                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAY 29 2002
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    LEN LARSON, doing business
    as Len Larson & Associates,

                Plaintiff - Appellant,

    v.                                                 No. 01-1301
                                                   (D.C. No. 98-B-2134)
    CITY OF DENVER, a municipal                       (D. Colorado)
    corporation; DANIEL E. MUSE,
    individually and as the City Attorney
    for the City of Denver; DAVID L.
    MICHAUD, individually and as the
    Chief of Police for the City of Denver;
    TOM SANCHEZ, individually and as
    Deputy Chief of Operations for the
    City of Denver Police Department,

                Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and      BRISCOE ,
Circuit Judge.




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      This order and judgment is not binding precedent, except under the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

       Plaintiff Len Larson operates a pawn shop in Denver, Colorado. Plaintiff

filed suit against defendants under 42 U.S.C. § 1983, alleging that defendants

violated his constitutional rights by unlawfully seizing and disposing of jewelry

from his pawn shop on five separate occasions between 1993 and 1998.

Specifically, plaintiff alleged that: (1) defendants seized the jewelry without

a warrant in violation of the Fourth Amendment; (2) defendants disposed of the

seized jewelry without a hearing in violation of his right to procedural due

process under the Fourteenth Amendment; and (3) the applicable provisions of the

City of Denver’s Municipal Code regulating pawn shops are unconstitutional both

on their face and as applied to him.

       Plaintiff moved for partial summary judgment on his procedural due

process claim, and defendants moved for summary judgment on all of plaintiff’s

claims. In a well-reasoned order entered on May 24, 2001, the district court

denied plaintiff’s motion and entered summary judgment in favor of defendants

on the grounds that:




                                           -2-
      1. Plaintiff’s claims relating to the seizure that occurred in December 1993

are time barred, as plaintiff has conceded on appeal;

      2. With respect to the other four seizures, although plaintiff had a putative

property interest in the seized jewelry, his right to procedural due process was not

violated because, under the applicable provisions of the City of Denver’s

Municipal Code, he had the right to request a court hearing regarding the

disposition of the jewelry, but he failed to request such a hearing despite having

notice of his right to such a hearing;

      3. With respect to the seizure that occurred in May 1995, plaintiff’s Fourth

Amendment claim is time barred;

      4. With respect to the seizure that occurred in March 1997, defendants did

not violate the Fourth Amendment because the jewelry was seized pursuant to a

warrant and plaintiff failed to put forth any evidence showing that the warrant

was unlawful;

      5. With respect to the seizures that occurred in June 1997 and February

1998, defendants did not violate the Fourth Amendment because plaintiff

consented to the seizures and: (a) even if his consent to the seizures was

procured by the participating officers using unlawful threats, there is no evidence

that any of the named individual defendants personally participated in the

threatening conduct, either directly or in a supervisory capacity; and (b) there is


                                          -3-
no basis for imposing municipal liability against the City of Denver since there is

no evidence that the Denver Police Department had a policy or custom of using

threats to obtain permission to conduct warrantless seizures at pawn shops;

       6. Because there is no basis for imposing municipal liability against the

City of Denver, the individual defendants are entitled to summary judgment with

respect to plaintiff’s official capacity claims; and

       7. The applicable provisions of the City of Denver’s Municipal Code

regulating pawn shops, and the district and local court rules incorporated by

reference therein, are not unconstitutional, either on their face or as applied to

plaintiff, because: (a) they require that police officers must have a warrant or

consent to seize property from a pawn shop; (b) they provide that pawn brokers

may obtain a hearing regarding the seized property if a request for a hearing is

made within twenty days of the seizure; and (c) plaintiff had notice that he had

the right to request a hearing regarding the jewelry seized from his pawn shop,

but he failed to request such a hearing on each of the occasions at issue.

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

“applying the same legal standard used by the district court. Summary judgment

is appropriate if there is no genuine issue as to any material fact and the moving

party is entitled to a judgment as a matter of law.”   United States v. Simons ,

129 F.3d 1386, 1388 (10th Cir. 1997) (citations omitted). Having carefully


                                             -4-
reviewed the record on appeal, the parties’ briefs, and the pertinent case law,

we agree with the district court’s analysis and its conclusions. Accordingly, we

affirm the entry of summary judgment in favor of defendants for substantially the

same reasons set forth in the order entered by the district court on May 24, 2001.

      AFFIRMED.


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                         -5-
