Green v. Post

• Decision Date: 07 August 2009
• Docket Number: No. 08-1122.,08-1122.
• Citation: 574 F.3d 1294
• Parties: Barbara GREEN, individually and on behalf of all heirs as the surviving spouse of Willis C. Green, decedent; Stephen Green, individually; Randy Green, individually, Plaintiffs-Appellees, v. Jonathan S. POST; Pueblo County Sheriff's Department, Defendants-Appellants, The County of Pueblo, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

574 F.3d 1294

Barbara GREEN, individually and on behalf of all heirs as the surviving spouse of Willis C. Green, decedent; Stephen Green, individually; Randy Green, individually, Plaintiffs-Appellees, v. Jonathan S. POST; Pueblo County Sheriff's Department, Defendants-Appellants The County of Pueblo, Defendant.

No. 08-1122.

United States Court of Appeals, Tenth Circuit.

August 7, 2009.

Sara Ludke Cook (Gordon L. Vaughan with her on the briefs), Vaughan & DeMuro,

Colorado Springs, CO, for Defendants-Appellants.

Gregory A. Gold, Kiel, Trueax & Gold, LLC, Denver, CO, for Plaintiffs-Appellees.

Before O'BRIEN, ANDERSON, and McCONNELL, Circuit Judges.

ANDERSON, Circuit Judge.

This case arises out of a collision on June 16, 2006, in which Willis C. Green was killed when his vehicle was struck by a police vehicle driven by Defendant Pueblo County Sheriff's Department Deputy Jonathon Post. Plaintiffs, Barbara Green, the surviving spouse of Willis Green, and her two children, Stephen and Randy Green (collectively "the Greens"), sued Deputy Post and others,¹ alleging nine claims for relief, including six state law claims and three claims pursuant to 42 U.S.C. § 1983.

The defendants moved to dismiss the two state law claims against the Sheriff's Department, as well as the three § 1983 claims on the basis of qualified immunity. After a full briefing cycle, during which the federal district court converted the motion to dismiss to a motion for summary judgment, the court entered an order on March 14, 2008, 2008 WL 707338, granting the motion for summary judgment on the state law claims and denying the motion as to the three § 1983 claims.² In particular, the court held that "Defendant Post is not entitled to dismissal on qualified immunity grounds because the Plaintiffs have alleged sufficient facts from which a jury could find that decedent's due process rights were violated, a right which was clearly established at the time of the collision on June 16, 2006." Order at 2008 WL 707338 at *4, Appellant's App. at 152. This interlocutory appeal followed. We reverse and remand for entry of summary judgment in favor of the defendants.

BACKGROUND

As indicated, Willis Green was killed when a police vehicle driven by Deputy Post struck Green's 1995 Kia, as Green was attempting to turn left at the intersection of U.S. 50 and Morris Avenue in Pueblo, Colorado. Deputy Post was traveling straight through the intersection at a high rate of speed and without his vehicle's siren or lights on, as he was attempting to catch up to a vehicle suspected of driving away from a gas station without paying for approximately $30.00 worth of gas.³ The light had turned from green to yellow as Post entered the intersection, and Post's car hit Green's car as it turned left in front of Post, also with the yellow light.⁴ Green was ejected from his car and died from the injuries he received. Deputy Post testified in his deposition that he was not responding to an emergency situation and he was not actually in pursuit of the suspect vehicle. Rather, he was simply trying to catch up to the suspected violator of the law, to verify that it was the vehicle involved in the theft of the gas. As indicated, Deputy Post did not have his emergency lights on at the time of the collision, nor was his siren activated.

The Greens initially filed their complaint in state court, alleging nine causes of action: (1) a state law wrongful death claim against Post; (2) a state law negligence per se claim against Post; (3) a respondeat superior claim against the PCSD; (4) a state law negligence claim against the PCSD; (5) a negligent hiring and supervision claim against the PCSD; (6) a state law claim for willful and wanton conduct against Post; (7) a 42 U.S.C. § 1983 claim against Post for a violation of Green's substantive due process rights; (8) a 42 U.S.C. § 1983 claim against Pueblo County; and (9) a 42 U.S.C. § 1983 claim against the PCSD and Pueblo County for failure to train.

After the case was removed to federal court on the ground that the federal claims conferred jurisdiction on the federal district court, see 28 U.S.C. § 1441(a) and (b), Post and the PCSD filed a motion to dismiss the fourth, fifth, seventh, eighth and ninth claims. A full briefing cycle ensued, during which the district court converted the motion to dismiss to a motion for summary judgment by considering evidence outside of the pleadings, and entered an order granting the motion for summary judgment on the fourth and fifth claims and denying the motion as to the seventh, eighth and ninth claims. The district court concluded that Post was not entitled to qualified immunity:

In order to prevail on a § 1983 claim that alleges a substantive due process violation of the Fourteenth Amendment, "the plaintiff must demonstrate that the defendant acted in a manner that shocks the conscience." The parties dispute the level of culpability that must be shown in order to satisfy the shocks-the-conscience standard. Plaintiffs have alleged that Deputy Post's conduct was deliberately indifferent and willful and wanton to the degree that it shocks the conscience.

Defendants urge that Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), and its progeny require this Court to find that Plaintiffs must allege sufficient facts to show that Defendant Post acted with the intent to harm the deceased....

... Plaintiffs argue that they have sufficiently stated a due process violation by alleging that Deputy Post's actions were deliberately indifferent to the decedent and willful and wanton, so as to shock the conscience.

I agree that the Defendant's reliance on the "intent to harm" standard is misplaced. The Tenth Circuit has recognized that the level of culpability that must be shown under the shocks-theconscience standard is difficult to define and requires an assessment of the "totality of the circumstances" of each particular case. The Tenth Circuit found that deliberate indifference could be enough to shock the conscience when a police officer, responding to a non-emergency call for back-up, accelerated through a red-light at excessive rates of speed while operating his emergency lights but without operating his siren or air horn.

...

... Plaintiffs have alleged and brought forth specific evidence to create a genuine dispute as to whether Deputy Post was engaged in a high speed pursuit or responding to an emergency situation. It appears from his deposition that Deputy Post did not think that he was in pursuit of a vehicle or responding to an emergency situation. I therefore find that the Plaintiffs have brought forth sufficient evidence from which a jury could find that Deputy Post's conduct was deliberately indifferent to an extent which shocks the conscience.

I also find that the Decedent's right was clearly established at the time of Defendant Post's conduct.

Order, 2008 WL 707338, at *3-4, Appellant's App. at 149-51.⁵ The court accordingly denied Post's request that qualified immunity shield him from this action. This appeal followed.

Post argues on appeal that: (1) the district court erred in denying his motion to dismiss/for summary judgment on the ground of qualified immunity; (2) our court has pendent appellate jurisdiction over "the denial of the federal constitutionally-based claims for relief against" the Sheriff's Department; and (3) if our court does have such pendent appellate jurisdiction, the district court erred in denying the motion to dismiss/for summary judgment as to the federal constitutionally-based claims against the Sheriff's Department.

DISCUSSION

"`The denial of a summary judgment motion ordinarily is not an appealable final order.'" Dixon v. Kirkpatrick, 553 F.3d 1294, 1301 (10th Cir.2009) (quoting Bass v. Richards, 308 F.3d 1081, 1086 (10th Cir. 2002)). "When a party has been denied qualified immunity, that denial can be appealed prior to a final judgment only to the extent that the appeal is based on an issue of law." Id. Accordingly, when we review these issues of law, we "`consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficient[ly] supported for purposes of summary judgment.'" Id. (quoting Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.2004)). "Unlike other appeals from summary judgment decisions (which are, perforce, appeals of grants rather than denials), the appellate court in an interlocutory appeal regarding qualified immunity `can simply take, as given, the facts that the district court assumed when it denied summary judgment for [a] (purely legal) reason.'" Id. (quoting Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)).⁶

I. Qualified Immunity

As indicated, in response to the Greens' claims against him in his individual capacity, Deputy Post asserted a defense of qualified immunity. "This defense shields government officials performing discretionary functions from liability `if their conduct does not violate clearly established rights of which a reasonable government official would have known.'" Graves v. Thomas, 450 F.3d 1215,1218 (10th Cir.2006); see also Perez v. Unified Gov't of Wyandotte County/Kansas City, Kan., 432 F.3d 1163, 1165 (10th Cir.2005).

Previously, we applied a "two-step process" to determine whether "a defendant is entitled to qualified immunity." Graves, 450 F.3d at 1218 (noting that the two-step process entailed first, determining "whether Plaintiffs have asserted a violation of a constitutional right at all" and second, "whether that right was clearly established such that a reasonable person in the defendant's position would have known that his conduct violated that right") (further quotations omitted). See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (holding that the "threshold question" of whether "the officer's conduct violated a constitutional right ... must be the...