Estate of Jimma Pal Reat, et al v. Rodriguez

Filing

[10396287] Reversed and remanded with instructions to dismiss without prejudice the state law claims. Terminated on the merits after oral hearing. Written, signed, published; Judges Tymkovich, authoring judge, Murphy and Bacharach. Mandate to issue. [15-1001]

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United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

August 12, 2016

FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

ESTATE OF JIMMA PAL REAT; JAMES
PAL REAT; REBECCA AWOK DIAG;
RAN PAL; CHANGKUOTH PAL;
JOSEPH KOLONG,
Plaintiffs - Appellees,
v.

No. 15-1001

JUAN JESUS RODRIGUEZ, individually,
Defendant - Appellant.
_________________________________
ORDER
_________________________________
Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ,
GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, and
MORITZ, Circuit Judges.
_________________________________
This matter is before the court on the appellees’ Petition for Panel Rehearing or
Rehearing En Banc. We also have a response from the appellant.
Upon consideration, the request for panel rehearing is granted in part and to the
extent of the changes made in the attached amended decision. The request for panel
rehearing is otherwise denied.
Both the appellees’ petition and the amended panel decision were also circulated
to all the active judges of the court. A poll was called and a majority voted to deny the

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request for en banc reconsideration. See Fed. R. App. P. 35(a). Consequently, the en banc
petition is denied. Judges Lucero, Hartz, Phillips and Moritz would grant the petition for
en banc rehearing.
The clerk of court is directed to file the amended panel decision effective the date
of this order.
Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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August 12, 2016
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

ESTATE OF JIMMA PAL REAT;
JAMES PAL REAT; REBECCA
AWOK DIAG; RAN PAL;
CHANGKUOTH PAL; and JOSEPH
KOLONG,
Plaintiffs - Appellees,
v.

No. 15-1001

JUAN JESUS RODRIGUEZ,
individually,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:12-CV-02531-REB-MEH)

Eric M. Ziporin (Jennifer F. Kemp with him on the briefs), Senter Goldfarb &
Rice, L.L.C., Denver, Colorado, for Appellant.
Erica Grossman (John R. Holland with her on the brief), Holland, Holland
Edwards & Grossman, P.C., Denver, Colorado, for Appellees.

Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH, Circuit
Judges.

TYMKOVICH, Chief Judge.

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This case arises out of the fatal shooting of Jimma Pal Reat at a Denver
intersection. Reat was killed after Denver 911 operator Juan Rodriguez directed
him back into the path of his armed assailants. His estate sued the 911 operator,
alleging civil rights claims pursuant to 42 U.S.C. § 1983 and various state law
claims.
Rodriguez moved for summary judgment on all claims against him on the
basis of qualified immunity. The district court granted summary judgment in his
favor on all constitutional claims except for a Fourteenth Amendment substantive
due process claim based on a theory of state-created danger. Under that claim,
Reat’s Estate contends Rodriguez used his governmental authority to subject him
to the callous shooting that caused Reat’s death.
We conclude the law was not clearly established such that a reasonable 911
operator would have known his conduct violated Reat’s constitutional rights.
Because we decide only that the law was not clearly established, we do not opine
on whether Rodriguez violated Reat’s constitutional rights. We therefore reverse
and remand for entry of summary judgment in favor of Rodriguez.

I. Background
The facts of this case are tragic. At 4:12 a.m. on April 1, 2012, Ran Pal
called 911 to report that several men had thrown a bottle and broken the rear
windshield of the car he was driving. He told Operator Rodriguez that although
the attack had occurred at Tenth Avenue and Sheridan Boulevard in Denver, he
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and his passengers had fled to safety in the nearby city of Wheat Ridge on the
west side of Sheridan Boulevard.
For reasons that remain unclear, Rodriguez told Pal that because the attack
had occurred in Denver, he needed to return to the city in order to receive help
from the police. At first, Pal refused to return. He told Rodriguez he was in a
state of shock, needed time to recover, and did not want to drive. Pal pleaded
with Rodriguez to send help to his current location. Over the course of the
fourteen-minute call, Pal told the operator at least six times that he was injured, in
shock, and afraid. Still, Rodriguez insisted the police could not help unless he
returned to Denver. About three minutes into the call, Pal finally agreed. He
remained on the phone with Rodriguez as he drove.
On his way back to Denver, Pal fleshed out the details of the assault on the
call. He explained that he, his brother, cousin, and a friend had been driving
through Denver when a red jeep pulled up next to them. While both cars were
stopped at a red light, the men in the jeep threw bottles and bottle rockets at Pal’s
car, breaking the windshield. Shards of glass injured Pal’s hand and face. He
told Rodriguez he had gotten a partial license plate number as the assailants sped
off northbound on Sheridan Boulevard. Pal continued to tell the operator he was
in shock. Rodriguez asked where Pal was, and Pal replied that he was crossing
Sheridan on Twenty-Ninth Avenue. Rodriguez instructed him to stop there, and

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continued to ask questions to determine whether an ambulance was necessary.
Rodriguez failed to dispatch an ambulance or the police at this time.
About eight minutes into the call, Pal revealed to Rodriguez that the
assailants had brandished a gun. Rodriguez asked questions about the size, color,
and type of gun. He also asked more questions about the attackers, including
their race and what they had been wearing. Pal told the operator that four or five
Hispanic men had gotten out of the car and hurled forty-ounce beer bottles at his
vehicle. He told Rodriguez he had fled the scene when his brother urged him to
do so because the attackers were armed. After questioning the victims about
whether they had been drinking, Rodriguez confirmed that Pal was still at
Twenty-Ninth Avenue and Sheridan Boulevard. He told Pal to pull over and wait
there for the officers whom he would dispatch. Rodriguez also instructed Pal to
turn on his hazard lights so that the police could easily locate the vehicle.
About ten minutes into the call, another man in the car picked up the phone.
The man repeated that they were all in shock and scared, and asked whether
police were on their way to provide help. Though Rodriguez indicated he had
sent the police, he in fact had not. Rodriguez asked that the phone be handed
back to Pal. Rodriguez then had Pal confirm that his hazard lights were on, and
reiterated that Pal needed to wait at that location. He warned Pal, “if you see
them come back, I need you to call us right away at 911.” Aplt. App., Vol. III, at
281.
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Seven seconds later, Pal shouted, “They’re back, they’re back[!]” Id. at
262. Pal handed the phone to someone else, who told Rodriguez that the men
were shooting. Pal picked the phone back up to report that his brother had been
shot. Over Pal’s screams, Rodriguez continued to ask what was happening.
Someone else picked up the phone and repeated the information. Rodriguez
asked who had been shot, where they were located, and whether the attackers
were still there. The speaker told Rodriguez that Reat was about to die and asked
whether he could send an ambulance. Rodriguez continued to ask questions about
the victim. Officers were dispatched to the scene about one minute after the
shooting. Reat died of his injuries.

II. Analysis
Reat’s Estate brought federal claims pursuant to 42 U.S.C. § 1983 and
various state law claims against Rodriguez and the City and County of Denver.
The defendants claimed they were protected by qualified immunity, arguing they
did not violate Reat’s rights under clearly established law. The district court
dismissed the claims against the City and County. Only claims against Rodriguez
proceeded.
A. Qualified Immunity
1. Clearly Established Law
Qualified immunity exists to protect government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory
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or constitutional rights of which a reasonable person would have known.” Dodds
v. Richardson, 614 F.3d 1185, 1191 (10th Cir. 2010) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). Qualified immunity is not only a defense to
liability, but immunity from suit; thus, “it is effectively lost if a case is
erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526
(1985).
Accordingly, in qualified immunity cases at the summary judgment stage, a
“plaintiff must demonstrate on the facts alleged (1) that the defendant violated his
constitutional or statutory rights, and (2) that the constitutional right was clearly
established at the time of the alleged unlawful activity.” Swanson v. Town of
Mountain View, 577 F.3d 1196, 1199 (10th Cir. 2009). In our review, “we need
only find that the plaintiffs failed either requirement” to establish qualified
immunity. Id. Because there are cases where we can more readily decide the law
was not clearly established before reaching the more difficult question of whether
there has been a constitutional violation, we may exercise discretion in deciding
which prong to address first. See Pearson, 555 U.S. at 236.
This is such a case. We therefore confine our analysis of qualified
immunity to the second prong, inquiring only whether the law at the time of the
incident was “sufficiently clear that a reasonable official would have understood
that his conduct violated the right.” Currier v. Doran, 242 F.3d 905, 923 (10th
Cir. 2001). A right is clearly established when it is “sufficiently clear that every
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reasonable official would have understood that what he is doing violates that
right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (internal quotation
marks and alteration omitted). To make this determination, we consider “either if
courts have previously ruled that materially similar conduct was unconstitutional,
or if a general constitutional rule already identified in the decisional law [applies]
with obvious clarity to the specific conduct at issue.” Buck v. City of
Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008) (emphasis added). Usually,
this requires either “a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law
to be as the plaintiff maintains.” Cordova v. City of Albuquerque, 816 F.3d 645,
658 (10th Cir. 2016) (quoting Clark v. Wilson, 625 F.3d 686, 690 (10th Cir.
2010)).
But an earlier decision need not be “materially factually similar or identical
to the present case; instead, the contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing violates that right.”
Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). We look to see if
“existing precedent . . . placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “The dispositive question
is whether the violative nature of particular conduct is clearly established,”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (emphasis in original)
(internal quotation marks omitted), so that “it would be clear to a reasonable
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officer that his conduct was unlawful in the situation he confronted,” Saucier v.
Katz, 533 U.S. 194, 202 (2001). This investigation must be undertaken with a
focus on the particular circumstances of the specific case before the court.
In sum, plaintiffs must “demonstrate a substantial correspondence between
the conduct in question and prior law allegedly establishing that the defendant’s
actions were clearly prohibited.” Estate of B.I.C. v. Gillen, 761 F.3d 1099, 1106
(10th Cir. 2014) (quoting Trotter v. Regents, 219 F.3d 1179, 1184 (10th Cir.
2000)).
2. State-Created Danger
The Estate argues that Rodriguez created the danger that led to Reat’s death.
At the most general level, the parties agree that the state-created danger doctrine is
clearly established in this circuit.
Two preconditions are necessary for the application of the state-created
danger doctrine: first, the state actor took an affirmative action, and, second, that
action led to private violence injuring the plaintiff. Id. at 1105. If these
preconditions are met, a plaintiff next must show:
(1) the charged state . . . actor[] created the danger or
increased plaintiff’s vulnerability to the danger in some
way; (2) plaintiff was a member of a limited and
specifically definable group; (3) defendant[’s] conduct put
plaintiff at substantial risk of serious, immediate, and
proximate harm; (4) the risk was obvious or known; (5)
defendants acted recklessly in conscious disregard of that
risk; and (6) such conduct, when viewed in total, is
conscience shocking.
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Id.
Though the elements of the state-created danger test are clearly established,
it also must be clear to which fact scenarios and government actors we apply the
test, and what types of conduct are “conscience shocking” under the sixth factor.
Green v. Post, 574 F.3d 1294, 1297 (10th Cir. 2009) (conscience-shocking conduct
is “difficult to define and requires an assessment of the totality of the
circumstances of each particular case” (internal quotation marks omitted)). But, as
we explained above, the application of an established test even to a new fact
pattern does not necessarily require a finding of qualified immunity. Casey v. City
of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007).
Here, Reat’s Estate alleges Rodriguez violated the Fourteenth Amendment
by knowingly sending the victims, who had called 911 to report an assault, back
into the path of their armed attackers. It contends Rodriguez knew the attackers
last had been seen speeding northward on Sheridan Boulevard only minutes
earlier, yet he instructed Pal to stop on that road. He then told Pal to pull over and
activate his hazard lights at a location nineteen blocks north of the place of the
assault. Even after Rodriguez knew the attackers had brandished a gun, he did not
suggest that Pal relocate to a less conspicuous place, nor did he send police
protection. The district court held “these factual allegations, accepted as true, are
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plaintiffs’ substantive due process rights under the state-created danger theory.”
Aplt. App., Vol. V., at 575.
For a number of reasons, we conclude Rodriguez’s conduct does not violate
the clearly defined contours of the state-created danger doctrine. First, Reat’s
Estate cannot point to a Supreme Court or Tenth Circuit case involving misconduct
by 911 operators. As a general matter, we have considered the doctrine in a
number of cases involving a range of state actors. For example, we have analyzed
the doctrine in the context of both an off-duty police officer on personal business
who crashed his police vehicle, see Browder v. City of Albuquerque, 787 F.3d
1076, 1083 (10th Cir. 2015), and on-duty officers engaged in high-speed chases
where “the legitimate governmental objective is so pressing that the luxury of
forethought doesn’t exist,” id. at 1080; see also Sacramento Cty. v. Lewis, 523
U.S. 833 (1998). We have also applied this theory of liability to other types of
first responders, cloaked with government authority, reacting immediately to
emergency situations. See, e.g., Perez v. Unified Gov’t of Wyandotte Cty./Kansas
City, 432 F.3d 1163, 1168 (10th Cir. 2005) (applying the state-created danger
doctrine to a firefighter who crashed his truck into a car, killing its occupant);
Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998) (applying the doctrine to
a deputy sheriff who caused the death of a bystander by instructing him to help
physically subdue a suspect who then shot the civilian).

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In other settings, we have applied the state-created danger doctrine to social
workers, school officials, and hospital administrators. See, e.g., Currier, 242 F.3d
at 908 (applying the doctrine to social worker who removed a child from his
mother’s home and placed him with his father, who killed him); Armijo v. Wagon
Mound Pub. Sch., 159 F.3d 1253 (10th Cir. 1998) (applying the doctrine to school
official who suspended and sent home a special education student who
subsequently killed himself); Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995)
(applying the doctrine to state mental health administrators who eliminated a
special unit for the criminally insane, causing the transfer of a murderer to the
general hospital, where he killed his therapist).
But these cases are not particularly instructive here: as the Supreme Court
noted in the case that is widely understood to be the progenitor of the state-created
danger doctrine, “[t]he affirmative duty to protect arises not from the State’s
knowledge of the individual’s predicament or from its expressions of intent to help
him, but from the limitation which it has imposed on his freedom to act on his own
behalf.” Deshaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 200
(1989). In all of these cases where we found it appropriate to apply the doctrine of
state-created danger, the victims were unable to care for themselves or had had
limitations imposed on their freedom by state actors. “[In a] custodial situation
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obligatory under a regime that incapacitates a prisoner to exercise ordinary
responsibility for his own welfare.” Lewis, 523 U.S. at 851.
Rodriguez is unlike any of the defendants in our state-created danger cases.
Rodriguez was not a police officer, firefighter, or other similar first responder. 1
As a 911 operator, he was not present at the scene of the attack, nor could he take
physical action in response to the unfolding event. He did not impose any
limitation on Reat’s freedom to act. Rodriguez merely informed the victims,
however incompetently, that to get help from the police, they would have to return
to Denver. It cannot be said that any of Rodriguez’s actions, as foolish as they
were, “limited in some way the liberty of a citizen to act on his own behalf.”
Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994).
Furthermore, Reat is unlike the victims in other state-created danger cases.
He was not in the custody of the state in the way that prisoners are, and thus was
not deprived in that manner of his freedom to act. Unlike children in school or
under the care of social workers, Reat and his companions were not incapable of
acting in their own interest at the time of the shooting. Though the state-created
danger doctrine itself may be clearly established, it is far from clear that it applies
to Rodriguez’s conduct in this particular situation.
1

Only one circuit court has even considered imposing liability under the
state-created danger doctrine on a 911 operator for conduct responding to an
emergency call. See Beltran v. City of El Paso, 367 F.3d 299 (5th Cir. 2004)
(finding operator was entitled to qualified immunity where she miscoded a 911
call, leading to the death of the child caller and her mother).
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In sum, all cases cited by Reat’s Estate “are simply too factually distinct to
speak clearly to the specific circumstances here.” Mullenix, 136 S. Ct. at 312. No
reasonable 911 operator could have known that these actions would have resulted
in liability under the Fourteenth Amendment. Because we dispose of this case on
the clearly-established prong of the qualified immunity test, we express no opinion
as to whether Rodriguez’s actions violated Reat’s constitutional rights. Thus, our
decision does not foreclose liability for similarly-situated actors in future cases.
See Pearson, 555 U.S. at 242–43.
B. State Law Claims
Reat’s Estate also asks us to exercise supplemental jurisdiction over related
state law claims against Rodriguez. When we have held defendants are entitled to
summary judgment on all federal claims, we have declined to exercise our
supplemental jurisdiction over issues of state law, and instead, when in the
interests of comity and justice, remanded with instructions to dismiss. See Brooks
v. Gaenzle, 614 F.3d 1213, 1229–30 (10th Cir. 2010); see also United Mine
Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). Accordingly, we decline
to exercise jurisdiction over the remaining state law claims.

III. Conclusion
For the foregoing reasons, we REVERSE AND REMAND with instructions
to DISMISS without prejudice the state law claims.

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