Petition for Writ of Certiorari — Grubbs v. Bailes (No. 06-136)

Supreme Court, U.S.

File D

)

06-136 JUL 25 2006

IN THE

Supreme Court of the United States

ROGER GRUBBS,

Petitioner,

V.

KEN G. BAILES; MANUEL BALLARD;

HASKELL COUNTY, a duly designated county

of the State of Oklahoma,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED StTaTES Court OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Wo. C. PLourFFE, JR.

211 N. Washington Street

P.O. Box 1537

E] Dorado, AR 71731

(870) 864-9930

Attorney for Petitioner

202391 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED FOR REVIEW

Whether the Court of Appeals for the Tenth Circuit,

affirming the order of the United States District Court for

the Eastern District of Arkansas, which granted summary

judgment for the Respondents on the Petitioner’s suit under

42 U.S.C. § 1983 for false arrest, malicious prosecution and

violation of the right to equal protection of the law, decided

an important federal question in a way that conflicts with

this Honorable United States Supreme Court’s decisions

concerning summary judgment: to wit: Celotex Corp. v.

Cantrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986); General Electric Co. v. Joiner, 522 U.S. 136,

118 S. Ct. 512, 139 L. Ed. 2d 508 (1997) and which also

conflicts with the decisions of many other circuits concerning

summary judgment.

Whether the Court of Appeals for the Tenth Circuit,

affirming the order-of the United States District Court for

the Eastern District of Arkansas, which granted summary

judgment for the Respondents on the Petitioner’s suit under

42 U.S.C. § 1983 for false arrest, malicious prosecution and

violation of the right to equal protection of the law denied

the Petitioner’s right to a trial by jury under the Seventh

Amendment to the United States Constitution in such a way

that misapplied the law, which has not been directly addressed

by this Honorable United States Supreme Court.

Whether the Court of Appeals for the Tenth Circuit,

affirming the order of the United States District Court for

the Eastern District of Arkansas, which granted summary

judgment for the Respondents on the Petitioner’s suit under

42 U.S.C. § 1983 for false arrest, malicious prosecution and

violation of the right to equal protection of the law decided

il

an important federal question concerning the Petitioner’s

claim for equal protection that conflicted with a decision-of

the Court of Appeals for the Seventh Circuit: to wit: Esmail

v. Macrane, 53 F.3d 176 (7 Cir. 1995).

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ................ i

i SN OE ere err er Le iii

Sas OF CRE RIES. gw oc sev escrscnicens Vv

ee ee SE 9 55S es coe ee eee) bi Vill

Ra SII 5 509 nag o/d ek aS ee oe 88 l

Statement Feary Taree rere l

Constitutional Provisions and Statutes Involved ... ]

ror Porter re oe rer yore 3

os scare neon ces 4

Reasons for Granting the Petition .............. 7

Bis I Fe I 855 ao 5 ANS 7

ee: EE Ce OE So oo he oon eke 7

C. The Court Of Appeals Erred When It

Affirmed The District Court’s Grant Of

Summary Judgment In Violation Of The

Standard Of Law Established By The United

States Supreme Court For The Evaluation

Of Summary Judgment Motions, Which

Requires All Disputes Of Fact To Be

Resolved Against The Moving Party ......

iv

Contents

Page

D. The Court Of Appeals Improperly Denied

Grubbs A Trial By Jury, Which Is Guaranteed

By The Seventh Amendment To The United

States Constitution, Under The Rubric Of The

Summary Judgment Process ............. 12

E. The Court Of Appeals Incorrectly Stated

Grubbs Failed To Argue His Claim Of

Malicious Prosecution To The District Court,

And Improperly Denied Grubbs’ Claim Under

The Equal Protection Clause, In Conflict With

A Decision Of The Court Of Appeals For The

Seventh Circuit Concerning Equal Protection

Se ae OES ete gn A EOE 14

I Sl at Wee g ave arcane ck al 6

TABLE OF CITED AUTHORITIES

Page

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144, 90S. Ct.

Soe ey Oe he OO, £0 TAT CEFR) oo ns cco ntee e's 8, 12

Anderson v. Haas, 341 F.2d 497 (34 Cir. 1965) .... 8

Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10" Cir.

el aa Pe ek as We Web ae6s-3 oa nkee ns 10

BCR Transport Co., Inc. v. Fontaine, 727 F.2d 7

Se CUOE 50-5 See hee eee ee cua ees 8

Beauregard v. Wingard, 362 F.2d 901 (9" Cir. 1966)

Aik eA he aaa sutras bb aol betes 8

Celotex Corp. v. Cantrett, 477 U.S. 317, 106 S. Ct.

some, Fi 1. BG. 26 269. (198G) 2.6 ccc ee. ae te Ee

City of Cleburne v. Cleburne Living Center, Inc., 473

U.S. 423, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)

Se ee eek ae hh deine behg ign aS bees Oe aca ce 4,15

DeLoach v. Bevers, 922 F.2d 618 (10" Cir. 1990) .... 8, 10

Esmail v. Macrane, 53 F.3d 176 (7 Cir. 1995) .. ii, 4, 14

Fiordana v. Lee, 434 F.2d 1227 (8" Cir. 1970) .... 8

vi

Cited Authorities

Page

General Electric Co. v. Joiner, 522 U.S. 136, 118

S. Ct. $12, 139 L. Ed. 2d 508: (1997) ....i, 3,8, 1, 13

Gilker v. Baker, 576 F.2d 245 (9 Cir. 1978) ...... g

Grubbs v. Bailes, 445 F.3d 1275 (10" Cir. 2006) ... I

Kalamazoo River Study Group v. Rockwell

International, 171 F.3d 1065 (6 Cir. $998) .... 8

Kampoures v. St. Louis Symphony Society, 210 F.3d

ee Oe CA Os oe eis eee te ees 8

Reeves v. City of Jackson, 608 F.2d 644 (5" Cir. 1979)

xe cat gt duusiel tales ware eye Dee ae as 8

Santiago v. Fenton, 891 F.2d 373 (1* Cir. 1989) ... 8

Toomer v. City Cab, 443 F.3d 1191 (10" Cir. 2006)

eee ete reer CKpetnehekeneenwes 7

Wayte v. United States, 470 U.S. 598, 105 S. Ct. 1524,

EE Re ee EEE we ceceucke sou vadkes 4,14

: Weinberger v. Hynsen, Westcott & Duning, Inc., 412

U.S. 609, 93 S. Ct. 2469, 37 L. Ed. 2d 207 (1973)

ee PR So Vee eee pe ee

Wilson v. Westinghouse Electric Corp., 838 F.2d 286

EAE FOOD Rois kos Se a ne Rewer 7

vii

Cited Authorities

Page

United States Constitution:

Sn eS oe epee ee Ks 1, 6

Seventh Amendment .. ; eka ee wes cea Cees . ice

Fourteenth Amendment ................ 1, 2,4,6, 15

Statutes:

Be Re EEO nn bs cok deh eee these l

i es i, 6

Okla. Stat. Ann. Title 21 § 1289.16 ......... 2, 3,9, 11

Cee, SU. PU EE RTO vcd cocescvsesess 9

Rules:

Si Ces SD cco ea eenieusves ee a 3,5

es Sl as SEY x Ce oie ne hk ORS Oe eae 3

vill

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Tenth Circuit Dated April 26,

FO oe 5 oe EEE hire ncn cece la

Appendix B — Order Of The United States District

Court For The Eastern District Of Oklahoma

Dated And Filed June 21, 2005 ......... eae 14a

I

OPINIONS BELOW

5

The Opinions of the Court of Appeals filed on April 26,

2006, and the District Court filed on June 21, 2005, are set

forth respectively at Appendix A and Appendix B. The Court

of Appeals Opinion was published at Grubbs v. Bailes, 445

F.3d 1275 (10" Cir. 2006).

STATEMENT OF JURISDICTION

This Honorable United States Supreme Court has general

appellate jurisdiction under 28 U.S.C. § 1254 over this matter,

as it concerns a decision of the United States Court of Appeals

for the Tenth Circuit entered on April 26, 2006, which,

rejecting the Petitioner’s claim of a violation of the 4"

Amendment and the 14" Amendment to the United States

Constitution concerning the false arrest and malicious

prosecution and violation of equal protection of the law,

affirmed the decision of the United States District Court for

the Eastern District of Oklahoma, which granted summary

judgment for the Respondents.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Seventh Amendment to the United States Constitution:

In suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact tried

by a jury shall be otherwise reexamined in any

Court of the United States, than according to the

rules of the common law.

2

Fourteenth Amendment to the United States

Constitution:

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due_process of

law; nor deny to any person within its jurisdiction

the equal protection of the law. .. .

Okla. Stat. Ann. Title 21 § 1289.16:

It shall be unlawful for any person to willfully

or without lawful cause point a shotgun, rifle or

pistol or any deadly weapon, whether loaded or

not, at any person or persons for the purpose of

threatening or with the intention of discharging

the firearm or with any malice or for any purpose

of injuring, either through physical injury or

mental or emotional intimidation or for the

purposes of whimsy, humor or prank, or in anger

or otherwise, but not to include .. . in defense of

any person, one’s home or property. . . .

3

INTRODUCTION

The Petitioner respectfully suggests that his Petition for a

Writ of Certiorari to the United States Court of Appeals for the

Tenth Circuit on this matter should be granted, as the order of

the Court of Appeals decided important federal questions in a

way that conflicts with relevant decisions. of this Honorable

United States Supreme Court and decisions of the other circuits.

See U.S. Sup. Ct. R. 10(a) & (c). Essentially stated, the Court

of Appeals, in its published decision concerning this matter, set

a new standard for determining whether disputed facts in a

summary judgment motion should be resolved in favor of the

movant or the non-movant, against established law. General

Electric Co. v. Joiner, 522 U.S. 136, 143, 118 S. Ct. 512, 139 L.

- Ed. 2d 508 (1997). Further, the Petitioner respectfully suggests

that the Court of Appeals incorrectly cited and incorrectly applied

the federal law of summary judgment and the state law

concerning the defense of property. Celotex Corp. v. Cantre’

477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); General

Electric Co. v. Joiner, 522 U.S. 136, 143, 118 S. Ct. 512, 139

L. Ed. 2d 508 (1997); Okla. Stat. Ann. Title 21 § 1289.16.

The Petitioner also respectfully suggests that the Court of

Appeals, in its published decision, essentially denied the

Petitioner’s right to a jury trial, as mandated by the Seventh

Amendment. Further, the Petitioner respectfully suggests that

this is an issue of significant public policy and constitutional

importance that this Honorable United States Supreme

Court should address. Moreover, the Petitioner respectfully

suggests that this case offers this Honorable United States

Supreme Court the opportunity to address the issue of the

interrelationship of the Seventh Amendment and the summary

judgment process. See U.S. Sup. Ct. R. 10(c).

4

Finally, the Petitioner respectfully suggests that the Court

of Appeals for the Tenth Circuit, in its published decision,

denying the Petitioner’s suit under the Equal Protection

Clause to the 14" Amendment because of the lack of proof

of disparate treatment concerning other parties, conflicted

with a decision of the United States Court of Appeals for the

Seventh Circuit, which allowed a suit for a violation of the

Equal Protection Clause, where there is a claim for malicious

prosecution, even though there is no evidence of disparate

treatment. Esmail v. Macrane, 53 F.3d 176, 179-80 (7™ Cir.

1995) (citing Wayte v. United States, 470 U.S. 598, 608, 105

S. Ct. 1524, 1531, 84 L. Ed. 2d 547 (1985) and City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 423, 446-

47, 105 S. Ct. 3249, 3257-58, 87 L. Ed. 2d 313 (1985)).

See U.S. Sup. Ct. R. 10(a).

STATEMENT OF THE CASE

The Petitioner, Roger Grubbs (hereinafter “Grubbs”),

was a stockholder in and president of the McCurtain Lake

Club, Inc. (hereinafter “Club”) The Club owns approximately

320 acres around McCurtain Lake. The stockholders each

have a small tract of land that is leased, rent free from the

Club. In addition to these tracts of land, there are several

hundred acres of wilderness land that is used by the

stockholders. Adjacent to the Club is private property that is

used by people driving recreational vehicles, such as

motorcycles and four-wheelers.

The Club’s land was fenced and posted with “No

Trespassing” signs. Over the years, the motorcycles and four-

wheelers have trespassed onto the land of the Club, disturbing

Grubbs and other stockholders in the quiet enjoyment of the

property. Grubbs and other members of the Club made a

5

number of complaints to the local law enforcement authorities

about the trespassing over the years, but nothing was done.

Grubbs had previously brought a successful complaint

against a County official for illegal dumping. This resulted

in problems for Grubbs.

On January 1, 2002, several trespassers entered the

Club’s property on their recreational vehicles. Grubbs went

to tell them to leave. The trespassers threatened Grubbs.

Grubbs had a pistol with him for protection. Grubbs and the

trespassers both independently called the sheriff.

Undersheriff Ken Bailes responded. Bailes took statements.

The trespassers claimed that Grubbs pointed the pistol at

them. Grubbs denied doing so. Grubbs attempted to show

Bailes that the fence had been cut, but he refused. “No

Trespassing” signs were near that spot. No arrests were made.

Bailes forwarded the statements to the Assistant District

Attorney.

Subsequently, the Assistant District Attorney directed

Bailes to make a probable cause affidavit, which he did. The

affidavit only mentioned the statements of the trespassers,

did not mention the statement of Grubbs, and failed to include

the fact that the fence had been cut or that the property was

posted with “No Trespassing” signs. The affidavit contained

no recitation of facts and just the bare assertion that Grubbs

had pointed a pistol at the trespassers. An arrest warrant was

issued for Grubbs. Grubbs turned himself in upon learning

of the warrant in the newspaper.

Subsequently, Grubbs’ criminal attorney, without the

knowledge or_permission of Grubbs, at the request of the

State, arranged for the dismissal of the charges against

6

Grubbs, upon the payment of court costs by Grubb’s criminal

attorney and not by Grubbs. Thus, Grubbs did not have the

opportunity to fully and fairly litigate the issue of probable

cause in the criminal matter.

The record also shows that Bailes was involved in the

investigation of a complaint by Grubbs against the same

County official for assault and battery subsequent to the

successful complaint about the County official illegally

dumping but before the incident which forms the basis of

this suit. Bailes was very angry about the complaints by

Grubbs, indicating his bias against Grubbs and showing that

Bailes had a predisposition to maliciously prosecute Grubbs.

Grubbs then brought suit against Haskell County,

Sheriff Manuel Ballard, and Undersheriff Ken Bailes for

violation of his civil rights, under, inter alia, the 4" and 14"

Amendments and pursuant to 42 U.S.C. § 1983. Grubbs, first,

alleged an inadequate investigation and false and omitted

facts in the probable cause affidavit resulting in Grubbs’ arrest

without probable cause and, second, alleged that the arrest

was, in fact, because of animosity against Grubbs for his

previous successful complaint against a County official and

that the County refused to enforce the law in his favor.

Essentially, Grubbs brought claims for false arrest, malicious

prosecution, and violation of the right to equal protection.

The District Court granted summary judgment for the

Defendants on the ground of qualified immunity as to Grubbs’

first claim on the basis that the affidavit contained no

misstatements. As to Grubbs’ second claim, the District Court

granted summary judgment for the Defendants on the grounds

of lack of standing by Grubbs to bring his claim and the lack

of a practice or policy precluding the enforcement of

trespassing laws. The District Court dismissed Grubbs’ suit.

7

Grubbs appealed the order of the District Court. As

to Grubbs’ first claim, the Court of Appeals found that:

(1) Grubb’s contrary version of the events did not vitiate the

probable cause afforded by the trespassers’ version of events,

(2) the facts omitted from the affidavit would not have

vitiated the probable cause for the arrest, (3) absent felonious

activity, there is no right to use a firearm in the defense of

property, and (4) there were no genuine issues of material

fact which would warrant placing the issue of probable cause

before a jury. As to Grubbs’ second claim, the Court of

Appeals found that, although Grubbs did have standing to

bring his claim, there was insufficient evidence to show that

Grubbs had been treated differently from other persons who

had brought trespassing claims. The Court of Appeals

affirmed the order of the District Court granting summary

judgment.

REASONS FOR GRANTING THE PETITION

A. STANDARD OF REVIEW

The standard of review concerning motions for summary

judgment is de novo. Toomer v. City Cab, 443 F.3d 1191

(10" Cir. 2006).

B. STANDARD OF LAW

Summary judgment should not be granted where there

are genuine issues of material fact. See, e.g., Celotex Corp.

v. Cantrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986). Summary judgment is a drastic remedy that must

be exercised with care to prevent facts from being taken from

the jury. Wilson v. Westinghouse Electric Corp., 838 F.2d

286, 289 (8" Cir. 1988). The evidence of the non-movant is

to be believed and justifiable inferences are to be drawn in

8

the non-movant’s favor. Kalamazoo River Study Group v.

Rockwell International, 171 F.3d 1065, 1068 (6" Cir. 1998).

The court may not weigh the evidence, judge credibiiity, or

determine truthfulness when evaluating a motion for

summary judgment. Kampoures y. St. Louis Symphony

Society, 210 F.3d 845, 847 (8" Cir. 2000). Disputed issues

of fact are to be resolved against the moving party. General

Electric Co. v. Joiner, 522 U.S. 136, 143, 118 S. Ct. 512,

139 L. Ed. 2d 508 (1997).

In the context of a civil rights suit, the issue of whether

there was probable cause for an arrest is a fact question that

should be decided by the jury. See, e.g., BCR Transport Co.,

Inc. v. Fontaine, 727 F.2d 7, 10 (1" Cir. 1984); Reeves v.

City of Jackson, 608 F.2d 644, 651 (5" Cir. 1979); Gilker v.

Baker, 576 F.2d 245, 246-47 (9" Cir. 1978). See also Adickes

v. S.H. Kress & Co., 398 U.S. 144, 90S. Ct. 1598, 26 L. Ed.

2d 147 (1970); DeLoach v. Beavers, 922 F.2d 618 (10" Cir.

1990); Fiordana v. Lee, 434 F.2d 1227 (8 Cir. 1970);

Beauregard v. Wingard, 362 F.2d 901 (9" Cir. 1966);

Anderson v. Haas, 341 F.2d 497 (3° Cir. 1965). Indeed, in a

civil rights suit, the courts have specifically recognized that

where there is a dispute as to the alleged facts in support of

an arrest, the jury should resolve the existence of probable

cause for the arrest. See, e.g., Santiago v. Fenton, 891 F.2d

373, 388 (1* Cir. 1989).

9

C. THE COURT OF APPEALS ERRED WHEN IT

AFFIRMED THE DISTRICT COURT’S GRANT OF

SUMMARY JUDGMENT IN VIOLATION OF THE

STANDARD OF LAW ESTABLISHED BY THE

UNITED STATES SUPREME COURT FOR THE

EVALUATION OF SUMMARY JUDGMENT

MOTIONS, WHICH REQUIRES ALL DISPUTES

OF FACT TO BE RESOLVED AGAINST THE

MOVING PARTY

It is axiomatic that omissions of relevant facts from an

affidavit that would vitiate probable cause are grounds for a

finding of lack of probable cause. In the instant matter,

Grubbs not only brought to the attention of law enforcement

that the riders were trespassing, but that a fence had been

cut. He also stated that the trespassers had threatened him.

Law enforcement was subsequently directed to the “No

Trespassing” signs. It was also known that Grubbs had an

acrimonious relationship with County officials because of

successful complaint brought against a County official. This

critical information was omitted from the affidavit presented

in support of the application for Grubbs’ arrest.

Under Oklahoma jaw, a firearm can be used in the

defense of property. Okla. Stat. Ann. Title 21 § 1289.16.

Further, malicious destruction of property can be a felony in

Oklahoma. Okla. Stat. Ann. Title 21 § 1760. Thus, the omitted

critical information most likely would have provided

sufficient grounds to show that probable cause for the arrest

of Grubbs did not exist. Indeed, all of the ou..itted critical

information, if presented to a jury, as requi.*«. by law, would

easily be within the realm of a rational decisimm in favor of a

finding of no probable cause.

10

In the instant matter, affirming the District Court, the

Court of Appeals acknowledged that there was a factual

dispute about whether Grubbs pointed the pistol at the

trespassers. This is a genuine issue of material fact that would

bear on the existence of probable cause for the arrest of

Grubbs and goes to the very heart of the issue — whether

there was probable cause to arrest Grubbs. The probable cause

affidavit lacked any information that the trespassers had

threatened Grubbs; lacked any information about the fence

being cut, which can be a felony which would then provide

justification even if Grubbs had used his pistol; lacked any

acknowledgment of the “No Trespassing” signs; and

contained nothing about the acrimonious difficulties between

Grubbs and the County officials. Moreover, the probable .-

cause affidavit lacked information about the ongoing

problems with the trespassers and the County’s failure to

enforce the law. All of these highly relevant facts were known

to Bailes and were omitted from the probable cause affidavit.

The courts have acknowledged that omitting such information

from a probable cause affidavit is a ground for a civil rights

suit for false arrest. See, e.g., DeLoach v. Bevers, 922 F.2d

618, 621-22 (10" Cir. 1990). Further, the courts have

recognized that there is a duty to reasonably investigate

allegations before arresting a person for a crime, otherwise

civil rights liability may attach. Baptiste v. J.C. Penney Co.,

147 F.3d 1252, 1258-59 (10" Cir. 1998).

The Court of Appeals (as did the District Court), despite

acknowledging the dispute of material fact as to what

occurred, essentially weighed evidence, judged credibility,

and determined truthfulness by upholding summary judgment

against Grubbs. Such an act violates the standards for

granting summary judgment. All facts and inferences are to

be taken in favor of the non-movant and all disputed issues

11

of fact are to be resolved in favor of the non-movant. General

Electric Co. v. Joiner, 522 U.S. 136, 143, 118 S. Ct. 512,

139 L. Ed. 2d 508 (1997). This was not done. The lower

courts substituted themselves for the jury. These rulings

conflict not only with the standard for summary judgment

- used by every other circuit, they also conflict with the

standard for summary judgment required by this Honorable

United States Supreme Court.

Regardless, even if Grubbs had brandished his pistol in

the presence of the trespassers, which Grubbs contests,

Oklahoma law specifically allows for the use of firearms in

the defense of property. Okla. Stat. Ann. Title 21 § 1289.16.

It is instructive to note that the cases cited by the Court of

Appeals in support of the proposition that there is no right

to use a firearm in defense of property were all dated 1947

and earlier. The Oklahoma statute that allows for the defense

of property with a firearm was enacted in 1971, decades after

these older decisions. Okla. Stat. Ann. Title 21 § 1289.16.

The statute contradicts the rulings of these older cases and,

thus, controls and applies to Grubbs in this matter.

Regardless, the court of appeals acknowledged that these old

cases included the caveat “absent a threat of felonious

activity”, which, at least for the purposes of summary

judgment where the facts are to be resolved in favor of the

non-movant, was present in this matter by the destroyed fence

and the threats by the trespassers.

Indeed, Grubbs respectfully suggests that because the

Court of Appeals affirmed the grant of summary judgment

where there was a dispute of material fact, the decision of

the Court of Appeals was not in accordance with this

Honorable United States Supreme Court’s decision of Celotex

Corp. v. Cantrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91

L. Ed. 2d 265 (1986).

12

Grubbs respectfully suggests that the order of the Court

of Appeals, incorrectly citing the law relative to summary

judgment and incorrectly applying it is an issue of public

significance that conflicts with decisions of this Honorable

United States Supreme Court and other circuits such that his

Petition for a Writ of Certiorari should be granted. Further,

Grubbs respectfully suggests that this matter is an excellent

opportunity to clarify the standard of summary judgment in

this context.

D. THE COURT OF APPEALS IMPROPERLY DENIED

GRUBBS A TRIAL BY JURY, WHICH IS

GUARANTEED BY THE SEVENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION,

UNDER THE RUBRIC OF THE SUMMARY

JUDGMENT PROCESS

It is undisputed that a plaintiff has the right to a trial by

jury under the Seventh Amendment to the United States

Constitution in a civil matter. Such a right applies to causes

of action for violations of civil rights.

In the instant matter, Grubbs demanded a trial by jury.

In the instant matter, the Court of Appeals (and the District

Court) essentially believed the facts that were offered against

Grubbs, weighed the evidence, judged credibility, and

determined truthfulness, in violation of established law

concerning the evaluation of requests for summary judgment.

Indeed, this Honorable United States Supreme Court has

recognized that there are sharp imitations when there 1s a

right to a trial by jury and a motion for summary judgment is

being considered. Weinberger v. Hynsen, Westcott & Duning,

Inc., 412 U.S. 609, 622, 93 S. Ct. 2469, 37 L. Ed. 2d 207

(1973) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,

157, 90S. Ct. 1598, 26 L. Ed. 2d 147 (1970)).

13

Grubbs respectfully suggests that the Court of Appeals

ignored the established standards and limitations for

evaluating summary judgment to the extent that Grubbs was

denied his right to a trial by jury. The disputed material facts

should have been examined by a jury; the Respondents’

version of the facts concerning Grubbs’ arrest should not have

been summarily accepted; and this matter should have been

remanded to the district court for trial by jury, as guaranteed

by the Seventh Amendment to the United States Constitution.

Grubbs respectfully suggests that the Court of Appeals

violated the ruling of this Honorable United States Supreme

Court in General Electric Co. v. Joiner, 522 U.S. 136, 143,

118 S. Ct. $12, 139 L. Ed. 2d 508 (1997), which requires all

issues of fact to be resolved against the moving party, and

thereby denied Grubbs’ right to a trial by jury. #

Grubbs respectfully suggests that the denial of his right

to a trial by jury is an issue of public significance and

constitutional importance that conflicts with decisions of this

Honorable United States Supreme Court and other circuits

such that his Petition for a Writ of Certiorari should be

granted. Grubbs also respectfully suggests that this is a

significant issue of public policy and constitutional

importance that this Honorable United States Supreme Court

should address. Moreover, this case offers this Honorable

United States Supreme Court the opportunity to address the

issue of the interrelationship of the Seventh Amendment and

the summary judgment process.

14

E. THE COURT OF APPEALS INCORRECTLY

STATED GRUBBS FAILED TO ARGUE HIS

CLAIM OF MALICIOUS PROSECUTION TO THE

DISTRICT COURT, AND IMPROPERLY DENIED

GRUBBS’ CLAIM UNDER THE EQUAL

PROTECTION CLAUSE, IN CONFLICT WITH A

DECISION OF THE COURT OF APPEALS FOR

THE SEVENTH CIRCUIT CONCERNING EQUAL

PROTECTION CLAIMS

One of the grounds which formed the basis for Grubb’s

Complaint was that he was maliciously prosecuted because

of his previously successful complaints against County

officials. Although the malicious prosecution claim was

acknowledged in the order of the court of appeals, the Court

of Appeals stated that Grubbs failed to plead this cause of

action or address at summary judgment before the District

Court and would not address it.

In fact, Grubbs did plead the issue of malicious

prosecution in paragraph 12 of his Complaint. Further, on

pages 9, 18, and 19 of his response to the motion for summary

judgment, Grubbs did argue the malicious prosecution aspect

of his complaint. The statement of the Court of Appeals that

this issue was not pled or argued to the District Court is

incorrect. :

~

The courts have recognized that a prosecution initiated

for malicious reasons states a cause of action for violation

of civil rights, under the 14" Amendment, even if there has

been no unequal treatment where other parties have been

treated more leniently. See Esmail v. Macrane, 53 F.3d 176,

179-80 (7" Cir. 1995) (citing Wayte v. United States, 470

U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547 (1985)

15

and City of Cleburne v. Cleburne Living Center, Inc., 473

U.S. 423, 446-47, 105 S. Ct. 3249, 3257-58, 87 L. Ed. 2d

313 (1985)). As recognized by the Court of Appeals for the

Seventh Circuit, although such an equal protection claim is

different than the regular “plain vanilla” equal protection

claims which requires others to be treated differently, such a

situation still states a cause of action under the 14"

Amendment.

Given this decision of the Court of Appeals for the

Seventh Circuit, it is apparent that there is a split between

the Seventh Circuit and the Tenth Circuit as to whether there

can be a claim of a civil rights violation under the Equal

Protection Clause of the 14° Amendment, even where there

is no proof of disparate treatment, such that resolution of

this difference by this Honorable United States Supreme

Court is warranted. Further, Grubbs respectfully suggests that

this is a significant issue of public policy and constitutional

importance that this Honorable United States Supreme Court

should clarify.

16

CONCLUSION

Based on the arguments and authorities presented, supra,

the Petitioner, Roger Grubbs, respectfully prays that this

Honorable United States Supreme Court-GRANTS his

Petition for a Writ of Certiorari to the Court of Appeals for

the Tenth Circuit.

Respectfully submitted,

Ww. C. Piourre, JR.

211 N. Washington Street

P.O. Box 1537

El Dorado, AR 71731

(870) 864-9930

Attorney for Petitioner

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

DATED APRIL 26, 2006

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 05-7076

ROGER GRUBBS,

Plaintiff-Appellant,

v.

KEN G. BAILES; MANUEL BALLARD;

HASKELL COUNTY, a duly designated county

of the State of Oklahoma,

Defendants-Appellees.

April 26, 2006

MURPHY, Circuit Judge.

Plaintiff Roger Grubbs appeals from the entry of

summary judgment for defendants Haskell County, sheriff

Manuel Ballard, and undersheriff Ken Bailes in this action

under 42 U.S.C. § 1983. Plaintiff alleged that defendants

violated his constitutional rights in two respects: (1) denying

him equal protection under the law by failing to enforce

trespass laws to protect his property, and (2) causing him to

be arrested without justification for a firearm offense, based

on misleading information provided to the prosecuting

2a

Appendix A

attorney, after he personally confronted three trespassers. The

district court rejected the first claim on alternative grounds,

holding that it was barred by a prudential standing principle

and that it failed in any event for lack of evidentiary support.

The court granted summary judgment on the second claim

for lack of evidentiary support as well. We affirm for the

reasons explained below.

Plaintiff is one of some twenty shareholders in the ~

McCurtain Lake Club Inc. (MLC), a corporation formed to

acquire and hold certain lakeside land for the use of the

shareholders. While all of the details regarding distribution

of the land are not fully set out in the materials in our record,

the parties do not dispute the pertinent facts. MLC owned

the land and granted certain possessory rights to all

shareholders free of charge. Specifically, each MLC

shareholder was “leased” a cabin site for his or her exclusive

use and was granted joint use of the remaining common areas.

At times relevant to this action, plaintiff was also president

of the corporation.

One of the common areas abutted non-MLC property

that was used by the public for off-road activities involving

dirt bikes, ATVs, and the like. Plaintiff alleges that he

complained of frequent trespassing by these off-road

enthusiasts over a period of years but that the authorities did

not take sufficient action to protect MLC property from

trespass. On January 1, 2002, he took matters into his own

hands. Armed with a pistol, he confronted three people, a

woman, her son, and her nephew, who he insisted were riding

four-wheelers onto MLC property. Accounts of this incident

differ: plaintiff claims he merely showed the alleged

‘

3a

_ Appendix A

trespassers that he was armed for self-protection; they

reported that he pointed the pistol at them while ordering

them to get off the property. Undersheriff Bailes was directed

to investigate the conflicting complaints. He took statements

from all parties and passed these on to assistant district

attorney Danita Williams. He did not recommend any

particular action, though he did comment that “[t]he property

in question in my opinion is not posted correctly and I do

not believe that there is a clear policy on what [plaintiff's]

duties are as the president of [MLC].” Aplt.App. at 237.

Bailes also made the obvious point that “[plaintiff] definitely

has no right to pull a weapon on another person just to assert

his opinions.” Jd.

Based on the statements and her own interviews with

the complaining witnesses, Williams made the decision to

prosecute plaintiff. Jd. at 236.’ She directed Bailes to fill out

a probable cause affidavit and then presented the materials

to secure a warrant. Jd. Plaintiff was arrested and charged

with violating Okla. Stat. tit. 21, § 1289.16 (felony pointing

firearms), for “wilfully pointing a handgun at 13 year old

J.H. his cousin J.A. and his mother Bobbie Jean Anderson .

for the purpose of threatening and ordering them off the

property where they were riding 4 wheelers.” Aplt.App. at

1. Williams submitted two affidavits on defendants’ behalf in

this case. The first noted the statements she obtained from Bailes,

while the second clarified that she had also personally spoken to the

witnesses, compare Aplt.App. at 106 with id. at 236. Plaintiff “finds

the latest affidavit to be suspicious,” Aplt. Opening Br. at 8, but this

kind of clarification, as distinguished from contradiction, is not a

basis for discounting later testimony. See Selenke v. Med. Imaging

of Colo., 248 F.3d 1249, 1258 (10th Cir.2001).

4a

Appendix A

242. Prior to trial, however, the case was dismissed without

prejudice upon payment of court costs by plaintiff's counsel.

See id. at 180, 184. Plaintiff then brought this action

challenging his arrest and complaining of the Sheriff's failure

to enforce the property rights of MLC and its members.

I. False Arrest/Malicious Prosecution

While constitutional claims for wrongful! arrest,

detention, and prosecution under § 1983 are analyzed in light

of analogous torts, such as false arrest and malicious

prosecution, the ultimate and indispensable element of such

a claim is the deprivation of a constitutional right. See Pierce

v. Gilchrist, 359 F.3d 1279, 1285-90 (10th Cir.2004); Taylor

v. Meacham, 82 F.3d 1556, 1560-61 (10th Cir.1996) (“[OJur

circuit takes the common law elements ... as the ‘starting

point’ for the analysis of a § 1983 malicious prosecution

claim, but always reaches the ultimate question, which it

must, of whether the plaintiff has proven a constitutional

violation.”). In the present context, “that constitutional right

is the Fourth Amendment’s right to be free from unreasonable

seizures.” Taylor, 82 F.3d at 1561; see Pierce, 359 F.3d at

1285, 1287 & n. 5. Accordingly, the focal point of our analysis

is the probable cause supporting plaintiff's arrest, which

rested on the complaining witnesses’ statements indicating

that plaintiff had used his pistol as a threat to force them off

the premises.

Plaintiff alleges that his arrest was the product of Bailes’

misleading presentation of the relevant facts. The

constitutional inquiry for such a claim focuses on the

5a

Appendix A

materiality of the misconduct in relation to the determination

of probable cause:

If an arrest warrant affidavit contains false

statements, the existence of probable cause is

determined by setting aside the false information

and reviewing the remaining contents of the

affidavit. Where information has been omitted

from an affidavit, we determine the existence of

probable cause by examining the affidavit as if

the omitted information had been included and

inquiring if the affidavit would still have given

rise to probable cause for the warrant.

Taylor, 82 F.3d at 1562 (citations and quotations omitted). If

hypothetically correcting the misrepresentation or omission

would not alter the determination of probable cause, the

misconduct was not of constitutional significance and is not

actionable under § 1983, see, e.g., id. at 1562-63; but if this

hypothesizing would alter the probable-cause determination,

the misconduct undermined Fourth Amendment guarantees

and may support redress under § 1983, see, e.g., Pierce, 359

F.3d at 1293-94.

A large part of plaintiffs objection to his arrest is simply

his insistence that his contrary version of events should have

been credited. There are two very basic deficiencies with

this approach. First, it is uncontested that Bailes did not

conceal or withhold plaintiff's statement, but passed it along

with those of the complaining witnesses. Second, as a general

matter, a suspect’s contradiction of a witness’ accusation is

_ not sufficient to vitiate probable cause; otherwise it would

6a

Appendix A

be virtually impossible to secure a warrant for anyone but a

confessed offender. There is nothing compellingly credible

or uniquely exculpatory about plaintiff's statement to afford

it any exceptional significance in this case. The witnesses

stated that he pointed his pistol; he stated that he merely

showed it to them. Such disputes between accuser and

accused are unremarkable in a criminal law setting. In his

statement to Bailes, plaintiff claimed that one of the witnesses

threatened to retrieve a gun and “get even,” Aplt.App. at 101.

Even if credited, however, this fact would not justify plaintiff

making an earlier threat with his firearm that prompted this

reaction. i

Plaintiff complains that Bailes did not report certain facts

about the incident that he insists would have altered the

determination of probable cause. These facts, such as the

presence of MLC property markers and the cutting of an MLC

fence near a no trespassing sign, relate to his assertion that

the complaining witnesses were trespassing when he

confronted them. Once again, plaintiff's argument is not

directed at a material issue. The operative statute does provide

an exception for use of a gun “in defense of . . . one’s home

or property,” § 1289.16, but threatening mere trespassers at

gunpoint is not within its scope. Oklahoma law has long

recognized that, absent a threat of felonious activity, the

defense of property encompasses only the right to resist

trespassers with reasonable non-deadly force and, thus, does

not allow a landowner to threaten them with firearms.

See Sherrill v. State, 43 Okla.Crim. 36, 277 P. 288, 288-89

(Okla.Crim.App.1929) (applying Dickinson v. State, 3

Okla.Crim. 151, 104 P. 923 (Okla.Crim.App.1909)); see also

Hovis v. State, 83 Okla.Crim. 299, 176 P.2d 833, 836

Ta

Appendix A

(Okla.Crim.App.1947) (collecting cases summarizing

relevant limitation on use of force to oppose mere trespasses).

Accordingly, facts tending to show that the complaining

witnesses were trespassing would not have vitiated probable

cause to arrest plaintiff for threatening them with a firearm

in violation of § 1289.16. Plaintiff also insists he had a

constitutional right “to point a pistol at someone in the

protection of his own property.” Aplt. Opening Br. at 18. He

cites no authority for such a right and this court will not

create such authority.

Plaintiff also advances two very general objections to

the district court’s treatment of his arrest claim. Neither has

merit. He first complains that the court failed to set forth a

rationale for rejecting the claim. To the contrary, the court

invoked the controlling probable cause inquiry, explained

that Bailes had not made any false statements to factor into

the analysis, and concluded that the asserted omissions would

not have vitiated probable cause. Aplt.App. at 254. Its

rationale is essentially the same as this court’s. Plaintiff next

insists that probable cause is a question for the finder of fact

and, as such, is inappropriate for summary judgment. His

premise is correct but his conclusion is unwarranted. Where,

as here, there is no g iuine dispute about its existence,

probable cause, like any material fact, is amenable to

summary judgment. See, e.g., Wolford v. Lasater, 78 F.3d

484, 489-90 (10th Cir.1996).

At points in his appellate briefing, plaintiff interjects his

suspicion that Bailes acted in retaliation for plaintiff's

confrontation with a county excise board member whom:

plaintiff had exposed for illegally dumping trash. It is true

8a

Appendix A

that a criminal prosecution undertaken “to discourage

protected speech or expression violates the First Amendment

and is actionable under § 1983.” Wolford, 78 F.3d at 488. No

such First Amendment claim was pled at the outset or later

invoked in opposition to summary judgment. For whatever

reason, plaintiff chose to proceed on other constitutional

grounds. He cannot revisit that decision at this late stage;

we review the case as it stood before the district court.

See generally Switzer v. Coan, 261 F.3d 985, 990 (10th

Cir.2001).

II. Denial of Equal Protection under Trespass Laws

Plaintiff alleged that the Haskell County Sheriff's Office

failed to enforce the trespass laws with respect to the MLC

common area and thereby denied him equal protection under

the law. This claim implicates two distinct issues on summary

_ Judgment.

. A. Prudential Standing

As a general matter, shareholders suffer injury in the

Article III sense when the corporation incurs significant harm,

reducing the return on their investment and lowering the value

of their stockholdings. Franchise Tax Bd. of Cal. v. Alcan

Aluminium, Ltd., 493 U.S. 331, 335-36, 110 S.Ct. 661, 107

L.Ed.2d 696 (1990). Satisfaction of constitutional standing

requirements, however, is not the end of the inquiry:

The more difficult issue is whether [shareholders]

can meet the prudential requirements of the

standing doctrine. One of these is the requirement

9a

Appendix A

that the plaintiff generally must assert his own

legal rights and interest, and cannot rest his claim

to relief on the legal rights or interests of third

parties. Related to this principle we think is the

so-called shareholder standing rule. . . . [T]he rule

is a longstanding equitable restriction that

generally prohibits shareholders from initiating

actions to enforce the rights of the corporation

unless the corporation’s management has refused

to pursue the same action for reasons other than

good-faith business judgment.

Id. at 336, 110 S.Ct. 661 (citations and quotations omitted).

This prudential prohibition on shareholder standing has a

well-established exception, “allowing a shareholder with a

direct, personal interest in a cause of action to bring suit

even if the corporation’s rights are also implicated.” Jd.

(emphasis added); see, e.g., Heart of Am. Grain Inspection

Serv., Inc. v. Missouri Dept of Agric., 123 F.3d 1098, 1102

(8th Cir.1997); Cooper v. McBeath, 11 F.3d 547, 551-52 (Sth

Cir.1994).

The district court invoked the shareholder-standing

prohibition to hold that plaintiff lacked standing to complain

of law enforcement’s inadequate response to trespassing on

MLC property. If plaintiff's only connection with the property

had been his ownership of MLC stock, so that any injury to

him was solely a function of injury to the corporation’s

property holding, such a purely derivative interest would fall

within the scope of the prudential prohibition on shareholder

standing. Plaintiff, however, has a distinct legally recognized

interest in the property.

10a

Appendix A

As noted earlier, MLC shareholders held their own

possessory interest in MLC property: an individual leasehold

in their particular cabin site and a joint interest in the common

areas. Oklahoma law has long recognized that a possessory

interest is sufficient to invoke a right against trespass.

See Lambert v. Rainbolt, 207 Okla. 451, 250 P.2d 459, 461

(Okla.1952) (following City of Okla. City v. Hill, 6 Okla.

114, 50 P. 242, 247 (1897)). Indeed, the disruptive, noisy

intrusion of trespassing off-roaders would appear to have a

much more immediate and significant impact on the

possessory rights of those, like plaintiff, using MLC property

for their own enjoyment than on the corporation’s formal

ownership interest.

It thus appears that plaintiff has asserted a direct injury

sufficient to satisfy the prudential standing principles in

Alcan.’ We need not, however, definitively resolve the matter

2. Plaintiff’s standing, however, is not wholly without doubt.

In Guides, Ltd. v. Yarmouth Group Property Management, Inc., 295

F.3d 1065 (10th Cir.2002), which did not reference Alcan, a

shareholder alleged that his corporation had been denied a lease based

on his race in violation of 42 U.S.C. § 1981. His claim for emotional

distress resulting from this corporate contractual discrimination was

dismissed for lack of standing. We affirmed, rejecting his effort to

avoid the sharcholder-standing prohibition. That holding is consistent

with Alcan, given the derivative nature of the alleged injury. However,

we framed the operative exception differently, qualifying the requisite

individual injury with a uniqueness element not included in Alcan:

“the actions of the third party that injure the corporation [must] also

cause injury to the shareholder which is unique to himself or herself

as a shareholder of the corporation and not suffered by the other

shareholders.” Guides, 295 F.3d at 1072 (emphasis added). Applied

(Cont'd)

lla

Appendix A

here. It has been noted on many occasions that the Supreme

Court’s rejection of the practice of “hypothetical jurisdiction”

in Steel Company v. Citizens for a Better Environment, 523

U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), prohibits

(Cont’d)

here, this would suggest that despite harm to a personal interest

otherwise sufficient for standing under A/can, no MLC sharcholder/

lessce could sue because all suffered alike. On closer reading, though,

it appears that Guides addressed a different shareholder-standing

exception, one derived from Stat-Tech International Corp. v. Delutes,

47 F.3d 1054, 1060 (10th Cir.1995), which dealt with a state corporate

law rule stated in Nicholson v. Ash, 800 P.2d 1352 (Colo.App.1990).

This rule does not look for direct injury distinct from a shareholder’s

derivative harm; it looks for harm to the plaintiff as a shareholder

but requires that it be unique in some way from that suffered by

shareholders generally. Jd. at 1357. Combs v. PriceWaterhouse

Coopers LLP, 382 F.3d 1196 (10th Cir.2004), illustrates this point.

In Combs, a minority shareholder claimed the majority shareholder

had breached various fiduciary duties. Contending that harm to the

plaintiff was only derivative of injury to the corporation, the majority

shareholder invoked the shareholder-standing prohibition. In

response, the plaintiff relied on Nicholson, leading this court to

inquire whether he suffered “ ‘injury as a stockholder, unique to

himself and not suffered by the other stockholders.’ ” Jd. at 1201

(quoting Nicholson, 800 P.2d at 1357). When the plaintiff cited direct

injuries he suffered as an employee distinct from his role as a

shareholder (injuries Alcan would focus on), we held they were not

relevant to the Nicholson rule: “[plaintiff's] claims of ‘uniqueness’

are injuries in his status as an employee, not a stockholder. As

such, ... they failed to establish a unique injury to [plaintiff] in his

status as a shareholder.” Jd. Consistent with Alcan, we noted no

standing problem affecting these claims; rather, we held that they

“would necessarily fail on the merits,” as it was only in his capacity

as a shareholder that the plaintiff could invoke the underlying

fiduciary duty necessary to support the claims. /d. at 1200 n. 2.

12a

Appendix A

federal courts from disposing of claims on the merits without

first resolving Article III standing issues. Questions relating

to prudential standing, however, may be pretermitted in favor

of a straightforward disposition on the merits. See, e.g.,

In re Erie Forge & Steel, Inc., 418 F.3d 270, 275 n. 8 (3d

Cir.2005); Am. Iron & Steel Inst. v. OSHA, 182 F.3d 1261,

1274 n. 10 (11th Cir.1999); Fraternal Order of Police v.

United States, 173 F.3d 898, 905 (D.C.Cir.1999); McNamara

v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir.1998). We

therefore turn to the district court’s alternative disposition

on the merits for a conclusive resolution of plaintiff's equal

protection claim.

B. Merits of Equal Protection Claim

Plaintiff's allegations regarding inadequate investigation/

prosecution of those trespassing on MLC property do not

implicate either a suspect class or a fundamental right.’ As

such, they fall under the rubric of a “class-of-one” equal

protection claim, explicitly recognized in Village of

Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073,

145 L.Ed.2d 1060 (2000).* See, e.g., Jennings v. City of

Stillwater, 383 F.3d 1199, 1210, 1215 (10th Cir.2004)

(analyzing victim’s “reverse-selective enforcement claim” for

3. We note there is no evidence in the record that defendants’

alleged failure to enforce trespassing laws with respect to MLC

property was related to plaintiff's clash with the excise board member

he turned in for illegally dumping trash.

4. “Class of one” is somewhat of a misnomer, in that what

distinguishes such claims is the absence of a constitutionally salient

class identification, not the number of plaintiffs per se. See Olech,

528 U.S. at 564 n. *, 120 S.Ct. 1073.

\

13a

Appendix A

inadequate investigation of crime under “class of one”

principles). An essential element of such a claim is that the

plaintiff “has been intentionally treated differently from others

similarly situated.” Olech, 528 U.S. at 564, 120 S.Ct. 1073;

see, e.g., Bartell v. Aurora Pub. Sch., 263 F.3d 1143, 1149 (10th

Cir.2001) (“As with any equal protection claim, [the plaintiff in

a “class of one” case] must also demonstrate that he was treated

differently than another who is similarly situated.” (quotation

omitted)). Indeed, we have explained that for selective and

reverse-selective enforcement claims, the plaintiff must “provide

compelling evidence of other similarly situated persons who

were in fact treated differently,” because “the multiplicity of

relevant (nondiscriminatory) variables” involved in law

enforcement decisions “are not readily susceptible to the kind

of analysis the courts are competent to undertake” in assessing

egual protection claims. Jennings, 383 F.3d at 1214-15

(quotation omitted)

Here, plaintiff and other MLC shareholders/lessees have

only testified or averred in general terms that defendants have

failed to take sufficient action in response to a handful of

trespassing complaints. The district court held that this evidence

was insufficient to create a triable issue of constitutionally

significant inadequate law enforcement per se. Without

gainsaying that conclusion, we note the more glaring absence

of evidence showing that defendants enforced trespassing laws

in any different fashion with respect to other, similarly situated

residents of the county. The entry of summary judgment based

on the legal insufficiency of plaintiff's evidentiary showing on

his equal protection claim was correct.

- The judgment of the district court is AFFIRMED.

14a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF OKLAHOMA DATED AND FILED JUNE 21, 2005

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

No. 03-695-P

ROGER STEVEN GRUBBS,

Plaintiff,

v.

KEN G. BAILES, MANUEL BALLARD, and

HASKELL COUNTY, a duly designated county

of the State of Oklahoma,

Defendants.

ORDER

Now before the court is the Motion for Summary

Judgment filed by the defendants, Ken G. Bailes, Manuel

Ballard, and Haskell County, a duly designated county of

the State of Oklahoma. Plaintiff has filed a Response to the

motion, and Defendants have filed a Reply. The instant case

arises from a Complaint filed by the Plaintiff pursuant to

42 U.S.C.A. §1983 alleging violations of his Fourth, Fifth,

Sixth and Fourteenth Amendment rights to the United States

Constitution.

1. Plaintiff concedes Defendants’ Motion for Summary

Judgment in regard to his Fifth Amendment claim. (Plaintiff's

Response to Defendants’ Motion for Summary Judgment at 21).

15a

Appendix B

The individual defendants have denied the Plaintiff's

allegations and have asserted as an affirmative defense that

they are entitled to qualified immunity. Further, Manuel

Ballard, as policymaker for Haskell County, Oklahoma,

asserts there is no policy or custom which caused a violation

of Plaintiff's rights.

I. Background

Plaintiff, Roger Grubbs, is a stockholder in McCurtain

Lake Club, Inc. The corporation was formed in the 90’s by

property owners surrounding McCurtain Lake. The property

owners deeded their property to the corporation and in return

each received a free life-time lease to 1/2 acre tract of land

and stock in the corporation. Stock is tied to the propérty

such that when one person sells their stock, the lease

accompanies it. McCurtain Lake Club, Inc. owns

approximately 320 acres around McCurtain Lake.

Plaintiff, as a stockholder in McCurtain Lake Club, Inc.,

lives in a house located on a 1/2 acre tract of property that he

leases rent free from McCurtain Lake Club, Inc. In addition

to Plaintiff, there are approximately twenty people that own

McCurtain Lake Club, Inc.’s stock and lease property from

the lake club. In addition to these plats of land, McCurtain

Lake Club, Inc. has several hundred acres of unused

wilderness property. Each stockholder pays yearly dues which

cover maintenance, and property taxes, for the corporation’s

property. In January of 2002, Plaintiff was President of

McCurtain Lake Club, Inc. Plaintiff is not currently the

President.

l6a

Appendix B

Adjacent to the property owned by McCurtain Lake Club,

Inc. is open private property that is used by four wheelers

and motorcyclists for off-road recreational riding. Plaintiff

alleges that on occasion these four wheelers and motorcyclists

ride on land owned by McCurtain Lake Club, Inc. Plaintiff

claims that prior to January 1, 2002, he had attempted to get

the Haskell County Sheriff’s Office to stop people from riding

their off-road vehicles on McCurtain Lake Club, Inc. land.

Defendants contend that on January 1, 2002, Plaintiff

took the law into his own hands. That afternoon, Plaintiff

left his house and drove to a site he believed was located on

McCurtain Lake Club, Inc. land, where three individuals were

riding four wheelers. [t is undisputed that Plaintiff took his

loaded .357 magnum pistol and confronted the riders, two

minors and one of the minor children’s mother. During this

confrontation, the three individuals allege Plaintiff pointed

the firearm at them in a threatening manner. Plaintiff denies

that he pointed the weapon, but admits that he was holding

it in his hand.

As a result of this confrontation, the three riders called

the Haskell County Sheriff’s Office as did Plaintiff.

Undersheriff Ken Bailes (“Bailes”) came to the scene to

investigate. Bailes took statements from the three riders and

Plaintiff. Bailes then-took these statements and wrote a letter

to the Assistant District Attorney stating the facts as he knew

them. Based on this letter, and the sworn statements of the

witnesses, the Assistant District Attorney made an

indep.udent decision to file charges against Plaintiff. At that

time the Assistant District Attorney asked Bailes to file a

probable cause affidavit. The charges and probable cause

17a

Appendix B

affidavit were taken to the Judge of Haskell County who upon

review, issued a warrant of arrest for Plaintiff for feloniously

pointing a firearm.

Plaintiff learned of the charges against him the next day

when he read them in the local newspaper. Defendants state

it is a small community and the local paper prints all criminal

filings. Plaintiff obtained the services of a bondsman and

surrendered himself. It is undisputed that none of the

Defendants in this case arrested Plaintiff. Plaintiff bonded

out the same day he surrendered himself. Ultimately, his

criminal case proceeded, Plaintiff waived his right to a

preliminary hearing and was bound over for trial. On the eve

of trial, the criminal charges against Plaintiff were dismissed

by the state in exchange for payment of court costs.

I. Qualified Immunity

The record establishes that Defendants were acting in

their official capacity as public employees and are therefore

entitled to qualified immunity unless Plaintiff clearly

establishes that Defendants knowingly violated his

Constitutional rights. Siegert v. Gilley, 500 U.S. 226 (1991);

Mitchell v. Forsyth, 472 U.S. 511 (1985); Cleavinger et al.

v. Saxner et al., 474 US. 193 (1985); Valdez v. City and

County of Denver, 878 F.2d 1285 (10th Cir. 1989), and

Wiggins v. New Mexico State Supreme Court Clerk, 664 F.2d

812 (10th Cir. 1981). “The doctrine of qualified immunity

provides that government officials generally are shielded

from liability for civil damages insofar as their conduct does

not violate “clearly established statutory or constitutional

rights of which a reasonable person would have known.”

18a

Appendix B

Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir.

1997)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)); Rozek v. Topolnicki, 865 F.2d 1154, 1157 (10th Cir.

1989)

When a defendant pleads qualified immunity, the

Plaintiff must then make a two-part showing. See Clanton,

129 F.3d at 1153; Albright v. Rodriguez, 51 F.3d 1531, 1534

(10th Cir. 1995). “First, the plaintiff must demonstrate that

the defendant’s actions violated a constitutional or statutory

right.” Jd. “Second, the plaintiff must show that the

constitutional or statutory rights the defendant allegedly

violated were clearly established at the time of the conduct

at issue.” /d. “In order to carry [this] burden, the plaintiff

must do more than identify in the abstract a clearly established

right and allege that the defendant violated it. Rather, the

plaintiff must articulate the clearly established constitutional

right and the defendant’s conduct which violated the right

with specificity. . . .” Romero v. Fay, 45 F.3d 1472, 1475 (10th

Cir. 1995) (citations omitted).

For a right to be clearly established, “[t]he contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson vy. Creighton, 483 U.S. 635, 640 (1987); see also

Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)

(quoting Anderson). Plaintiff is not required to show that

the very conduct in question has previously been held

unlawful. See Anderson, 483 U.S. at 640; Albright, 51 F.3d

at 1535. He or she is, however, required to demonstrate the

unlawfulness was “apparent” in light of established law.

SeeAnderson, 483 U.S. at 640; Albright, 51 F.3d at 1535.

19a

Appendix B

Generally, this requires that the Plaintiff demonstrate a

“substantial correspondence between the conduct in question

and prior law allegedly establishing that the defendant’s

actions were clearly prohibited.” Hannula v. City of

Lakewood, 907 F.2d 129, 131 (10th Cir. 1990); see also

Romero, 45 F.3d at 1474. Unless the Plaintiff demonstrates

both that the Defendant’s conduct violated a federal nght

and the right was clearly established, the Defendant must be

granted qualified immunity. See Albright, 51 F.3d at 1535.

Plaintiff's first cause of action alleges Bailes filed a false

and erroneous affidavit which caused the Assistant District

Attorney to file felony charges against Plaintiff. Plaintiff also

claims the Defendant, Sheriff Manuel Ballard (“Ballard”),

knew or should have known that Bailes’ investigation

contained false accusations. Bailes does not dispute it is

clearly established law that knowingly or recklessly omitting

material information from an arrest affidavit violates the

arrestee’s Fourth and Fourteenth Amendment rights. .

See Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990).

Specifically, Plaintiff alleges Bailes omitted the fact the fence

had been cut near a no trespassing sign.

“To determine whether an omission is material, and thus

violates the arrestee’s constitutional rights, [the court] must

consider whether probable cause would exist if the

information was included in the affidavit.” Jd. at 582 n.13.

Bailes contends that because the affidavit contained no false

information, and any omitted information’s inclusion in the

affidavit would not have vitiated probable cause, he did not

violate Plaintiffs constitutional rights.

20a

Appendix B

In the instant case, the probable cause affidavit in support

of the arrest warrant contained no misstatements to either

the Assistant District Attorney, or the Judge. All four

statements, which included statements from the three alleged

trespassers, and Plaintiff, were presented to the Assistant

District Attorney. The probable cause affidavit contains

accurate information. Plaintiff's complaint is that Bailes

believed the three individuals and not him. The omitted

information would not have vitiated probable cause.

Qualified immunity protects the type of discretion used

hereby Bailes in determining that probable cause existed for

the arrest of Plaintiff.

It is important to note that neither of the defendants in

this case made the decision to file charges against Plaintiff.

That decision was made solely by the Assistant District

Attorney. Further, the only action of the defendants was to

collect information and present it to the Assistant District

Attorney. The only evidence Plaintiff has produced that

Sheriff Ballard knew or should have known of Bailes alleged

false affidavit was that in February 2002 (a month after the

incident, and over two weeks after his arrest) Plaintiff had a

conversation with the Sheriff. In that conversation, Plaintiff

states he informed Sheriff Ballard that Bailes told Plaintiff

he didn’t have the right to tell trespassers to leave. Plaintiff

did not tell Sheriff Ballard that he thought Bailes lied to the

Assistant District Attorney or the Judge in order to obtain

the arrest warrant. Plaintiff did not inform Sheriff Ballard

that he was carrying a loaded 357 magnum pistol when he

confronted the trespassers. For these reasons, the defendants

in their individual capacities are entitled to qualified

immunity.

2la

Appendix B

Plaintiff's second cause of action is that the Haskell

County Sheriff's Office ignored his requests to enforce the

no trespassing laws as they related to McCurtain Lake Club,

Inc.’s property. Defendants contend Plaintiff has no standing

to bring any cause of action regarding failure to enforce

trespassing laws for property owned by McCurtain Lake

Club, Inc.

“As a general rule, a stockholder cannot maintain a

personal action against a third party for harm caused to the

corporation.” Guides, LTD v. Yarmouth Group Property

Management, Inc., 295 F.3d 1065, 1072 (10th Cir. 2002)

citing Stat-Tech Intern. Corp. v. Delutes, 47 F.3d 1054, 1060

(10th Cir. 1995). “There is, however, an exception to this

rule where the actions of the third party that injure the

corporation also cause injury to the shareholder which is

unique to himself or herself as a shareholder of the

corporation and not suffered by the other shareholders. Id.

In the instant case, the alleged trespass did not occur on

Plaintiff's leased 1/2 acre, but on common property owned

by the corporation. Any damages suffered by Plaintiff were

not unique to himself or his property, but would be the

product of-economic damages suffered by the corporation.

In Plaintiff's Complaint, he alleges “that while acting as

President of McCurtain Lake Club, Inc. [he] had been

attempting to get the Haskell County Sheriff's Office to stop

people from riding dirt bikes and arrest trespassers on land

posted and ov ned by McCurtain Lake Club, Inc... .”

As such, the corporation would be the proper party to bring

a complaint regarding failure to enforce laws on its property.

Therefore, to the extent Plaintiff seeks to assert violations

22a e

Appendix B

that occurred as a result of the Defendants’ alleged failure to

properly investigate trespasser violations on McCurtain Lake

Club, Inc. property, Plaintiff does not have standing.

Further, if Plaintiff could establish standing, Plaintiff has

not established a policy or custom of the McCurtain County

Sheriff's Department which precluded investigation of

trespassing laws. The Supreme Court, in Monell v. Department

of Social Services, 436 U.S. 658, 690-91 (1978), held that

municipalities could be liable under §1983 if

the action that is alleged to be unconstitutional

implements or executes a policy statement,

ordinance, regulation, or decision officially adopted

and promulgated by that body’s officers. Moreover,

although the touchstone of the §1983 action against

a government body is an allegation that official

policy is responsible for a deprivation of rights

protected by the Constitution, local governments,

like every other § 1983 “person,” by the very terms

of the statute, may be sued for constitutional

deprivations visited pursuant to governmental

“custom” even though such a custom has not

received formal approval through the body’s official

decisionmaking channels.

The Supreme Court further refined its Mone// decision in

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986), by

holding that in order to affix liability to a municipality under

§ 1983, the alleged unconstitutional acts must be committed by

an official possessing final policymaking authority with respect

to the alleged acts. Further, Pembaur made clear that “municipal

liability may be imposed for a single decision by municipal

23a

Appendix B

policymakers under appropriate circumstances . . . because even

a single decision by such a body unquestionably constitutes an

act of official government policy.” Jd

Alternatively, municipal liability may be based on the

existence of a widespread practice of which the policymakers

must have been aware. Praprotnik, 485 U.S. at 127. The

offensive policy must emanate from an officially promulgated

decision or from a practice which is well-settled and permanent.

Monell, 436 U.S. at 691. In addition, there must be a showing

that the policies of the municipality were directly connected to

the constitutional deprivation. Berry v. City of Muskogee, 900

F.2d 1489, 1499 (10th Cir. 1990).

Considering the record in the instant case, there is no

evidence of an offensive, widespread practice or policy of the

McCurtain County Sheriffs Department which precludes, or

hinders, enforcement of trespassing laws. To the contrary, the

- undisputed record reveals that since the late 1990s Plaintiff

sought the assistance of the McCurtain County Sheriff’s

Department to enforce trespassing laws on land owned by

McCurtain Lake Club, Inc. only four times prior to his arrest.

Such a minor history of isolated incidents is insufficient to rise

to the level of a constitutional violation.

Accordingly, Defendants’ Motion for Summary Judgment

is granted.

IT IS SO ORDERED this 21 day of June, 2005.

s/ James H. Payne

JAMES H. PAYNE

UNITED STATES DISTRICT JUDGE