Professional Documents
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Filed: Patrick Fisher
Filed: Patrick Fisher
MAR 2 2004
PATRICK FISHER
No. 02-6306
(D.C. No. 00-CV-1089-F)
(W.D. Okla.)
Clerk
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Donna Kaye Phillips was murdered after she served as a confidential
informant for the District Six Task Force, a multi-jurisdictional narcotics task
force. On behalf of Ms. Phillips children and estate, her relatives brought civil
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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rights claims, under 42 U.S.C. 1983, and wrongful death claims, under state
law, against Grady County, the cities of Chickasha and Tuttle, and numerous
county and city law-enforcement officers. The district court entered summary
judgment in favor of all defendants. In this appeal, plaintiffs pursue only their
claims against the Grady County Board of County Commissioners, Stan Florence
(the Sheriff of Grady County), and Earl Pettit (a deputy with the Grady County
Sheriffs Office and senior member of the task force).
We affirm.
BACKGROUND
In a cascading series of events, Ms. Phillips was arrested on an outstanding
warrant by a Chickasha police officer, detained in the county jail, recruited as
a confidential informant for the task force by Chickasha and Tuttle police
officers, and, the next day, utilized in two undercover drug buys from a dealer,
Rodney Cheadle. As the county sheriff, defendant Florence was notified of the
prospective task force operation. Defendant Pettit and the municipal officers
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orchestrated the drug buys, obtained and executed a search warrant shortly after
the second buy, and arrested Cheadle during the search. Three months later,
Ms. Phillips was stabbed to death. Cheadle was convicted of soliciting the
murder from his jail cell.
Plaintiffs alleged in district court that the municipalities, the county, and
the individual municipal and county law enforcement officers should all be held
liable for Ms. Phillips death, for a multiplicity of reasons. They asserted that
Ms. Phillips was not a voluntary confidential informant: the municipal officers
threatened to take away her children unless she cooperated with them, she was
intoxicated and in pain at the time she signed a cooperating agreement, and she
was not informed of the potential consequences. Further, they claimed that
improper handling of the buy operation and Cheadles arrest compromised her
confidentiality and that jail routines which allowed Cheadle to arrange her murder
endangered her security.
Based on this version of the facts, they laid out their legal claims. They
alleged that: (1) Ms. Phillips initial arrest and detention and her coerced
performance as a confidential informant amounted to false arrest and
imprisonment, in violation of her Fourth Amendment right to be free from illegal
search and seizure; (2) defendants threats to deprive Ms. Phillips of her children
interfered with the childrens right of intimate and familial association with her,
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each defendant.
plaintiffs supporting evidence as hearsay and determined that plaintiffs did not
present admissible evidence showing that any of the defendants violated
Ms. Phillips Fourth Amendment rights or Fourteenth Amendment substantive due
process rights, under either a special relationship or state-created danger theory.
Further, it found there was no violation of plaintiffs Fourteenth Amendment right
to intimate and familial association. Finally, the district court held that plaintiffs
had failed to show liability under state law.
On appeal, plaintiffs first argue that the district court erred in excluding
the statements of family members repeating Ms. Phillips accounts of law
enforcement officers threatening to take her children away. Plaintiffs contend
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that, if all their evidence is considered, they have shown disputed issues of fact
material to their constitutional and state-law claims against defendants. In their
briefs, they consistently refer to defendants as a group, without acknowledging
the dissimilar roles played by the different defendants.
DISCUSSION
We review a district courts ruling on the admissibility of evidence for an
abuse of discretion,
2003), and review a summary judgment ruling de novo, applying the same
standard as the district court,
., 37 F.3d 591,
594 (10th Cir. 1994). Due to the parties stipulated dismissal, our task on appeal
is much less complex than that of the district court. We need evaluate only the
evidence relating to the remaining defendants, the Grady County Board of County
Commissioners, Sheriff Florence, and Deputy Pettit.
Evidentiary Rulings
Plaintiffs primary challenge to the district courts evidentiary rulings
concerns the exclusion of their relatives testimony on coercion in the recruitment
of Ms. Phillips as a confidential informant, but admission of the law enforcement
officers testimony describing a voluntary agreement. They assert that their
submissions should be admitted or, alternatively, all testimony on the issue should
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be excluded as hearsay. This argument does not appear to relate to any of the
defendants remaining in the appeal. However, to the extent plaintiffs claim that
Deputy Pettit engaged in coercive behavior, we briefly analyze the underlying
hearsay issues.
Plaintiffs only evidence of coercion and lack of knowing consent arises
from Ms. Phillips statements to her stepmother and sister, quoted in the district
courts order at 17. The relatives testimony relays what Ms. Phillips said that the
officers told her and also states that Ms. Phillips said that the officers allowed her
to become intoxicated. The district court excluded this evidence as inadmissible
hearsay. See Fed. R. Evid. 801(c), 802.
There is a double hearsay problem with the testimony about the officers
alleged coercion. The first level of hearsay is the officers statements to
Ms. Phillips; the second is Ms. Phillips statements to her relatives.
See
Fed. R. Evid. 805 (Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with an exception
to the hearsay rule. . . .). Though the officers statements to Ms. Phillips are
nonhearsay admissions of a party-opponents,
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803(3) allows a declarants out of court statement not to prove the truth of the
matter asserted, but to show a future intent of the declarant to perform an act.
United States v. Freeman , 514 F.2d 1184, 1190 (10th Cir. 1975). In other words,
statements of intent are admissible to provide a foundation for the declarants
subsequent actions.
See
that a decedent, through his estate, is a party to [an] action, so that the
decedents statements are a classic example of an admission). The district court
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properly applied the rules of evidence and certainly did not abuse its discretion
in making its evidentiary rulings.
Summary Judgment
Plaintiffs assert a litany of complaints about the district courts summary
judgment determinations. 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. Fed. R. Civ. P. 56(c);
151 F.3d 1313, 1316 (10th Cir. 1998). Accordingly, we decline to disturb the
district courts ruling on the liabilities of these defendants.
On plaintiffs state-law wrongful-death and survivors actions, their
opening brief states that [t]he District Court
ignored evidence of Florences
custom of failing to train, supervise and discipline and provides a footnote citing
to a document that is not in an appendix. Aplt. Br. at 58;
see also Reply Br. at 22
(repeating the assertion). Needless to say, plaintiffs unsupported contentions do
not create a disputed material fact.
3
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1423 (10th Cir. 1997) (Individual liability under 1983 must be based on
personal involvement in the alleged constitutional violation.). We discern no
evidence showing that either Sheriff Florence or Deputy Pettit participated
in Ms. Phillips arrest and detention. Additionally, plaintiffs supporting
materials do not demonstrate that Ms. Phillips was in custody while serving as
a confidential informant. As a result, these defendants did not participate in
false arrest or false imprisonment activities and are not liable for Fourth
Amendment violations.
Plaintiffs have also asserted a Fourteenth Amendment substantive due
process claim, based on the theory that defendants created the danger which led to
Ms. Phillips death. [T]his court has held that state officials can be liable for
the acts of third parties where those officials created the danger that caused the
harm. Currier v. Doran, 242 F.3d 905, 917-18 (10th Cir. 2001) (quoting
Seamons v. Snow , 84 F.3d 1226, 1236 (10th Cir. 1996)) (further quotation
omitted).
To make out a proper danger creation claim, a plaintiff must
demonstrate that (1) the charged state entity and the charged
individual actors created the danger or increased plaintiffs
vulnerability to the danger in some way; (2) plaintiff was a member
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not shock the conscience, and . . . even permitting unreasonable risks to continue
is not necessarily conscience shocking.
(10th Cir. 2002) (quotations omitted),
When evaluating the evidence, this court carefully examines the conduct
of each individual defendant, not the aggregate effect of defendants actions.
See Currier, 242 F.3d at 919-23. As to Sheriff Florence and Deputy Pettit, it is
arguable that plaintiffs have made a sufficient showing on the first three of the six
factors. They were involved in the use of Ms. Phillips as a member of a limited
group consisting of confidential informants. Thus, there is an inference that they
increased her vulnerability to danger and put her at substantial risk of harm.
There is no evidence, however, on the remaining three factors. Plaintiffs
have not shown that the risk of Ms. Phillips death was obvious to these
defendants or that they knew of a specific threat on her life. The only
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testimony that Sheriff Florence placed Cheadle in solitary after he returned from
the site of the murder scene does not lead to an inference that the Sheriff was
aware of a death threat prior to Ms. Phillips murder.
There is no evidence that these defendants recklessly disregarded a risk that
Cheadle would have Ms. Phillips killed. Consequently, their conduct does not
demonstrate the degree of outrageousness that is truly conscience shocking.
Ruiz, 299 F.3d at 1184 (quotation omitted). Because plaintiffs have not satisfied
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the requisite factors, their danger-creation claim does not survive summary
judgment.
The remaining constitutional claim is that defendants violated the right of
Ms. Phillips children to have an intimate and familial association with their
mother. [A]n allegation of intent to interfere with a particular relationship
protected by the freedom of intimate association is required to state a claim under
section 1983.
Commrs , 768 F.2d 1186, 1190 (10th Cir. 1985)). As evidence of intent,
plaintiffs point only to the hearsay statements that law enforcement officers
threatened to take Ms. Phillips children from her unless she became a
confidential informant. Without these inadmissible statements, plaintiffs have not
identified any facts presenting a genuine issue of material fact on this claim.
As to plaintiffs state claims, the only evidence relevant to Sheriff Florence
and Deputy Pettit demonstrates actions taken within the scope of their
employment. Consequently, they are shielded by the Oklahoma Tort Claims Act,
which provides that [i]n no instance shall an employee of the state or political
subdivision acting within the scope of his employment be named as defendant.
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forward with evidence creating genuine issues of disputed material fact on any
Section 163(C) contains an inapplicable exception to blanket employee
immunity relating to resident physicians and interns.
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Stephen H. Anderson
Circuit Judge
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