Moore v. Board, County Com'Rs, County, Leavenworth, No. 07-3053.

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Hartz
• Citation: 507 F.3d 1257
• Docket Number: No. 07-3053.
• Decision Date: 20 November 2007
• Parties: Marlene MOORE, Individually and as Executrix of the Estate of Jared Michael Moore; Patrick Richard Moore, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LEAVENWORTH; Donald Navinsky, Dean Oroke, Clyde Graeber, Commissioners; David Zoellner, Sheriff, in his official and individual capacity; Robert L. Peterman, his official and individual capacity; Herb Nye, Former Sheriff, in his individual capacity; John Doe No. 1, John Doe No. 2, Deputies, in their official and individual capacities, Defendants-Appellees.

507 F.3d 1257 Marlene MOORE, Individually and as Executrix of the Estate of Jared Michael Moore; Patrick Richard Moore, Plaintiffs-Appellants,
v.
BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LEAVENWORTH; Donald Navinsky, Dean Oroke, Clyde Graeber, Commissioners; David Zoellner, Sheriff, in his official and individual capacity; Robert L. Peterman, his official and individual capacity; Herb Nye, Former Sheriff, in his individual capacity; John Doe No. 1, John Doe No. 2, Deputies, in their official and individual capacities, Defendants-Appellees. No. 07-3053. United States Court of Appeals, Tenth Circuit. November 20, 2007.

Submitted on the briefs:^* Patrick J. Doran, L.C., Kansas City, MO, for Appellants.

[507 F.3d 1258]

Michael K. Seck, Fisher, Patterson, Sayler & Smith, L.L.P., Overland Park, KS, and Teresa L. Watson, Fisher, Patterson, Saylor & Smith, L.L.P., Topeka, KS, for Defendants-Appellees Board of County Commissioners of the County of Leavenworth, Kansas, Donald Navinsky, Dean Oroke, Clyde Graeber, David Zoellner and Herb Nye.

Michael C. Kirkham, Sanders Conkright & Warren, LLP, Overland Park, KS, for Defendant-Appellee Robert L. Peterman.

Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.

HARTZ, Circuit Judge.

Jared Moore, a volunteer fire fighter, was killed when his automobile was struck by one driven by defendant Robert L. Peterman, a deputy with the Leavenworth County Sheriff's Department (the Department), while both men were responding to an emergency call. Plaintiffs, the parents of Mr. Moore, brought suit in the United States District Court for the District of Kansas against a number of defendants. At issue on appeal are Plaintiffs' claims under 42 U.S.C. § 1983 that Deputy Peterman and, through his actions, the Board of County Commissioners of the County of Leavenworth (the County), violated their son's Fourteenth Amendment right to procedural due process. The individual commissioners are sued in their official capacities. Claims against a board of county commissioners or an individual board member in his or her official capacity are claims against the county itself. See Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir.1999).

Plaintiffs assert that a Department written policy prohibiting deputies from driving at speeds more than 10 miles per hour over the posted speed limit when responding to emergency calls (the Policy) created protected liberty and property interests for Mr. Moore. They contend that when Deputy Peterman violated the Policy while responding to an emergency call, he deprived Mr. Moore of those interests without due process of law. The district court granted summary judgment in favor of Deputy Peterman and the County on this claim. We have jurisdiction under 28 U.S.C. § 1291 and affirm. In the circumstances of this accident it would not have been practical to provide Mr. Moore with notice and a hearing. Therefore, the post-deprivation opportunity to bring a state-law tort action satisfied due process.

I.

"We review the district court's grant of summary judgment de novo, applying the same legal standard [to be] used by the district court. Summary judgment is appropriate if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Darr v. Town of Telluride, 495 F.3d 1243, 1250-51 (10th Cir.2007) (citations and internal quotation marks omitted).

We view the evidence in the light most favorable to Plaintiffs. See id. at 1251. Shortly before midnight on December 28, 2004, the Department dispatched Deputy Peterman to the site of an automobile accident. En route he activated his emergency lights but not his siren. Mr. Moore was also dispatched to the accident. He proceeded to the scene in his personal vehicle, which was not unusual for firefighters responding to medical emergencies. The vehicle was not equipped with emergency equipment but he had activated his hazard lights and Deputy Peterman was aware

507 F.3d 1259

that firefighters were responding to the scene. Mr. Moore and Deputy Peterman were traveling north on the...