Wilson v. Meeks, s. 95-3390

• Decision Date: 23 October 1996
• Docket Number: Nos. 95-3390,95-3397,s. 95-3390
• Citation: 98 F.3d 1247
• Parties: Joyce WILSON, Individually, as executrix of the estate of Datton Wilson, Jr., and as natural guardian and next friend of the minor child, Natalie J. Wilson; Anthony D. Wilson; Anita D. Wilson; Datton Wilson, III; Crystal L. Johnson; and Kasha C. Wilson, Plaintiffs-Appellants, v. Luther Donald MEEKS; Timothy John Stock; Bruce K. Powers; Lanon Thompson; Debbie Mann; J. Earl Kitchings; City of Haysville, a municipal corporation; and John Coleman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1247

98 F.3d 1247

Joyce WILSON, Individually, as executrix of the estate of

Datton Wilson, Jr., and as natural guardian and next friend

of the minor child, Natalie J. Wilson; Anthony D. Wilson;

Anita D. Wilson; Datton Wilson, III; Crystal L. Johnson; and Kasha C. Wilson, Plaintiffs-Appellants, v. Luther Donald MEEKS; Timothy John Stock; Bruce K. Powers;

Lanon Thompson; Debbie Mann; J. Earl Kitchings;

City of Haysville, a municipal

corporation; and John

Coleman, Defendants-Appellees.

Nos. 95-3390, 95-3397.

United States Court of Appeals,

Tenth Circuit.

Oct. 23, 1996.

Jerry L. Berg, Law Offices of Jerry L. Berg, P.A., Wichita, KS, for Plaintiffs-Appellants.

Stephen E. Robison (David G. Seely with him on the briefs), Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, for Defendant-Appellee Luther Donald Meeks.

Alan L. Rupe, Morrison & Hecker L.L.P., Wichita, KS, for Defendants-Appellees.

Before PORFILIO, TACHA, and BRORBY, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

This appeal represents the second time this case is before us. Plaintiffs, Datton Wilson, Jr.'s estate and the surviving members of his family, brought this lawsuit pursuant to 42 U.S.C. § 1983 with pendent state law claims alleging nineteen separate causes of action arising from the shooting death of Mr. Wilson during a confrontation with the Haysville Police Department on December 7, 1990. In the first appeal, we held the individual police officers were entitled to qualified immunity on plaintiffs' federal claims. Wilson v. Meeks, 52 F.3d 1547 (10th Cir.1995) (Wilson I ). On remand, the district court granted summary judgment in favor of the City of Haysville and the individual defendants on the remainder of plaintiffs' claims. Plaintiffs now appeal, and we affirm.

The basic facts are described in detail in this court's original opinion and need not be repeated here. Wilson I at 1549-51. Suffice that the first appeal established the qualified immunity of the individual police officers from all of plaintiffs' federal claims.

On remand, the district court informed both parties, "in the face of the circuit court's findings and directives, it was assumed here [by the court] that this case was over; that the remaining claims were without merit and should be timely dismissed. Not so, said plaintiffs counsel." Wilson v. Meeks, No. 91-1504-PFK, 1995 WL 643834, at * 2 (D.Kan. Oct.12, 1995). As a result of the plaintiffs' position, the court suggested the individual defendants and the City of Haysville (defendants) renew their motions for summary judgment on all the remaining claims. After holding a hearing and considering both parties' voluminous filings, the court granted defendants' motions.

On appeal, plaintiffs raise three issues. First, plaintiffs argue this court's earlier decision was made without appellate jurisdiction and is therefore either void or voidable. Second, they assert the district court's grant of summary judgment on the pendent state claims was inappropriate. Third, plaintiffs contend the City of Haysville should be held liable for the combined acts and omissions of its employees despite our conclusion the individual defendants were entitled to qualified immunity.

Plaintiffs argue Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), eliminated this court's appellate jurisdiction to consider defendants' initial appeal of the district court's disposition of the qualified immunity issue. They maintain we lacked jurisdiction to issue our April 20, 1995 opinion and should have so concluded upon consideration of plaintiffs' petition for rehearing, which was not finally resolved until after the Court's issuance of Johnson. Plaintiffs maintain defendants' appeal involved questions of "evidence sufficiency" and, therefore, appellate jurisdiction was eliminated by Johnson. Id. at ----, 115 S.Ct. at 2159; Sevier v. City of Lawrence, Kan., 60 F.3d 695, 700 (10th Cir.1995). They contend upon remand the district court incorrectly denied their collateral attack on this court's assumption of jurisdiction in Wilson I.

However, defendants correctly guide us to analyze this issue under the doctrine of the law of the case. "The law of the case is a judicial doctrine designed to promote decisional finality. Once a court decides an issue, the doctrine comes into play to prevent the re-litigation of that issue in subsequent proceedings in the same cases." Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1536 n. 4 (10th Cir.1995) (citing Arizona v. California, 460 U.S. 605, 618-19, 103 S.Ct. 1382, 1391-92, 75 L.Ed.2d 318 (1983)). The doctrine is considered only a rule of practice and is not a limit on a court's power or authority. Id. Over time, three circumstances have evolved justifying a departure from that doctrine:

[T]he circumstances justifying a departure from the law of the case are narrow. The most widely quoted statement is by former Tenth Circuit Chief Judge Orie Phillips, sitting in another circuit, that the law of the case must be followed "unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.

United States v. Monsisvais, 946 F.2d 114, 117 (10th Cir.1991) (quoting White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967)) (emphasis added); see also Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981).

Plaintiffs argue Johnson, however, represents an intervening controlling change in the applicable law that would obviate the doctrine of the law of the case. In Johnson, the Court revisited the issue whether defendants can immediately appeal under 28 U.S.C. § 1291 a district court's fact-related determination denying qualified immunity based on the pretrial record. Id. at ----, 115 S.Ct. at 2153. The Court held "a defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of fact for trial." Id. at ----, 115 S.Ct. at 2159. In so holding, the Court framed its inquiry narrowly at the outset by explicitly noting, "[t]he order in question resolved a fact-related dispute about the pretrial record, namely whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial." Id. at ----, 115 S.Ct. at 2153.

Subsequently, the Court has clarified the extent and impact of Johnson's reach. In Behrens v. Pelletier, --- U.S. ----, ----, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996), the Court stated:

[R]espondent asserts that appeal of denial of the summary-judgment motion is not available because the denial rested on the ground that "[m]aterial issues of fact remain." This, he contends, renders the decision unappealable under last Term's decision in Johnson v. Jones, 515 U.S., at ----, 115 S.Ct. at 2156-2157. That is a misreading of the case. Every denial of summary judgment ultimately rests upon a determination that there are controverted issues of material fact, see Fed. R. Civ. Proc. 56, and Johnson surely does not mean that every denial of summary judgment is nonappealable. Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly "separable" from the plaintiff's claim, and hence there is no "final decision" under Cohen [v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)] and Mitchell [v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411]. See 515 U.S. at ----, 115 S.Ct. at 2156-2157. Johnson reaffirmed that summary-judgment determinations are appealable when they resolve a dispute concerning an "abstract issu[e] of law" relating to qualified immunity, id. at ----, 115 S.Ct. at 2158--typically, the issue whether the federal right allegedly infringed was "clearly established[.]"

(emphases in original).

Since Johnson, this court has applied the new jurisdictional rule on only four occasions. In Sevier v. City of Lawrence, Kan., 60 F.3d 695 (10th Cir.1995), we concluded we lacked jurisdiction under Johnson to review the district court's disposition of qualified immunity explaining, "we remain without jurisdiction to review the court's finding that there existed genuine issues of disputed facts that precluded the entry of summary judgment." Id. at 701. In Mick v. Brewer, 76 F.3d 1127 (10th Cir.1996), applying Johnson and Sevier, we concluded we possessed jurisdiction to review the district court's legal determination of what constituted clearly established law on plaintiff's excessive force and failure to intervene claims but lacked jurisdiction to review the district court's ruling genuine issues of material fact precluded summary judgment. Id. at 1133. As a result, we proceeded to analyze only part of the defendants-appellants' appeal. Id. at 1134-37. In Myers v. Oklahoma County Bd. of County Comm'rs, 80 F.3d 421 (10th Cir.1996), petition for cert. filed, 65 U.S.L.W. 3017 (U.S. June 27, 1996) (No. 95-2091), we concluded we did not have jurisdiction to hear an appeal when "the district court denied summary judgment to the individual defendants on their qualified immunity defense on the sole basis that 'there [was] a genuine issue for trial regarding the reasonableness of defendants' conduct.' " Id. at 424 (quoting the district court's order). Finally, in Shinault v. Cleveland County Bd. of County Comm'rs, 82 F.3d 367 (10th Cir.1996), we held we lacked jurisdiction under Johnson to review the district court's conclusion there was a genuine issue of material fact concerning the...