Bryson v. City of Oklahoma City

FILED

United States Court of Appeals

Tenth Circuit

December 6, 2010

PUBLISH Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID JOHNS BRYSON,

Plaintiff-Appellant,

v. Nos. 09-6143 & 09-6182

CITY OF OKLAHOMA CITY,

Defendant-Appellee,

and

JOYCE GILCHRIST, individually,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 05-CV-01150-F)

Micheal Salem, Salem Law Offices (Mark Barrett with him on the briefs),

Norman, Oklahoma, for Plaintiff–Appellant.

Richard C. Smith, Assistant Municipal Counselor (Kenneth Jordan, Municipal

Counselor, with him on the briefs), Oklahoma City, Oklahoma, for

Defendant–Appellee.

Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.

In 1983, Plaintiff David Bryson was convicted of a rape and kidnapping he

did not commit. At his trial, a forensic chemist employed by the Oklahoma City

Police Department, Joyce Gilchrist, testified the hair and semen found at the

scene of the crime were consistent with samples taken from Plaintiff. Plaintiff

was incarcerated for seventeen years before his conviction was vacated based on

exculpatory DNA test results, and it took another three and a half years before the

charges against him were finally dismissed. A subsequent analysis of the

serological and hair evidence that was tested before his criminal conviction

demonstrated that, even without the benefit of DNA testing, Ms. Gilchrist should

have excluded Plaintiff as a criminal suspect back in 1983. Indeed, Ms.

Gilchrist’s own lab results indicated Plaintiff could not be the donor of the semen

found at the scene, contrary to the testimony she gave at his trial.

Following the dismissal of the criminal charges against him, Plaintiff filed

this § 1983 action to seek damages against, inter alia, Ms. Gilchrist and the city

that employed her for twenty-one years. Plaintiff ultimately obtained a $16.5

million judgment in actual damages against Ms. Gilchrist. However, the district

court granted summary judgment to the City of Oklahoma City, holding that the

undisputed evidence, taken in the light most favorable to Plaintiff, did not support

a finding of municipal liability.

During the pendency of the action, Ms. Gilchrist filed an indemnification

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cross-claim against the City. Plaintiff sought to participate in this cross-claim,

but Ms. Gilchrist and the City settled the claim for $23,364.29 without his

participation. Plaintiff also attempted to seek indemnification directly from the

City, but the district court denied his motion.

On appeal, Plaintiff challenges both the entry of summary judgment in

favor of the City and the district court’s denial of his indemnification application.

D ISCUSSION

We review the district court’s summary judgment decision de novo,

applying the same legal standard as the district court. See Padhiar v. State Farm

Mut. Auto. Ins. Co., 479 F.3d 727, 732 (10th Cir. 2007). Under this standard,

summary judgment is only warranted “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c)(2). We also review de novo the district court’s

interpretation of Oklahoma’s indemnification statute. See Breaux v. Am. Family

Mut. Ins. Co., 554 F.3d 854, 863 (10th Cir. 2009).

As an initial matter, we must decide what evidence is properly before us on

appeal. After the district court made its summary judgment ruling in this case,

Plaintiff filed a motion to reconsider and new supporting evidence in the form of

affidavits from two state forensic chemists. The district court denied the motion

to reconsider, stating that it would be improper to reconsider the summary

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judgment decision based upon new supporting facts that should have been

presented in prior briefing.

We are not persuaded this decision constituted an abuse of discretion. See

Price v. Philpot, 420 F.3d 1158, 1167-68 (10th Cir. 2005) (noting that “a district

court may, in its discretion, elect not to consider a delayed affidavit” and finding

no abuse of discretion in the district court’s refusal to consider evidence that was

first filed as an attachment to the plaintiff’s motion to reconsider). We therefore

will not consider any of the new evidence presented for the first time in Plaintiff’s

motion to reconsider. See Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1224 (10th

Cir. 2008); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.

1998) (“[A]lthough our review is de novo, we conduct that review from the

perspective of the district court at the time it made its ruling, ordinarily limiting

our review to the materials adequately brought to the attention of the district court

by the parties.”).

We thus consider, in light of the evidence presented to the district court

before the entry of its summary judgment decision, whether Plaintiff has set forth

sufficient evidence to support a finding of municipal liability against the City of

Oklahoma City. As we have previously explained:

A municipality may not be held liable under § 1983 solely because

its employees inflicted injury on the plaintiff. Rather, to establish

municipal liability, a plaintiff must show 1) the existence of a

municipal policy or custom, and 2) that there is a direct causal link

between the policy or custom and the injury alleged.

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Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (citation omitted).

A municipal policy or custom may take the form of (1) “a formal regulation or

policy statement”; (2) an informal custom “amoun[ting] to ‘a widespread practice

that, although not authorized by written law or express municipal policy, is so

permanent and well settled as to constitute a custom or usage with the force of

law’”; (3) “the decisions of employees with final policymaking authority”; (4)

“the ratification by such final policymakers of the decisions—and the basis for

them—of subordinates to whom authority was delegated subject to these

policymakers’ review and approval”; or (5) the “failure to adequately train or

supervise employees, so long as that failure results from ‘deliberate indifference’

to the injuries that may be caused.” Brammer-Hoelter v. Twin Peaks Charter

Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010) (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988) and City of Canton v. Harris, 489 U.S. 378,

388-91 (1989)) (internal quotation marks omitted).

On appeal, Plaintiff mainly relies on the last of these potential grounds for

municipal liability. Specifically, he argues the City failed to ensure that Ms.

Gilchrist was properly trained at the onset of her career and then failed to provide

meaningful supervision or additional training during her twenty-one-year tenure

in the police department’s forensic lab. The evidence suggests the City may well

have been deficient in training and supervising Ms. Gilchrist. Nevertheless, the

City cannot be held liable for its failure to train or supervise its forensic chemists

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unless the City’s policymakers “can reasonably be said to have been deliberately

indifferent to the need” for further training or supervision. City of Canton, 489

U.S. at 390. We discussed this requirement of deliberate indifference in Barney

v. Pulsipher:

The deliberate indifference standard may be satisfied when the

municipality has actual or constructive notice that its action or

failure to act is substantially certain to result in a constitutional

violation, and it consciously or deliberately chooses to disregard the

risk of harm. In most instances, notice can be established by proving

the existence of a pattern of tortious conduct. In a narrow range of

circumstances, however, deliberate indifference may be found absent

a pattern of unconstitutional behavior if a violation of federal rights

is a highly predictable or plainly obvious consequence of a

municipality’s action or inaction, such as when a municipality fails

to train an employee in specific skills needed to handle recurring

situations, thus presenting an obvious potential for constitutional

violations.

143 F.3d 1299, 1307-08 (10th Cir. 1998) (internal quotation marks and citations

omitted).

We conclude Plaintiff has not presented sufficient evidence to support a

finding of deliberate indifference. According to the undisputed evidence

presented to the district court, the City had not yet received any complaints or

criticisms of any of its forensic chemists’ work at the time Ms. Gilchrist

concealed exculpatory evidence and falsified her test reports in 1983. Plaintiff

argues we can find municipal liability despite the City’s lack of contemporaneous

notice of problems in the forensic laboratory because Ms. Gilchrist’s wrongful

actions were a highly predictable or plainly obvious consequence of the relatively

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short technical training period and lack of meaningful supervision for the City’s

forensic chemists. We are not persuaded, however, that it was highly predictable

or plainly obvious that a forensic chemist would decide to falsify test reports and

conceal evidence if she received only nine months of on-the-job training and was

not supervised by an individual with a background in forensic science. Cf.

Barney, 143 F.3d at 1308 (“Specific or extensive training hardly seems necessary

for a jailer to know that sexually assaulting inmates is inappropriate behavior.”).

Moreover, although the record reflects that most forensic laboratories began

adopting better training and management practices in the 1970s and early 1980s,

such practices were by no means universal in 1983, further militating against the

conclusion that it was highly predictable or plainly obvious in 1983 that the

training and supervision practices employed by the City and other jurisdictions

would result in the violation of federal rights.

Plaintiff argues we can infer deliberate indifference in 1983 based on the

City’s prolonged failure to take any remedial or investigatory actions even after

criticisms of Ms. Gilchrist began coming to light in 1986, as well as the ease of

implementing quality controls to prevent her wrongful actions. However,

although this evidence may show that the City later acted with deliberate

indifference to Ms. Gilchrist’s subsequent misdeeds, it is irrelevant to the material

question before us—whether the City consciously or deliberately chose in 1983 to

ignore a risk of harm which the City had been put on notice of either by a past

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pattern of wrongful acts or by the high predictability that wrongful acts would

occur. On that question, we find no evidence to support Plaintiff’s claim.

Plaintiff also argues that, regardless of whether the City acted or failed to

act with deliberate indifference in 1983, the City can be held liable for malicious

prosecution based on its failure to take any actions against Ms. Gilchrist after

1986. Specifically, Plaintiff argues that, had the City taken appropriate actions to

discipline or constrain Ms. Gilchrist’s actions after the City was put on notice of

her shortcomings in 1986, she would not have been in a position to falsely tell his

attorney in 1985 that the evidence had been destroyed and the flaws in her

analysis of the forensic evidence in his case would have been more likely to come

to light at an earlier time. He thus argues the City is responsible for his wrongful

continued confinement in the years following this notice. We conclude, however,

that the link between the City’s alleged failure to meaningfully supervise Ms.

Gilchrist’s work after 1986 and the constitutional injury suffered by Plaintiff is

too attenuated to support a finding of municipal liability.

Plaintiff further suggests the City may be found liable under the ratification

basis for municipal liability, citing to evidence that police supervisors promoted

Ms. Gilchrist in the face of repeated criticisms of her work and commended her

“dedication and professionalism” in “contributi[ng] to the judicial process.”

(Appellant’s App. at 3093.) However, a municipality will not be found liable

under a ratification theory unless a final decisionmaker ratifies an employee’s

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specific unconstitutional actions, as well as the basis for these actions. According

to the undisputed evidence in the record, no decisionmakers for the City learned

of any defects in the forensic analysis in Plaintiff’s case until 2001, when these

defects began to come to light during the investigation of Ms. Gilchrist’s work

that ended in the termination of her employment. Where the City was not even

aware of Ms. Gilchrist’s unconstitutional actions with respect to Plaintiff, it

cannot be found liable under a ratification theory, despite its general

commendation of Ms. Gilchrist’s work. Moreover, none of the evidence in the

record suggests the City ratified Ms. Gilchrist’s falsification of her test results

and concealment of exculpatory evidence regarding Plaintiff once the City learned

of these particular actions.

Finally, Plaintiff argues the City may be found liable based on its alleged

custom of encouraging forensic chemists to manipulate evidence in order to

obtain convictions. For support, Plaintiff cites to testimony from a former

Oklahoma City police chief that forensic chemists, like “everybody who is on the

prosecution team, [will] testif[y] in a way that is the most incriminating.”

(Appellant’s App. at 2829.) Plaintiff also cites to the 1987 statement of a forensic

chemist who criticized Ms. Gilchrist’s trial testimony from several cases. After

charging Ms. Gilchrist with making statements that were subjective and not

supported by the science, this chemist stated: “This situation is obviously not

going to cure itself—the situation has apparently existed for a number of years, it

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persists and is condoned by much of the criminal justice system in Oklahoma

County.” (Id. at 3908.) Reviewing these statements in context, we conclude that,

even taken in the light most favorable to Plaintiff, they do not establish a custom

upon which municipal liability may be based. In context, the police chief’s

statement suggests, at most, that the City condoned chemists presenting their

actual forensic findings in the most damning way possible—not that the City

encouraged chemists to fabricate test results. As for the other chemist’s

statement, his specific criticisms were limited to Ms. Gilchrist. Although he

asserted that the prosecutor and others condoned Ms. Gilchrist’s misleading

testimony, he did not suggest that any City chemists or employees besides Ms.

Gilchrist were giving similarly inaccurate testimony. Even taking all of the

evidence in the light most favorable to Plaintiff, we are not persuaded the

evidence is sufficient to give rise to an inference of a widespread City practice of

fabricating results and concealing evidence that was “so permanent and well

settled as to constitute a custom or usage with the force of law,” Praprotnik, 485

U.S. at 127 (internal quotation marks omitted). We thus hold that the district

court properly granted summary judgment to the City on Plaintiff’s municipal

liability claims.

We turn now to Plaintiff’s argument that he is entitled to monetary damages

from the City based on Oklahoma’s governmental employee indemnification

statute. This statute provides in relevant part that political subdivisions in the

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state “shall: 1. Provide a defense for any employee” accused of committing a

constitutional violation while acting within the scope of employment and “2. Pay .

. . any judgment entered . . . against any employee . . . , and any costs or fees, for

a violation of property rights or any rights, privileges, or immunities secured by

the Constitution or laws of the United States which occurred while the employee

was acting within the scope of employment.” Okla. Stat. tit. 51, § 162(A). The

statute further provides:

All applications for indemnification from the state or a political

subdivision shall be filed in the name of the real party or parties in

interest, and in no event shall any application be presented nor

recovery made under the right of subrogation. . . . The employee of

the state or a political subdivision must file an application for

indemnification within thirty (30) days of final judgment, or the right

to seek indemnification shall be lost forever.

Id. § 162(B)(3). The statute also explains that a “political subdivision shall not

be required to indemnify any employee . . . , unless the employee is judicially

determined to be entitled to such indemnification and a final judgment therefor is

entered.” Id. § 162(B)(1).

Plaintiff argues he is the real party in interest under this section because he

would be entitled to the benefits of any successful indemnification action. He

argues that, as the real party in interest, he was entitled to participate in any

hearings or settlement negotiations on the indemnification claim, and moreover,

that he was entitled to seek indemnification directly from the City.

In the unpublished case of Lampkin v. Little, 85 F. App’x 167 (10th Cir.

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2004), we rejected the argument that an injured party can be substituted for a

tortfeasor employee as the real party in interest under this Oklahoma statute. We

concluded that “the primary purpose of § 162 is not to ensure that a wronged

plaintiff is compensated, but to relieve an employee of the burden of paying a

judgment should he meet the statutory prerequisites.” Id. at 169; see also

Lampkin v. Little, 286 F.3d 1206, 1212 (10th Cir. 2002) (“Finally, a policy of

indemnification aims to lessen the burdens of personal liability that employees

may face as a result of their acts as employees.”). We noted that an

indemnification award, if the entitlement to one is proven, will be paid to the

employee and not the prevailing plaintiff. Lampkin, 85 F. App’x at 170. We

reasoned that an injured party is only an incidental beneficiary of the statute and

is therefore not entitled under Oklahoma law to require a municipality to

indemnify its employee. Id. Thus, the municipality “is not the insurer of the

judgment” and “has no constitutional or statutory obligation to ensure that a

prevailing party receives the jury’s award.” Id. at 170. We therefore agreed with

the district court that the prevailing plaintiff had no standing to pursue the

employee’s indemnification application on his own behalf. Id.

Plaintiff argues this unpublished opinion was wrongly decided. He argues

that, contrary to our conclusions in Lampkin, Oklahoma’s statute is remedial and

was intended to benefit injured plaintiffs as well as governmental employees.

Plaintiff cites to no authority to support this proposition, however. Nor has

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Plaintiff set forth any persuasive arguments or authorities to dispute our previous

conclusion that an indemnification award under the Oklahoma statute will be paid

to the employee, not to the prevailing plaintiff. Plaintiff argues two of our sister

circuits have allowed a prevailing plaintiff to obtain indemnification payments

directly from municipalities. See Yang v. City of Chicago, 137 F.3d 522, 525-26

(7th Cir. 1994); Skevofilax v. Quigley, 810 F.2d 378, 385 (3d Cir. 1987).

However, Yang involves a statute quite dissimilar to the Oklahoma statute at issue

in this case, while Skevofilax relates to a contractual indemnification clause that

the defendant employees, as well as the prevailing plaintiffs, were attempting to

enforce against the municipality. In contrast to the Oklahoma statute, the relevant

provisions in these cases did not require the application for indemnification to be

filed by the municipal employee, nor did they provide that the municipality was

not required to indemnify an employee unless the employee was judicially

determined to be entitled to indemnification. Neither of these cases persuades us

that we misinterpreted the Oklahoma statute in our unpublished Lampkin decision.

Thus, following the reasoning set forth in Lampkin, we hold that Plaintiff is not

the real party in interest on Ms. Gilchrist’s indemnification cross-claim and was

not entitled to participate in the indemnification decision nor to seek an

indemnification award from the City on the judgment he obtained against Ms.

Gilchrist.

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CONCLUSION

We are sympathetic to Plaintiff’s plight and find it deplorable that the

conditions that led to his unjust confinement were permitted to continue for so

long a time after the City was put on notice of the deficiencies in its forensic

laboratory program. Nevertheless, we see no basis in the summary judgment

record for holding the City liable in this case. Nor do we see any basis under

Oklahoma law for permitting Plaintiff to invoke the governmental employee

indemnification statute on his own behalf. We therefore AFFIRM the judgment

of the district court.

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