Dean v. Cnty. of Gage

• Citation: 807 F.3d 931
• Decision Date: 07 December 2015
• Docket Number: 14–1773.,Nos. 14–1747,s. 14–1747
• Parties: James L. DEAN; Lois P. White, as Personal Representative of the Estate of Joseph White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor; Debra Sheldon, Plaintiff–Appellant v. COUNTY OF GAGE, NEBRASKA, a Nebraska political subdivision; Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; Ryan L. Timmerman, Personal Representative of the Estate of Jerry O. DeWitt, Defendants–Appellees Richard T. Smith, in his official and individual capacities; Gerald Lamkin, Dep., in his official and individual capacities; Gage County Attorney's Office, a Nebraska political subdivision; Gage County Sheriff's Office, a Nebraska political subdivision, Defendants James L. Dean; Lois P. White, as Personal Representative of the Estate of Joseph White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor; Debra Sheldon, Plaintiffs–Appellees v. County of Gage, Nebraska, a Nebraska political subdivision, Defendant Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; Ryan L. Timmerman, Personal Representative of the Estate of Jerry O. DeWitt, Defendants–Appellants Richard T. Smith, in his official and individual capacities; Gerald Lamkin, Dep., in his official and individual capacities; Gage County Attorney's Office, a Nebraska political subdivision; Gage County Sheriff's Office, a Nebraska political subdivision, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

807 F.3d 931

James L. DEAN; Lois P. White, as Personal Representative of the Estate of Joseph White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor; Debra Sheldon, Plaintiff–Appellant

v.COUNTY OF GAGE, NEBRASKA, a Nebraska political subdivision; Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; Ryan L. Timmerman, Personal Representative of the Estate of Jerry O. DeWitt, Defendants–Appellees

Richard T. Smith, in his official and individual capacities; Gerald Lamkin, Dep., in his official and individual capacities; Gage County Attorney's Office, a Nebraska political subdivision; Gage County Sheriff's Office, a Nebraska political subdivision, Defendants

James L. Dean; Lois P. White, as Personal Representative of the Estate of Joseph White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor; Debra Sheldon, Plaintiffs–Appellees

v.County of Gage, Nebraska, a Nebraska political subdivision, Defendant

Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; Ryan L. Timmerman, Personal Representative of the Estate of Jerry O. DeWitt, Defendants–Appellants

Richard T. Smith, in his official and individual capacities; Gerald Lamkin, Dep., in his official and individual capacities; Gage County Attorney's Office, a Nebraska political subdivision; Gage County Sheriff's Office, a Nebraska political subdivision, Defendants.

Nos. 14–1747

14–1773.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 17, 2015.

Filed: Dec. 7, 2015.

Rehearing and Rehearing En Banc Denied Jan. 13, 2016.

Robert F. Bartle, Jeffry D. Patterson, argued, Lincoln, NE, and Douglas J. Stratton, argued, Norfolk, NE, for Appellants White, Gonzalez, Winslow and Taylor.

Herbert J. Friedman, argued, Lincoln, NE, for Appellant Dean.

Maren Lynn Chaloupka, argued, Scottsbluff, NE, and Matthew Kosmicki, argued, Lincoln, NE, for Appellant Sheldon.

Richard L. Boucher, Paul L. Douglas, Patrick T. O'Brien, Kim Sturzenegger, Jennifer M. Tomka, argued, Lincoln, NE, for appellees/cross-appellants.

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

DNA evidence exonerated Joseph E. White and the five other plaintiffs of rape and murder. They sued Gage County and the officers involved in their case. After an appeal from summary judgment and a mistrial on remand, the district court dismissed plaintiffs' conspiracy claim and all claims against Gage County. The district court denied qualified immunity to the officers. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands the dismissal, and affirms the denial of qualified immunity.

I.

In 1989, Joseph White was convicted for the rape and murder of Helen Wilson. The prosecution used testimony and confessions from White's co-defendants—Ada JoAnn Taylor, Thomas W. Winslow, James L. Dean, Kathleen A. Gonzalez, and Debra Sheldon—all of whom pled guilty to related charges. After DNA testing in 2008, all convictions were pardoned or overturned. Plaintiffs individually filed 42 U.S.C. §§ 1983 and 1985 claims against Gage County, sheriff Jerry O. DeWitt (and his employees Dr. Wayne R. Price and Burdette Searcey), and county attorney Richard T. Smith, alleging Fifth and Fourteenth Amendment due process violations. Plaintiffs claimed officers led a reckless investigation, manufactured false evidence, conspired to manufacture evidence, and coerced testimony. On two earlier appeals from separate summary judgments, this court determined: "evidence is sufficient to support Plaintiffs' claims that their rights to fair criminal proceedings were violated as the result of a reckless investigation and Defendants' manufacturing of false evidence"; evidence was sufficient to support a conspiracy claim; evidence was not sufficient to support a coercion claim; members of the sheriff's office were not protected by qualified immunity; and the county attorney was protected by absolute immunity. Winslow v. Smith, 696 F.3d 716, 721, 740 (8th Cir.2012) (reversing summary judgment on qualified immunity and reinstating claims against Gage County, affirming dismissal of coercion claim, and affirming dismissal of claims against county attorney Smith based on absolute prosecutorial immunity); White v. Smith, 696 F.3d 740, 743 (8th Cir.2012) (affirming denial of qualified immunity, holding sufficient evidence existed to support conspiracy claim).

Trial of the consolidated claims began January 6, 2014. At the close of plaintiffs' evidence, the district court granted the Gage County and the officers' Rule 50(a)(1) motion, dismissing the conspiracy claim against all parties and all claims against Gage County. It denied the officers' Rule 50(a)(2) motion for qualified immunity on the remaining claims of manufacturing evidence and conducting a reckless investigation. After three days of jury deliberation with no verdict, the district court declared a mistrial and ordered a new trial. One month later, the district court certified its Rule 50(a)(1) order under Rule 54(b) to authorize an appeal. It also denied the officers' renewed motion for qualified immunity, which they cross-appeal.

II.

The officers claim they are entitled to qualified immunity. "[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

This court reviews the district court's denial of a motion for judgment as a matter of law de novo, "using the same standards as the district court." Luckert v. Dodge Cnty., 684 F.3d 808, 816–17 (8th Cir.2012) (reviewing denial of Rule 50(b) motion for qualified immunity). This court "must draw all reasonable inferences in favor of the nonmoving party without making credibility assessments or weighing the evidence." Phillips v. Collings, 256 F.3d 843, 847 (8th Cir.2001) (reviewing denial of Rule 50(b) motion for qualified immunity).

To overcome qualified immunity, plaintiffs must demonstrate both that "(1) there was a deprivation of a constitutional or statutory right, and (2) the right was clearly established at the time of the deprivation." Parker v. Chard, 777 F.3d 977, 980 (8th Cir.2015). Since this court previously denied qualified immunity for the officers as a matter of law, the district court should not consider a Rule 50 motion on qualified immunity unless substantially different evidence was produced at trial. See, e.g., Kerman v. City of New York, 374 F.3d 93, 110 (2d Cir.2004) (applying law-of-the-case doctrine in appeal from Rule 50 qualified immunity decision); Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir.2000) (same). See generally Little Earth of the United Tribes, Inc. v. U.S. Dep't of Hous. & Urban Dev., 807 F.2d 1433, 1441 (8th Cir.1986) ("[W]e will reconsider a previously decided issue only if substantially different evidence is subsequently introduced or the decision is clearly erroneous and works manifest injustice.").

The officers argue that the evidence introduced at trial varies greatly from that identified at summary judgment. Resolving the appeal from summary judgment, this court previously stated, "Another troubling piece of evidence is that Price offered to serve as Dean's therapist without initially informing Dean of his role as a law enforcement officer. Price then told Dean that his polygraph results indicated he was repressing memories of the crime." White, 696 F.3d at 755. The officers claim, at trial, they showed this was untrue. However, the record the officers cite shows only that Price had previously told Dean's attorney that he was a psychologist for the state and his conversations with Dean would not be confidential. Price met with Dean in his role as "deputy sheriff." Price told Dean he was a police psychologist but never explained his role to Dean or informed Dean that he was not acting as his psychologist. After meeting with Dean several times, Price told Dean that he "failed" his polygraph test and recommended therapy. Price recorded his belief that Dean was present at the crime scene and was repressing memory. This slight variance does not alleviate this court's previous concerns or overcome the vast amount of troubling evidence presented at trial.

The officers also claim that "the testimony by the attorneys who represented Dean, Sheldon, and Taylor all indicated that they were never informed by their clients that the officers were doing anything that would amount to coercion or that they were being mistreated by the officers." This court previously affirmed the dismissal of the coercion claim, and the claim is not at issue in this appeal. See Winslow, 696 F.3d at 738. The trial testimony does not support the officers' entitlement to qualified immunity. The district court correctly denied the renewed Rule 50 motion for qualified immunity.

III.

A.

Before addressing the conspiracy claim and claims against Gage County, this court is obligated to independently consider its jurisdiction. Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1118 (8th Cir.2011). It is a general rule that only orders that dispose of all claims are final and appealable. Williams v. Cnty. of Dakota, Neb., 687 F.3d 1064, 1067 (8th Cir.2012).

" Rule 54(b) creates a well-established exception to this rule by allowing a district court to enter a final judgment on some but not all of the claims in a lawsuit." Id. Rule 54(b) states:

When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason

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