209 F.3d 431 (5th Cir. 2000), 99-10232, Gros v City of Grand Prairie Texas

Docket Nº:99-10232
Citation:209 F.3d 431
Party Name:DANETTE HOPE GROS; ET AL., Plaintiffs, DANETTE HOPE GROS; EDITH D. SIKES, Plaintiffs-Appellees- Cross-Appellants, v. THE CITY OF GRAND PRAIRIE, TEXAS, ET AL., Defendants, HARRY L. CRUM, Defendant-Appellant-Cross-Appellee.
Case Date:April 25, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 431

209 F.3d 431 (5th Cir. 2000)

DANETTE HOPE GROS; ET AL., Plaintiffs,

DANETTE HOPE GROS; EDITH D. SIKES, Plaintiffs-Appellees- Cross-Appellants,

v.

THE CITY OF GRAND PRAIRIE, TEXAS, ET AL., Defendants,

HARRY L. CRUM, Defendant-Appellant-Cross-Appellee.

No. 99-10232

IN THE UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

April 25, 2000

Page 432

Appeals from the United States District Court for the Northern District of Texas

Before DAVIS, CYNTHIA HOLCOMB HALL,[*] and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Harry Crum appeals the denial of summary judgment on his qualified immunity defense in a 42 U.S.C. § 1983 suit brought by Danette Gros and Edith Sikes, who are cross-appealing those portions of the order that granted Crum summary judgment on qualified immunity grounds. Plaintiffs alleged that Crum, as Chief of Police of Grand Prairie, Texas, violated their constitutional rights by hiring and failing properly to train and supervise an officer ("Rogers") who allegedly sexually assaulted them, and by having a hiring policy that allowed persons with a propensity toward violent behavior into the Grand Prairie Police Department ("GPPD"). Concluding that there was no genuine issue of material fact as to Crum's deliberate indifference to plaintiffs' constitutional rights, we reverse the denial of summary judgment and remand for further proceedings. We also decline to exercise pendent appellate jurisdiction over plaintiffs' cross-appeals, so we dismiss those cross-appeals.

I.

Gros and Sikes allege that Rogers, a former GPPD officer, physically, sexually, and verbally abused them. Gros contends that during a routine traffic stop, Rogers used excessive force against her. While on routine patrol, Rogers pulled Gros over for driving without wearing a seatbelt. After being stopped for about twenty minutes, Gros exited her vehicle and inquired of Rogers how much longer the stop would take. Rogers ordered Gros back into the car, at which point Gros stated that she had an appointment and needed to leave as soon as possible.

Rogers then allegedly grabbed Gros's arm, twisted it behind her back, threw her on top of her car, and reached into her blouse and grabbed her breast. He then handcuffed her and placed her under arrest without a recitation of Miranda warnings, putting her in his squad car on a hot day with the windows closed. Eventually he rolled down his window a little to aerate the inside, but then turned the volume on the radio up very high, allegedly to prevent passers-by from hearing Gros's requests for help.

At the police station, Gros immediately complained of her treatment to Rogers's supervisors. As a result, an investigation of Rogers's conduct with respect to this incident was conducted in which the internal investigative unit of the GPPD determined that Gros's claim was "not sustained."

Sikes contends that in February 1996, while responding to a call, Rogers sexually abused her. Sikes had been stopped by Rogers and advised that there was an outstanding warrant for her arrest for not paying traffic tickets. Sikes asked Rogers not to take her to jail, and while telling her that he would not, Rogers began to fondle her. As Sikes retreated, Rogers told her

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that she would have to make it up to him. Rogers grabbed her breasts and asked Sikes whether she was wearing any underwear.

Before Sikes could answer, Rogers lifted Sikes's top, pulled out her pants, and stuck his hand inside. As he was touching her, he stated that he wanted her "on his finger" so he could taste her on his way home. After he pulled out his hand from inside her pants, he licked his finger and told Sikes that she tasted sweet.

The following day, Rogers called Sikes and told her he was coming to her dormitory room before beginning work. Sikes immediately called and went to the GPPD station to report the incident and was informed that Rogers had had three other complaints lodged against him. Rogers went to Sikes's dormitory room that night.

When compiling his report on the Sikes incident, Rogers denied ever having touched her. After an internal investigation, however, he admitted to Sikes's charges. He was thereby placed on indefinite suspension and charged with criminal official oppression, to which he pleaded guilty.

II.

Plaintiffs filed their § 1983 claims against the city, Crum, and Lieutenant Bender, the officer in charge of the Department of Internal Affairs at GPPD. The district court granted summary judgment for the City on qualified immunity grounds. We vacated and remanded on the ground that the district court had applied incorrect legal standards to the evidence submitted by the plaintiffs. See Gros v. City of Grand Prairie, 181 F.3d 613, 615-16 (5th Cir. 1999).

Crum and Bender moved for summary judgment on qualified immunity grounds. The district court granted Bender's motion as to all claims asserted against him; these rulings are not being appealed. The court granted Crum's motion with respect to the claims that he maintained an improper hiring policy and that he improperly trained and supervised Rogers. The court denied Crum's motion as to his act of hiring Rogers.

All the losing parties with respect to the claims against Crum appeal these rulings. Although they recognize that the grant of summary judgment on two of their three claims is an interlocutory order that is typically not immediately appealable, plaintiffs urge us to exercise our pendent appellate jurisdiction over those claims that they allege are "inextricably intertwined" with the deliberate-indifference-in-hiring claim.

III.

On the issue of qualified immunity, Crum asserts that plaintiffs presented insufficient evidence that he was deliberately indifferent to their constitutional rights in hiring Rogers. Plaintiffs respond by pointing to evidence that the district court concluded created an issue of material fact properly presented to the jury.

We first must determine whether plaintiffs have alleged a violation of a clearly established constitutional right, before we reach the narrower issue of qualified immunity. Siegert v. Gilley, 500 U.S. 226, 232 (1991). Here, plaintiffs allege that Crum was deliberately indifferent to their constitutional rights to be free from false arrest, illegal search and seizure, excessive force, sexual harassment, and sexual assault.

Under Board of County Comm'rs v. Brown, 520 U.S. 397, 407 (1997), "deliberate indifference" to the "known or obvious consequences" of a hiring decision can amount to a constitutional violation on the part of the decision maker, but "[a] showing of simple or even heightened negligence will not suffice." Thus, "deliberate indifference" exists where adequate scrutiny of an applicant's background would lead a reasonable supervisor to conclude that the plainly obvious consequences of the

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decision to hire would be the deprivation of a third party's constitutional rights. Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1998), cert. granted, 525 U.S. 1097, and cert. dismissed, 119 S.Ct. 1493 (1999). There must be a strong connection between the background of the particular applicant and the specific violation alleged. Brown, 520 U.S. at 412. Accordingly, plaintiffs cannot succeed in defeating summary judgment merely because there was a probability that a poorly-screened officer would violate their protected rights; instead, they must show that the hired officer was highly likely to inflict the particular type of injury suffered by them. Id.

Because the district court denied summary judgment on this claim, we are limited to a review of whether the factual issues on which the district court based its decision were material, and we are precluded from reviewing the district court's determination that the issues of fact in question are genuine. 1 As evidentiary support for their contention that there was a material issue of fact whether Crum was deliberately indifferent to their constitutional rights in hiring Rogers, plaintiffs rely primarily on the contents of Rogers's pre-employment personnel file. They point to...

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