Tobin Don Lemmons, A/k/a Everett Melson, Plaintiff-appellant, v. Bruce Duncan, Detective; Larry Fugate; Brant Green; Jimwahl; David Bates; Dan Jones; Sapulpa Policedepartment; Creek County Sheriff'sdepartment, Defendants-appellees, 62 F.3d 1428 (10th Cir. 1995)

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 cause is therefore ordered submitted without oral argument.

This is a pro se appeal from the granting of defendants' motion for summary judgment. Plaintiff-appellant Lemmons had filed an action under 42 U.S.C.1983 alleging, among other claims, defendant Sapulpa, Oklahoma police officers had violated his constitutionally protected rights by conducting a search of his vehicle without a warrant or probable cause.

Defendants' motion for summary judgment was supported by a brief and affidavits, but plaintiff neither filed affidavits of his own nor requested a delay in the determination of summary judgment so he could conduct discovery. Among other facts set forth in the affidavits, it is asserted and uncontroverted the actual search of and the seizure from plaintiff's automobile was conducted by Tulsa officers and not the defendants. It is thus clear the plaintiff has no factual basis for his Fourth Amendment claim.

Our review leads us to the conclusion the district court did not err in granting summary judgment. We therefore AFFIRM for the reasons stated in its order of September 22, 1994.