Gros v. City of Grand Prairie

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 99-10232

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DANETTE HOPE GROS; ET AL.,

Plaintiffs,

DANETTE HOPE GROS; EDITH D. SIKES,

Plaintiffs-Appellees-

Cross-Appellants,

VERSUS

THE CITY OF GRAND PRAIRIE, TEXAS, ET AL.,

Defendants,

HARRY L. CRUM,

Defendant-Appellant-

Cross-Appellee.

_________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________

April 25, 2000

Before DAVIS, CYNTHIA HOLCOMB Harry Crum appeals the denial of summary

HALL,* and SMITH, Circuit Judges. judgment on his qualified immunity defense in

a 42 U.S.C. § 1983 suit brought by Danette

JERRY E. SMITH, Circuit Judge: Gros and Edith Sikes, who are cross-appealing

those portions of the order that granted Crum

summary judgment on qualified immunity

grounds. Plaintiffs alleged that Crum, as Chief

*

Circuit Judge of the Ninth Circuit, sitting by of Police of Grand Prairie, Texas, violated

designation.

their constitutional rights by hiring and failing At the police station, Gros immediately

properly to train and supervise an officer complained of her treatment to Rogers’s su-

(“Rogers”) who allegedly sexually assaulted pervisors. As a result, an investigation of

them, and by having a hiring policy that Rogers’s conduct with respect to this incident

allowed persons with a propensity toward was conducted in which the internal

violent behavior into the Grand Prairie Police investigative unit of the GPPD determined that

Department (“GPPD”). Concluding that there Gros’s claim was “not sustained.”

was no genuine issue of material fact as to

Crum’s deliberate indifference to plaintiffs’ Sikes contends that in February 1996, while

constitutional rights, we reverse the denial of responding to a call, Rogers sexually abused

summary judgment and remand for further her. Sikes had been stopped by Rogers and

proceedings. We also decline to exercise pen- advised that there was an outstanding warrant

dent appellate jurisdiction over plaintiffs’ for her arrest for not paying traffic tickets.

cross-appeals, so we dismiss those cross- Sikes asked Rogers not to take her to jail, and

appeals. while telling her that he would not, Rogers be-

gan to fondle her. As Sikes retreated, Rogers

I. told her that she would have to make it up to

Gros and Sikes allege that Rogers, a former him. Rogers grabbed her breasts and asked

GPPD officer, physically, sexually, and Sikes whether she was wearing any

verbally abused them. Gros contends that underwear.

during a routine traffic stop, Rogers used

excessive force against her. While on routine Before Sikes could answer, Rogers lifted

patrol, Rogers pulled Gros over for driving Sikes’s top, pulled out her pants, and stuck his

without wearing a seatbelt. After being hand inside. As he was touching her, he stated

stopped for about twenty minutes, Gros exited that he wanted her “on his finger” so he could

her vehicle and inquired of Rogers how much taste her on his way home. After he pulled out

longer the stop would take. Rogers ordered his hand from inside her pants, he licked his

Gros back into the car, at which point Gros finger and told Sikes that she tasted sweet.

stated that she had an appointment and needed

to leave as soon as possible. The following day, Rogers called Sikes and

told her he was coming to her dormitory room

Rogers then allegedly grabbed Gros’s arm, before beginning work. Sikes immediately

twisted it behind her back, threw her on top of called and went to the GPPD station to report

her car, and reached into her blouse and the incident and was informed that Rogers had

grabbed her breast. He then handcuffed her had three other complaints lodged against him.

and placed her under arrest without a Rogers went to Sikes’s dormitory room that

recitation of Miranda warnings, putting her in night.

his squad car on a hot day with the windows

closed. Eventually he rolled down his window When compiling his report on the Sikes in-

a little to aerate the inside, but then turned the cident, Rogers denied ever having touched her.

volume on the radio up very high, allegedly to After an internal investigation, however, he

prevent passers-by from hearing Gros’s admitted to Sikes’s charges. He was thereby

requests for help. placed on indefinite suspension and charged

2

with criminal official oppression, to which he

pleaded guilty.

their constitutional rights in hiring Rogers.

II. Plaintiffs respond by pointing to evidence that

Plaintiffs filed their § 1983 claims against the district court concluded created an issue of

the city, Crum, and Lieutenant Bender, the material fact properly presented to the jury.

officer in charge of the Department of Internal

Affairs at GPPD. The district court granted We first must determine whether plaintiffs

summary judgment for the City on qualified have alleged a violation of a clearly established

immunity grounds. We vacated and remanded constitutional right, before we reach the

on the ground that the district court had narrower issue of qualified immunity. Siegert

applied incorrect legal standards to the v. Gilley, 500 U.S. 226, 232 (1991). Here,

evidence submitted by the plaintiffs. See Gros plaintiffs allege that Crum was deliberately in-

v. City of Grand Prairie, 181 F.3d 613, 615- different to their constitutional rights to be free

16 (5th Cir. 1999). from false arrest, illegal search and seizure,

excessive force, sexual harassment, and sexual

Crum and Bender moved for summary assault.

judgment on qualified immunity grounds. The

district court granted Bender’s motion as to all Under Board of County Comm’rs v. Brown,

claims asserted against him; these rulings are 520 U.S. 397, 407 (1997), “deliberate

not being appealed. The court granted Crum’s indifference” to the “known or obvious conse-

motion with respect to the claims that he main- quences” of a hiring decision can amount to a

tained an improper hiring policy and that he constitutional violation on the part of the deci-

improperly trained and supervised Rogers. sion maker, but “[a] showing of simple or even

The court denied Crum’s motion as to his act heightened negligence will not suffice.” Thus,

of hiring Rogers. “deliberate indifference” exists where adequate

scrutiny of an applicant’s background would

All the losing parties with respect to the lead a reasonable supervisor to conclude that

claims against Crum appeal these rulings. Al- the plainly obvious consequences of the

though they recognize that the grant of sum- decision to hire would be the deprivation of a

mary judgment on two of their three claims is third party’s constitutional rights. Snyder v.

an interlocutory order that is typically not im- Trepagnier, 142 F.3d 791, 797 (5th Cir.

mediately appealable, plaintiffs urge us to 1998), cert. granted, 525 U.S. 1097, and cert.

exercise our pendent appellate jurisdiction dismissed, 119 S. Ct. 1493 (1999). There

over those claims that they allege are must be a strong connection between the

“inextricably intertwined” with the deliberate- background of the particular applicant and the

indifference-in-hiring claim. specific violation alleged. Brown, 520 U.S.

at 412. Accordingly, plaintiffs cannot succeed

III. in defeating summary judgment merely

On the issue of qualified immunity, Crum because there was a probability that a poorly-

asserts that plaintiffs presented insufficient evi- screened officer would violate their protected

dence that he was deliberately indifferent to rights; instead, they must show that the hired

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officer was highly likely to inflict the particular evaluation that Rogers was “unable to take

type of injury suffered by them. Id. criticism, he disregarded supervision and

didn’t adhere to dept policies”; (9) statements

Because the district court denied summary by another officer that Rogers was “a little

judgment on this claim, we are limited to a re- rash in his demeanor and his personality tended

view of whether the factual issues on which to aggravate a situation” and “was almost to

the district court based its decision were the point of being badge heavy;” (10)

material, and we are precluded from reviewing comments that Rogers “needs to know the

the district court’s determination that the difference between escalating and when not

issues of fact in question are genuine.1 As to,” that “he is at times [too] quick to draw his

evidentiary support for their contention that weapon,” that “when he reacts too fast he

there was a material issue of fact whether usually reacts in an aggressive manner,” and

Crum was deliberately indifferent to their that “with his take-charge attitude, sometimes

constitutional rights in hiring Rogers, plaintiffs Rogers overdoes it”; and (11) information that

rely primarily on the contents of Rogers’s pre- during high school, the principal suspended

employment personnel file. They point to (1) Rogers for continuing to talk to a girl who had

reports from his previous employment as a rebuffed his advances.

police officer for the University of Texas at

Arlington (“UTA”) that indicated that Rogers To defeat summary judgment, the proffered

went to a psychologist after being involved in evidence must be sufficient to create an issue

back-to-back incidents where force was used; of material fact whether a reasonable officer

(2) statements from a UTA supervisor that if would conclude that the obvious consequence

the GPPD hired Rogers, they would have to of hiring Rogers would be that he would sex-

“monitor his activities and guide him in the ually harass, sexually assault, falsely arrest, use

direction [they] want to go”; (3) a excessive force, or illegally search or seize a

psychological test done for entry into UTA third person. In other words, the evidence

that indicated Rogers was inflexible, too must demonstrate that Crum was deliberately

defensive, and unwilling to take direction indifferent to this obvious consequence.

conflicting with his own desire; (4) a letter of

reprimand issued to Rogers for losing another This court has recently noted that Brown is

officer’s location; (5) a letter of reprimand for instructive as to the quantum and quality of

insubordination for refusing to sign a report; evidence of deliberate indifference that is

(6) a complaint against Rogers for being ha- necessary:

rassing and overbearing during a traffic stop

(The overbearing complaint was sustained, but There, Reserve Deputy Stacy Burns

the harassment complaint was not.); (7) an (“Burns”) stood convicted of using ex-

unsustained complaint that Rogers was cessive force when he wrested a woman

threatening and unprofessional and improperly from a car, badly damaging her knees in

drew his weapon during a traffic stop; (8) an the process. Burns, who was the great-

nephew of Sheriff Moore, Bryan Coun-

ty’s Sheriff and policy-maker, had a

1

See Colston v. Barnhart, 146 F.3d 282, 284 criminal record that included arrests for

(5th Cir.) (on suggestion for rehearing en banc), driving while intoxicated, driving with a

cert. denied, 525 U.S. 1054 (1998).

4

suspended license, resisting arrest, likely to use excessive force in general or

public drunkenness, and a conviction for possess a trigger-happy nature in particular.”

assault and battery. Looking at this Aguillard, 2000 U.S. App. LEXIS 3884, at

record, the Supreme Court held that *12. Thus, the court concluded that “[w]hile

Sheriff Moore’s failure to examine the County may have been negligent in its

Burns’s criminal record did not employment decision, the magnitude of its

“reflect[] a conscious disregard for a error does not reach constitutional cogni-

high risk that Burns would use excessive zance.” Id.

force in violation of respondent’s

federally protected right.” Likewise, in the instant case, the evidence

presented by plaintiffs does not rise to the level

Aguillard v. McGowen, 2000 U.S. App. of a constitutional violation. To be sure, there

LEXIS 3884, at *10 (5th Cir. Mar. 15, 2000) are scattered statements in Rogers’s pre-

(quoting Brown, 520 U.S. at 415-16). In employment file that suggest he was

Aguillard, the deputy officer, Joseph Mc- sometimes too aggressive for UTA’s campus

Gowen, was convicted of murder for a police department. There are also letters of

shooting committed while he was on duty. reprimand and sustained complaints for being

McGowen’s record showed, among other overbearing and abusive during a traffic stop.

things, that he had previously threatened the But while these facts suggest that Crum, like

mother of a juvenile with arrest, that he the county in Aguillard, might have been

meddled in this mother’s supervision of the negligent in failing adequately to review Rog-

child while he was off duty, that colleagues at ers’s records and in ultimately deciding to hire

the police department reported that he wanted him, they do not provide sufficient evidence of

to “ride where the women were,” that a female a deliberate indifference to constitutional

colleague stated that she did not want to ride rights.

with him under any circumstances, and, most

importantly, that there was a report that he had Rogers had never sexually assaulted,

assaulted and pistol-whipped a teenage boy sexually harassed, falsely arrested, improperly

who was driving his car around McGowen’s searched or seized, or used excessive force

apartment complex, though McGowen was against any third party. Indeed, the record

neither arrested nor convicted of the alleged reflects that he never committed a serious

assault. McGowen’s informal disciplinary rec- crime. Just as in Aguillard, the incident in

ord included infractions for using police radio Rogers’s past that was potentially most

for broadcasting personal messages and for damaging to his recordSSthe complaint for an

refusing to convey information to one party in alleged improper drawing of his weapon

a vehicular accident. during a traffic stopSSwas not sustained by

UTA. And the reprimands and complaints that

Presented with this evidence in support of were sustained do not meet Brown’s

the denial of the county’s motion for judgment requirement of a “strong” causal connection

as a matter of law, the Aguillard court between Rogers’s background and the specific

nevertheless reversed, reasoning that “Mc- constitutional violations alleged. See Brown,

Gowen had never wrongfully shot anyone 520 U.S. at 412. Instead, those reprimands

before, nor did his record reveal him to be related to insubordination for refusing to sign

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a report and for losing track of an officer on recommended him as a good officer. In

patrol. addition, Rogers’s personnel file reflected that

he had received good evaluations since

Moreover, in reviewing the record we con- becoming a UTA police officer, and three of

sider the context of Rogers’s colleagues’ those evaluations placed him above average.

statements about the need further to “monitor” Two other officers who served as Rogers’s

him and to the effect that he might be too “ag- personal references had only positive things to

gressive,” “almost badge heavy,” and “a little say about him.

rash in his demeanor.” Without exception, the

UTA officers who made these statements also In the end, the evidence in Rogers’s

had positive things to say about Rogers and ul- personnel file was, at worst, mixed. If mere

timately recommended him as a good hire. negligence were enough to sustain a claim

against Crum, we might be presented with a

For instance, the officer who noted Rog- closer case, though the positive feedback still

ers’s problems with being aggressive, reacting seems to outweigh the negative. That

too fast under stress, and that he was “too evidence is insufficient, however, to

quick to draw his weapon,” also concluded demonstrate constitutional deliberate

that he “would be a good officer, but the indifference on Crum’s part, because it does

above problems need to be addressed,” and not establish a strong causal connection

characterized Rogers as “a real aggressive, between Rogers’s background and the

professional officer, a real go-getter, who gets particular constitutional violations asserted.

the job done.” Significantly, this officer’s per-

sonal reference for Rogers was the worst one. With the benefit of hindsight, it is apparent

that Rogers was a bad hire, but there is

Another officerSSthe one who suggested insufficient evidence to show that Crum was

that Rogers would have to be monitored by deliberately indifferent to plaint iffs

GPPD, and who brought to light Rogers’s in- constitutional rights when he made his hiring

terview with a psychologist after he was in- decision. Consequently, there are no issues of

volved in “back to back incidents” of fact that warrant a jury determination, because

forceSSnoted that Rogers voluntarily went to the evidence presented is not material in light

the psychologist because it was department of Brown and Aguillard, and the district court

policy that anyone involved in a couple of should have granted Crum summary judgment

incidents of force must do so. The officer on this claim.

concluded, however, that “Rogers is a good

cop,” “the kind that any department would IV.

want.” Plaintiffs also asserted claims against Crum

for failure adequately to train and supervise

Several of the officers who noted Rogers’s Rogers and for having a hiring policy that al-

aggressiveness merely thought it was lowed persons with a propensity toward

inappropriate for the campus environment in violent behavior into the GPPD. Because the

which he worked. Those officers felt that district court granted summary judgment to

Rogers would benefit from being placed in a Crum based on his qualified immunity on both

larger police department, and they too of these claims, and because the court denied

6

summary judgment on plaintiffs’ deliberate- district court; each has unique elements and

indifference-in-hiring claim, plaintiffs properly relevant facts. The claim for inadequate

recognize that the appeal of summary training and supervision, for example, relies

judgment on these two claims is an heavily on a GPPD psychologist’s evaluation

interlocutory appeal not typically immediately that Rogers “has a tendency to be

reviewable by this court. apprehensive and may be tense and driven

which may require further [scrutiny] by his

Nevertheless, plaintiffs urge us to assert jur- field training officer.” This evidence was not

isdiction for these cross-appeals using pendent in Rogers’s pre-employment file from UTA

appellate jurisdiction. They argue that such and is not relevant to Crum’s initial decision to

jurisdiction is justified because the facts and hire Rogers. Similarly, the claim challenging

legal issues of these two claims are Crum’s general hiring policy requires much

“inextricably intertwined” with those of the more evidence of systemic problems, beyond

appealable order denying summary judgment. the single decision to hire Rogers.

They also assert that our exercise of pendent Consequently, much of the evidence necessary

appellate jurisdiction would promote judicial for the hiring-policy claim is not relevant to the

economy by providing both parties with a denial of summary judgment on the deliberate-

speedy resolution of the entire case. indifference-in-hiring claim.

Pendent appellate jurisdiction should be ex- As their closest relevant case, plaintiffs’ rely

ercised only in “rare and unique” circumstanc- on Morin v. Caire, 77 F.3d 116 (5th Cir.

es. Woods v. Smith, 60 F.3d 1161, 1166 n.29 1996), in which we exercised pendent

(5th Cir. 1995). Plaintiffs assert that these are appellate jurisdiction in a qualified immunity

such circumstances, because all three of their case, noting that “[i]n the interest of judicial

claims are inextricably intertwinedSSthey arise economy, this court may exercise its discretion

from the set of facts, and all concern the to consider under pendent appellate

employment practices operated by Crum at jurisdiction claims that are closely related to

different levels of specificity. For instance, this [denial of summary judgment] issue

plaintiffs’ claim against Crum for failure properly before us.” Id. at 119. Morin does

adequately to train and supervise Rogers flows not support the exercise of that discretion

from Crum’s alleged disregard for the same here.

information in Rogers’s pre-employment file

that gave rise to the deliberate-indifference In Morin, the court properly had before it

claim. Also, plaintiffs’ claim challenging the appeal of the denial of a qualified immunity

Crum’s hiring policy merely recasts the delib- defense on plaintiffs’ § 1983 claims. Plaintiffs

erate-indifference-in-hiring claim at a higher also asserted related state law claims that were

level of generality; that is, it challenges all not subject to the “exception” allowing

hiring decisions made pursuant to the policy, immediate appeal of the denial of qualified

rather than the individual decision to hire immunity. In justifying its decision to exercise

Rogers. pendent appellate jurisdiction over these state

law claims, the court noted:

But despite the fact that these claims do

overlap, they were treated separately by the Although we generally exercise this

7

power with caution, it is appropriate for

us to do so in this situation, for if we

were to refuse to exercise jurisdiction

over the state law claims, our refusal

would defeat the principal purpose of

allowing an appeal of immunity issues

before a government employee is forced

to go to trial.

Id. at 119-20 (emphasis added) (footnotes

omitted).

Here, unlike the circumstance in Morin,

declining pendent appellate jurisdiction over

the claims for which summary judgment was

granted in favor of Crum would not defeat the

purposes of qualified immunity. Instead, as

the public employee who prevailed on his qual-

ified immunity defense, Crum is not being

forced to trial on those claims. Consequently,

we are not presented with the “rare and

unique” circumstances in which we might ex-

ercise our pendent appellate jurisdiction, and

we decline to do so.

The order denying summary judgment is

REVERSED, the cross-appeal is DISMISSED

for want of jurisdiction, and this matter is

REMANDED.

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