745 F.3d 405 (10th Cir. 2014), 12-1496, Estate of Booker v. Gomez

Docket Nº:12-1496
Citation:745 F.3d 405
Opinion Judge:MATHESON, Circuit Judge.
Party Name:ESTATE OF MARVIN L. BOOKER; ROXEY A. WALTON, as Personal Representative, Plaintiffs - Appellees, v. FAUN GOMEZ, individually and in her official capacity; JAMES GRIMES, individually and in his official capacity; KYLE SHARP, individually and in his official capacity; KENNETH ROBINETTE, individually and in his official capacity; CARRIE RODRIGUEZ, ind
Attorney:Thomas S. Rice (Eric M. Ziporin, with him on the briefs), Senter Goldfarb & Rice, L.L.C., Denver, Colorado, appearing for Appellants. Darold W. Killmer (Mari Newman and Lauren L. Fontana, with him on the brief), Killmer, Lane & Newman, LLP, Denver, Colorado, appearing for Appellees.
Judge Panel:Before KELLY, LUCERO, and MATHESON, Circuit Judges.
Case Date:March 11, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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745 F.3d 405 (10th Cir. 2014)

ESTATE OF MARVIN L. BOOKER; ROXEY A. WALTON, as Personal Representative, Plaintiffs - Appellees,

v.

FAUN GOMEZ, individually and in her official capacity; JAMES GRIMES, individually and in his official capacity; KYLE SHARP, individually and in his official capacity; KENNETH ROBINETTE, individually and in his official capacity; CARRIE RODRIGUEZ, individually and in her official capacity, Defendants - Appellants, and CITY AND COUNTY OF DENVER; DENVER HEALTH AND HOSPITAL AUTHORITY, d/b/a Denver Health Medical Center; GAIL GEORGE, R.N., individually and in her official capacity; SUSAN CRYER, R.N., individually and in her official capacity, Defendants

No. 12-1496

United States Court of Appeals, Tenth Circuit

March 11, 2014

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:11-CV-00645-RBJ-KMT).

Thomas S. Rice (Eric M. Ziporin, with him on the briefs), Senter Goldfarb & Rice, L.L.C., Denver, Colorado, appearing for Appellants.

Darold W. Killmer (Mari Newman and Lauren L. Fontana, with him on the brief), Killmer, Lane & Newman, LLP, Denver, Colorado, appearing for Appellees.

Before KELLY, LUCERO, and MATHESON, Circuit Judges.

OPINION

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MATHESON, Circuit Judge.

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. The Defendants now appeal.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. LEGAL BACKGROUND

We begin by defining the scope of our jurisdiction over the Defendants' interlocutory appeal of the district court's denial of qualified immunity. We then summarize the legal framework for evaluating the Defendants' assertion of qualified immunity at the summary judgment stage.

A. Jurisdiction

This court has jurisdiction under § 1291 to review " all final decisions of the district courts of the United States." 28 U.S.C. § 1291. Ordinarily, " [o]rders denying summary judgment are... not appealable final orders for purposes of 28 U.S.C. § 1291." Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013). " The denial of qualified immunity to a public official, however, is immediately appealable under the collateral order doctrine to the extent it involves abstract issues of law." Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013); see also Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008) (we have interlocutory jurisdiction " over denials of qualified immunity at the summary judgment stage to the extent they 'turn[] on an issue of law.'" (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985))).

Under this limited jurisdiction, we may review: " '(1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation, or (2) whether that law was clearly established at the time of the alleged violation.'" Roosevelt-Hennix, 717 F.3d at 753 (quoting Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1267 (10th Cir. 2013)). Under the Supreme Court's direction in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), however, this court has no interlocutory jurisdiction to review " whether or not the pretrial record sets forth a 'genuine' issue of fact for trial." Id. at 320 (quotations omitted). Thus, " if a district court concludes that a reasonable jury could find certain specified facts in

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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." Roosevelt-Hennix, 717 F.3d at 753 (quoting Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010)).

A key exception to Johnson 's jurisdictional rule arises if a district court fails to specify which factual disputes precluded a grant of summary judgment for qualified immunity. When faced with this circumstance, we are unable " to separate an appealed order's reviewable determination (that a given set of facts violates clearly established law) from its unreviewable determination (that an issue of fact is 'genuine')." Id. (quoting Johnson, 515 U.S. at 319). Accordingly, before we can review abstract legal questions, we " may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Johnson, 515 U.S. at 319; see also Roosevelt-Hennix, 717 F.3d at 754, 756 n.8.

This is one such " cumbersome review" case. Although the district court denied summary judgment on four claims because they " turn[ed] on issues of fact," it did not explicitly identify which material facts were in dispute. See Appx. at 1064. We must therefore comb " the record to determine what facts the district court, in the light most favorable to [the Plaintiffs], likely assumed." Roosevelt-Hennix, 717 F.3d at 754. Making our review less cumbersome is the district court's observation that the " Plaintiffs' Statement of Disputed Facts" (ECF No. 133) outlined the primary factual disputes that formed, at least in part, the basis of its decision. See Appx. at 1064 (observing that the " fact disputes" are " set forth in some summary at CM-ECF docket no. 133, but they're everywhere in this case" ). That document lays out Plaintiffs' alleged fact disputes, and we therefore assume the district court agreed they were material and disputed.1

Also helpful are the various video clips of the encounter. Because the district court failed to " identify the particular charged conduct that it deemed adequately supported by the record," we must " look behind the order denying summary judgment and review the entire record," including the video evidence submitted by the Defendants in support of their motion for summary judgment. Roosevelt-Hennix, 717 F.3d at 756 n.8 (quotations omitted) (emphasis added).2

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B. Section 1983 and Qualified Immunity

Title " 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." Cillo v. City of Greenwood Village, 739 F.3d 451, 459 (10th Cir. 2013). " Individual defendants named in a § 1983 action may raise a defense of qualified immunity," id., which " shields public officials... from damages actions unless their conduct was unreasonable in light of clearly established law," Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) (quotations omitted). 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." Cillo, 739 F.3d at 460; see also Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

To determine whether the right was clearly established, we ask whether " the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al- Kidd, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (quotations omitted). " Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008) (quotations omitted). " The plaintiff is not required to show, however, that the very act in question previously was held unlawful... to establish an absence of qualified immunity." Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir. 2008) (quotations omitted).

C. Summary Judgment Standard

Basic principles guide our review of the denial of summary judgment in this factually contentious case. " We review de novo the district court's denial of a summary judgment motion asserting qualified immunity." McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956, 963 (10th Cir. 2009)). A district " court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " In applying this standard, we construe the evidence in the light most favorable to [the Plaintiffs] as the nonmoving party." McBeth, 598 F.3d at 715.

When the defendant has moved for summary judgment based on qualified immunity, we still view the facts in the light most favorable to the non-moving party and resolve all factual disputes and reasonable inferences in its favor. See id. Unlike most affirmative defenses, however, the plaintiff would bear the ultimate burden of persuasion at trial to overcome qualified immunity by showing a violation of clearly established federal law. Thus, at summary judgment, we must grant qualified immunity unless the...

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