Eidson v. Owens

• Decision Date: 13 February 2008
• Docket Number: No. 07-7007.,07-7007.
• Citation: 515 F.3d 1139
• Parties: Keith and Kim EIDSON, Plaintiffs-Appellees, v. Floyd Wesley OWENS, individually, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

515 F.3d 1139

Keith and Kim EIDSON, Plaintiffs-Appellees, v. Floyd Wesley OWENS, individually, Defendant-Appellant.

No. 07-7007.

United States Court of Appeals, Tenth Circuit.

February 13, 2008.

Submitted on the briefs:^* Chris J. Collins, Stephen L. Genies, Collins, Zorn, & Wagner, P.C., Oklahoma City, OK, for Defendant-Appellant.

Richard O'Carroll, O'Carroll & O'Carroll, Tulsa, OK, for Plaintiffs-Appellees.

Before KELLY, McKAY, and ANDERSON, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

In this 42 U.S.C. § 1983 action, Floyd Wesley Owens, a reserve-force deputy sheriff and lawyer, appeals the district court's denial of qualified immunity in connection with the search of Keith and Kim Eidsons' real property. We conclude that while Owens obtained the Eidsons' consent to search their property in violation of the Fourth Amendment, the illegality was not clearly established. We also conclude that Owens did not extract a confession from Kim Eidson in violation of the Fifth Amendment. Owens is, therefore, entitled to qualified immunity. Accordingly, we reverse and remand with instructions for the district court to enter summary judgment in Owens' favor on the Eidsons' constitutional claims. We also conclude that this court lacks jurisdiction to review the district court's denial of summary judgment on the Eidsons' legal malpractice claim. Therefore, we dismiss this appeal insofar as it involves that claim.

BACKGROUND

At the times relevant to this appeal, Owens was a practicing attorney and a reserve-force deputy sheriff in Wagoner County, Oklahoma. In April 2002, Owens drafted the Eidsons' will. Twenty-eight months later, on August 21, 2004, Owens participated in a search of the Eidsons' farm. The following is the Eidsons' account of the day's events leading up to the search and of the search itself.

Kim Eidson saw Owens' wife at an auction and told her about an altercation she (Kim) had just had with the mother of her son's girlfriend. Owens' wife relayed the information to Owens, who put on his uniform and went to the Eidsons' farm in a marked vehicle to check on Kim. There, Owens met Kim at a closed gate to the driveway, about 200 yards away from the house, and asked if she was "okay." Aplt. App. at 237-38.

Four other deputies soon arrived. One of those deputies, Mark Krenek, took Owens aside and told him that he had received information that the Eidsons were growing marijuana on their farm. Kim overheard Owens being told that her "17-year-old son [Jordan] had [informed] the authorities that ... marijuana [was] growing on [the] property." Id. at 357. In fact, Krenek had received that information from the mother and grandmother of Jordan's girlfriend. Krenek directed Owens to seek Kim's consent for a search of the farm. Owens returned to Kim and said, "[D]on't lie to me, Kim. Jordan has turned you in." Id. at 359. Kim confessed that she "ha[d] some plants back there." Id. At some point, Keith Eidson arrived on the scene and was told that Jordan "had turned [them] in." Id. at 372. He asked Owens "what would happen if they did not consent." Id. at 238. Owens responded, "If it takes three days, ... we'll hold you here for three days" while the other deputies obtain a warrant. Id. at 337. Owens also stated, "[I]f [you make] them get a warrant ... the judge would go harder on [you] in court and [you] would be considered uncooperative." Id. at 371; see also id. at 336. Keith and Kim each signed a consent form.

The Eidsons led the deputies down the driveway to their house and a search began. Deputies discovered marijuana plants growing in the Eidsons' flower garden, bags of marijuana inside the Eidsons' house, and drug paraphernalia located throughout the house and the Eidsons' vehicles. Deputy Krenek Mirandized¹ Kim on the back porch of the Eidsons' residence, and she responded, "[I]f you have any questions, ask [Owens], he's my lawyer." Id. at 338. Afterward, Owens transported the Eidsons to the jail and told them that he could not be their lawyer. The Eidsons were charged in state court with unlawfully cultivating marijuana, possessing marijuana with intent to distribute, and possessing drug paraphernalia. Ultimately, the evidence against the Eidsons was suppressed and the criminal case dismissed.

In 2006, the Eidsons filed in federal district court a 42 U.S.C. § 1983 suit against Owens and Wagoner County. The Eidsons alleged violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and they advanced state-law claims of legal malpractice, infliction of emotional distress, and false arrest. The only claims that survived summary judgment were their Fourth and Fifth Amendment claims against Owens and their malpractice claim against Owens. In withholding summary judgment on the constitutional claims, the district court stated that it could not decide whether Owens had qualified immunity because there was a factual dispute as to when Owens told the Eidsons he was not their lawyer. Specifically, Owens maintained that during the search of the Eidsons' property he repeatedly told them he was not their lawyer, whereas the Eidsons maintained that Owens did not disavow his lawyer status until they were being driven to the jail. The district court denied summary judgment on the malpractice claim for the same reason—that disputed factual issues remained as to when Owens said he was not the Eidsons' lawyer.

Owens appeals. The Eidsons have not filed an appellees' brief, but they have filed a brief on the issue of appellate jurisdiction, arguing that this appeal cannot proceed because there are disputed factual issues.

DISCUSSION

I. Jurisdiction

We first address our jurisdiction to consider this appeal. An order denying summary judgment is ordinarily not appealable. See Powell v. Mikulecky, 891 F.2d 1454, 1456 (10th Cir.1989). But under the, collateral order doctrine, "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 jurisdiction is limited, though, to appeals challenging "not which facts the parties might be able to prove, but, rather, whether or not certain given facts showed a violation of clearly established law." Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (quotation omitted).

While the district court found that it could not render a qualified-immunity ruling because of a factual dispute, that finding is not jurisdictionally dispositive on appeal given that Owens argues that immunity applies even under the Eidsons' version of the facts. See Farmer v. Perrill, 288 F.3d 1254, 1258 n. 4 (10th Cir. 2002) (noting that appellate jurisdiction exists if the defendant does not dispute the plaintiffs facts or if the defendant is "willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal") (quotation omitted). Consequently, we have jurisdiction to consider whether Owens has qualified immunity from the Eidsons' Fourth and Fifth Amendment claims.

Qualified immunity does not, however, apply to the Eidsons' malpractice claim. See Jenkins v. City of New York, 478 F.3d 76, 86 (2d Cir.2007) (stating that qualified immunity "protects an official from liability under federal causes of action but is not generally understood to protect officials from claims based on state law"). Owens requests that this claim be considered on appeal under the doctrine of pendent appellate jurisdiction. This doctrine is generally disfavored, applying only when "the otherwise nonappealable decision is inextricably intertwined with the appealable decision" or when "review of the nonappealable decision is necessary to ensure meaningful review of the appealable one." Kirkland v. St. Vrain Valley Sch. Dist., 464 F.3d 1182, 1198 (10th Cir. 2006) (quotation omitted). We conclude that neither situation applies here. Whether Owens breached "a duty to the Eidsons of loyalty and confidentiality," thereby committing malpractice, Aplt. App. at 22 (amended complaint), is independent of the constitutional claims and is an issue better suited for resolution in the district court. Accordingly, we dismiss this appeal insofar as it challenges the district court's denial of summary judgment in regard to the Eidsons' malpractice claim.

II. Qualified Immunity

"The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir.2007) (quotation omitted). We review de novo a district court's decision to deny a summary-judgment motion that asserts qualified immunity. Id. Summary judgment is warranted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Our review is sequential. First, "we must consider whether the plaintiff's factual allegations show that the official's conduct violated a constitutional right. If the assumed facts do not establish a constitutional violation, the defendant is entitled to summary judgment," and we proceed no further. Boles, 486 F.3d at 1180 (citation omitted). But if a violation can be shown, we must then consider whether the right was clearly established. Id.

A. Fourth Amendment

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend IV. "A...