claim is base d solely on her own conclusory and unsupported allegations, and she has failed to put forth any admissible evidence showing that the individual defendants purposefully failed to properly3 An autopsy was not performed on plaintiff’s son pri or to his burial, and

plaintiff alleges that the individual defendants co nspired to prevent an autopsy from being performed so that the true cause of her son’s death would not be determined. As part of the alleged conspiracy, pla intiff asserts that defendants violated Oklahoma law by failing to report her son’ s death to the state medical examiner and by convincing her son’s treating physi cian not to report his death to the state medical examiner. However, defendants’ a lleged violations of state law cannot, standing alone, form the basis for a § 1983 claim. See Jones v. City & County of Denver , 854 F.2d 1206, 1209 (10th Cir. 1988). In additio n, while plaintiff has pointed out several other deficiencie s and inconsistencies with respect to the investigation into her son’s death ( i.e. , failure to immediately interview certain witnesses, eventual negative gun residue test for her son’s hands, and inconclusive reopening of the investigat ion), these circumstantial factors, without more, do not raise a palpable infe rence of racial discrimination.

4 Plaintiff also asserted a conspiracy claim against the individual defendants, but the district court found that plaintiff’s consp iracy claim fails under either § 1983 or § 1985. We agree. To establish an actio nable conspiracy under § 1985(3), plaintiff must prove that the conspiracywas motivated by “some racial or otherwise class-based discriminatory animus.” See Dixon v. City of Lawton , 898 F.2d 1443, 1447 (10th Cir. 1990) (quotation omi tted). Plaintiff has failed to establish such an animus, and her § 1985 conspiracyclaim therefore fails. To establish an actionable conspiracy under § 1983, pl aintiff must prove that defendants conspired to deprive her of a constituti onal or federally protected right. See id. at 1449 n.6. Plaintiff has failed to establish any such deprivation, (continued...) -7- investigate her son’s death because of his race. 3 Plaintiff has also failed to put forth any admissible evidence showing that the Cityof Muskogee, through its police department, had a general policy or custom o f not properly investigating crimes involving black victims as is required to es tablish a § 1983 claim for municipal liability. See Watson , 857 F.2d at 695. Accordingly, we agree with the district court that defendants were entitled to summary judgment on plaintiff’s equal protection and municipal liability claims. 44 (...continued)

and her § 1983 conspiracy claim also fails.

-8- 2. Rule 56(f) The district court construed a statement in plainti ff’s response to defendants’ motion for summary judgment as a reques t for a continuance to conduct additional discovery under Fed. R. Civ. P. 56(f), but the court denied the request. We review the district court’s denial of plaintiff’s Rule 56(f) motion for an abuse of discretion. See Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1553 (10th Cir. 1993). We agree with th e district court’s analysis under Rule 56(f), and we hold that the district cou rt did not abuse its discretion in denying plaintiff’s motion. 3. Plaintiff’s Motion to Compel Plaintiff claims that defendants have engaged in a conspiracy to conceal information by failing to fully respond to her disc overy requests. She also claims prejudice resulting from the district court’s failure to rule on a motion to compel. Specifically, plaintiff claims that the district co urt erred by failing to order defendants to produce: (1) the results of all the g un residue tests that were performed on the three juveniles who were with her son at the time of the shooting; (2) registration and ownership records fo r the gun used in the shooting and for another gun found at the scene; (3) the res ults of any fingerprint tests that5 We also disagree with plaintiff’s claim that defend ants failed to produce the

results of all the gun residue tests that were perf ormed on the three juveniles. As

(continued...) -9- were performed on the guns; and (4) the police department’s investigative files pertaining to the deaths of two other black residents of the City of Muskogee. We will treat the district court’s inaction on plainti ff’s motion to compel as an implicit denial, which we review for an abuse of discretion. See Munoz v. St. Mary-Corwin Hosp. , 221 F.3d 1160, 1169 (10th Cir. 2000). The district court did not abuse its discretion in denying plaintiff’s motion to compel. First, in her capacity as an officer of the district court and subject to the requirements of Fed. R. Civ. P. 11, defendants’ counsel represented to the district court that defendants had produced the pol ice department’s entire investigative file on the death of plaintiff’s son. Absent a specific showing of wrongdoing, the district court did not abuse its di scretion by relying on counsel’s representation. Although there may have been addit ional relevant investigatory materials in the possession of other entities such as the Muskogee County District Attorney’s Office or the Oklahoma State Bureau of I nvestigation, it was plaintiff’s obligation to request any such material s directly from these entities by means of a subpoena duces tecum, and the district c ourt did not abuse its discretion in refusing to compel the production of any documents or other items that were not in defendants’ possession. 55 (...continued)

we read the record, a “Gunshot Residue Evidence Col lection Kit” was only used on Lonniel R. Carreathers, and the results of that test, which were obtained from the Oklahoma State Bureau of Investigation, were produced to plaintiff. See R., Vol. 1, No. 58, at DM0008-9, 28-29. The gun residu e testing that was done on the other two juveniles was performed by defendants Banks and Eason using a hand-held black light, and the results of those tes ts are set forth in the respective investigative reports, which were also produced to plaintiff. See id. at DM0008- 9, 15.

-10- Second, the materials requested by plaintiff only p ertain to the nature and quality of the investigation that was performed by defendants, and they do not, by themselves, have any direct relevance to the paramo unt issue in this case of whether plaintiff can prove racial discrimination. Thus, even assuming that defendants did not perform proper gun residue or fi ngerprint tests or properly investigate the ownership and registration of the g uns, plaintiff has failed to prove that these omissions occurred because her son was b lack. Finally, with respect to plaintiff’s request for th e investigative files pertaining to the deaths of two other black residents of Muskogee, this request was not reasonably calculated to lead to the discov ery of admissible evidence, given the fact that one of the deaths occurred in 1 980 and the other in 1982 or
1983.-11-

4. Order Denying Amended Motion to Reconsider The district court entered the judgment dismissing plaintiff’s claims on September 26, 2000. Plaintiff filed her amended mo tion to reconsider on October 10, 2000. Under Fed. R. Civ. P. 6(a), the motion was filed within ten days of the entry of judgment, and we therefore tre at the motion as a timely motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). See Hawkins
v. Evans , 64 F.3d 543, 546 (10th Cir. 1995) (holding that m otion to reconsider filed within ten days of district court’s entry of judgment is treated as Rule 59(e) motion); Advisory Committee Notes to 1995 Amendment s to Rule 59(e) (noting “that under Rule 6(a) Saturdays, Sundays, and legal holidays are excluded in measuring the 10-day period” for filing motion unde r Rule 59(e)). We review the district court’s denial of the Rule 5 9(e) motion for an abuse of discretion. See Wright v. Abbott Laboratories, Inc. , 259 F.3d 1226, 1232, 1235 (10th Cir. 2001). Under the abuse of discretion st andard, a trial court’s decision will not be disturbed unle ss the appellate court has a definite and firm conviction that the l ower court made a clear error of judgment or exceeded the bounds of p ermissible choice in the circumstances. That is to say, we will not alter a trial court’s decision unless it can be shown that the court’s de cision was an arbitrary, capricious, whimsical, or manifestly unr easonable judgment. Id. at 1236 (quotations omitted). Having carefully co nsidered the district court record, we see no abuse of discretion.-12-

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