672 F.3d 1185 (10th Cir. 2012), 11-5066, Morris v. Noe

Docket Nº:11-5066.
Citation:672 F.3d 1185
Opinion Judge:BALDOCK, Circuit Judge.
Party Name:Donna MORRIS, individually and as next friend of William Morris, III, Plaintiff-Appellee, Defendant-Appellant, v. Jamie NOE, Defendant-Appellant, and City of Sapulpa, Defendant.
Attorney:Scott B. Wood, Wood, Puhl & Wood, P.L.L.C., Tulsa, OK, for Defendant-Appellant. Stephen J. Capron, Capron & Edwards, P.C., Tulsa, OK, for Plaintiff-Appellee.
Judge Panel:Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.
Case Date:February 27, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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672 F.3d 1185 (10th Cir. 2012)

Donna MORRIS, individually and as next friend of William Morris, III, Plaintiff-Appellee, Defendant-Appellant,


Jamie NOE, Defendant-Appellant,


City of Sapulpa, Defendant.

No. 11-5066.

United States Court of Appeals, Tenth Circuit.

February 27, 2012

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Scott B. Wood, Wood, Puhl & Wood, P.L.L.C., Tulsa, OK, for Defendant-Appellant.

Stephen J. Capron, Capron & Edwards, P.C., Tulsa, OK, for Plaintiff-Appellee.

Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Donna Morris brought this § 1983 action for unlawful arrest and excessive force on behalf of her deceased husband, William Morris III, against Defendants, Officer Jamie Noe and the City of Sapulpa, Oklahoma. She alleges Defendants violated her husband's clearly established rights when Noe forceably arrested him and caused him injury. Defendant Noe moved for summary judgment based on qualified immunity, and the district court denied his motion. Defendant Noe now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.


Before proceeding to the merits, we must address Plaintiff's argument that we have no jurisdiction over this appeal. We have jurisdiction only over " final decisions" by the district courts. 28 U.S.C. § 1291. " Ordinarily, orders denying summary judgment do not qualify as ‘ final decisions' subject to appeal." Ortiz v. Jordan, __ U.S. __, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011). But because qualified immunity provides a right to avoid trial, " a

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district court's decision denying a government official qualified immunity is an immediately appealable final collateral order." Price-Cornelison v. Brooks, 524 F.3d 1103, 1108 (10th Cir.2008). This right to appeal, however, is limited to " purely legal issue[s]" raised by the denial of qualified immunity. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). A party may not appeal the district court's determination " that factual issues genuinely in dispute preclude summary adjudication." Ortiz, 131 S.Ct. at 891.

Because our jurisdiction is limited, we " take, as given, the facts that the district court assumed when it denied summary judgment." Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). " [W]e may review whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right, but we may not consider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove." Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.2002) (Alito, J.) (internal quotation marks omitted). Falling squarely within our jurisdiction is the district court's " legal determination that certain alleged actions violate clearly established law. Defendants may therefore assert on appeal that all of the conduct which the [d]istrict court deemed sufficiently supported for purposes of summary judgment meets the applicable legal standards." Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir.2001) (internal quotation marks and citations omitted).

Here, the district court denied summary judgment for two reasons, one appealable, and one not. First, the district court determined that fact issues remained on Plaintiff's constitutional claims. Morris v. City of Sapulpa, 2011 WL 1627098, at *7, *8 (N.D.Okla. April 28, 2011). Second, the court held that Defendant was not entitled to qualified immunity based on the facts viewed most favorably to Plaintiff. Id. at *12. We have jurisdiction over only the latter determination. Ortiz, 131 S.Ct. at 892. " Within this limited jurisdiction, we review de novo the district court's denial of a summary judgment motion asserting qualified immunity." Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir.2010) (internal quotation marks omitted).


The facts assumed by the district court are as follows. A motorist alerted Sapulpa Police Officer Jamie Noe to a domestic disturbance at a residence on Muskogee Street. Upon his arrival at the residence, Noe encountered three persons: Plaintiff, Misty Rowell, and Quinton Bell. Bell was Rowell's former boyfriend and the father of her child. Rowell's then-current boyfriend was William Morris IV (" William" ), Plaintiff's son. Officer Noe learned Bell and William had engaged in an altercation that resulted in William ransacking the Muskogee Street residence, burning some of Bell's clothing in the front yard, and damaging Rowell's vehicle with a tire iron. Plaintiff heard of the incident and went to the Muskogee Street residence. After Plaintiff arrived, Bell parked his truck behind Plaintiff's vehicle, preventing her from leaving.

By the time Noe arrived, William was gone, but Plaintiff, Rowell, and Bell were in the front yard, yelling at each other. Rowell's vehicle showed signs of significant body damage. Glass lay on the ground. A pile of clothing was smoldering in the front yard. Noe sought to calm the participants down and take statements. Two other officers arrived to assist him. About twenty minutes later, Plaintiff's now-deceased husband, William Morris III (" Morris" ), arrived on the scene. Morris was six

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feet, four inches tall and weighed 250 pounds, but he suffered from multiple health problems including heart problems, seizures, and emphysema. Although he was instructed to use supplemental oxygen, no evidence suggests he was using oxygen during the incident.

The situation was " calm and under control" when Morris arrived. Morris first spoke with Plaintiff, and she assured him she was not hurt. Morris then approached Bell, but was never closer to him than eight to ten feet. From that distance, Morris asked Bell " Why was you talking to Mama that way?" He also told Bell that Plaintiff had been feeding Bell's kids. Bell approached Morris, at which point Morris put his hands up and started backing toward the police officers, " for help, I guess." 2011 WL 1627098, at *6. Then " two of the police officers lunge[d] towards [Morris] and put their hands on his shoulders, twisted him around and ran him into the bushes ... throwing him to the ground." Id. The officers then " put their knees— fell into his midsection and his back and handcuffed him." Id.

Morris's version of the events differed slightly from Plaintiff's, but the district court relied on Morris's testimony as well. Morris said he asked Plaintiff upon his arrival " is that him?" in reference to Bell. Plaintiff said responded it was. Morris then " called ‘ hey’ to Bell." According to Morris,

[Bell came] running at me ... I just threw my hands up because I didn't know what he was going to do.... And then the next thing I know, I'm eating dirt. Sapulpa— two Sapulpa policemen grabbed— I didn't even know they was around. They grabbed me from behind and threw me into some branches.... They handcuffed me, picked me up three times by the handcuffs and stood me up and each time they did, I fell.

Id. at *6.

Noe, after handcuffing Morris, noticed Morris smelled of alcohol and exhibited signs of intoxication, such as slurred speech. Morris admitted to consuming " a couple of drinks" two hours earlier. Noe therefore issued Morris a citation for public intoxication. Morris was then taken to the hospital for treatment of hip injuries he suffered as a result of the encounter. Morris stayed at the hospital approximately thirty days. Because he was hospitalized, Morris was unable to appear in court on his public intoxication citation. Plaintiff appeared in court for him and paid the fine, although she could not remember whether she entered a guilty plea. The court records reflect a guilty plea being entered on Morris's behalf.

Approximately three years after the events in question, Morris died. Plaintiff then brought this § 1983 action in federal court, alleging excessive force, unlawful arrest, and various state law claims. On Defendants' motion, the district court granted summary judgment for Defendants on all claims except those against Noe individually. The district court held that, construing the facts in the light most favorable to Plaintiff, Noe was not entitled to qualified immunity on either claim.


Defendant Noe raises three issues on appeal. First, he argues he was entitled to qualified immunity because he had reasonable suspicion Morris was committing an assault and the force he used to restrain Morris was reasonable. Second, he claims the district court erred in relying on unpublished opinions in determining whether the law was clearly established for purposes of qualified immunity. Third, he argues the district court erred

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by crediting affidavits that created " sham fact issues" and by not considering other evidence that " demonstrated no genuine material fact existed." The second issue is closely tied to our analysis of the first issue, so we will address those issues together. We have no jurisdiction over the third issue, because it is directly related to the district court's determination that fact issues remained for trial. Unlike the qualified immunity question, the district court's evidentiary decisions do not create a separate question " significantly different from the fact-related legal issues that likely underlie the plaintiff's claim on the merits." Johnson, 515 U.S. at 314, 115 S.Ct. 2151. Thus, our jurisdiction on appeal is limited to Defendant's first issue— whether he was entitled to qualified immunity.

Qualified immunity requires a " two-step sequence." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565...

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