Lewis v. Tripp

• Citation: 604 F.3d 1221
• Decision Date: 17 May 2010
• Docket Number: No. 09-6105.,09-6105.
• Parties: Jeffrey W. LEWIS, D.C., Plaintiff-Appellee,v.Ronald TRIPP, D.C., Defendant-Appellant,andOklahoma State Board of Chiropractic Examiners; Russell Gilstrap, D.C.; Hugh McClure, D.C.; Shayne Javersak, D.C.; Bill Mead, D.C.; Corder, D.C.; Dr. James Toy; Kent Carter, D.C.; Viki Rasler, D.C.; Jeanie Gardner; Beth Carter; Joseph English, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

604 F.3d 1221

Jeffrey W. LEWIS, D.C., Plaintiff-Appellee,v. Ronald TRIPP, D.C., Defendant-Appellant,andOklahoma State Board of Chiropractic Examiners; Russell Gilstrap, D.C.; Hugh McClure, D.C.; Shayne Javersak, D.C.; Bill Mead, D.C.; Corder, D.C.; Dr. James Toy; Kent Carter, D.C.; Viki Rasler, D.C.; Jeanie Gardner; Beth Carter; Joseph English, Defendants.

No. 09-6105.

United States Court of Appeals Tenth Circuit.

May 17, 2010.

COPYRIGHT MATERIAL OMITTED

Grant E. Moak, Assistant Attorney General (M. Daniel Weitman and Tricia L. Everest, Assistant Attorneys General, on the briefs), Oklahoma Attorney General's Office, Oklahoma City, OK, for Defendant-Appellant Ronald Tripp.

Daniel J. Gamino, Daniel J. Gamino & Associates, P.C., Oklahoma City, OK, for Plaintiff-Appellee Jeffrey W. Lewis, D.C.

Before BRISCOE, Chief Judge, BALDOCK, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

After Oklahoma state authorities revoked Jeffrey Lewis's license to practice chiropractic medicine, they suspected him of continuing his practice unlawfully. In short order, they swore out an administrative subpoena and searched his office to confirm their suspicions. Believing that the search was carried out in violation of his Fourth Amendment rights, Dr. Lewis sued. He named as a defendant, among others, Ronald Tripp, the president of the Oklahoma Board of Chiropractic Examiners. At summary judgment, the district court denied Dr. Tripp's claim of qualified immunity, but it did not set forth with specificity the facts supporting its conclusion that Dr. Tripp violated Dr. Lewis's Fourth Amendment rights. In these circumstances, our precedent instructs us to “review the entire record ... and determine de novo whether the plaintiff in fact presented sufficient evidence to forestall summary judgment on the issue of qualified immunity.” Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1259 (10th Cir.1998). Doing just that, we see no evidence in this record to suggest that Dr. Tripp was personally involved in the Fourth Amendment violation Dr. Lewis alleges. Accordingly, we hold that Dr. Tripp is entitled to qualified immunity.

I

Dr. Lewis started practicing chiropractic medicine in Norman, Oklahoma in 1997, and for almost ten years ran his own business, West Norman Chiropractic. In March 2006, however, the Oklahoma State Board of Chiropractic Examiners revoked Dr. Lewis's medical license, apparently due to untrue statements Dr. Lewis made in his license application. The Board stayed the revocation for one month to allow Dr. Lewis time to find a replacement to take over his practice. During this period, Dr. Lewis hired Ben Sanders, who began treating Dr. Lewis's patients on May 1, 2006.

Two weeks later, the Board's executive director, Beth Carter, received an anonymous tip that Dr. Lewis was still practicing medicine, though now without a license. To work out what the Board's response should be, Ms. Carter consulted the Board's legal counsel and the Board's president, Dr. Tripp. Later that same day, Ms. Carter swore out an administrative subpoena requiring Dr. Lewis to turn over “[a]ll medical records, claims, documents and/or forms which indicate name[s] of patient(s) from ... March 28, 2006 to present.” Aple.App. at 71.

Ms. Carter, accompanied by her assistant, Joseph English, and two sheriff's deputies, then went to West Norman Chiropractic to serve the subpoena on Dr. Lewis. When they arrived, Dr. Lewis was out of the office, so Ms. Carter gave the subpoena to an employee. A receptionist then handed over patient treatment cards she had at the front desk. According to Dr. Lewis, though hotly disputed by Dr. Tripp, someone also took records from inside Dr. Lewis's personal desk. Ms. Carter next told various employees, as well as several patients sitting in the waiting room, that the clinic had to close. The clinic remained closed for one week, later reopening under Dr. Sanders's supervision, though the seized patient records weren't returned until approximately two months later. Meanwhile, Dr. Lewis's repeated requests for reinstatement of his license have failed.

Upset with the search of his office, Dr. Lewis responded with this lawsuit, contending that the search violated the Fourth Amendment of the United States Constitution. Dr. Lewis named as defendants the Board, the individual Board members, Ms. Carter, and Mr. English. After motions practice, however, all that remains for resolution at this point are Dr. Lewis's claims against Dr. Tripp. At summary judgment before the district court, Dr. Tripp argued that he was entitled to qualified immunity. The district court rejected that defense, and Dr. Tripp now seeks to appeal that ruling to us.¹

II

Dr. Tripp argues that the district court erred in denying him qualified immunity because there are no facts in the record from which a reasonable jury could find that he participated in any of the allegedly unlawful conduct that Dr. Lewis complains of. For his part, Dr. Lewis disputes all this, arguing to us that the facts are sufficient to suggest Dr. Tripp was personally involved. Before we can address the parties' factual dispute, however, we must first confront a preliminary question concerning our authority to do so.

A

“[T]o shield them from undue interference with their duties [to the public] and from potentially disabling threats of liability,” public servants, including Dr. Tripp, are entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis omitted). It represents “the norm” for public officials Harlow, 457 U.S. at 807, 102 S.Ct. 2727, and serves to insulate from suit “all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). A plaintiff may overcome a public official's qualified immunity only by showing, first, that the official violated the plaintiff's federal statutory or constitutional rights, and, second, that the rights in question were clearly established at the time of their alleged violation. Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009).

Despite all this, in Johnson v. Jones the Supreme Court indicated that, at the summary judgment stage at least, it is generally the district court's exclusive job to determine which facts a jury could reasonably find from the evidence presented to it by the litigants. 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). After doing so, the district court and we may then consider the “abstract” legal questions whether those facts suffice to show a violation of law and whether that law was clearly established at the time of the alleged violation. Id. at 317, 115 S.Ct. 2151. Ordinarily speaking, it is only these latter two questions-and not questions about what facts a jury might reasonably find-that we may consider in appeals from the denial of qualified immunity at summary judgment. Of course, “determining whether there is a genuine issue of material fact at summary judgment is [itself] a question of law,” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009), one we routinely review de novo in appeals from the grant of summary judgment. Still Johnson held that this practice doesn't normally pertain to appeals from the denial of qualified immunity. See 515 U.S. at 313, 115 S.Ct. 2151. So, for example, if a district court concludes that a reasonable jury could find certain specified facts in favor of the plaintiff, the Supreme Court has indicated we usually must take them as true-and do so even if our own de novo review of the record might suggest otherwise as a matter of law.

Johnson's rule might appear, at first glance, to foreclose at least a good portion of Dr. Tripp's appeal. After all, his primary complaint seems to be that the district court erred when it found sufficient facts in the record from which a jury could infer his involvement in the allegedly illegal search. But that isn't the end of the matter, because Johnson's rule has attracted exceptions that we must also consider. Without attempting an exhaustive list of those exceptions, the Supreme Court has drawn our attention to at least three.

First, the Court has indicated that, when the district court at summary judgment fails to identify the particular charged conduct that it deemed adequately supported by the record, we may look behind the order denying summary judgment and review the entire record de novo to determine for ourselves as a matter of law which factual inferences a reasonable jury could and could not make. See Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); see also Johnson, 515 U.S. at 319, 115 S.Ct. 2151 (If a district court does not state the facts a reasonable jury could find at summary judgment, “a court of appeals may have to undertake a cumbersome review of the record to determine [those] facts.”). Second, when the “version of events” the district court holds a reasonable jury could credit “is blatantly contradicted by the record,” we may assess the case based on our own de novo view of which facts a reasonable jury could accept as true. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Third, we need not defer to the district court's assessment of the reasonable factual inferences that arise from a complaint at the motion to dismiss stage, but may instead assess for ourselves the sufficiency of the complaint as a matter of law de novo. Iqbal, 129 S.Ct. at 1947.²

B

This case falls within the first of these exceptions. The initial obligation of the district court in assessing a qualified immunity defense at summary judgment is to set forth with specificity the facts-the who, what, when, where, and why-that a...