                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 19, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 JOHN NASIOUS,

               Plaintiff - Appellant,                    No. 09-1239
          v.                                            (D. Colorado)
 LITTLETON POLICE                           (D.C. No. 1:07-CV-01001-ZLW-KMT)
 DEPARTMENT, COLORADO; HAL
 MANDLER, Littleton Police Dept.;
 DENVER POLICE DEPARTMENT;
 BART MALPASS, Denver Police
 Dept., in his official and individual
 capacity; OFFICER CRAIG, Denver
 Police Dept., in his official and
 individual capacity; and OFFICER
 RIEDMULLER, Denver Police Dept.,
 in his official and individual capacity,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the appellate briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the


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        This order and judgment is not binding precedent except under the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

      On October 1, 2007, pro se appellant John Nasious filed an amended

complaint pursuant to 42 U.S.C. § 1983, asserting claims against the Littleton

Police Department and Hal Mandler (the “Littleton Defendants”), and the Denver

Police Department, Bart Malpass, Jennifer Craig, and Erik Riedmuller (the

“Denver Defendants”). The Littleton Defendants moved for summary judgment

and the district court entered an order on March 18, 2009, granting the motion.

Nasious has not appealed the grant of summary judgment in favor of the Littleton

Defendants.

      The claims against the Denver Defendants arise from Nasious’s arrest on

June 6, 2005. According to Nasious, defendants Craig and Riedmuller seized

cash 1 from him during the arrest. Nasious asserts he has communicated with

defendant Malpass about the return of the money but it is still in the possession of

the Denver Police Department. Nasious claims the actions of the Denver

Defendants violated his due process rights under the Fifth and Fourteenth

Amendments. The Denver Defendants moved for summary judgment, arguing,

inter alia: (1) the Denver Police Department is not an entity subject to suit; (2)

Malpass, Craig, and Riedmuller are entitled to qualified immunity as to the claims

      1
       Nasious alleged the officers seized $2500. In their motion for summary
judgment, the Denver Defendants allege the amount was $1068.23. This factual
dispute is not material.

                                         -2-
asserted against them in their individual capacities because Nasious failed to

demonstrate how they personally participated in any conduct that violated his

constitutional rights; and (3) the official capacity claims against Malpass, Craig,

and Riedmuller fail because Nasious did not show either the existence of an

unconstitutional municipal custom or policy regarding the disposition of property

seized during an arrest or the unconstitutional hiring, training, supervision, or

discipline of police officers regarding the disposition of such property. See

Johnson v. Bd of County Comm’rs, 85 F.3d 489, 493 (10th Cir. 1996) (“[A]n

official capacity suit is only another way of pleading an action against an entity of

which an officer is an agent.” (quotation omitted)); see also Bd of County

Comm’rs v. Brown, 520 U.S. 397, 404 (1997); Brown v. Gray, 227 F.3d 1278,

1286 (10th Cir. 2000). The district court granted the motion for summary

judgment and dismissed Nasious’s suit with prejudice.

      Nasious then brought this appeal. 2 His opening brief addresses only the

disposition of his claims against Malpass, Craig, and Riedmuller in their official

capacities. 3 He argues genuine issues of material fact exist that preclude the grant

      2
          Nasious’s motion to proceed in forma pauperis on appeal is granted.
      3
        A federal magistrate judge prepared a Report and Recommendation
recommending that the Denver Defendants’ motion for summary judgment be
denied in part as to the claims against Malpass, Craig, and Riedmuller in their
official capacities. The Report and Recommendation recommended the grant of
the motion as to all remaining claims against the Denver Defendants. Nasious did
not file timely objections to the recommendation that summary judgment be
                                                                     (continued...)

                                          -3-
of summary judgment on those claims. We have reviewed the record, the

appellate briefs, and the applicable law and conclude the district court’s

resolution of Nasious’s complaint was proper. The record contains no evidence

establishing the elements of municipal liability. See Anderson v. Liberty Lobby,

477 U.S. 242, 248 (1986) (“[T]here is no issue for trial unless there is sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that

party.”).

      The judgment of the district court dismissing Nasious’s claims against the

Denver Defendants is affirmed.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




      3
       (...continued)
granted in part. Because Nasious does not appeal the grant of summary judgment
on those claims, we need not decide whether the firm waiver rule bars appellate
review of the claims. See Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th
Cir. 2005) (“[A] party who fails to make a timely objection to the magistrate
judge’s findings and recommendations waives appellate review of both factual
and legal questions.”).

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