                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          July 25, 2006
                              FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                          Clerk of Court

    R OY L. JA CK SO N ,

               Plaintiff-Appellant,

      v.                                               Nos. 05-5050, 05-5225
                                                      (D.C. No. 04-CV-420-K)
    JA M ES LO FTIS; D A RLEN E                             (N . D. Okla.)
    CRU TCH FIELD; TULSA C OU NTY
    and TULSA C OU NTY
    CO M M ISSIONERS,

               Defendants-Appellees.




                               OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.




           Plaintiff Roy L. Jackson was arrested by defendant James Loftis, a state

patrolm an, and charged w ith tw o traffic offenses and obstructing an officer. He

later pled nolo contendere to the charges before defendant Darlene Crutchfield,


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Special District Judge for the Tulsa County District Court, who imposed fines and

a six-month deferred sentence. Plaintiff then brought this civil rights suit under

42 U.S.C. § 1983, broadly claiming that the charges against him were false and

served as a pretext for racial profiling. M ore specifically as to Judge Crutchfield,

plaintiff alleged that she had informed him, erroneously, that a jury trial on the

charges would be scheduled on November 21, 2003, prompting his plea on that

date. H e also sought to impute responsibility for Judge Crutchfield’s actions to

defendants Tulsa County and Tulsa County Commissioners on agency principles.

The district court dismissed the case against Judge Crutchfield based on absolute

judicial immunity. It later granted summary judgment to the County defendants

for lack of an agency relationship w ith Judge Crutchfield, and dismissed the case

against Officer Loftis as barred under Heck v. Humphrey, 512 U.S. 477 (1994).

Plaintiff commenced appeal No. 05-5050 following the entry of final judgment on

M arch 29, 2005, and later filed appeal No. 05-5225 after the denial of a motion

for relief from judgment under Fed. R. Civ. P. 60(b).

      Before addressing the merits, we clarify a procedural point that has led to

confusion in the Attorney General’s briefing on behalf of Officer Loftis. The

Attorney General insists that plaintiff’s arguments regarding the application of

Heck to his claim against Officer Loftis are jurisdictionally misdirected, in that

the only appeal touching on that part of the case is from the denial of plaintiff’s

Rule 60(b) motion and such an appeal brings up for review “only the . . . order

                                          -2-
denying the motion, and not the underlying decision itself,” Servants of the

Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). But plaintiff’s first

appeal, from the entry of final judgment, suffices to put before us all prior orders.

See, e.g., M ontgomery v. City of Ardm ore, 365 F.3d 926, 934 (10th Cir. 2004).

Thus, we have jurisdiction to review the initial order dismissing the case against

officer Loftis in addition to the subsequent order denying plaintiff’s motion for

Rule 60(b) relief relating to the same order.

                          Dismissal of Judge Crutchfield

      Plaintiff argues that his claim against Judge Crutchfield should not have

been dismissed on the basis of judicial immunity for two reasons: (1) judicial

immunity bars only damage claims and his pleadings sought equitable relief as

well as damages; and (2) judicial immunity does not apply to actions taken

without jurisdiction and Judge Crutchfield, as a Special District Judge, lacked

authority under state law to set a trial date in his case. W e need not delve into

these matters of remedy and judicial duties, however, as we hold that plaintiff

could not state a colorable claim based on the conduct of Judge Crutchfield in any

event. He cites no authority, and we are aware of none, to suggest that the mere

act of noticing a trial date setting for a pending state prosecution could constitute

a violation of the accused’s federal rights. Even if Judge Crutchfield somehow

erred or technically overstepped her authority under state law, “‘a violation of

state law alone does not give rise to a federal cause of action under § 1983.’”

                                          -3-
Whitesel v. Sengenberger, 222 F.3d 861, 873 (10th Cir. 2000) (quoting M alek v.

Haun, 26 F.3d 1013, 1016 (10th Cir. 1994)).

                   Summary Judgment for County Defendants

      The district court held that the Tulsa County defendants could not be held

liable for actions taken by Judge Crutchfield, because the judge was a state, not a

Tulsa County, employee. This legal point is supported by both constitutional and

statutory provisions, which reflect that compensation and oversight of district

judges is effected at the state level. See Okla. Const. Art. VII, § 11(a) (directing

that district judges shall be paid by state unless legislature provides otherw ise);

Okla. Stat. Ann. tit. 20, § 92.1A (codifying state legislature’s specification of

district judge salaries); Okla. Const. Art. VII, § 6 (vesting state supreme court

with general administrative authority over courts of state); cf. Okla. Const. Art.

XVII, § 2 (designating county officers, which include county judges but not

district judges). Plaintiff offers no contrary authority.

      Rather, he advances a meritless evidentiary argument, insisting that the

County’s summary judgment motion should have been denied “because it was

solely supported by affidavits of hostile & interested parties.” A plt. Opening Br.

(Appeal No. 05-5050) at 5. It is true that a court ruling on summary judgment

“‘must disregard all evidence favorable to the moving party that the jury is not

required to believe,’” Gossett v. Okla. ex re. Bd. of Regents for Langston Univ.,

245 F.3d 1172, 1175 (10th Cir. 2001) (quoting Reeves v. Sanderson Plumbing

                                          -4-
Prod., Inc., 530 U.S. 133, 151 (2000)), and, thus, a party is entitled to summary

judgment on a matter it must prove on the strength of its own evidence only if

such evidence “is uncontradicted and unimpeached . . . [and] comes from

disinterested witnesses,” Reeves, 530 U.S. at 151 (quotation omitted). But while

Judge Crutchfield, who probably cannot be characterized as disinterested, did

submit an affidavit for the County averring that she was a state employee, the

disposition of the County’s motion was in any event fully supported by the

controlling legal authority noted above (much of which was cited by the County

and relied on by the district court). In short, Judge Crutchfield’s affidavit was not

necessary to the success of the County’s motion and, hence, any objection to the

affidavit is immaterial to the ruling under review.

      M oreover, in light of our disposition of plaintiff’s claim against Judge

Crutchfield, there is an additional legal deficiency evident in his claim against the

County. W e have held that no colorable federal claim has been asserted against

the judge; consequently, no derivative claim against the County is possible. See

Livsey v. Salt Lake County, 275 F.3d 952, 958 (10th Cir. 2001).

                            Dismissal of O fficer Loftis

      Plaintiff alleged that Officer Loftis arrested him on false charges as a

pretext for racial profiling. The district court held these allegations implicated

the principle, established in Heck, that a § 1983 claim calling into doubt a

criminal conviction cannot be maintained unless and until the plaintiff has

                                          -5-
successfully challenged the affected conviction through habeas review. Noting

that five Justices indicated in Spencer v. Kemna, 523 U.S.1 (1998), that Heck

should apply only when habeas relief is actually available to the § 1983 plaintiff,

see Dible v. Scholl, 410 F. Supp 2d 807, 814-22 (N.D. Iowa 2006) (setting out

comprehensive discussion of Heck, Spencer, and subsequent case law), plaintiff

contends that the district court erred in applying Heck at a time when, given the

short duration of his deferred sentence, he could not have satisfied the custody

requirement for habeas jurisdiction. W hile there are some court decisions that

would appear to support this contention, see Dible, 410 F. Supp 2d at 822-23, and

some that w ould not, see id. at 820-22, this court has yet to address the matter,

see Jiron v. City of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004). And we

decline to do so here, as there is a patent legal deficiency evident from the

pleadings that obviates our consideration of Heck. 1 See generally Smith v. Plati,

258 F.3d 1167, 1174 (10th Cir. 2001) (noting that we may affirm on any legal

ground).



1
      W e also note that false arrest claims generally do not implicate Heck,
because improprieties in arrest typically do not undermine the validity of an
ensuing conviction. Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 558
(10th Cir. 1999); see Price v. Philpot, 420 F.3d 1158, 1163 n.3 (10th Cir. 2005).
However, given the particular nature of plaintiff’s claim – that his arrest was
improper because he had not committed the alleged offenses – this may be the
exceptional false arrest case that satisfies the “necessarily called into doubt”
condition for invoking Heck. Again, we need not resolve this point about the
applicability of Heck, in light of the facial legal insufficiency of plaintiff’s
pleadings.

                                          -6-
      The complaint recites that plaintiff was convicted of the charged offenses

based on his nolo contendere plea. In Oklahoma, a nolo contendere plea “has the

same legal effect as a guilty plea.” M organ v. State, 744 P.2d 1280, 1281 (Okla.

Crim. App. 1987); see also Burnham v. State, 43 P.3d 387, 389 n.1 (Okla. Crim.

App. 2002) (noting that “a plea of nolo contendere is the functional equivalent of

a plea of guilty”). Such a plea “admit[s] the validity of th[e] charges,” DeLong v.

State ex rel. Okla. Dep’t of Public Safety, 956 P.2d 937, 939 (Okla. Civ. App.

1998), and, thus, precludes a later assertion of factual innocence, Braun v. State,

937 P.2d 505, 514 n.15 (Okla. Crim. App. 1997). M ore to the point, a plea of

nolo contendere to criminal charges, and the consequent adjudication of guilt

thereon, estop the defendant from later disputing the validity of those charges as a

basis to deny the existence of probable cause for his arrest. Irwin v. SW O

Acquisition Corp., 830 P.2d 587, 590 (Okla. Civ. App. 1992); see DeLong, 956

P.2d at 938-39 (reaffirming Irw in). 2 There is a proscription on the use of nolo

contendere pleas in subsequent civil proceedings, see Okla. Stat. Ann. tit 12,

2
       W e concluded in Slayton v. Willingham, 726 F.2d 631, 634 (10th Cir.
1984), that Oklahoma w ould not give preclusive effect to a nolo contendere plea
to bar claims for illegal search, false arrest, and excessive force, but that was
without the benefit of Irw in and DeLong. M oreover, Slayton’s analysis focused
on search claims, which are functionally distinct from false arrest claims, at least
of the sort asserted here. W e noted that when an offense is established by plea,
“[i]llegally seized evidence . . . does not enter the case” – thus, conviction and
search are unrelated and the validity of the former should carry no preclusion
consequences for the latter. Slayton, 726 F.2d at 634. Here, plaintiff challenges
his arrest on the basis that he did not commit the charged offenses – a claim that
is directly repudiated by a plea admitting the validity of those offenses.

                                         -7-
§ 2410, and Okla. Stat. Ann. tit. 22, § 513, but it applies only to “‘offensive’ use

. . . to establish the criminal defendant’s subsequent potential civil liability, not to

. . . ‘defensive’ use . . . in a case where the criminal defendant [has] sought to

recover damages for an alleged unlawful arrest.” DeLong, 956 F.2d at 938

(following Irw in, 830 P.2d at 590).

      Under Allen v. McCurry, 449 U.S. 90, 96 (1980), the above principles are

controlling in this § 1983 action. See, e.g., Franklin v. Thom pson, 981 F.2d 1168,

1170-71 (10th Cir. 1992) (applying Oklahoma preclusion rules to hold plaintiff’s

conviction for disorderly conduct, based on arresting officer’s account, precluded

§ 1983 claim for false arrest); Hubbert v. City of M oore, 923 F.2d 769, 772-73

(10th Cir. 1991) (applying Oklahoma preclusion rules to hold probable cause

finding made in preliminary hearing precluded § 1983 claim for false arrest).

Plaintiff cannot now challenge the existence of probable cause for, and hence the

validity of, his arrest on charges he conclusively admitted were valid. 3

      Plaintiff’s conclusory attribution of his false arrest to “racial profiling”

does not alter our conclusion. “[B]ald assertions of racist motivations on the part

3
        W hile the terminology used has varied somewhat, many cases reflect the
basic notion that a conviction, by plea or trial, that establishes probable cause for
arrest, as plaintiff’s plea does here, is conclusive on the issue in later civil rights
litigation. See, e.g., Williams v. Schario, 93 F.3d 527, 528-29 (8th Cir. 1996);
M aietta v. Artuz, 84 F.3d 100, 102 n.1 (2d Cir. 1996); Preast v. M cGill,
65 F. Supp 2d 395, 409 & n.10 (S.D. W . Va. 1999). In Howard v. Dickerson,
34 F.3d 978, 981 (10th Cir. 1994), we noted this principle and indicated that it
could (depending on state law) bar a § 1983 false arrest claim where the plaintiff
had pled nolo contendere, though w e did not resolve the appeal on that basis.

                                           -8-
of [an arresting officer] do not render his conduct unconstitutional. The Supreme

Court rejected ‘the principle that ulterior motives can invalidate police conduct

that is justifiable on the basis of probable cause to believe that a violation of the

law has occurred.’” Conrod v. Davis, 120 F.3d 92, 96 (8th Cir. 1997) (quoting

Whren v. United States, 517 U.S. 806, 811 (1996)); see also Sheik-Abdi v.

M cClellan, 37 F.3d 1240, 1247 (7th Cir. 1994); Smith v. Gonzales, 670 F.2d 522,

527 (5th Cir. 1982).

      Of course, “the Constitution prohibits selective enforcement of the law

based on considerations such as race,” Whren, 517 U.S. at 813, but no selective

enforcement claim, distinct from the barred false arrest claim, was asserted here.

Plaintiff did not allege that black suspects w ere treated any differently than white

suspects. See United States v. Armstrong, 517 U.S. 456, 466 (1996) (explaining

crux of selective enforcement claim is differential treatment of similarly situated

parties). See generally Jennings v.City of Stillwater, 383 F.3d 1199, 1214 (10th

Cir. 2004) (noting civil rights claims for selective prosecution are governed by

standards explained in Armstrong). Rather, his claim has simply been that he was

not an offender – a claim that, as we have seen, he is legally barred from asserting

in light of his plea. To make the same point another way, a selective enforcement

claim requires a discriminatory purpose and a discriminatory effect, Armstrong,

517 U.S. at 466, and plaintiff’s only allegation regarding a discriminatory




                                           -9-
effect – that he was falsely arrested for offenses he did not commit – is, again,

conclusively negated by his plea.

      Finally, plaintiff’s appeal from the denial of his Rule 60(b) motion, which

just re-argued the Heck - Spencer issue raised in connection with O fficer Loftis’

motion to dismiss, does not require additional discussion. Given our affirmance

of the underlying dismissal order on grounds not requiring reliance on Heck, the

substance of plaintiff’s appeal from the denial of Rule 60(b) relief is moot.

      The judgment of the district court is A FFIRM ED. Plaintiff’s “M otion in

the Alternative for W rit of M andamus,” asking this court “to treat his Appeals as

a W rit of M andamus if said appeals are [jurisdictionally] defective,” is DEN IED

as moot.



                                                     Entered for the Court



                                                     M ary Beck Briscoe
                                                     Circuit Judge




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