                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 27, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    WILLIAM GENE EATON,

                Plaintiff-Appellant,

    v.                                                   No. 07-6262
                                                 (D.C. No. 5:06-CV-00566-M)
    JOHN WHETSEL,                                       (W.D. Okla.)
    Oklahoma County Sheriff,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.



         Prisoner William Gene Eaton appeals pro se from the district court’s

summary-judgment order, which ended his 42 U.S.C. § 1983 case against




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Oklahoma County Sheriff John Whetsel. 1 We exercise jurisdiction under

28 U.S.C. § 1291, and we affirm.

                                    B ACKGROUND

         In September 1998, the Federal Bureau of Investigation arrested Eaton for

bank robbery as he stopped his getaway car, a Buick Regal, at an intersection in

Oklahoma County, Oklahoma. Deputies of the Oklahoma County Sheriff’s

Department impounded the Buick and inventoried its contents. Ragsdale’s

Wrecker Service then towed the Buick to its private impound lot. In November

1998, after sending notice to Eaton’s home address and publicly posting notice,

Ragsdale’s discarded the Buick’s contents and sold the vehicle to recover its

costs.




1
       The caption of Eaton’s amended complaint lists Sheriff Whetsel, Cindy
Ragsdale and the Oklahoma County Sheriff’s Department as defendants. But
Ragsdale is not a party to this case because she was not properly served. See
Kane Enters. v. MacGregor (USA) Inc., 322 F.3d 371, 374 n.1 (5th Cir. 2003)
(noting that for appellate jurisdictional purposes, an improperly served defendant
is treated as not being before the district court); see also Bristol v. Fibreboard
Corp., 789 F.2d 846, 847 (10th Cir. 1986) (observing that unserved defendants
never become parties to a lawsuit). And the Department appears to have been
included only to show Sheriff Whetsel’s place of employment—there are no
allegations that the Department committed any wrongdoing. See Winters v. Bd. of
County Comm’rs, 4 F.3d 848, 855 (10th Cir. 1993) (stating that in order for a
sheriff’s department “to be liable under § 1983 the constitutional violation must
be a result of a government custom or policy” or a “failure to train [that] amounts
to deliberate indifference to the rights of persons with whom the police come into
contact” (quotation omitted)). The district court viewed the Department as a non-
party and we see nothing contradicting that view.

                                          -2-
      In September 2003, Eaton sued Sheriff Whetsel in state court. The case

was later removed to federal court. Eaton alleged that his federal constitutional

rights were violated by the search, seizure, and sale of his Buick, the destruction

of his personal property, and his arrest. He also claimed that his Buick had been

converted in violation of Oklahoma law. Eaton’s basis for suing Sheriff Whetsel

was his role as the supervisor of the deputies who arrived after his arrest,

impounded the Buick, inventoried its contents, and turned it over to Ragsdale’s.

      A magistrate judge recommended that Sheriff Whetsel be granted summary

judgment because it was undisputed that he did not (1) participate in any of the

alleged constitutional violations, (2) direct the violations, or (3) cause them to

occur by a failure to supervise subordinates. Indeed, Eaton failed to controvert

Sheriff Whetsel’s affidavit assertion that he had no involvement in Eaton’s arrest

and “had no specific knowledge of the impoundment, inventory, or sale of

Eaton’s vehicle or the destruction of its contents until being served with the

summons in th[is] case.” R., Doc. 41, Ex. 2 at 1-2 (Aff. of Sheriff Whetsel). As

for Eaton’s state-law conversion claim, the magistrate judge concluded that it

failed because the deputies lawfully assumed dominion and control over the Buick

pursuant to the department’s impoundment policy. The district court adopted the

magistrate judge’s report and recommendation over Eaton’s objections, and

granted Sheriff Whetsel summary judgment.

      Eaton appeals.

                                          -3-
                                    D ISCUSSION

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

the same standards as the district court. Timmerman v. U.S. Bank, N.A., 483 F.3d

1106, 1112 (10th Cir. 2007). Summary judgment is appropriate only if the record

“show[s] that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the

facts in the light most favorable to the nonmoving party. Habecker v. Town of

Estes Park, Colo., 518 F.3d 1217, 1223 (10th Cir. 2008). Finally, we construe the

filings of a pro se plaintiff liberally. See Whitney v. New Mexico, 113 F.3d 1170,

1173-74 (10th Cir. 1997).

                                 I. 42 U.S.C. § 1983

      “In order to establish a § 1983 claim against a supervisor for the

unconstitutional acts of his subordinates, [the] plaintiff must first show [that] the

supervisor’s subordinates violated the constitution.” Serna v. Colo. Dep’t of

Corr., 455 F.3d 1146, 1151 (10th Cir. 2006). Then, the plaintiff must show that

the supervisor actively participated or acquiesced in that violation. Id. at 1152-

53. Acceptable evidence of participation or acquiescence includes “the

supervisor’s personal participation, his exercise of control or direction, or his

failure to supervise.” Id. at 1152 (quotation omitted). A supervisor’s tacit

authorization of the unconstitutional acts will also create liability. Id. at 1153.




                                          -4-
But supervisory liability will not arise upon the “mere right to control

employees.” Id. (quotation omitted).

      Even if we assume that Eaton’s constitutional rights were violated by

Sheriff Whetsel’s deputies, the undisputed evidence shows that Sheriff Whetsel

did not authorize, participate in, or acquiesced in those violations. On appeal,

Eaton fails to direct our attention to any evidence on this point, and instead he

focuses on the fact that Sheriff Whetsel, as a supervisor, exercised “full control of

his deputies.” Aplt. Br. at 4. As noted above, however, supervisory liability

under § 1983 requires “active unconstitutional behavior,” not just the right to

control. Serna, 455 F.3d at 1153 (quotation omitted).

      Accordingly, for the same reasons given by the magistrate judge, we

conclude that summary judgment was appropriate on Eaton’s § 1983 claims.

                                   II. Conversion

      Oklahoma law defines the tort of conversion as “any act of dominion

wrongfully exerted over another’s personal property in denial of or inconsistent

with his rights therein.” Welty v. Martinaire of Okla., Inc., 867 P.2d 1273, 1275

(Okla. 1994). Sheriff Whetsel’s deputies did not wrongfully exert dominion over

Eaton’s Buick. A law enforcement officer can have a vehicle towed from the

roadway and impounded when the driver is arrested for an offense such as bank

robbery. See Okla. Stat. Ann. tit. 47, § 955(A)(3); Starks v. State, 696 P.2d 1041,

1042 (Okla. Crim. App. 1985).

                                          -5-
      Thus, summary judgment was appropriate on Eaton’s conversion claim.

                                    C ONCLUSION

      The judgment of the district court is AFFIRMED for substantially the same

reasons given by the magistrate judge in his July 18, 2007 Report and

Recommendation.

      Eaton’s motion to proceed on appeal in forma pauperis is GRANTED, and

he is reminded of his continuing obligation to make partial payments until he has

paid the filing fee in its entirety. Eaton’s request for reconsideration of this

court’s order establishing the deduction of appellate fees from his prison account

is DENIED. See 28 U.S.C. § 1915(b).

      Eaton’s motion for default judgment is DENIED.

      Eaton’s motion for leave to supplement his appellate arguments is

GRANTED. We have considered his supplemental arguments and found them

lacking in merit.

      Eaton’s two motions for review of this court’s jurisdictional order

observing that Cindy Ragsdale and Ragsdale’s Wrecker Service were not parties

in the district court is DENIED. See supra note 1.

      Finally, Eaton’s motion for an extension of time so that he may “appeal”




                                          -6-
this court’s order and judgment is DENIED. The proper forum for such a motion

is the United States Supreme Court. See Sup. Ct. R. 30.

                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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