November 19, 2017

Tenth Circuit: No Clearly Established Right to Use Inflammatory Language in Course Assignment Without Being Criticized or Pressured to Make Revisions

The Tenth Circuit Court of Appeals published its opinion in Pompeo v. Board of Regents for the University of New Mexico on Tuesday, March 28, 2017.

Ms. Pompeo was a graduate student at the University of New Mexico (UNM). Ms. Pompeo filed a 42 U.S.C. § 1983 claim against the Board of Regents of UNM, and Caroline Hinkley and Susan Dever in their individual capacities, for violation of her First Amendment rights. Ms. Pompeo submitted a paper that contained language relating to a politically charged topic. The Defendants met with the student on several occasions to assist the student in rewriting the paper to include citable authority and language consistent for an academic audience. Ms. Pompeo did not rewrite the paper and claimed she was banned from the class. The district court granted summary judgment in favor of the individual defendants because they were entitled to qualified immunity. The UNM Board of Regents was immune under the Eleventh Amendment. Ms. Pompeo appealed.

The Tenth Circuit exercised jurisdiction under 29 U.S.C. 1291 and it reviewed the grant for summary judgment de novo.

The court evaluated the issue of whether the defendants were entitled to qualified immunity, focusing on the whether “the right at issue was clearly established.” For a right to be clearly established, “in the light of pre-existing law the unlawfulness must be apparent.” Within the specific context of the case, the particular conduct is clearly established if “existing precedent must have placed the statutory or constitutional question beyond debate.” Further, “a court must assess whether the right was clearly established against a backdrop of the objective legal reasonableness of the actor’s conduct.”

The parties agree that the dispute involved “school-sponsored speech” that “a school affirmatively promotes, as opposed to speech that it tolerates.” Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Reviewing courts give “substantial deference to educators’ stated pedagogical concerns.” “Courts may override an educator’s judgment where the proffered goal or methodology was a sham pretext for an impermissible ulterior motive.” The educator may “limit or grade speech in the classroom in the name of learning and not as a pretext for punishing the student for her race, gender, economic class, religion or political persuasion.” The court found that summary judgment was appropriate in this case because the defendants’ actions were justified as truly pedagogical.

Ms. Pompeo argued that the right is clearly established by precedent that “an instructor cannot restrict a student’s speech based on the instructor’s hostility to the viewpoint expressed in the speech and pretextual explanation for the legitimate reason for the restriction of speech will not pass constitutional muster.” The court rejected this argument. “Our jurisprudence “entrusts to educators these decisions that require judgments based on viewpoints.” Further, “clearly established law would not put defendants on notice that such conduct is unconstitutional.” Therefore, under Fleming educators are not prohibited from engaging in viewpoint discrimination.”

The court stated that the inquiry into whether the pedagogical concern not well established by case law. The inquiry is either objective or subjective. However, the Tenth Circuit did not refine the inquiry in this decision because it found that the defendants are entitled to qualified immunity under either standard. “The actions taken by Hinkley and Dever were sufficiently related to pedagogical goals that the claimed unconstitutional nature of their particular conduct was not clearly established.” Additionally, the pedagogical goals were legitimate. The defendants’ actions “encouraged critical analysis, to avoid unsupported generalizations, and maintain focus on assigned material rather than a student’s general opinions.”

The court AFFIRMED the district court’s grant of summary judgment in favor of defendants.

Tenth Circuit: “Arguable” Reasonable Suspicion Enough to Support Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Shimomura v. Carlson on Tuesday, December 29, 2015.

Tsutomu Shimomura was at a security checkpoint at DIA when a TSA agent tested his medicine with a test strip. Mr. Shimomura expressed concern about the sterility of the test strips and asked to speak to a supervisor. The supervisor, TSA Agent Kendra Carlson, engaged in a heated exchange with Mr. Shimomura while Denver Police Officer Wade Davis watched. Agent Carlson eventually ordered Mr. Shimomura to “get the hell out of here,” and he turned to leave. As he was leaving, his roller bag may have struck Agent Carlson. Officer Davis immediately arrested Mr. Shimomura. He was detained for approximately 9o minutes, then was issued a summons and complaint, charging him with assault for pushing his roller bag into Agent Carlson. The prosecutor dismissed the criminal complaint after reviewing the charges.

Mr. Shimomura brought suit against Agent Carlson and Officer Davis, alleging 42 U.S.C. § 1983 violations of his Fourth, Fifth, and Fourteenth Amendment rights. The district court granted summary judgment based on qualified immunity to Officer Davis on the Fourth Amendment claims and dismissed the claims against Agent Carlson based on failure to state a claim. The court also dismissed the causes of action based on violations of the Fifth and Fourteenth Amendments for failure to state a claim. Mr. Shimomura appealed.

The Tenth Circuit first determined that Officer Davis was entitled to qualified immunity because he had at least a modicum of reasonable suspicion that Mr. Shimomura had committed a crime. The majority panel determined that probable cause was at least “arguable” as to Officer Davis. The Tenth Circuit evaluated the crime of which Mr. Shimomura was charged, third-degree assault, which requires reckless or intentional commission of assault, which is separately defined as bodily injury, including pain. The majority panel determined that Officer Davis had at least arguable suspicion that Agent Carlson experienced pain, however minor or fleeting, from her contact with the roller bag, and therefore he was entitled to qualified immunity. Chief Judge Tymkovich dissented; he opined that the majority panel disregarded its role by impermissibly finding facts instead of questioning whether a reasonable jury could have taken Mr. Shimomura’s version of the events as true. Judge Tymkovich did not believe Officer Davis was entitled to qualified immunity.

The Tenth Circuit next evaluated the district court’s dismissal of Mr. Shimomura’s claims against Agent Carlson. The Tenth Circuit affirmed the dismissal, finding that even if Agent Carlson fabricated her version of the events, she did so after Mr. Shimomura’s arrest. Because Mr. Shimomura was arrested as a matter of law in the moments after his roller bag may have struck Agent Carlson, any withholding and fabrication of evidence took place after that moment. The Tenth Circuit found Mr. Shimomura’s Fourth Amendment claims against Agent Carlson failed.

The Tenth Circuit then turned to Mr. Shimomura’s conspiracy claims and disregarded them for the same reason. The Tenth Circuit determined that, because any conspiracy would have occurred after Mr. Shimomura’s arrest, his claims could not stand. The Tenth Circuit similarly disposed of Mr. Shimomura’s due process claims, finding that any due process issues related to unlawful arrest must be decided under the Fourth Amendment.

The Tenth Circuit affirmed the district court. Chief Judge Tymkovich dissented as to the claims against Officer Davis.

Tenth Circuit: Prison Guard May be Liable for Failing to Mitigate Risk of Sexual Assault by Offsite Supervisor

The Tenth Circuit Court of Appeals issued its opinion in Castillo v. Day on Monday, June 22, 2015.

Plaintiffs in this case are a group of women formerly incarcerated at the Hillside Community Corrections Center in Oklahoma City, Oklahoma. As part of an off-site work program, the women performed landscaping and groundskeeping work at the Oklahoma Governor’s Mansion. They were not under the direct supervision of any prison guard while at the mansion, but were supervised by the mansion’s groundskeeper, Anthony Bobelu. Bobelu and Russell Humphries, a cook at the mansion, sexually assaulted and raped the women at the mansion. In January 2009, plaintiff Reeder told Hillside guard Mary Pavliska that she had been sexually abused by Bobelu and Humphries. Pavliska told her to return to her dorm, and Reeder never heard anything else about it. Pavliska testified that she told Charlotte Day, another guard, about the assaults, but Day denied being told. On another occasion, Day taunted plaintiff Garell about beginning a sexual relationship with Bobelu.

Plaintiffs brought suit under 42 U.S.C. § 1983 and alleging violations of their Eighth Amendment right to be free from cruel and unusual punishment. Their complaint named 15 defendants, including Bobelu, Humphries, Day, and Pavliska. The claims against several defendants were dismissed without prejudice, and all remaining defendants except Bobelu moved for summary judgment. The district court granted summary judgment to all except Day and Pavliska, finding a jury could conclude they were deliberately indifferent to the known substantial risk of serious harm to plaintiffs. Day and Pavliska filed interlocutory appeals, arguing the district court erred in finding they were not entitled to qualified immunity.

The Tenth Circuit quickly disposed of Day’s appeal, noting that her challenge was to the district court’s sufficiency determination and not that the plaintiffs failed to assert violation of a constitutional right. Because the sufficiency issue was not ripe for appeal, the Tenth Circuit dismissed Day’s appeal for lack of jurisdiction.

Finding jurisdiction to evaluate Pavliska’s appeal, the Tenth Circuit considered her arguments that she was entitled to qualified immunity because plaintiffs did not allege she affirmatively violated their constitutional rights, the conduct of Bobelu and Humphries did not rise to the level of a constitutional violation, and she did not have actual knowledge of the bad acts of Bobelu and Humphries. Plaintiffs asserted Pavliska violated their Eighth Amendment right to be free from sexual assault while imprisoned by failing to take reasonable measures to abate the risk of assault. Pavliska argued that because she had no official authority over Bobelu and Humphries she could not be liable for their conduct, which the Tenth Circuit characterized as an argument that she could only be liable for conduct of those she supervised directly. The Tenth Circuit rejected this argument, finding it well established that prison officials can be held liable for failing to prevent assault. Pavliska also argued that the conduct of Bobelu and Humphries was not sufficiently serious to constitute a constitutional violation. The Tenth Circuit noted that this was a challenge to the sufficiency of the evidence and it lacked jurisdiction to hear the issue. Finally, Pavliska argued she could not be held liable for any acts occurring before January 2009, but the Tenth Circuit noted the plaintiffs in their opening brief asserted claims arising after January 2009 only.

The district court’s denial of summary judgment as to Pavliska was affirmed insofar as it was a challenge to the motion denial and not to the sufficiency of the evidence, and Day’s and Pavliska’s appeals challenging sufficiency were dismissed for lack of jurisdiction.

Tenth Circuit: No Qualified Immunity Where Officer Acted with Recklessly and with Deliberate Indifference

The Tenth Circuit Court of Appeals issued its opinion in Browder v. City of Albuquerque on Tuesday, June 2, 2015.

After finishing a shift, Sergeant Adam Casaus of the Albuquerque Police Department sped through city streets with his lights and sirens on, driving at an average of 66 miles per hour for 8.8 miles. He sped through a red light at one intersection and hit a car, killing Ashley Browder and causing serious injuries to her sister, Lindsay. Lindsay and her parents brought a § 1983 action in federal court, but Sergeant Casaus urged the district court to deny relief based on qualified immunity. The district court declined to dismiss the case and Casaus appealed.

The Tenth Circuit first noted that the parties did not dispute that Casaus’ conduct fell “under color of state law.” The Browders alleged a violation of their Fourteenth Amendment right to due process. The Tenth Circuit clarified that the alleged violation was a substantive due process claim, evaluating whether the claim was carefully described, whether the right is “fundamental,” and whether the government’s infringement was “direct and substantial,” next turning to the question of whether the government had substantial justification for its actions. Finally, the Tenth Circuit noted that when a state court claim can provide the same relief as a federal § 1983 claim, the federal court should abstain in favor of the state remedial process.

Evaluating the case at hand, the Tenth Circuit found no question that the Ashley’s death and Lindsay’s injuries qualified as direct and substantial impairments of their fundamental right to life, and that Sergeant Casaus’ actions were arbitrary in that they were performed capriciously or at his pleasure and without good reason. Although Casaus claimed he was acting on official business—pursuing a car operating in a dangerous manner—the facts in the complaint expressly contend Casaus was not pursuing official business of any kind. The Tenth Circuit also rejected Casaus’ contention that because he activated his lights and sirens he was not acting recklessly as a matter of law. Casaus argued he did not have time to form a reckless indifference to human life, because the accident occurred 2.5 seconds after he entered the intersection. However, the Tenth Circuit noted he had driven 8.8 miles at high speeds prior to the accident, and therefore he had about 8 minutes before the crash to form the requisite mens rea.

Finally, the Tenth Circuit evaluated whether the law was clearly established at the time of Casaus’ accident. Noting that “some things are so obviously unlawful that they don’t require detailed explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing,” the Tenth Circuit found that although there was not much case law regarding officers causing fatal accidents on their own time, the Supreme Court ruled in 1986 that when a private person suffers a serious injury due to an officer’s intentional misuse of his or her vehicle a viable due process claim can arise, and the Tenth Circuit ruled in 1996 that a Fourteenth Amendment claim can arise from an officer speeding at 60 miles per hour. The Tenth Circuit also ruled in 2006 that a police officer could be liable under the Fourteenth Amendment for driving recklessly and with deliberate indifference. Taking all these cases together, the Tenth Circuit found ample support that the law was clearly established at the time of the accident.

The Tenth Circuit affirmed the district court. Judge Gorsuch wrote a concurrence about the preference for tort claims to be resolved under state law rather than federal law.

Tenth Circuit: Inadequate Briefing Warrants Affirmance of Lower Court Opinion

The Tenth Circuit Court of Appeals issued its opinion in Nixon v. City & County of Denver on Thursday, April 30, 2015.

Ricky Nixon was a Denver police officer who was involved in two highly publicized incidents of excessive force. He was cleared of wrongdoing after the first incident, but the Denver manager of safety ordered a 30-day suspension after the second incident and ordered his termination when he was not truthful about the incident. A panel of the Denver Civil Service Commission reversed the termination but ultimately the Colorado Court of Appeals remanded. While the Commission decision was being challenged by the City, Nixon filed a § 1983 suit against the manager of safety, the City, and others in federal district court. The district court dismissed all his claims, but on appeal Nixon challenged the dismissal of only two: (1) the City and manager violated his First Amendment rights by retaliating against him for protected speech, and (2) a Due Process claim based on his protected status as a police officer.

The Tenth Circuit noted that First Amendment claims should be evaluated under the Garcetti/Pickering test, and that to show a due process violation the employee must prove governmental defamation and alteration in legal status. The district court dismissed Nixon’s claims for failure to state a claim for relief.

The Tenth Circuit analyzed Nixon’s opening brief on appeal and found that no pertinent issue was adequately developed. The Tenth Circuit first affirmed the district court’s dismissal of Nixon’s stigma-plus-due process claim because Nixon’s opening brief “contain[ed] nary a word to challenge the basis of the dismissal.” As for Nixon’s claims that his speech was on a matter of public concern, the Tenth Circuit found only general statements about the protected speech and not specific references as required. Addressing the district court’s ruling that Nixon’s 2013 statement before the Civil Service Commission could not have been a motivating factor in his 2011 termination, the Tenth Circuit found that if it sought to make arguments for Nixon it could read one sentence in his brief to state that the retaliation was the City’s decision to seek state court review of the Commission’s ruling in Nixon’s favor. The Tenth Circuit, however, had “no obligation to address the point because the sentence fails to satisfy minimal standards for intelligibility that we must require from lawyers, it is misleadingly placed under a heading for a different issue, and the brief does not even say that the sentence is intended as a response to a ruling by the district court or an argument by the City.”

The Tenth Circuit affirmed the district court judgment.

Tenth Circuit: Automatic Bankruptcy Stay Deprives Tenth Circuit of Appellate Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in Eastom v. City of Tulsa on Monday, April 20, 2015.

Dustin Eastom filed § 1983 claims for malicious prosecution against the City of Tulsa, a Tulsa police officer (Mr. Henderson), and an ATF agent (Mr. McFaddon). Mr. Eastom also filed a negligence claim against the city under Oklahoma’s Governmental Tort Claims Act. After Mr. Eastom filed suit, Mr. McFaddon filed for bankruptcy, and Mr. Eastom’s claim against him was automatically stayed by 11 U.S.C. § 362. The district court entered summary judgment for the City and Mr. Henderson, dismissing Mr. Eastom’s claims with prejudice. It declined to exercise jurisdiction over Mr. Eastom’s state law claims against the City and also dismissed them with prejudice.

Mr. Eastom appealed the summary judgment order, and the Tenth Circuit issued an order to show cause why the appeal should not be dismissed because there was no final judgment as to all parties. Mr. Eastom voluntarily dismissed his district court claim against Mr. McFaddon without prejudice and responded to the show cause order that his appeal was now final because he was time-barred from refiling the claim. However, under Oklahoma’s savings statute, Mr. Eastom had an additional year to re-file his voluntarily withdrawn claims against Mr. McFaddon despite the time bar.

Mr. Eastom waited a year and again appealed to the Tenth Circuit. However, the § 362 stay was still in place, and the Tenth Circuit again ordered Mr. Eastom to show cause why his appeal should not be dismissed for lack of jurisdiction. Mr. Eastom contended the district court’s summary judgment was final because the time for refiling under the savings statute had elapsed.

The Tenth Circuit examined the interplay between the applicable statute of limitations, the savings statute, and the bankruptcy stay, and found that Mr. Eastom’s claims were still not final because the bankruptcy stay was still in place, tolling the statute of limitations. Because the automatic stay prevented Mr. Eastom from exercising legal remedies against the debtor, Oklahoma law prevents the running of the savings statute while the stay is in place.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Allowing Recovery for Lost Horses Would Effectively Nullify State Forfeiture Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Campbell v. City of Spencer on Tuesday, December 16, 2014.

The City of Spencer, Oklahoma, along with the Town of Forest Park and Blaze Equine Rescue seized 44 emaciated and malnourished horses from Ann Campbell’s three properties pursuant to a search warrant issued for one of the properties. The City and Town filed a joint petition in Oklahoma County District Court for forfeiture of the horses as a remedy for animal abuse. During the forfeiture proceeding, Campbell did not raise any argument regarding the scope of the search warrant. The court granted the forfeiture petition, the Oklahoma Court of Civil Appeals affirmed, and the Oklahoma Supreme Court denied certiorari.

Campbell subsequently filed a § 1983 action in the U.S. District Court for the Western District of Oklahoma, claiming that the municipalities and Blaze had violated the Fourth Amendment in two ways: (1) by withholding from the search warrant information about Campbell’s plan to reduce the number of horses, and (2) by searching the two locations not listed on the warrant. The municipalities filed motions to dismiss on preclusion grounds, since Campbell did not raise her arguments in the state forfeiture proceeding. Blaze filed a motion for summary judgment on preclusion grounds. The district court granted the motions. Campbell appealed.

The Tenth Circuit affirmed the district court, finding the exclusionary rule applied in Oklahoma state forfeiture proceedings and Campbell could have raised her claims in that proceeding. Campbell asserted that the state court judge refused to consider the legality of the evidence, but the Tenth Circuit reviewed the record and  found no evidence of such refusal. Campbell also suggested that suppression issues could not be raised in state court proceedings, which was an incorrect understanding of the law. Because of its conclusion that Campbell could have raised her claims in state court, the Tenth Circuit next considered whether allowing her to pursue the claims in federal court would nullify the original proceeding. The Tenth Circuit could not state with certainty whether barring the suppression would nullify the forfeiture proceeding, but found that allowing Campbell to pursue her claims would impermissibly impair the municipalities’ rights as established in the state court. The Tenth Circuit noted that allowing Campbell to recover the value of the lost horses would suggest the invalidity of the state court’s forfeiture order, and declined to allow recovery.

The Tenth Circuit affirmed the district court’s dismissal as to the municipalities and grant of summary judgment as to Blaze.

Colorado Court of Appeals: Medical Marijuana Grower Not Entitled to Bring § 1983 Action for Destruction of Plants

The Colorado Court of Appeals issued its opinion in Young v. Larimer County Sheriff’s Office on Thursday, September 11, 2014.

Medical Marijuana Amendment—42 USC § 1983—Seizure—Taking—Constitution.

Young leased property where he grew marijuana plants and distributed marijuana for medical use under the Medical Marijuana Amendment (MMA), Article XVIII, §14 of the Colorado Constitution. After obtaining search warrants, sheriff’s deputies entered Young’s property and seized forty-two marijuana plants by cutting them off just above the roots. This action killed the plants. After Young was acquitted of all charges against him, he brought this action for damages on the basis that the deputies had killed the plants seized from him. The trial court entered summary judgment against Young.

On appeal, Young argued that 42 USC § 1983 provides a remedy for state action that violates a right created by the MMA. Section 14(2)(e) of the MMA requires that medical marijuana that has been seized be returned upon acquittal of criminal charges. However, because federal law criminalizes possession of marijuana, such a claim is not cognizable under § 1983. Further, no express or implied private right of action exists under the MMA. Therefore, the trial court properly entered summary judgment on this claim.

Defendants argued that because Young’s complaint alleged a taking only under federal law (which is foreclosed by the federal criminalization of marijuana), a state law takings claim under Article II, §15 of the Colorado Constitution should not be considered. A valid seizure under criminal law does not constitute a taking for which the owner is entitled to just compensation, even if the defendant is later acquitted of the charges. Therefore, the trial court properly entered summary judgment on the state law takings claim. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: No Probable Cause to Conduct Vehicle Search when Dog Jumped Into Vehicle Without Alerting

The Tenth Circuit Court of Appeals issued its opinion in Felders v. Malcom on Friday, June 20, 2014.

Sherida Felders and her two young passengers were traveling through Utah on her way from California to Colorado when she was stopped by Officer Bairett for speeding. Bairett observed that Felders appeared nervous, she had an air freshener in her car, and she had a religious license plate holder, which made him suspicious that she was transporting drugs. He called for a K-9 unit to conduct a dog sniff, and Officer Malcom and dog Duke responded. Felders did not consent to a search of her vehicle, but the dog was allowed legally to sniff the outside of the vehicle without consent. As Felders and her passengers exited the vehicle, Bairett held the doors open and did not close them prior to the sniff. Duke immediately jumped inside the car without alerting and began to sniff the inside of the vehicle. After a two-hour search, no drugs were found in the vehicle. Felders and the two passengers subsequently brought this action, alleging violations of Fourth Amendment violations under 28 U.S.C. § 1983. Officer Malcom moved for summary judgment on the unlawful search claim on qualified immunity grounds. The district court denied summary judgment and this interlocutory appeal followed.

The district court found as a matter of law that Malcom could not establish probable cause to search the car prior to conducting the dog sniff and that material facts were in dispute regarding (1) whether Malcom’s canine, Duke, alerted prior to jumping into the vehicle; and (2) whether Malcom facilitated Duke’s entry into the vehicle prior to establishing probable cause. The Tenth Circuit agreed with the district court that Malcom did not have probable cause to search the vehicle prior to conducting the sniff. The facts provided by Bairett provided, at most, reasonable suspicion justifying the detention, and Malcom did not independently find any further evidence of wrongdoing.

As to whether Malcom facilitated Duke’s entry into the vehicle, the Tenth Circuit found that genuine issues of material fact existed as, precluding a grant of summary judgment on qualified immunity grounds as a matter of law. The Tenth Circuit noted that clearly established precedent prevented the officers from searching the inside of the vehicle until the dog alerted on the exterior sniff. Because the dog jumped into the car and it was not clear whether Malcom’s actions led the dog to enter the vehicle, summary judgment was inappropriate. The Tenth Circuit affirmed the district court’s denial of summary judgment to Malcom on qualified immunity grounds.

Tenth Circuit: In Sexual Harassment Case, Summary Judgment For County and Judge Affirmed in Part and Reversed in Part

The Tenth Circuit Court of Appeals published its opinion in Eisenhour v. Weber County on Wednesday, March 12, 2014.

Marcia Eisenhour worked for Weber County for 24 years, serving as the Court Administrator for the Weber County Justice Court under the direct supervision of Judge Storey. According to Ms. Eisenhour, Judge Storey began acting inappropriately toward Ms. Eisenhour in early 2008. He became “touchy” and would often stand so close to her that his groin rubbed against her. In addition to the touching, Judge Storey once told her that he had a dream about her in which she was naked. Ms. Eisenhour also found a poem by Judge Storey, which revealed his romantic feelings for her. According to Ms. Eisenhour, she was also subjected to unreasonable demands about her activities away from work.

The County launched an investigation, but ultimately decided not to discipline Judge Storey. The matter was later referred to Utah’s Judicial Conduct Commission, which the Commission dismissed.

Between August and December 2009, the County Commissioners closed the Justice Court, which meant the loss of Ms. Eisenhour’s job. Ms. Eisenhour applied to the County for three vacant positions. Unsuccessful, she lost not only her job but also the potential for retirement benefits. She eventually spoke to the media about the Judicial Conduct Commission’s investigation of Judge Storey.

Marcia Eisenhour sued Weber County, three of its county commissioners, and Judge Storey. She claimed violations of Utah’s Whistleblower Act, the First Amendment, the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and Title VII. The district court granted summary judgment to the defendants on all claims. Ms. Eisenhour appealed.

Ms. Eisenhour first challenged the district court’s exclusion of her testimony on disciplinary proceedings involving the judge. The Tenth Circuit affirmed. The exclusion of Ms. Eisenhour’s testimony during the disciplinary proceedings involving Judge Storey was proper, since, under the applicable Utah statute, section 78A-11-112(1), testimony taken during the course of proceedings before the Judicial Conduct Commission cannot be introduced in a civil action.

Ms. Eisenhour asserted a claim under Title VII for retaliation. The district court held that it lacked jurisdiction over the claim because Ms. Eisenhour failed to exhaust administrative remedies. The Tenth Circuit agreed. Ms. Eisenhour filed an EEOC claim for sexual harassment, but this claim did not refer to any of the retaliatory acts underlying the eventual cause of action under Title VII. As a result, the court affirmed the award of summary judgment to the County on the Title VII retaliation claim.

Next, Ms. Eisenhour invoked the First Amendment, claiming that the County retaliated against her by closing the Justice Court when she spoke to the media about the Judicial Conduct Commission’s investigation of Judge Storey. The Tenth Circuit held that triable issues of fact existed and that the district court erred in granting summary judgment to the County. When the court is faced with a First Amendment claim by a public employee, the district court must balance the First Amendment interests of that employee, speaking as a concerned citizen, with the government’s interests in promoting the efficiency of the public services it performs through its employees. The Tenth Circuit held that her comments to the media involved protected speech and that she presented sufficient evidence for a reasonable fact-finder to infer that her comments were a motivating factor in the County’s decision to close the Court. The evidence also created a genuine issue of fact about the legitimacy of the County’s explanation for closing the Justice Court.

On the First Amendment claim for retaliation, Ms. Eisenhour also sued three county commissioners in their personal capacities. This claim was based on the Commissioners’ decision to close the Justice Court. Their motivation, according to Ms. Eisenhour, was to retaliate for her comments to the media. Like the County, the Commissioners argued that Ms. Eisenhour’s speech was not protected under the First Amendment and that the County closed the courthouse because of budgetary considerations rather than a retaliatory motive. As discussed above, these arguments involved factual issues turning on the resolution of conflicting evidence, thereby preventing summary judgment for the County.

Ms. Eisenhour further alleged that the County violated Utah’s Whistleblower Act, which prohibits government employers from retaliating against employees who report employer misconduct. According to Ms. Eisenhour, the County violated the state law by closing the Justice Court and refusing to hire her. Ms. Eisenhour waited more than 180 days from the alleged violation to assert a Whistleblower Act claim, so this claim was time-barred. However, for her claim relating to the closing of the court, the claim did relate back to the original filing, so it was not time-barred.

Ms. Eisenhour argued that the County deprived her of a property interest in her job without due process of law. The district court held that Ms. Eisenhour had failed to establish a protected property interest. The Tenth Circuit agreed. For purposes of the Fourteenth Amendment’s Due Process Clause, property interests must derive from some independent source, such as state law, contract, or other understandings that give rise to a claim of entitlement. However, her employment was at-will. And at-will employees lack a property interest in continued employment.

Ms. Eisenhour asserted that the County violated her right to equal protection, and the district court granted summary judgment to the County on the ground that Judge Storey was not an official policymaker. The Tenth Circuit agreed with the district court’s decision. A municipality can be liable under Section 1983 for the acts of a municipal official only when the official possesses final policymaking authority to establish municipal policy with respect to the acts in question.

Judge Storey lacked policymaking authority to touch Ms. Eisenhour inappropriately under the County’s sexual harassment policy. Further, his monitoring of her whereabouts (when missing work) did not violate the Equal Protection Clause. As a result, the County was entitled to summary judgment on the equal-protection claim.

Ms. Eisenhour further asserted an equal-protection claim against Judge Storey. The district court concluded that Judge Storey was entitled to qualified immunity. The Tenth Circuit reversed the district court’s grant of summary judgment to Judge Storey, concluding that he was not entitled to qualified immunity and that there was a fact-issue about whether Judge Storey inappropriately touched Ms. Eisenhour.

To overcome a defense of qualified immunity, a plaintiff must show that: (1) the defendant’s conduct violated the law, and (2) the law was clearly established when the violation occurred. The Tenth Circuit held that Ms. Eisenhour made the threshold showing and that issues of fact precluded summary judgment.

For the reasons stated above, the Tenth Circuit affirmed the award of summary judgment on Ms. Eisenhour’s claims against the County under the: (1) Whistleblower Act for a refusal to rehire her, (2) Title VII, and (3) § 1983 based on a deprivation of due process and denial of equal protection. The court also held that the district court properly excluded Ms. Eisenhour’s testimony taken during the judicial-misconduct investigation. But the court agreed with Ms. Eisenhour that genuine issues of fact precluded summary judgment on: (1) her § 1983 claim against the County and the County Commissioners based on the First Amendment, (2) the Whistleblower Act claim against the County based on the court closing, and (3) the § 1983 claim against Judge Storey based on the Fourteenth Amendment’s Equal Protection Clause.

Accordingly, the case was REMANDED to the district court with instructions to VACATE the award of summary judgment on these claims.

—–

Defendant Craig Storey requested rehearing, arguing in part: (1) The panel opinion erroneously relied in part on sworn testimony before the Judicial Conduct Commission even though the testimony was deemed inadmissible; and (2) the evidence did not support Ms. Eisenhour’s claim that Defendant Storey knowingly and intentionally committed sexual harassment by telling her about a dream. On these issues, Defendant Storey also requested en banc consideration. In addition, he sought en banc consideration on the issue of qualified immunity.

The panel granted rehearing on the first issue, which involved reliance on the Commission testimony by Ms. Eisenhour. The remainder of the petition for panel rehearing was denied. In light of the partial grant of the petition, however, the panel vacated the opinion issued on December 31, 2013. The clerk was directed to substitute the amended decision above and to file it contemporaneously with this order.

Tenth Circuit: Denver Police Officers Not Entitled to Qualified Immunity on Excessive Force Claims at Summary Judgment Stage

The Tenth Circuit Court of Appeals published its opinion in Estate of Marvin L. Booker v. Gomez on Tuesday, March 11, 2014.

Denver police arrested Marvin Booker on a warrant for failure to appear at a hearing regarding a drug charge. During booking, Mr. Booker died while in custody after officers restrained him in response to his alleged insubordination. Several officers pinned Mr. Booker face-down to the ground, one placed him in a chokehold, and another tased him. After the officers sought medical help for Mr. Booker, he could not be revived.

Mr. Booker’s estate sued Deputies Faun Gomez, James Grimes, Kyle Sharp, Kenneth Robinette, and Sergeant Carrie Rodriguez (collectively “Defendants”) under 42 U.S.C. § 1983, alleging they used excessive force against Mr. Booker and failed to provide him with immediate medical care, which resulted in Mr. Booker’s untimely death. The Defendants moved for summary judgment on qualified immunity grounds. The district court denied their motion because disputed facts precluded summary judgment. Defendants appealed.

42 U.S.C. § 1983 allows an injured person to seek damages against an individual who has violated his or her federal rights while acting under color of state law. Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials  from damages actions unless their conduct was unreasonable in light of clearly established law. Generally, when a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant’s unlawful conduct.

The court discerned five issues from the Defendants’ appeal: (A) whether the district court erred by considering Plaintiffs’ excessive force claim under both the Fourth and the Fourteenth Amendment standards; (B) whether the district court erred in failing to conduct an individualized analysis of each Defendant’s actions; (C) whether the district court erred in denying qualified immunity on Plaintiffs’ excessive force claim; (D) whether the district court erred in denying qualified immunity on Plaintiffs’ claim for failure to provide medical care; and (E) whether the district court erred in failing to grant qualified immunity to Sergeant Rodriguez on the Plaintiffs’ supervisory liability claim.

(A)   The District Court Did Not Err by Considering Plaintiffs’ Excessive Force Claim Under Both the Fourth and the Fourteenth Amendments

Determining which amendment applies to an allegation of excessive force requires consideration of where the plaintiff finds himself in the criminal justice system. It is well-established that the Fourteenth Amendment governs any claim of excessive force brought by a “pretrial detainee.” On the other hand, the Fourth Amendment governs excessive force claims arising from treatment of an arrestee detained without a warrant and prior to any probable cause hearing. The Tenth Circuit concluded the district court did not err in considering Plaintiffs’ excessive force claim under both the Fourth and Fourteenth Amendments. Rather, the district court did what many courts do: it analyzed the case under more than one legal rule and made alternative rulings, holding that Defendants were not entitled to qualified immunity on Plaintiffs’ excessive force claim under either the Fourth or Fourteenth Amendment.

The court held the Fourteenth Amendment applied to Plaintiffs’ excessive force claim in any event, because Mr. Booker was a pre-trial detainee.

(B) Individualized Analysis of Each Officer’s Use of Force

Defendants argued the district court should have assessed their actions individually, rather than judging the conduct of all the deputies as a whole. The Tenth Circuit disagreed and concluded that individualized analysis was not necessary at the summary judgment stage: all Defendants actively and jointly participated in the use of force, and even if a single deputy’s participation did not constitute excessive force, that deputy could be liable under a failure-to-intervene theory. The court concluded that the district court did not err in failing to consider each officer’s use of excessive force individually.

(C)   Qualified Immunity on Plaintiffs’ Excessive Force Claim

The Defendants were entitled to qualified immunity unless the Plaintiffs could show  (a) a reasonable jury could find unconstitutional the deputies’ use of force—a carotid restraint, pressure on Mr. Booker’s back, and application of a taser—once Mr. Booker was fully restrained; and (b) this use of force violated clearly established law.

The Tenth Circuit concluded Plaintiffs met both burdens. The court looked to these three factors in evaluating the excessive force claim under the Fourteenth Amendment: (1) the relationship between the amount of force used and the need presented; (2) the extent of the injury inflicted; and (3) the motives of the state actor.

The evidence, when viewed in the light most favorable to the Plaintiffs, showed the deputies used various types of force—including substantial pressure on his back, a taser, and a carotid neckhold—on Mr. Booker while he was not resisting. Because Mr. Booker was handcuffed and on his stomach, the court concluded the force was not proportional to the need presented. Second, the autopsy report concluded that Mr. Booker died of cardiorespiratory arrest as a result of restraint. A reasonable jury could conclude this evidence of Mr. Booker’s cause of death supported the Plaintiffs’ claim of excessive force. Next, the subjective intent standard for an excessive force due process violation is force inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness. A reasonable jury could conclude that the Defendants’ use of substantial pressure on Mr. Booker’s back, a two-minute carotid hold on his neck, and a taser while Mr. Booker was subdued and struggling to breathe in a prone position demonstrated the requisite level of culpability for a due process violation. The Tenth Circuit held that the Plaintiffs met their burden to show the Defendants violated Mr. Booker’s constitutional rights because a reasonable jury could conclude the Defendants engaged in excessive force in violation of the Due Process Clause.

Second, the legal norms underlying the three-factor due process analysis—proportionality, injury, and motive—were clearly established at the time of Mr. Booker’s death. The court therefore affirmed the district court’s denial of summary judgment on Plaintiffs’ excessive force claim.

(D)   Defendants Were Not Entitled to Qualified Immunity on Plaintiffs’ Claim for Failure to Provide Medical Care

Prison doctors and prison guards may be liable under § 1983 for indifference manifested in their response to the prisoner’s needs or by intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed. This standard applies to pretrial detainees. First, the detainee must produce objective evidence that the deprivation at issue was in fact sufficiently serious. A medical need is sufficiently serious if it is one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. Second, under the subjective component, the detainee must establish deliberate indifference to his serious medical needs by presenting evidence of the prison official’s culpable state of mind.

First, Plaintiffs’ experts provided sufficient evidence for a jury to conclude that the Defendants’ delay in seeking medical care contributed to Mr. Booker’s death, which was without doubt, sufficiently serious to meet the objective component necessary to implicate the Fourteenth Amendment. Second, the disputed facts regarding Mr. Booker’s condition after the use of force ended precluded summary judgment.

There is little doubt that deliberate indifference to an inmate’s serious medical need violates a clearly established constitutional right. The court stated that any reasonable officer in the Defendants’ position (and with their training) would have known that failing to check Mr. Booker’s vital signs, perform CPR, or seek medical care for three minutes when he was limp and unconscious as a result of the Defendants’ use of force could violate the Constitution.

(E)    Sergeant Rodriguez Was Not Entitled to Qualified Immunity on the Plaintiffs’ Supervisory Liability Claim

A plaintiff must satisfy three elements to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities: (1) personal involvement; (2) causation; and (3) state of mind.

The court held that a reasonable jury could find Sergeant Rodriguez actively participated in—and failed to intervene and prevent—the use of excessive force to satisfy the first and second elements. Similarly, the court’s earlier conclusion that a reasonable jury could find Sergeant Rodriguez exhibited excessive zeal—by using the taser on Mr. Booker for 60 percent longer than the recommended time period when he was no longer resisting and fully subdued by handcuffs, and the carotid neck hold, satisfied the third element. Finally, the court’s previous conclusion regarding clearly established law, also precluded summary judgment on this claim.

 AFFIRMED.

Tenth Circuit: In Sex Discrimination Case, Genuine Issues of Fact Existed as to Plaintiff’s Title VII Claims

The Tenth Circuit Court of Appeals published its opinion in Kramer v. Wasatch County Sheriff’s Office on Tuesday, February 25, 2014.

Camille Kramer worked for the Wasatch County Sheriff’s Department from 2005 to 2007. During that time, she was the victim of repeated sexual harassment, sexual assault and rape at the hands of Sergeant Rick Benson.

Ms. Kramer sued Wasatch County, alleging that the sexual harassment she experienced at the hands of Sergeant Benson constituted sex discrimination prohibited by both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), and the Constitution, 42 U.S.C. § 1983. The district court granted summary judgment to Wasatch County. The court held that Sergeant Benson was not Ms. Kramer’s supervisor for Title VII purposes because he did not have the actual authority to unilaterally fire her. It further held that supervisor status could not be premised on apparent authority because no reasonable juror could find Ms. Kramer reasonable in believing Sergeant Benson had the power to fire her. Even assuming Sergeant Benson was Ms. Kramer’s supervisor, the court concluded that Wasatch County was not vicariously liable for his conduct because Ms. Kramer suffered no tangible employment action and, alternatively, because Wasatch County was entitled to prevail on its Faragher/Ellerth affirmative  defense as a matter of law.

Finally, the district court held that Wasatch County was not negligent and thus could not be liable for Sergeant Benson’s harassment under co-worker harassment standards. As to Ms. Kramer’s § 1983 claims, the court determined that Sheriff Van Wagoner was entitled to qualified immunity, and that the County was not liable because it had no pattern, practice, or custom of illegal sex discrimination. Ms. Kramer appealed on all claims.

Sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII. In general, an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. If the harasser is a supervisor rather than merely a co-worker, however, the employer may be vicariously liable for the conduct, depending on the circumstances.  If the supervisor’s harassment culminates in a “tangible employment action,” the employer is strictly liable for sex discrimination, with no defense. If no tangible employment action occurs, the employer may still be vicariously liable for the supervisor’s harassment if the plaintiff proves the harassment was severe or pervasive, and the employer is unable to establish the affirmative defense announced in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). For these reasons, whether the harasser was a “supervisor” within the meaning of Title VII is a critical threshold question in determining whether the employer can be held vicariously liable for the harassment.

The United States Supreme Court has held that a “supervisor” under Title VII is an employee whom the employer has empowered to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Importantly, however, an employee need not be empowered to take such tangible employment actions directly to qualify as a supervisor. A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a “supervisor” under Title VII.

Sergeant Benson was Ms. Kramer’s direct supervisor. He completed her performance evaluations and made recommendations regarding her employment status. The record established that Ms. Kramer raised a genuine issue of fact as to whether the Wasatch County Sheriff’s Department effectively delegated to Sergeant Benson the power to cause tangible employment actions regarding Ms. Kramer by providing for reliance on recommendations from sergeants such as Benson when making decisions regarding firing, promotion, demotion, and reassignment.

Even if it was determined that Sergeant Benson lacked the actual supervisory authority described above, he could still qualify as a supervisor under apparent authority principles. In the usual case, a supervisor’s harassment involves misuse of actual power, not the false impression of its existence. But in the unusual case, apparent authority can suffice to make the harasser a supervisor for Title VII purposes, so long as the victim’s mistaken conclusion is a reasonable one. Under the circumstances here, given the County’s and the Sheriff’s manuals, there was a genuine issue of fact as to whether Ms. Kramer was reasonable in believing that Sergeant Benson had additional powers – such as the power to transfer, discipline, demote, or fire her. A jury was especially likely to conclude such beliefs were reasonable because Sergeant Benson repeatedly told Ms. Kramer he did in fact possess such powers.

If Sergeant Benson was a supervisor, Wasatch County would be strictly liable for his harassment of Ms. Kramer if it culminated in a tangible employment action. However, the Tenth Circuit held that none of the following actions constituted tangible employment actions: (1) the rape; (2) the bad performance evaluation that was never submitted; (3) Sergeant Benson denying her vacation days; and (4) Sergeant Benson refusing to give her road training and assigning her to the magnetometer full-time. The Tenth Circuit held that no tangible employment action occurred. Because these actions did not constitute “tangible employment action,” the County could not be held strictly liable for sex discrimination.

Even absent a tangible employment action, if Sergeant Benson qualified as a supervisor, the County could be vicariously liable for his severe or pervasive sexual harassment unless it could establish the affirmative defense announced in Faragher and Ellerth. This defense has two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The Tenth Circuit held that Wasatch County did not support its summary judgment motion with evidence that entitled it to judgment as a matter of law under either of the affirmative defense’s two prongs. Wasatch County’s evidence did not establish as a matter of law that the County took reasonable means to prevent and promptly correct sexual harassment. The County did not provide any evidence that the Sheriff Department’s interventions were reasonably calculated to end the harassment, deter future harassers, or protect Ms. Kramer. Not only did the investigation here fail to demonstrate that the County employed reasonable means to discharge its Title VII obligations, the Sheriff’s response to Ms. Kramer’s allegations suggested that he did not understand he had a Title VII compliance matter on his hands. There was no evidence the Department sought to improve its sexual harassment prevention program or otherwise reduce the risk of future harassment. On this record, there remained a genuine issue of fact as to whether the County’s response to Ms. Kramer’s sexual harassment complaint fell short of demonstrating that the County took reasonable efforts to discharge its duty under Title VII, as required to establish the affirmative defense.

Under prong two of the affirmative defense, Wasatch County’s evidence did not compel the conclusion that Ms. Kramer was unreasonable. Ms. Kramer did not lodge a formal complaint. However, she testified that on numerous occasions Sergeant Benson sexually assaulted her and subsequently told her to “be quiet” and “not say anything” or it would be “a career ender.” Sergeant Benson also threatened Ms. Kramer with a poor evaluation unless she would keep her mouth shut and not say anything. The court concluded that the record demonstrated a persistent theme: Sergeant Benson was an intimidating person with job-related power over Ms. Kramer who would sexually harass her and then threaten that she would lose her job if she complained.

Ms. Kramer’s fear that Sergeant Benson would make good on his threats was not per se unreasonable given that he did in fact take adverse job actions against her at work – denying her leave time, threatening her with a bad performance evaluation, and giving her long shifts on the magnetometer. Even if these actions did not rise to the level of a tangible employment action, a reasonable employee could well find a combination of threats and actions taken with the design of imposing both economic and psychological harm sufficient to dissuade him or her from making or supporting a charge of discrimination. This evidence raised a genuine issue of fact as to whether Ms. Kramer’s fears of Sergeant Benson were credible and reasonable because they were grounded in concrete reasons to apprehend that complaint would result in affirmative harm to the complainant.

Taken together, the evidence was also sufficient to raise a genuine issue of fact as to whether Ms. Kramer was reasonable in believing it would be futile and potentially detrimental to herself to complain. Accepting Ms. Kramer’s version of the facts, a picture emerged in which Sergeant Benson used his job-related power over Ms. Kramer to compel, pressure, or coerce her to do his bidding. While Ms. Kramer technically could have avoided some of the encounters, the record did not establish that she could have done so without incurring some form of adverse employment action.

Accordingly, the Tenth Circuit reversed summary judgment for Wasatch County on both prongs of the Faragher/Ellerth defense.

However, the court affirmed the district court’s holding that the County’s liability could not be premised on negligence. The record evidence viewed in the light most favorable to Ms. Kramer failed to support an inference that the County had actual or constructive knowledge of Sergeant Benson’s sexual harassment before Ms. Kramer’s car accident.

Finally, the County was not liable for sex discrimination under § 1983. As to institutional liability under § 1983, the County could only be liable for the actions of Sergeant Benson if it had a custom, practice, or policy that encouraged or condoned the unconstitutional behavior – here, workplace sexual harassment. Kramer had to demonstrate a direct causal link between the municipal action and the deprivation of federal rights, and she had to show that the municipal action was taken with deliberate indifference to its known or obvious consequences. Ms. Kramer had to establish that the County failed to prevent sexual harassment with deliberate indifference, that the need for more or different action was so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. The court held that, on the record in this case, no reasonable jury could find that the risk of sergeants sexually assaulting their subordinates was “so obvious” the County’s policymakers should have known about it.

The Tenth Circuit therefore AFFIRMED summary judgment as to the § 1983 claim, but REVERSED on the Title VII claim, which the court REMANDED for trial.