                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 30, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 RICH ARD LY NN DOPP,

               Plaintiff - Appellant,                    No. 05-5057
          v.                                              N.D. Okla.
 BEN LORING, District Attorney;                    (D.C. No. 02-CV -659-E)
 TO M M A Y ; D A V ID A N D ER SON;
 CHRIS M ORRIS; ROB GARNER;
 EDW ARD W YANT; OTTAW A
 CO UN TY BOA RD OF CO UN TY
 CO M M ISSIONERS,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




      Richard Lynn Dopp, an Oklahoma state prisoner appearing pro se and in

form a pauperis, appeals from the district court’s dismissal of his pro se complaint

brought pursuant to 42 U.S.C. § 1983. 1 Exercising jurisdiction under 28 U.S.C.


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        This order and judgment is not binding precedent except under the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


      1
       W e construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
§ 1291, we affirm.

                                  I. Background

      On M ay 8, 1996, a state search warrant was executed upon Dopp’s property

in W yandotte, Oklahoma. In addition to discovering a large amount of drugs and

drug paraphernalia, officers seized a number of personal property items believed

to be the proceeds of Dopp’s illegal drug enterprise. Dopp was arrested and

eventually convicted in Oklahoma state court of various drug and firearm charges.

In M ay 1998, he was sentenced to, inter alia, life imprisonment without the

possibility of parole.

      On August 22, 2002, Dopp filed a pro se § 1983 complaint against Ben

Loring, Tom M ay, David Anderson, Chris M orris, Edward W yant (State

Defendants) and Bob Garner, alleging they had disposed of certain personal

property seized from his residence without providing him notice or a pre-

deprivation hearing in violation of the Fifth and Fourteenth Amendments of the

United States Constitution and Oklahoma law. 2 Specifically, Dopp asserted they



      2
        Loring and W yant were Ottawa County District Attorney and Assistant
District Attorney, respectively, at the time the search warrant was executed on
Dopp’s residence. M ay and Anderson were Loring’s and W yant’s successors,
respectively. M orris is an investigator for the O ttaw a County District Attorney’s
Office. Garner owns and operates Bob Garner G arage and W recking Service in
Picher, Oklahoma, where many of the vehicles seized from Dopp’s residence were
towed. D opp also named the O ttawa County Board of Commissioners. He
alleged, inter alia, the Board violated his Eighth Amendment rights. The district
court dismissed the Eighth Amendment claim without prejudice. Later, Dopp
successfully moved to dismiss the Board without prejudice.

                                        -2-
had wrongfully disposed of the following personal property, none of which was

used as evidence in his criminal trial: (1) 1965 Ford pickup truck, VIN No.

10DK641079, (2) $33,725 cash, (3) $139 cash, (4) 400 Channel Realistic scanner,

(5) miscellaneous bullets, (6) miscellaneous papers, (7) U.S. passport and (8)

thirteen photographs. 3

      Thereafter, Defendant Garner filed a pro se answer denying the allegations

in the complaint. The State Defendants filed a motion to dismiss. The district

court denied the motion to dismiss, concluding Dopp’s complaint had sufficiently

stated a claim upon which relief may be granted. However, it determined an

investigation and special report were necessary to develop a record sufficient to

ascertain whether there were any factual and legal bases for D opp’s claims.

Consequently, the court directed the State Defendants to investigate the complaint

and prepare a M artinez 4 report within sixty days. Thereafter, the State

Defendants filed a M artinez report with supporting exhibits and simultaneously

filed an answer and a new motion to dismiss. Almost a year later, the district

court advised the parties by order that the motion to dismiss would be treated as a



      3
        D opp also alleged the State Defendants wrongfully disposed of two
Remington M odel 1100 shotguns. The State Defendants asserted these shotguns
were released to Dopp’s attorney of record. The district court found the State
Defendants w ere legally entitled to release the guns to Dopp’s attorney and did
not violate his constitutional rights by doing so. Dopp does not challenge this
ruling on appeal.
      4
          See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (en banc).

                                         -3-
motion for summary judgment.

      On October 1, 2004, Dopp moved to amend his complaint and attached a

proposed amended complaint. The court denied Dopp’s motion and again

reminded the parties the pending motion to dismiss was being treated as a motion

for summary judgment. It gave the parties an additional twenty days to file

summary judgment materials and/or supplemental responses. On M arch 11, 2005,

the court dismissed without prejudice Dopp’s claims against Defendant Garner for

failure to state a claim upon which relief may be granted under 28 U.S.C. §

1915(e)(2)(B) and granted the State Defendants’ motion for summary judgment.

Dopp filed a motion to alter or amend the M arch 11, 2005 order and judgment,

which was denied. This timely appeal followed. 5

                                  II. Discussion

      Dopp challenges the court’s dismissal of his claims against Defendant

Garner under 28 U.S.C. § 1915(e)(2)(B) and its grant of summary judgment to the

State Defendants. He further alleges the court erred in denying him leave to

amend his complaint.

      A. Defendant Garner

      After executing the search warrant on Dopp’s property, the State

Defendants had a number of vehicles towed from Dopp’s property to Bob Garner

      5
       The State Defendants’ brief does not contain any record citations and their
arguments are essentially limited to asserting the district court was correct. Such
a conclusory brief is not helpful to our review of the case.

                                        -4-
Garage and W recker Service. Among those vehicles was a 1965 Ford pickup

truck, VIN No. 10DK641079, which is the subject of this lawsuit. On M ay 24,

1996, Defendant Loring filed an “A uthorization to Release Property” in D opp’s

state criminal action which authorized the release of certain property, including

the 1965 Ford pickup truck, to Dopp. Over the next couple of days, Dopp paid

Defendant Garner the towing and storage fees for six vehicles seized from his

residence and obtained their release. 6 How ever, Dopp did not secure the release

of the 1965 Ford truck, stating he ran out of money to pay its towing and storage

fees. 7 He also learned he was not legally required to pay the towing and storage

fees. Approximately two years later (M ay 1998), Garner sold the 1965 Ford truck

for storage fees owed against it. On April 11, 2001, Dopp wrote Garner a letter

inquiring about the truck. Because Garner had sold it, he did not respond to the

letter. On April 21, 2001, Dopp discovered Garner had sold the truck. In his

complaint, Dopp alleged Garner, acting under color of state law, disposed of the

truck without providing him notice or a pre-deprivation hearing in violation of

due process.


      6
          Dopp was out on bond from M ay 12, 1996, through M ay 1, 1998.
      7
         According to Garner’s affidavit, Dopp “retrieved all of the vehicles except
[the 1965 Ford truck], stating he wasn’t very concerned about it, even though he
still had a large wad of cash after having paid for the release of the other vehicles.
He did tell me he might be back later to get that vehicle. He never returned.” (R.
Vol. I, Doc. 41 at 90.) However, because Dopp’s claim against Garner was
dismissed on the pleadings, we treat Dopp’s allegations as true. Perkins v. Kan.
Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999).

                                         -5-
      The district court dismissed without prejudice Dopp’s claim against Garner

for failure to state a claim upon which relief may be granted under 28 U.S.C. §

1915(e)(2)(B). Specifically, it found Garner’s sale of the truck was not state

action and therefore Dopp could not state a due process claim against Garner

under § 1983. 8 Dopp argues the court erred in dismissing his claim against

Garner. Relying on Coleman v. Turpen, he contends the truck’s sale constituted

state action because Garner towed and stored the truck at the direction of state

officers and sold the truck for storage fees owed against it pursuant to Oklahoma

statute. 697 F.2d 1341 (10th Cir. 1983).

      W e review de novo a district court’s dismissal of a complaint for failure to

state a claim under 28 U.S.C. § 1915(e)(2)(B). Perkins, 165 F.3d at 806.

      Dismissal of a pro se complaint for failure to state a claim is proper
      only where it is obvious that the plaintiff cannot prevail on the facts he
      has alleged and it would be futile to give him an opportunity to amend.
      In determining whether dismissal is proper, we must accept the
      allegations of the complaint as true and we must construe those
      allegations, and any reasonable inferences that might be drawn from
      them, in the light most favorable to the plaintiff.

Id. (citation omitted).

          Under § 1983, liability attaches only to conduct occurring under color of

state law; conduct constituting state action under the Fourteenth Amendment

satisfies this requirement. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18

      8
        The district court also concluded Dopp’s claim against Garner was barred
by the two-year statute of limitations. Given that the truck’s sale did not
constitute state action, we need not address the timeliness of Dopp’s complaint.

                                           -6-
(1982). Private conduct constitutes state action if it is “fairly attributable to the

State.” Id. at 937; see Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000). This

requirement is satisfied if two conditions are met: (1) “the deprivation must be

caused by the exercise of some right or privilege created by the State or by a rule

of conduct imposed by the state or by a person for whom the State is responsible”

and (2) the private party charged with the deprivation “must be a person who may

fairly be said to be a state actor. This may be because he is a state official,

because he has acted together with or has obtained significant aid from state

officials, or because his conduct is otherwise chargeable to the State.” Lugar,

457 U.S. at 937.

      It is undisputed Garner is not a state officer or employee and therefore the

district court properly considered him a private individual. Applying Lugar, w e

conclude Garner’s sale of the truck was not state action. Garner presumably sold

the truck pursuant to O KLA . S TAT . tit. 12A, § 7-210 (allowing a w arehouseman’s

lien for storage fees to be enforced by public or private sale of the goods after

notice to all persons known to claim an interest in the goods). Therefore,

Garner’s sale of the truck satisfies the first prong of the Lugar test. See Coleman,

697 F.2d at 1345 (concluding first part of Lugar test was met where defendant

wrecker service sold property pursuant to O KLA . S TAT . tit. 12A, § 7-210).

However, the truck’s sale fails to satisfy the second part of Lugar. Although

Garner was acting for the State when he towed the truck, there is absolutely no

                                           -7-
evidence the State Defendants or any other state official assisted Garner in selling

the truck or otherwise encouraged or authorized him to do so. Indeed, at the time

Garner sold the truck, the State Defendants had released it to Dopp. Thus, Garner

was holding the truck for D opp, not the State, at the time of the sale.

Consequently, the sale of the truck is not “chargeable to the State.”

       Coleman is clearly distinguishable. There, the police seized Coleman’s

camper and hired Kiefer to tow and store it. Later, Kiefer sold the camper to

satisfy its storage fees without providing notice to Coleman. Coleman sued

Kiefer under § 1983 alleging he deprived him of his property without due process.

The district court dismissed the claim concluding Kiefer was not acting under

color of law and therefore was not susceptible to suit under § 1983. W e

disagreed, finding Kiefer’s sale of the camper satisfied both prongs of Lugar.

W ith regard to the second prong, we stated:

       Kiefer jointly participated in seizing the [camper] by towing it away.
       Since the State has asserted a right to maintain possession of the
       camper, Kiefer held the truck for the State, not for M r. Coleman. In
       allowing Kiefer to sell the camper, the State thus deprived M r. Coleman
       of his property in joint participation with Kiefer. W e hold that Kiefer’s
       sale of the camper was state action under the fourteenth amendment and
       was therefore under color of state law for purposes of section 1983.

Id. (emphasis added). Unlike in Coleman, Garner was holding the truck for Dopp,

not the State, at the time of its sale.

       This case is more akin to W einrauch v. Park City, 751 F.2d 357 (10th Cir.

1984). There, a police officer had Speers tow W einrauch’s vehicle to an impound

                                          -8-
lot. Later, the police officer informed W einrauch she could recover her car by

paying Speers a towing fee. W hen W einrauch arrived at the impound lot, no

attendant was present. Therefore, she took her vehicle without paying the fee.

Shortly thereafter, the vehicle was reported stolen. Two police officers responded

to the call and began pursuing W einrauch’s vehicle. Speers also heard the police

report. Concluding that the car was from the impound lot, Speers also began

pursuing W einrauch’s vehicle. In the end, W einrauch was stopped by the police

and she paid Speers his fee. W einrauch brought suit against Speers under § 1983

based on his pursuit of her vehicle. The district court dismissed, concluding

Speers was not acting under color of state law within the meaning of § 1983. W e

agreed:

       It is clear that Speers was acting for the state when he initially towed
       the car. Coleman v. Turpen, 697 F.2d 1341, 1345 (10th Cir. 1983).
       However, the evidence is undisputed that Speers was not performing
       City towing services when he tried to stop W einrauch’s car and that
       the police had not requested or authorized his assistance.

Id. at 360-61. Similarly, the State Defendants did not request or authorize Garner

to sell the truck.

       Because G arner’s sale of the truck was not state action, the district court

properly concluded Dopp had failed to state a claim upon which relief may be

granted against Garner. This deficiency could not have been cured by amendment

of the complaint.

       B. State D efendants

                                          -9-
      Dopp argues the district court erred in granting summary judgment to the

State Defendants concerning the (1) 1965 Ford pickup truck, VIN No.

10DK641079, (2) $33,725 cash, (3) $139 cash, (4) 400 Channel Realistic Scanner,

(5) miscellaneous bullets, (6) miscellaneous papers, (7) U.S. passport and (8)

thirteen photographs. We review de novo a grant of summary judgment, applying

the same legal standard used by the district court under Rule 56(c) of the Federal

Rules of Civil Procedure. Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1182 (10th

Cir. 1995). Summary judgment is appropriate “if the pleadings, depositions,

answ ers 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 a judgment as a matter of law.” F ED . R. C IV . P. 56(c).

             1. 1965 Ford Pickup Truck, Vin No. 10DK641079

      In his complaint, Dopp alleged Defendants Loring and W yant disposed of

his 1965 Ford pickup truck without providing him notice or a pre-deprivation

hearing in violation of due process. The district court concluded Loring law fully

released any claim to the truck in M ay 1996 and Dopp had failed to provide any

facts connecting W yant, or any of the other State D efendants, to the truck’s

disposal.

      Dopp contends the court improperly granted summary judgment to Loring

and W yant based on their release of the truck to him in M ay 1996. He claims

Loring and W yant never raised this defense and therefore waived it. Dopp also

                                          -10-
argues Loring and W yant did not effect the release of his truck because the

release was conditioned upon him paying all towing and storage fees, contrary to

Oklahoma statute. 9 He alleges Garner refused to release the truck to him without

payment of storage fees pursuant to Loring and W yant’s instructions.

      There is absolutely no evidence that Loring and W yant were involved in the

truck’s sale. In fact, they had released the truck to D opp in M ay 1996, two years

prior to its sale. 10 Although Dopp asserts Loring and W yant conditioned such

release on the payment of storage fees, there is no evidence to support this

assertion. M ore importantly, the failure to release the truck in M ay 1996 without



      9
        See O KLA . S TAT . tit. 63, § 2-506 (O), (Q) (stating a bona fide owner who
recovers property seized under this statute shall not be liable for storage fees
unless the owner fails to recover the property within thirty days of receiving
written notice from the seizing agency).
      10
         Dopp correctly states the State D efendants did not move for sum mary
judgment based on the M ay 1996 release. Nevertheless, “[e]ven if a ground is not
urged by a party, where the requirements of Rule 56 are met, the court is not
barred from any consideration of that ground. It can grant summary judgment on
grounds other than those raised . . . if the facts are fully developed showing
entitlement . . . to judgment as a matter of law [and it] is satisfied there is no
procedural prejudice to the [other] party.” Wilder v. Prokop, 846 F.2d 613, 626
(10th Cir. 1988); see also Howell Petroleum Corp. v. Leben Oil Corp., 976 F.2d
614, 620 (10th Cir. 1992) (stating “a district court in appropriate circumstances
may grant summary judgment on a ground not formally raised in a summary
judgment motion”). In this case, M artinez report stated the truck was released to
Dopp in M ay 1996 and the release was attached to the report. Additionally, in his
response to the State Defendants’ motion to dismiss (construed as a motion for
summary judgment), Dopp argued the release could not be considered because it
was conditioned on him paying the truck’s towing and storage fees.
Consequently, the Rule 56 requirements were satisfied and Dopp was not
prejudiced.

                                         -11-
the payment of storage fees is not the conduct Dopp alleges deprived him of his

constitutional rights. Rather, Dopp’s claim has always been that the State

Defendants wrongfully disposed of his truck in violation of his constitutional

rights. Indeed, any claim that he was improperly required to pay storage fees to

obtain the release of his truck is untimely because Dopp learned in M ay-June

1996 that requiring payment of storage fees was contrary to Oklahoma law. The

court properly granted summary judgment to the State Defendants as to the

pickup truck.

            2. Cash ($33,725 and $139)

      The cash seized from Dopp’s residence was placed in the evidence room at

the District Attorney’s Drug Task Force office. In April 2001, the office was

burglarized and several items from the evidence room, including the cash seized

from Dopp’s residence, were stolen. A full investigation was conducted, resulting

in a suspect. However, no charges were filed because there was insufficient

admissible evidence to establish probable cause. In his complaint, Dopp argued

the State Defendants violated his Fourteenth Amendment due process rights by

disposing of this cash without notice or a pre-deprivation hearing. Relying on

Hudson v. Palmer, the district court concluded the State Defendants were entitled

to summary judgment because in cases like this, where the property’s disposal

was random and unauthorized, due process is violated only if a state’s post-

deprivation remedies are unavailable, unresponsive or inadequate. 468 U.S. 517

                                        -12-
(1984). It concluded the Oklahoma G overnmental Tort Claims Act provided a

remedy for unlaw ful deprivation of property and Dopp had failed to allege this

remedy was unavailable, unresponsive or inadequate.

      Although we agree with the district court that the State D efendants are

entitled to summary judgment as to the cash, we do so on a different basis.

United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (“W e are free to

affirm a district court decision on any grounds for which there is a record

sufficient to permit conclusions of law, even grounds not relied upon by the

district court.”). In D aniels v. Williams, the Supreme Court held: “[T]he Due

Process Clause [of the Fourteenth Amendment] is simply not implicated by a

negligent act of an official causing unintended loss of or injury to life, liberty, or

property.” 474 U.S. 327, 328 (1986). Because Dopp alleges he was deprived of

his money by the State Defendants’ negligence (i.e., not taking adequate measures

to safeguard his money), the Fourteenth Amendment does not afford him a

remedy.

             3. Remaining property

      According to the M artinez report, the scanner, miscellaneous bullets and

m iscellaneous papers remain in the possession of Defendant M orris at the Ottaw a

County, Oklahoma, District Court’s Office. As to Dopp’s U.S. passport and the

thirteen photographs, D efendant M orris delivered them to Kathryn Depew,

Assistant United States A ttorney for the Northern District of Oklahoma, in

                                          -13-
connection with a federal forfeiture hearing in Case No. 96-CV-924, and they

remain in her possession. Because the items are still in law enforcement’s

possession and have not been disposed of, the district court concluded the facts

did not support Dopp’s wrongful disposal claim and the State D efendants were

entitled to judgment as to these items. Dopp does not appear to contest the

court’s conclusion. Rather, he argues the State Defendants’ retention of these

items, despite being ordered by the judge presiding over his state criminal case to

return them to him, constitutes conversion and the court erred in not addressing

this claim.

      The record reveals that in Dopp’s state court criminal case, the court

ordered the State to release these items to Dopp or show cause why they should

not be returned to him. In the M artinez report, the State D efendants alleged “[n]o

one has made any attempt to pick up or otherwise contact the State about picking

up [these items.] It would be illegal for the State to deliver [these items] to

[D opp] while he is incarcerated.” (R. Vol. I, Doc. 41 at 3.) Therefore, it appears

the State Defendants are willing to release the property, just not to Dopp

personally due to his incarceration. In any event, while it is true Dopp alleged a

state law conversion claim in his complaint, the district court declined

supplemental jurisdiction over it, as well as Dopp’s other state law claims,

because the federal claims had been dismissed. It did not abuse its discretion in

doing so. Robey v. Shapiro, M arianos & Cejda, L.L.C., 434 F.3d 1208, 1213

                                         -14-
(10th Cir. 2006). “The district courts may decline to exercise supplemental

jurisdiction over a [state law] claim . . . if . . . the district court has dismissed all

claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Dopp has

provided no argument as to how the court abused this discretion; he merely

asserts federal claims still exist. This argument is foreclosed by our affirmance of

the dismissal of his federal claims.

       C. Denial of M otion to Amend Complaint

       The district court denied Dopp’s motion to amend based on the procedural

posture of the case, in particular, the fact the State Defendants had filed a motion

to dismiss based on the claims in the original complaint and resolution of that

motion would be delayed if Dopp w ere allow ed to amend his complaint. It also

noted any additional factual or legal arguments relevant to Dopp’s claims could

be asserted in supplemental pleadings responsive to the State Defendants’ pending

motion for summary judgment rather than in an amended complaint.

       Dopp argues the court erred in denying him leave to amend his complaint.

He claims he timely attempted to amend his complaint to conform to the newly

discovered information contained in the M artinez report and to add an allegation

that any state post-deprivation remedy would be inadequate for him to challenge

the loss of his cash.

       W e review the denial of leave to amend a complaint for an abuse of

discretion. Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997). Rule

                                            -15-
15(a) of the Federal Rules of Civil Procedure provides that leave of court to

amend a complaint “shall be freely given when justice so requires.” “Refusing

leave to amend is generally only justified upon a showing of undue delay, undue

prejudice to the opposing party, bad faith or dilatory motive, failure to cure

deficiencies by amendments previously allowed, or futility of amendment.”

Frank v. U.S. W est, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).

      The district court did not abuse its discretion. Dopp sought to amend his

complaint to conform to the subsequent pleadings and evidentiary materials,

particularly, the M artinez report, and to assist the defendants and the court in

responding to and resolving his claims by being more specific as to dates,

incidents, and persons involved. However, the request to amend came almost a

year after the M artinez report was filed. M oreover, the court provided Dopp an

opportunity to clarify any facts in supplemental pleadings. Lastly, we reject

Dopp’s claim that an amendment would have cured the deficiencies the court later

used to dismiss his complaint, specifically, his failure to allege Oklahoma’s post-

deprivation remedies were unavailable, unresponsive or inadequate to remedy the

loss of his cash. Based on our disposition above, i.e., Dopp cannot state a due

process claim based on the negligent deprivation of his cash, any amendment

would have been futile.

                                   III. Conclusion

      W e AFFIRM the district court’s dismissal of D opp’s complaint against

                                          -16-
Defendant Garner pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Dopp has

accumulated two strikes in this matter – one for the dismissal of this appeal and

one for the district court’s dismissal. See 28 U.S.C. § 1915(g). 11 W e also

AFFIRM the court’s grant of summary judgment to the State Defendants. Dopp is

reminded to continue making partial payments of his appellate filing fee until the

entire balance is paid.

                                       FOR TH E CO UR T:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




      11
           Section 1915(g) provides:

      In no event shall a prisoner bring a civil action or appeal a judgment in a
      civil action or proceeding under this section if the prisoner has, on 3 or
      more prior occasions, while incarcerated or detained in any facility, brought
      an action or appeal in a court of the United States that was dismissed on the
      grounds that it is frivolous, malicious, or fails to state a claim upon which
      relief may be granted, unless the prisoner is under imminent danger of
      serious physical injury.

                                         -17-
