                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 23 1999
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 N. M. GOFF,

               Plaintiff - Appellant,                    No. 98-5240
          v.                                          (N.D. Oklahoma)
 CITY OF TULSA, a municipal                        (D.C. No. 97-CV-563-J)
 corporation,

               Defendant - Appellee.


                             ORDER AND JUDGMENT         *




Before BALDOCK , REAVLEY , ** and BRORBY , Circuit Judges.


      N.M. Goff appeals the summary judgment entered against her on the civil

rights claim she brought against the City of Tulsa under 42 U.S.C. § 1983.

Because we agree with the district court that Goff did not raise a material issue of

fact sufficient to defeat summary judgment on the issue of municipal liability, we

affirm.


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       This order and judgment is not binding precedent, except under the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

      **
        Honorable Thomas M. Reavley, United States Senior Circuit Judge for the
Fifth Circuit, sitting by designation.
       Summary judgment is appropriate if the record discloses “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). Under modern summary

judgment practice “there is no issue for trial unless there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for that party. If the

evidence is merely colorable, or is not significantly probative, summary judgment

may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)

(citations omitted).

       A municipality does not incur liability under § 1983 “unless action pursuant

to official municipal policy of some nature caused a constitutional tort.”     Monell

v. Department of Soc. Servs. , 436 U.S. 658, 691 (1978). A municipality is liable

“only where the municipality     itself causes the constitutional violation at issue.”

City of Canton v. Harris , 489 U.S. 378, 385 (1989). The violation must be caused

by a municipal policy or custom reflecting a deliberate or conscious choice by city

policymakers, id. at 389, or an official with final policymaking authority,     see

Randle v. City of Aurora , 69 F.3d 441, 447 (10th Cir.1995). Goff did not show

that the officers had final policymaking authority.

       As for the issue of municipal policy or custom, a policy “must be a policy

statement, ordinance, regulation, or decision officially adopted and promulgated

by a municipality’s officers.”   Lankford v. City of Hobart , 73 F.3d 283, 286 (10th


                                             -2-
Cir. 1996) (brackets, internal quotation marks omitted)   . Goff directs us to written

procedure 31-114 C of the Tulsa police department as a written procedure which

allows for custodial arrest of a juvenile for a traffic offense. As we read one

written version of this procedure in the record, juveniles committing “pre-set

fine” violations receive a citation. For other traffic violations, the juvenile is

“booked to municipal court.” We do not read this procedure as calling for an

arrest, only a court date. Another copy of the procedure states that “whenever

possible, juveniles will be issued citations in lieu of arrest.” This language

implies that an arrest is warranted in some cases.

      Citing Glidden v. Higgs , 839 P.2d 680 (Okla. Ct. App. 1992), Goff argues

that a traffic offense by a juvenile is not a crime under Oklahoma law and

therefore cannot constitutionally justify an arrest. However, arresting a juvenile

after a stop for a traffic violation is not unconstitutional per se. There are

obviously some circumstances where an officer can make an arrest after pulling

over an automobile for a traffic violation. If, for example, after a traffic stop the

officer is assaulted, contraband is found in plain view or pursuant to a consensual

search, or the officer recognizes the juvenile as the subject of an arrest warrant on

another charge, an arrest at that point is constitutional. Goff therefore does not

show that the procedure sanctions unconstitutional conduct.




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      Goff also points to procedure 31-121 B, which states that for certain minor

offenses a juvenile must be released to her parents, but that “[i]f the parents

cannot be located, the juvenile should be taken to the Youth Services of Tulsa

(YST) shelter.” The next section states that “[i]n the case of an arrest for traffic

offenses only, if the parents cannot be notified, attempt to locate a responsible

adult relative to release the juvenile to.” As we understand Goff’s argument, this

procedure contemplates unconstitutional arrests because (1) a traffic offense is

not a crime under Oklahoma law, and hence cannot constitutionally justify an

arrest, (2) the procedure calls for an arrest (i.e. the taking of the juvenile to the

YST shelter) for a traffic violation if the parents or another adult relative cannot

be located.

      However, even if the city has an unconstitutional practice of arresting

juveniles for traffic offenses, such a policy cannot be described as the “‘moving

force’ behind the injury alleged. That is, a plaintiff must show that the municipal

action was taken with the requisite degree of culpability and must demonstrate a

direct causal link between the municipal action and the deprivation of federal

rights.” Board of County Comm’s v. Brown         , 117 S. Ct. 1382, 1388 (1997). Even

if Goff was issued a citation for not wearing a seat belt, which is a traffic

violation, and even if as she claims she was arrested (even though she admits that

she was released to her grandmother), she did not show that procedure 31-121 B


                                           -4-
was the moving force behind her alleged illegal search and arrest. The

automobile was stopped for an expired tag. Goff, a passenger, was handcuffed

and searched because the officer saw her trying to hide something, which turned

out to be marijuana, in her pants. She has not shown that she was handcuffed and

searched illegally because the officers pursued a written policy allowing for such

conduct.

      Absent an official policy, a municipality may be held liable if the

unconstitutional practice is “so permanent and well settled as to constitute a

‘custom or usage’ with the force of law.”     Lankford , 73 F.3d at 286 (quoting

Adickes v. S.H. Kress & Co. , 398 U.S. 144, 168 (1970)). In order to establish a

custom, the actions of the municipal employees must be “continuing, persistent

and widespread.”    Gates v. Unified Sch. Dist. No. 449   , 996 F.2d 1035, 1041

(10th Cir. 1993). In addition, the plaintiff must show deliberate indifference to or

tacit approval of such misconduct by policymaking officials after notice of such

misconduct. Id. Goff did not present sufficient evidence of an illegal practice,

known to policymaking officials, “so permanent and well settled” or so

“continuing, persistent and widespread” for a jury to impose liability on the city.

Goff points to evidence that the two officers were not disciplined after an internal

affairs investigation, but this evidence does not demonstrate a widespread custom

of the city to violate the Fourth Amendment rights of citizens. Goff also cites


                                            -5-
United States v. Davis , 94 F.3d 1465 (10th Cir. 1996), where Tulsa police officers

were found to have committed an unlawful investigative detention. Again, the

one incident described in this case is not enough to establish a widespread

custom.

      Goff also cites trial testimony which she claims shows that the officers who

handcuffed and searched her have on other occasions performed pat down

searches and handcuffed individuals without reasonable suspicion. Again, we do

not believe that this evidence rises to the level of proof of illegal actions so

permanent and well settled or so continuing, persistent and widespread as to

constitute a city custom that was known to policymaking officials. Moreover, this

evidence was not presented in response to the summary judgment motion. Goff

did not file a request to stay resolution of the summary judgment motion in order

to allow further discovery, in compliance with Fed. R. Civ. P. 56(f), nor does she

raise as a separate point of error that the district court should have reversed its

interlocutory summary judgment and submitted the federal claim to the jury in

light of the trial testimony. The only issue she presents on appeal is whether the

district court erred in granting the summary judgment motion in the first instance.

Our review of the summary judgment is therefore limited to the evidence

presented in support of and opposition to the summary judgment motion.

      AFFIRMED.


                                           -6-
      ENTERED FOR THE COURT

      Thomas M. Reavley
      Senior Circuit Judge




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