David Anthony Ciempa v. City of Del City

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DAVID ANTHONY CIEMPA,
Plaintiff - Appellant,
v.
CITY OF DEL CITY; BRIAN E. LINLEY,
SR., Mayor, and/or his predecessors, in his
individual and official capacity; DEL CITY
FIRE DEPARTMENT; MICHAEL DEAN,
City Council member, and/or his
predecessors, in his individual and official
capacity; PAM FINCH, City Council
member, and/or her predecessors, in her
individual and official capacity; KEN
BARTLETT, City Council member, and/or
his predecessors, in his individual and
official capacity; FLOYD EASON, City
Council member, and/or his predecessors,
in his individual and official capacity;
JEFF KEESTER, Chief, and/or his
predecessors, in his individual and official
capacity; ZION WILLIAMS, Major, and/or
his predecessors, in his individual and
official capacity; WILLA JOHNSON,
Oklahoma County Commissioner, and/or
her predecessors, in her individual and
official capacity; BRIAN MAUGHAN,
Oklahoma County Commissioner, and/or
his predecessors, in his individual and
official capacity; RAY VAUGHN,
Oklahoma County Commissioner, and/or
his predecessors, in his official capacity;
DAVID PRATER, D.A., and/or his
predecessors, in his individual capacity;
OKLAHOMA COUNTY PUBLIC
DEFENDER’S OFFICE, individually and
officially; ROBERT A. RAVITZ, Public
No. 20-6179
(D.C. No. 5:18-CV-00955-PRW)
(W.D. Okla.)
FILED
United States Court of Appeals
Tenth Circuit
August 10, 2021
Christopher M. Wolpert
Clerk of Court
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Defender, and/or his predecessors, in his
individual and official capacity;
KIMBERLY MILLER, Oklahoma County
Public Defender, and/or her predecessors,
in her individual and official capacity,
Defendants - Appellees,
and
COUNTY OF OKLAHOMA;
OKLAHOMA COUNTY DISTRICT
ATTORNEY’S OFFICE, individually and
officially; BARRETT BROWN, Asst.
D.A., and/or his predecessors, in his
individual and official capacity; SARA
DALY ROBINETT, Asst. D.A., and/or her
predecessors, in her individual and official
capacity; RAY VAUGHN, in his
individual capacity; DAVID PRATER, in
his official capacity,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
David Anthony Ciempa appeals pro se from the district court’s adverse
judgment entered on his complaint brought under 42 U.S.C. § 1983. Exercising
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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jurisdiction under 28 U.S.C. § 1291, we affirm because Mr. Ciempa fails to advance
any adequately developed argument.
I. BACKGROUND
In November 2015, Deputy Fire Chief Jeff Keester and Major Zion Williams
(“the investigators”) of the Del City, Oklahoma Fire Department were called to
investigate a house fire. They suspected an accelerant or an incendiary device caused
the fire. Easton Gibbs, an occupant of the home, reported that a loud crash awakened
him. He went to the southeast bedroom, which was in flames, and saw a hole in the
window. The investigators later recovered from that room the remnants of a bottle
with a rag stuffed inside, which they believed was a Molotov cocktail. A forensics
report could not rule out that the bottle had contained an accelerant.
The investigators learned that Mr. Ciempa had threatened Mr. Gibbs. They
also learned from Donna Spegal, the grandmother of one of Mr. Ciempa’s children,
that on the night of the fire, Mr. Ciempa had confessed to starting the fire, had burns
on his left hand, and bragged that he had “burned Easton out,” ROA, Vol. 3 at 96.
Ms. Spegal told Major Williams that she and her daughter were “terrified” of
Mr. Ciempa, id., and Mr. Gibbs indicated that he, too, was “afraid” of Mr. Ciempa,
id. at 160.
Based on the investigation, Deputy Chief Keester and a detective prepared a
warrant affidavit to arrest Mr. Ciempa. A state judge found probable cause.
Mr. Ciempa was arrested and charged with First Degree Arson, but the case was
dismissed due to an “uncooperative victim,” id. at 152 (capitalization omitted).
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Mr. Ciempa then filed this action, alleging constitutional violations by public
officials and entities, including the City of Del City, its mayor, the fire department,
several city council members, the district attorney and public defender’s offices, and
the investigators. The district court dismissed all claims except one alleging
malicious prosecution against the investigators. 1
The district court granted summary judgment to the investigators on the
malicious prosecution claim because there was no evidence to support any of the
elements, which require proof that “(1) the defendant caused the plaintiff’s . . .
prosecution; (2) the original action terminated in favor of the plaintiff; (3) no
probable cause supported the original arrest . . . or prosecution; (4) the defendant
acted with malice; and (5) the plaintiff sustained damages,” Wilkins v. DeReyes,
528 F.3d 790, 799 (10th Cir. 2008).
In particular, the court said the criminal case was dismissed due to an
uncooperative victim, not because Mr. Ciempa was actually innocent. See id. at 802-
03 (explaining that to qualify as a favorable termination, a dismissal must indicate
the accused’s innocence or at least be inconsistent with guilt). It also noted that the
state judge had determined there was probable cause for the arrest and prosecution,
and that Mr. Ciempa could not show the investigators procured the warrant by
knowingly or recklessly relying on false information. See Sanchez v. Hartley, 810
1 Mr. Ciempa does not address any of the previously dismissed claims on
appeal, and we do not consider them. See State Farm Fire & Cas. Co. v. Mhoon,
31 F.3d 979, 984 n.7 (10th Cir. 1994) (recognizing that failure to raise an issue
constitutes waiver).
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F.3d 750, 754 (10th Cir. 2016) (recognizing a plaintiff can establish a malicious
prosecution constitutional violation by showing “officers . . . knowingly or recklessly
rel[ied] on false information to institute legal process . . . result[ing] in an
unreasonable seizure”). It further concluded Mr. Ciempa could not establish malice,
which requires “a substantial showing of deliberate falsehood or reckless disregard
for truth,” Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990). The court therefore
granted summary judgment based on qualified immunity. Mr. Ciempa appealed the
malicious prosecution ruling.
II. DISCUSSION
“Although we liberally construe pro se filings, we do not assume the role of
advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10h Cir. 2008) (quotations
omitted). “Our rules of appeal require appellants to sufficiently raise all issues and
arguments on which they desire appellate review in their opening brief.” Clark v.
Colbert, 895 F.3d 1258, 1265 (10th Cir. 2018) (brackets and quotations omitted).
Among other things, “[a]n appellant’s opening brief must identify appellant’s
contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies.” Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (quotations omitted).
“Consistent with this requirement, we routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief.” Id. Moreover, we have “repeatedly insisted that pro se parties follow
the same rules of procedure that govern other litigants.” Garrett v. Selby Connor
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Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quotations omitted). “When a
pro se litigant fails to comply with [these] rule[s], we cannot fill the void by crafting
arguments and performing the necessary legal research.” Id. at 841 (quotations
omitted). Instead, inadequately briefed issues “will be deemed waived.” Id.
(quotations omitted).
Mr. Ciempa’s opening brief fails to advance any adequately developed
argument. Although it twice uses the phrase “Malicious Prosecution,” neither
reference includes argument or explanation. Aplt. Br. at 2, 4. The brief asserts there
was no probable cause for his arrest, the investigators repeatedly lied, and the
criminal case terminated in his favor. But again, Mr. Ciempa provides no argument
to support these assertions. Nor is there any citation either to the record or to legal
authority. See Blue Mountain Energy v. Dir., Off. of Workers’ Comp. Programs,
805 F.3d 1254, 1259 n.3 (10th Cir. 2015) (noting that perfunctory statements that fail
to frame and develop an issue waive the issue).
Mr. Ciempa summarily contends that the district court erred in finding Deputy
Chief Keester, Major Williams, Ms. Spegal, Mr. Gibbs, and Mr. Gibbs’s family
credible. But he does not identify supporting evidence. See Gross v. Burggraf
Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (refusing to credit allegations made
in appellant’s brief without proper record citation and declining to search the record
for evidentiary support). He also fails to explain how this credibility argument
undermines the district court’s reasoning. See Nixon v. City & Cnty. of Denver, 784
F.3d 1364, 1366 (10th Cir. 2015) (invoking waiver to the extent appellant failed “to
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explain what was wrong with the reasoning that the district court relied on in
reaching its decision”).
Mr. Ciempa has waived any issue regarding his malicious prosecution claim.
Even if he had properly challenged the disposition of that claim, our review of the
district court’s decision reveals no error.
III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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