                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 23 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    ANN HENRY,

                Plaintiff - Appellant,

    v.                                                   No. 01-2297
                                                 D.C. No. CIV-00-719 JC/KBM
    ALBUQUERQUE POLICE                                 (D. New Mexico)
    DEPARTMENT; OFFICER D. L.
    HANSEN; NEW MEXICO MOTOR
    VEHICLE DIVISION,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before HENRY and HOLLOWAY , Circuit Judges, and               BRORBY , Senior
Circuit Judge.


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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



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      This order and judgment is not binding precedent, except under the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

      Patrolling in his police car near midnight on May 29, 1999, Officer D. L.

Hansen of the Albuquerque Police Department noticed that Ann Henry’s pickup

truck had no license plate. Officer Hansen signaled his lights and stopped Ms.

Henry. When Officer Hansen searched her driving record on his patrol car

computer, he discovered that her license had been suspended. Officer Hansen

ordered Ms. Henry out of her truck and called a tow truck to impound the vehicle.

After seeing the tow truck arrive, Ms. Henry attempted to re-enter her truck.

Officer Hansen grabbed her by the arms and legs and removed her. She claims, in

addition, that he punched her in the face, a blow that fractured her nose.

      Ms. Henry alleges that the New Mexico Department of Motor Vehicles

supplied Officer Hansen with what she calls false and derogatory information

about her driving record. She contends that the information violated her

constitutional rights. She also alleges that Officer Hansen used excessive force in

removing her from her truck. Proceeding pro se, she brought six claims, most of

them asserted against the defendants collectively. Some of these claims arise

under criminal statutes; several others, rooted in the post-Civil War statutes,

allege a large-scale conspiracy to violate her constitutional rights; and finally,

against Officer Hansen alone, she brought a 42 U.S.C. § 1983 claim and another




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titled “Negligence resulting in violation of Civil Rights.”        See “Complaint for

Damages,” R. Doc., Vol. I at 3-4.



                II. CLAIMS DISMISSED ON RULE 12(b)6 MOTION

       The district court dismissed most of Ms. Henry’s claims on separate

motions to dismiss filed by the defendants under Fed. R. Civ. P. 12(b)(6).

The court did so correctly. First, with respect to the claims arising under

18 U.S.C. §§ 241 and 242, the court ruled that these criminal statutes, like other

such statutes, do not provide for a private civil cause of action. This holding rests

on settled law from this and other circuits.         See Newcomb v. Ingle , 827 F.2d 675,

677 n.1 (10th Cir. 1987) (noting § 241 does not authorize private right of action);

Cok v. Cosentino , 876 F.2d 1, 2 (1st Cir. 1989) (same to both §§ 241 and 242).

Moreover, 18 U.S.C. § 1505, which Ms. Henry also asserts as a basis for a claim,

is not only a criminal statute, it appears to bear no relevance to the underlying

events. The statute prohibits efforts to impede the investigation of any federal

agency or congressional committee.

       Next, after engaging in the familiar arm-of-the-state analysis, the district

court ruled that the Department of Motor Vehicles was a state agency and

therefore entitled to Eleventh Amendment immunity. The court acknowledged

and applied the two factors that inform the question whether a defendant agency


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is an arm of the state for purposes of the Eleventh Amendment: the degree of

autonomy given to the agency under state law and the amount of funding it

receives from the state treasury.    See V-1 Oil Co. v. Utah State Dep’t of Pub.

Safety , 131 F.3d 1415, 1420 n.1 (10th Cir. 1997). The court then turned to the

claims against the municipal defendants and ruled that Ms. Henry offered no

allegations of an unconstitutional policy or custom. Consequently, the district

court noted, there could be no § 1983 liability against the city.       See Monell v.

N.Y. City Dep’t of Soc. Servs. , 436 U.S. 658, 690 (1978).      1
                                                                    With respect to both

its Eleventh Amendment analysis and its municipal liability analysis, we find no

error in the court’s reasoning.

       Additionally, the district court rejected the various claims alleging a

conspiracy to deprive Ms. Henry of her civil rights, largely because her complaint

lacked sufficient factual allegations to support a conspiracy. This ruling, we

conclude, was also correct.




1
       We note that Ms. Henry did not sue any municipal entity per se. She did,
however, sue Officer Hansen in his official capacity, which is equivalent to suing
the City of Albuquerque, his true employer. She also sued the Albuquerque
Police Department. The district court properly relied on an unpublished decision
from this court holding that the Albuquerque Police Department lacks a legal
identity apart from the City of Albuquerque.  See Ketchum v. Albuquerque Police
Dep’t , No. 91-2200, 1992 WL 51481, at ***2 (10th Cir. Mar. 12, 1992).

                                             -4-
        III. CLAIMS ON WHICH OFFICER HANSEN WAS GRANTED
             SUMMARY JUDGMENT

      The rulings on the defendants’ motions to dismiss left only the two claims

asserted against Officer Hansen individually. The district court later granted him

summary judgment. First, it rejected Ms. Hansen’s “negligence” civil rights

claim, ruling that a negligent act does not violate the constitution. This was a

proper application of Supreme Court precedent.    See Daniels v. Williams , 474

U.S. 327, 330 (1986).

      Next, the court held that Officer Hansen was entitled to qualified immunity

on Ms. Henry’s § 1983 claim. The court began its analysis by acknowledging the

strict two-step test a plaintiff must pass whenever a defendant raises the qualified

immunity defense:

      First, the plaintiff must demonstrate that the defendant’s actions
      violated a constitutional or statutory right. Second, the plaintiff must
      show that the constitutional or statutory rights the defendant
      allegedly violated were clearly established at the time of the conduct
      at issue.

Nelson v. McMullen , 207 F.3d 1202, 1206 (10th Cir.2000) (quotation omitted).

The court accepted that Ms. Henry, who contended that Officer Hansen’s actions

violated the general prohibition on the use of excessive force, had met her first

burden, but ruled that she did not meet her second.

      Specifically, the court stated that “there is no evidence in the record that

the force with which Defendant Hansen removed Plaintiff from her truck was

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excessive,” R. Vol. I, Doc. 59 at 8, and that it could “find[ ] no evidence to

support Plaintiff’s allegations that Defendant Hansen used his fist to assault her.”

Id. at 9. “Accordingly, the Court determines that there is no evidence in the

record that the force used by Defendant Hansen was constitutionally excessive.”

Id. This seems to reflect the court’s belief that Ms. Henry failed to present

evidence showing that the level of force applied by Officer Hansen violated

clearly established law.

      We review a grant of qualified immunity on summary judgment de novo,

and we regard the evidence in the light most favorable to Ms. Henry.    Davis v.

Gracey , 111 F.3d 1472, 1478 (10th Cir. 1997). Contrary to the district court’s

view, we conclude that evidence presented by Ms. Henry, when viewed in a light

most favorable to her, raises a disputed issue of fact concerning whether Officer

Hansen applied excessive force.

      In his affidavit submitted to the district court in support of his motion for

summary judgment, Officer Hansen did not deny that he grabbed Ms. Hansen by

her legs and arms in an effort to remove her from the pickup truck. He explained

that this use of force was necessary to prevent her from fleeing in a vehicle that

he had determined must be impounded. He further explained that she had become

verbally abusive after he ordered her out of the truck and told her that the truck




                                           -6-
was to be towed to an impound lot. However, he denied striking Ms. Henry in the

face with his fists.   See R. Vol. 1, Doc. 44, Ex. A.

       Ms. Hansen answered Officer Hansen’s contentions by attaching her own

affidavit to her response to the officer’s summary judgment motion. That

affidavit contradicted Officer Hansen’s claims. It alleged that as she sat in the

truck, with her legs outside the cab, Officer Hansen “grab[bed] my leg to pull me

out of the truck. I got my leg   free ( . . . I did not [kick him])   and then he

grabbed my arm, pulled me out of the truck and punche[d] me in the face.”           Id. ,

Doc. 47 (“Affidavit of Ann L. Henry,” para. 6) (emphasis in original). She also

attached to her response a report from a radiologist dated six days after the event,

which found a “[s]mall non-displaced fracture at the tip of [Ms. Henry’s] nasal

bone.” Id. , Doc. 47, Exhibit A. Noting that Ms. Henry complained that she had

been “[h]it in the face,” the report indicated the presence of a lump at the bridge

of her nose. Id.

       As we view this evidence, it is simply not the case that Ms. Henry failed to

present evidence showing the use of excessive force. This is especially true given

what Officer Hansen did     not argue before the district court. He did not rest his

immunity defense on any claim, either in the first instance or as an alternative

argument, that even if he did in fact strike Ms. Henry in the face, his actions were

objectively reasonable given the rapidly unfolding and volatile circumstances he


                                             -7-
confronted. Instead, he flatly denied her primary assertion: that with little

provocation and no apparent justification he punched her in the face, fracturing

her nasal bone. Thus he did not seek the generous shelter the Supreme Court has

given officers who use force during an arrest of a suspect. That is, to defeat a

qualified immunity defense in an excessive force case, a plaintiff must show not

just that the officer used an unreasonable level of force, but also that the force he

did use was more than the result of a mistaken understanding of the level of force

necessary under the circumstances.    See Saucier v. Katz , 533 U.S. 194, 205

(2001). Officer Hansen simply denied that he used the type and level of force

that Ms. Henry accused him of using. While this may well prove to be a valid and

effective defense at trial, it is not a qualified immunity defense. It is not a claim

that what he did was reasonable given the circumstances, nor is it a claim that he

was mistaken, but not unreasonably so, as to the amount of force that was

appropriate. See id. Rather, it amounts to no more than a general denial that

Officer Hansen used what would be, if proven, excessive force. As such, Officer

Hansen is not entitled to qualified immunity.




                                          -8-
     The judgment of the United States District Court for the District of

New Mexico is AFFIRMED in part and REVERSED in part, and the cause is

REMANDED for further proceedings consistent with this order and judgment.


                                                  Entered for the Court



                                                  William J. Holloway, Jr.
                                                  Circuit Judge




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