F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
STEPHANIE KAY PHILLIPS;
ROBERT PHILLIPS, as Guardian
for Jennifer Sue Phillips, a Minor;
STEPHANIE KAY PHILLIPS, as
Personal Legal Representative of the
Estate of Donna Kaye Frenzen
Phillips; DUSTIN ROBERT
PHILLIPS; SAM C. BINGAMAN,
III, as Personal and Legal
Representative of Andrew Dane
Phillips,
Plaintiffs-Appellants,
v.
GRADY COUNTY BOARD OF
COUNTY COMMISSIONERS;
CITY OF CHICKASHA; CITY OF
TUTTLE; JASON CARPENTER,
Chickasha Police Department;
BRAD CRAWFORD, Chickasha
Police Department; DUSTIN
DOWDLE, Chickasha Police
Department; STAN FLORENCE,
Grady County Sheriffs Office;
RANDY JOHNSON, Tuttle Police
Department, EARL PETTIT, Grady
County Sheriffs Office;
Defendants-Appellees,
and
TERRY ALEXANDER, Grady
County Sheriffs Office; KEITH

United States Court of Appeals

Tenth Circuit

MAR 2 2004

PATRICK FISHER

No. 02-6306
(D.C. No. 00-CV-1089-F)
(W.D. Okla.)

Clerk

CLEGHORN, Grady County Sheriffs

Office; ROBERT JOLLEY, Grady
County Sheriffs Office; JEFF
MCCONNELL, Grady County
Sheriffs Office; JENNY MOYER,
Grady County Sheriffs Office;
TONY WILLIS, Grady County
Sheriffs Department; and JOHN
DOES 1-20,
Defendants.
ORDER AND JUDGMENT

Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.

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This order and judgment is not binding precedent, except under the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

In district court, plaintiffs confessed the summary judgment motions of

defendants Terry Alexander, Jason Carpenter, Keith Cleghorn, Robert Jolley,
Jeff McConnell, Jenny Moyer, and Tony Willis. The district court granted these
defendants summary judgment by an order dated April 29, 2002. John Does 1
through 20 were never served. District Court Order of Aug. 27, 2002 at 1, n.1
(provided as an attachment to appellants brief). In addition, pursuant to
Fed. R. App. P. 42(b), the parties filed a stipulated dismissal of the appeal with
regard to defendants Jason Carpenter, Brad Crawford, Dustin Dowdle, Randy
Johnson, City of Chickasha, and City of Tuttle on October 31, 2003.

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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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protected by the Fourteenth Amendment; (3) defendants conduct violated

Ms. Phillips Fourteenth Amendment substantive due process rights; and
(4) defendants were liable to plaintiffs under state-law wrongful death theories.
Groupings of defendants filed summary judgment motions, in which they
challenged most of plaintiffs factual contentions and all their legal arguments.
Factually, defendants briefs and supporting materials maintained that
Ms. Phillips was properly arrested and detained, that she had volunteered her
services as a confidential informant and knowingly signed a cooperating
agreement, and that Ms. Phillips herself had breached her confidentiality by
telling family members, friends, and Cheadles wife of her role in Cheadles
arrest. Additionally, a month after the undercover operation, Ms. Phillips was
arrested for public intoxication and booked into the county jail (where Cheadle
continued to be held). A task force member was called to the jail to make her
stop screaming that she had worked for the district attorney. Defendants legal
arguments were specific to their varying circumstances.
After plaintiffs submitted briefs in opposition and a separate statement of
the case and counter-statement of facts, the district court was faced with the
herculean task of sorting through the facts and analyzing the law applicable to

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each defendant.

In a fifty-one page order, the district court excluded some of

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

Plaintiffs apparently submitted affidavits and transcripts supporting their

position in district court. The appendix filed in this court, however, includes only
plaintiffs statement of the case and counter-statement of facts, without the
supporting materials. It is the appellants responsibility to submit an appendix
which contains the parts of the record to which [a party] wish[es] to direct the
courts attention. Fed. R. App. P. 30(a)(1)(D). This court is not obliged to
remedy any failure of counsel to provide an adequate appendix. 10th Cir. R.
30.1(A)(3).
2

The district courts order provides quotations from some of plaintiffs

supporting material. Further, defendants have filed supplemental appendices.
We have considered plaintiffs citations to the district court record only to the
extent that the referenced material can be found in either the court order or the
supplemental appendices. In the absence of a complete appendix, this court
cannot conduct the fresh analysis of the entire record of the case urged by
plaintiffs. Aplt. Reply Br. at 15.

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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,

Christiansen v. City of Tulsa,

332 F.3d 1270, 1283 (10th Cir.

2003), and review a summary judgment ruling de novo, applying the same
standard as the district court,

Nelson v. Holmes Freight Lines, Inc

., 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,

see Fed. R. Evid. 801(d)(2)(A), Ms.

Phillips report of the statements to the relatives are not.

Plaintiffs incorrectly argue that this second level of hearsay is admissible
under the state-of-mind exception to the hearsay rule. Federal Rule of Evidence

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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.

Id. at 1190-91. The relatives testimony concerns

Ms. Phillips retrospective justification for her serving as a confidential

informant. Because it concerns her past, not future, intentions, it does not fall
within the state-of-mind exception. The evidence is clearly offered to prove the
truth of the matter asserted, and is inadmissible.
A similar analysis leads to the exclusion of relatives testimony that
Ms. Phillips said that she was intoxicated during at least one of the undercover
drug buys. Plaintiffs identify no recognized hearsay exception which would apply
to this testimony.
In contrast, the law enforcement officers testimony about Ms. Phillips
statements may be classified as non-hearsay admissions of a party-opponent.
The testimony is therefore admissible under Fed. R. Evid. 801(d)(2)(A).
Estate of Shafer v. Commissioner

See

, 749 F.2d 1216, 1220 (6th Cir. 1984) (stating

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);

Anderson v. Liberty Lobby ,

Inc. , 477 U.S. 242, 250-52, 256 (1986).

First, we note that plaintiffs have failed to provide significant factual
citations or legal argument concerning the district courts grant of summary
judgment in favor of the Board and Sheriff Florence in his official capacity.

A civil-rights suit against a county or a county official in his official capacity

requires a showing that a policy or custom was the moving force behind the
constitutional deprivation.

Myers v. Okla. County Bd. of County Commrs,

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.
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Concerning the individual defendants, Sheriff Florence and Deputy Pettit,

we must determine whether any factual issues exist as to their personal
participation in the alleged wrongdoing.

See Foote v. Spiegel , 118 F.3d 1416,

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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of a limited and specifically definable group; (3) defendants conduct

put plaintiff at substantial risk of serious, immediate, and proximate
harm; (4) the risk was obvious or known; (5) defendants acted
recklessly in conscious disregard of that risk; and (6) such conduct,
when viewed in total, is conscience shocking.
Id. at 918. [T]he Due Process Clause is not a guarantee against incorrect or
ill-advised [government] decisions.

Christiansen, 332 F.3d at 1282 (quotations

omitted). Defendants conduct must demonstrate a degree of outrageousness . . .

that is truly conscience shocking.

Id. (quotations omitted). [N]egligence does

not shock the conscience, and . . . even permitting unreasonable risks to continue
is not necessarily conscience shocking.
(10th Cir. 2002) (quotations omitted),

Ruiz v. McDonnell, 299 F.3d 1173, 1184

cert. denied , 123 S. Ct. 1908 (2003).

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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relevant evidence on notice of Cheadles murder solicitation efforts is the

self-contradictory testimony of Jackie Lee Melvin, a jail inmate. If one version of
his account is credited, he told the jail administrator that Cheadle was back there
trying to talk people into doing favors for him from keeping this girl named
Donna from showing up at court. County Commrs Supp. App., at 331. Despite
plaintiffs argument to the contrary, there is no evidence that Sheriff Florence or
Deputy Pettit were informed of this allegation.

Additionally, Mr. Melvins

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

In plaintiffs statement of the case and counter-statement of facts, they

state, without citation, that Sheriff Florence was informed of Cheadles death
threat and sheriffs department officers were asked to protect Ms. Phillips. Aplt.
App. at 17. We have found no evidence supporting these statements. They further
assert that the jail administrator testified that if he heard that an inmate threatened
the well-being of someone outside the jail, he would bring it to the attention of
the proper authorities.
Id. at 55, n.81. This testimony is not included in the
appendices and we will not consider it on appeal. In any event, the statement
does not establish a disputed issue of fact concerning knowledge on the part of
either Sheriff Florence and Deputy Pettit.
4

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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.

Christiansen, 332 F.3d at 1283 (quoting

Trujillo v. Bd. of County

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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Okla. Stat. tit. 51, 163(C).

The district court correctly entered summary

judgment on these claims.

CONCLUSION
Ms. Phillips death is truly regrettable, and we recognize that it has
significant consequences to plaintiffs.

Nevertheless, plaintiffs have not come

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.

As a final matter, we register our disapproval of the approach plaintiffs

counsel has taken to this appeal. The appellate briefs mischaracterize the district
courts rulings. One example is counsels assertion that the district court made an
erroneous finding of fact that Cheadle learned that Ms. Phillips was an informant
through her admission to Cheadles wife. Aplt. Br. at 34. The courts order,
however, states that Ms. Phillips identity could have become known to Cheadle
by deduction or from Donnas outburst in the Grady County Jail . . .
and/or from
her telephone call and admission to Cheadles wife. Order at 37 (emphasis
added). In a similar vein, counsel states that the district court ignored a disputed
issue of fact by concluding that Ms. Phillips was eager to assist the officers and
volunteered to serve as a confidential informant. Aplt. Reply Br. at 6 (quoting
Order at 8). In fact, that portion of the order prefaced the remark with
[a]ccording to [defendant] Johnson. Later, the court did conclude that, with the
exclusion of the hearsay evidence, there was no issue of material fact about the
voluntariness of Ms. Phillips consent.
See Order at 33. As we have stated in the
text, the district court correctly excluded the hearsay evidence.

In addition to shading the district courts rulings, plaintiffs have made

disorganized arguments obscured by overblown language, treated defendants as a
generic group, and failed to provide an adequate appendix. These defects made it
difficult to analyze plaintiffs appellate position. After independently examining
the applicable law and reviewing the parties submissions, we find no basis for
reversing the district courts entry of summary judgment. We caution counsel
against repeating this type of conduct in future appeals.

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of their claims. Consequently, the judgment of the district court is AFFIRMED.

Based on the parties stipulated notice of dismissal, the appeal is DISMISSED
as to defendants Jason Carpenter, Brad Crawford, Dustin Dowdle, Randy Johnson,
City of Chickasha, and City of Tuttle.
Entered for the Court

Stephen H. Anderson
Circuit Judge

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