Joseph Angelo Dicesare v. Eva Jetton, County Clerk of Osage County, and P. Moore, Deputy County Clerk of Osage County

Citations: 34 F.3d 1076; 1994 U.S. App. LEXIS 32008; 1994 WL 413238Docket: 94-5094

Court: Court of Appeals for the Tenth Circuit; August 5, 1994; Federal Appellate Court

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Unpublished opinions may now be cited for their persuasive value on material issues if a copy is attached to the citing document or provided to the court and all parties during oral arguments. This change follows the General Order of November 29, 1993, which temporarily suspends certain citation rules. 

Joseph Angelo DiCesare, a pro se plaintiff, appeals the dismissal of his 42 U.S.C. § 1983 complaint against Eva Jetton, the Osage County Clerk, and P. Moore, Deputy County Clerk. The district court dismissed his claims of violations of his constitutional rights to equal protection, due process, and the right to petition the government, along with related state law claims.

Pro se pleadings are construed liberally. The court reviews dismissals under Rule 12(b)(6) de novo, accepting the complaint's allegations as true. DiCesare filed a notice of claim under the Oklahoma Governmental Tort Claims Act (GTCA) regarding the confiscation and sale of his horses. He sent the notice to Jetton, and Moore accepted it. The notice was subsequently forwarded to the district attorney's office, but DiCesare received no further communication.

DiCesare contends that his constitutional rights were violated because the defendants failed to file a tort action on his behalf. However, the court found no legal or factual basis for his § 1983 claim, indicating that his appeal stemmed from a misunderstanding of the GTCA provisions.

Defendants fulfilled their statutory obligation by accepting the plaintiff's notice of claim. The county clerk does not have the responsibility to file tort claims against the county. According to the Governmental Tort Claims Act (GTCA), a county has ninety days to approve or deny a claim after receiving notice; failure to respond within this period results in a denial by operation of law. The plaintiff is then required to initiate legal action within 180 days of the claim's denial, whether that denial is communicated or implied. Thus, the plaintiff alone was responsible for timely filing a lawsuit, as defendants had no duty to advance the plaintiff's claims.

The plaintiff's allegation that the notification of the claim to the district attorney's office was retaliatory and unconstitutional is addressed by the district court, which notes that such referrals are often necessary for thorough investigations of claims against a county. The GTCA's notice requirement serves multiple purposes, including prompt investigation, opportunity for remedying dangerous conditions, and preparation for potential fiscal liabilities. Furthermore, the act of sending the notice to the district attorney did not obstruct the plaintiff's access to legal recourse.

Since the plaintiff did not establish a valid federal claim, the court did not need to consider the related state law claims. The district court's dismissal of the case is affirmed, and the mandate will be issued promptly. This order and judgment is not binding precedent except under specific legal doctrines, although it may be cited under certain conditions as outlined in the court's General Order from November 29, 1993.