FILED

United States Court of Appeals

Tenth Circuit

AUG 23 2001

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL ED ERIKSON,

Plaintiff-Appellant,

v. No. 00-5190

PAWNEE COUNTY BOARD OF COUNTY

COMMISSIONERS, Pawnee County,

an Oklahoma political subdivision,

ex rel.; LARRY STUART, in his

official capacity as District

Attorney for Osage and Pawnee

Counties; HARLAND STONECIPHER,

individually and as President

of the Oklahoma Sportsman's

Association; OKLAHOMA SPORTSMAN'S

ASSOCIATION; MICHAEL TURPEN,

individually and as an employee

and shareholder of the law firm

Riggs, Abney, Neal, Turpen, Orbison

& Lewis, Inc.; RIGGS, ABNEY,

NEAL, TURPEN, ORBISON, & LEWIS,

INC., an Oklahoma professional

corporation,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 99-CV-786-BU)

Submitted on the briefs:

Brett D. Sanger of Brett D. Sanger, P.C., Oklahoma City, Oklahoma, for

Plaintiff-Appellant.

S.M. Fallis, Jr., of Nichols, Wolfe, Stamper, Nally, Fallis & Robertson, Inc., and

Douglas A. Wilson of Riggs, Abney, Neal, Turpen, Orbison & Lewis, Inc., Tulsa,

Oklahoma, for Defendants-Appellees.

Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit

Judge.

SEYMOUR, Circuit Judge.

Plaintiff Michael Ed Erikson is appealing the district court's dismissal of

his civil rights claims brought under 42 U.S.C.  1983.(1) The district court

dismissed plaintiff's case under Fed. R. Civ. P. 12(b)(6) for failure to state

a claim. We review the district court's dismissal de novo "accepting the

well-pleaded allegations of the complaint as true and construing them in the

(1) 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.

light most favorable to the plaintiff." Yoder v. Honeywell, Inc., 104 F.3d 1215,

1224 (10th Cir. 1997) (quotation omitted). We affirm.

I.

On June 26, 1992, plaintiff shot and killed Tony McCollum and Fred Head

on his family's ranch property. Although plaintiff claimed he killed McCollum

and Head in self defense, he was subsequently charged with two counts of first

degree murder in Pawnee County, Oklahoma. At plaintiff's trial, the jury was

instructed on murder, voluntary manslaughter, and self defense, and acquitted

plaintiff on all charges for the death of Head. The jury could not reach a

unanimous verdict with respect to the charges for the death of McCollum, and a

mistrial was declared. Plaintiff was retried on the charge of voluntary

manslaughter for the death of McCollum. At the second trial, the jury again

failed to reach a unanimous verdict on the manslaughter charge, and another

mistrial was declared. A third prosecution on the charge of voluntary

manslaughter for the death of McCollum was dismissed without prejudice.

Plaintiff then filed suit against defendants under  1983 alleging that they

violated his federal civil rights by conspiring to prosecute him for the deaths of

Head and McCollum without probable cause or sufficient evidence. Plaintiff

further alleged that his federal due process rights were violated because the

private defendants (the Oklahoma Sportsman's Association (OSA), Harland

Stonecipher, who is the president of the OSA, and attorney Michael Turpen and

his law firm, who represented the Head and McCollum families) actively

participated in and influenced the state prosecution. Specifically, plaintiff alleged

the OSA raised in excess of $25,000 from its membership and contributed the

money to defendant Turpen for use in providing research assistants and

investigators to assist defendant Stuart in prosecuting plaintiff.(2) Plaintiff also

asserted state law claims against defendants for malicious prosecution, malicious

abuse of process, civil conspiracy, intentional infliction of emotional distress, and

punitive damages.

Defendants filed motions to dismiss under Fed. R. Civ. P. 12(b)(6). The

magistrate judge recommended that the district court grant the motions on the

grounds that: (1) under Oklahoma law, a district attorney is an arm of the state

and thus defendant Pawnee County is not liable for the official acts of defendant

Stuart, see Arnold v. McClain, 926 F.2d 963, 965-66 (10th Cir. 1991); (2) as a

state officer under Oklahoma law, defendant Stuart is entitled to Eleventh

Amendment immunity from actions against him in his official capacity, see id. at

966; (3) defendant Stuart is not liable to plaintiff in his individual capacity

(2) Plaintiff alleges that Oklahoma law prohibited defendant Stuart from

accepting assistance from the private defendants in prosecuting plaintiff. We

agree with the conclusion of the magistrate judge that, without more, any such

violation of state law is not actionable under 1983.

because: (a) he is entitled to absolute prosecutorial immunity from suits under

 1983, see Imbler v. Pachtman, 424 U.S. 409, 427 (1976), and (b) he is entitled

to qualified immunity because plaintiff failed to allege sufficient facts showing he

violated a clearly established federal statutory or constitutional right, see Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982);(3) and (4) plaintiff failed to state a claim

against the private defendants under  1983 because he failed to allege sufficient

facts to show their conduct violated a federal statutory or constitutional right.

The district court accepted the magistrate judge's recommendations and granted

defendants' motions to dismiss.

II.

We agree with the magistrate judge's analysis. For additional reasons not

expressly articulated by the magistrate judge, we also agree that plaintiff has

failed to allege a federal constitutional violation. First, the participation of a

privately-retained attorney in a state criminal prosecution does not violate the

defendant's right to due process under federal law unless the private attorney effectively controlled critical prosecutorial decisions. See East v. Scott, 55 F.3d

996, 1000-01 (5th Cir. 1995); Person v. Miller, 854 F.2d 656, 663-64 (4th Cir.

1988). Such decisions include "whether to prosecute, what targets of prosecution

to select, what investigative powers to utilize, what sanctions to seek, plea

bargains to strike, or immunities to grant." Person, 854 F.2d at 664. Plaintiff has

not alleged that defendant Turpen exercised control over any critical prosecutorial

decisions. Instead, plaintiff only alleges that defendant Turpen, acting on behalf

of the OSA, provided research assistants and investigators to assist defendant

Stuart. This is insufficient to state a claim for a federal due process violation.(4)

Second, plaintiff has failed to allege sufficient facts to support a Fourth

Amendment claim for malicious prosecution under  1983. In this circuit, state

law provides the starting point for analyzing a Fourth Amendment claim for

malicious prosecution under  1983. See Taylor v. Meacham, 82 F.3d 1556,

(3) Plaintiff contends he could have overcome defendant Stuart's

qualified immunity defense if the district court had permitted him to file an

amended complaint. However, after defendants filed their motions to dismiss,

plaintiff only sought leave to amend with respect to defendant Stuart to assert a

claim against him in his individual capacity without requesting leave to amend

any of the substantive allegations in his complaint. Moreover, plaintiff has failed

to identify any additional relevant facts that he could have included in an

amended complaint to defeat defendant Stuart's qualified immunity defense.

(4) In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787,

809 (1987), the Supreme Court held that an attorney for a party in a position to

gain from a criminal contempt proceeding cannot be appointed by the district

court to prosecute the party charged with contempt. The Court determined that,

because of the inherent conflict of interest and potential for misconduct, the use

of an interested private attorney to prosecute a contempt citation is fundamental

error. Id. at 814. Young is distinguishable because, unlike the situation here, the

private attorney was the government's sole representative in the contempt trial,

see East, 55 F.3d at 1000 n.2, and he had complete authority over all aspects of

the prosecution, see Person, 854 F.2d at 662-63. Young is also distinguishable on

the grounds that the Supreme Court decided the case under its supervisory power

over the federal courts, and not as a matter of federal constitutional law. See

Young, 481 U.S. at 790; East, 55 F.3d at 1000 n.2.

1561-62 (10th Cir. 1996). Under Oklahoma law, a lack of probable cause to bring

a criminal prosecution is an essential element of the tort of malicious prosecution.

See Parker v. City of Midwest City, 850 P.2d 1065, 1067 (Okla. 1993). Here,

beyond the conclusory allegation in his complaint that no probable cause existed,

plaintiff has not alleged any specific facts showing there was a lack of probable

cause for his arrest and prosecution on the charges of first degree murder.

Plaintiff's conclusory allegation is insufficient to survive defendants' motions to

dismiss. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (stating that

"conclusory allegations without supporting factual averments are insufficient to

state a claim"); Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990)

(stating that district court is not required to accept "footless conclusions of law"

in ruling on motion to dismiss).(5)

Finally, plaintiff has alleged a number of additional wrongs in connection

with his criminal prosecution, including that: (1) state law enforcement officials

contorted his voluntary statements; (2) the OSA issued false media releases;

(3) unidentified OSA members disrupted plaintiff's trials and made death threats

to plaintiff; (4) the hold-out juror for a conviction in plaintiff's first trial was

a friend of McCollum's and he perjured himself to become a juror; and

(5) defendants caused a groundless civil suit to be filed against plaintiff.

While these allegations are troubling, plaintiff has failed to articulate a federal

constitutional claim based on any of these alleged wrongs, and/or he has failed to

link any of the named defendants to the alleged misconduct.

We AFFIRM the district court's order of dismissal.(6)

(5) Plaintiff has also failed to state a claim under federal law for abuse

of process. As with claims for malicious prosecution, state law provides the

elements for a claim of abuse of process under 1983. See Cook v. Sheldon,

41F.3d 73, 79-80 (2d Cir. 1994). Under Oklahoma law, an "ulterior or improper

purpose" isan essential element of the tort of abuse of process. Callaway v.

Parkwood Village, L.L.C., 1 P.3d 1003, 1004 (Okla. 2000). Because plaintiff has

failed to allege facts showing that defendants conspired to prosecute him with an

ulterior or improper motive separate and apart from the alleged desire to obtain

first degree murder convictions without probable cause, plaintiff's allegations

should only be analyzed in terms of an attempt to plead a claim for malicious

prosecution. See Wolford v. Lasater, 78 F.3d 484, 490 (10th Cir. 1996)

(explaining differences between abuse of process and malicious prosecution and

holding that challenge to allegedly baseless criminal prosecution is more

appropriately characterized as claim for malicious prosecution).

(6) The district court's order of dismissal did not specifically address

plaintiff's state law claims. However, plaintiff has not raised any issues on

appeal with respect to his state law claims, and we will assume that, pursuant

to28 U.S.C. 1367(c)(3), the district court has declined to exercise supplement

jurisdiction over the state law claims. Cf. Taylor, 82 F.3d at 1564, n.11

(affirming district court order granting defendant summary judgment in 1983

case even though district court failed to specifically address plaintiff's state law

claims).