                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                           June 22, 2006
                              FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                            Clerk of Court

    JAM ES E. JUSTICE, II,

               Plaintiff-Appellant,

     v.                                                     No. 05-7132
                                                      (D.C. No. CIV-05-208-S)
    GENE W ALLACE, M uskogee County                         (E.D. Okla.)
    C om missioner; C HA RLES PEARSON,
    M uskogee County Sheriff’s
    Department,

               Defendants-Appellees.




                               OR D ER AND JUDGM ENT *


Before HENR Y, BRISCO E, and M U RPH Y, Circuit Judges.




          James E. Justice, II, filed this civil rights complaint pursuant to 42 U.S.C.

§ 1983, charging that the defendants had violated his First, Fourth, and Eighth

A mendm ent rights w hile he w as incarcerated at the M uskogee County Jail. He


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
named two defendants: M uskogee County Commissioner Gene Wallace, and

M uskogee County Sheriff Charles Pearson. He appeals from the district court’s

orders granting Commissioner W allace’s motion to dismiss his complaint, and

Sheriff Pearson’s motion for summary judgment. W e agree with the district court

that M r. Justice came forward with only conclusory allegations to support his

claims against Commissioner W allace, and failed to show personal participation

by Sheriff Pearson in the alleged constitutional violations. He also failed to

present any evidence of improper training or unconstitutional policy or custom by

Sheriff Pearson resulting in the alleged violations. W e therefore affirm the

judgment of the district court dismissing Commissioner W allace and granting

summary judgment to Sheriff Pearson.

       1. M r. Justice’s complaint

       In his complaint, M r. Justice asserted constitutional violations as follow s:

       Violations of numer[o]us Civil Rights 1st A mendment, 4th
       Amendment, 8th Amendment/cruel [and] unusual punishment,
       excessive use of force, number of inmates in cell (17) inmates,
       violations of jail policies by federal and state law, lack of medical
       care[.]

R., doc. 1, at 2.

       He explained, more specifically, that his First Amendment rights were

violated when officials at the M uskogee County Jail interfered with a church

meeting that he was holding in a detox unit at 1:30 a.m., by placing him in

lockdown and by denying him a Bible. The officials allegedly told him that “this

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[is] not [a] church.” Id. His Fourth Amendment claim arose when he was strip-

searched at the jail and allegedly left naked for seven hours “without cause.” Id.

M r. Justice also alleged that he subjected to warrantless arrest w ithout probable

cause. He did not identify any specific facts in his complaint to support his

allegation of an Eighth Amendment violation. See id. Also, the complaint did

not contain any specific allegations against either of the defendants tying them to

the alleged constitutional violations.

      2. Com missioner W allace’s motion to dismiss

      Commissioner W allace filed a motion to dismiss M r. Justice’s complaint, in

which he noted that it presented no allegations against him in either his individual

or official capacities. He argued that he could not be held liable for the acts in

question in his official capacity, because he had no policymaking authority at the

jail. He could not be held liable in his individual capacity, because no allegations

had been made that he personally participated in the alleged violations.

      After M r. Justice failed to timely respond to the motion to dismiss, the

district court ordered him to show cause why Commissioner W allace’s motion

should not be granted. M r. Justice filed a response to the order to show cause, in

which he asserted that Commissioner W allace should be held liable for his

injuries, because county commissioners have financial responsibility for the

operation of county jails, the provision of health care to inmates, and the purchase

of insurance for payment of negligence claims. M r. Justice also filed a motion to

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amend his complaint, which the district court granted. He failed, however, to file

an amended complaint.

      The district court dismissed M r. Justice’s claims against Commissioner

W allace pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim,

concluding that M r. Justice had come forward with only conclusory allegations to

support his claims against Commissioner W allace. W e review such a dismissal de

novo, applying the same standards as the district court. M oore v. Guthrie,

438 F.3d 1036, 1039 (10th Cir. 2006). “That is, all well-pleaded factual

allegations in the . . . complaint are accepted as true and viewed in the light most

favorable to the nonmoving party.” Id. (quotation omitted). To survive a motion

to dismiss, however, “plaintiffs must allege sufficient facts to support their

§ 1983 claims. Bare conclusions, even read in the light most favorable to

plaintiff, may prove insufficient.” Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir.

2001). Having reviewed the briefs, the record, and the applicable law , we affirm

the district court’s order dismissal of Commissioner W allace, for substantially the

reasons stated in its order of August 25, 2005.

      3. Sheriff Pearson’s motion for summary judgment

      Sheriff Pearson and M r. Justice filed cross-motions for summary judgment.

The district court granted Sheriff Pearson’s motion, and denied M r. Justice’s

motion as moot. See R., doc. 61, at 9. In his motion for summary judgment,

Sheriff Pearson argued that he could not be held liable for the acts identified in

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M r. Justice’s complaint in either his individual or official capacities. He could

not be held liable in his individual capacity because he had not personally

participated in any of the alleged constitutional violations. He could not be held

liable in his official capacity because the harms alleged were not the result of any

alleged policy or custom of Sheriff Pearson at the county jail.

       Sheriff Pearson presented evidence to support his assertions. This evidence

showed that M r. Justice was arrested by the M uskogee City Police Department,

not the Sheriff’s Department; that Sheriff Pearson was not at the jail at the time of

the alleged constitutional violations; that M r. Justice had no factual basis to allege

that a policy or custom of Sheriff Pearson violated his constitutional rights; and

that M r. Justice had sued Sheriff Pearson solely because he is the supervisor of

the jail.

       “W e review the district court’s grant of summary judgment de novo,

applying the same legal standard that should have been used by the district court.”

Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (quotation

and alteration omitted). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). Having reviewed the briefs, the record, and the applicable law , we affirm




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the district court’s order granting summary judgment to Sheriff Pearson for

substantially the reasons stated in its order of November 17, 2005.

      4. H earing on summary judgment motion

      Finally, M r. Justice contends that he should have received a hearing before

the district court granted summary judgment against him. A formal evidentiary

hearing with oral argument is not necessarily required before a district court

enters summary judgment. Geear v. Boulder Comty. Hosp., 844 F.2d 764, 766

(10th Cir. 1988). “Rather, the parties’ right to be heard may be fulfilled by the

court’s review of the briefs and supporting affidavits and materials submitted to

the court.” Id. There is no indication in this case that the issues and evidence

presented could not have been adequately addressed by review of the briefs and

accompanying materials.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




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