Joseph v. Libretti, Jr., Plaintiff-appellant, v. George Miller, and Other Unknown Agents, in Their Individualand Official Capacities; George (i) Miller,individually, Defendants-appellees, 37 F.3d 1509 (10th Cir. 1994)

Before LOGAN and BARRETT, Circuit Judges, and RUSSELL,^**  District Judge.

ORDER AND JUDGMENT¹ 

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Joseph V. Libretti, Jr. appeals the district court's order dismissing his Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), action alleging violations of his right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment and his right to due process guaranteed by the Fifth Amendment. The district court dismissed on two alternative grounds: (1)plaintiff failed to allege a legitimate expectation of privacy protected by the Fourth Amendment in the rental storage unit searched by defendants and (2)plaintiff failed to allege facts showing defendant George Miller executed the affidavit for the search warrant in knowing and intentional or reckless disregard for the truth.

Upon reading plaintiff's brief and the record on appeal, we agree with the district court's ruling dismissing because plaintiff failed to properly allege facts challenging the veracity of the supporting affidavit. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). We also note that plaintiff failed to allege facts showing defendants improperly executed the search warrant. Because we affirm for these reasons, we need not consider whether plaintiff had a legitimate expectation of privacy in the rental storage unit.

AFFIRMED.

The mandate shall issue forthwith.