Vette v. K-9 Unit Deputy Sanders, 20-1118

989 F.3d 1154

Eric Tyler VETTE, Plaintiff - Appellee,

v. K-9 UNIT DEPUTY SANDERS, Defendant - Appellant,andSergeant Gustin, Defendant.

No. 20-1118

United States Court of Appeals, Tenth Circuit.

FILED March 5, 2021

Eden R. Rolland (Andrew R. McLetchie with her on the briefs), Fowler, Schimberg, Flanagan & McLetchie, P.C., Golden, Colorado, for Defendant - Appellant.

Ashok Chandran, NAACP Legal Defense & Educational Fund, Inc., New York, New York (Sherrilyn A. Ifill, President and Director-Counsel, Janai S. Nelson, Samuel Spital, and Kevin E. Jason, NAACP Legal Defense & Educational Fund, Inc., New York, New York; Christopher Kemmitt, Mahogane D. Reed, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, and Samuel Weiss, Right Behind Bars, Washington, DC, with him on the brief), for Plaintiff - Appellee.

Before McHUGH, Circuit Judge, LUCERO, Senior Circuit Judge, and CARSON, Circuit Judge.

McHUGH, Circuit Judge.

Defendant-appellant Keith Sanders, a sergeant with the Montrose County Sheriff's Office, appeals the district court's denial of his summary judgment motion based on qualified immunity. Plaintiff-appellee Eric Tyler Vette had filed a verified complaint alleging, among other things, that Sergeant Sanders subjected him to excessive force during the course of his arrest by committing the following acts after Mr. Vette had already been apprehended: punching Mr. Vette, hitting him in the face with a dog chain, and letting a police dog attack him. Sergeant Sanders moved to dismiss the complaint, or, in the alternative, for summary judgment, arguing he was entitled to qualified immunity.

The district court converted Sergeant Sanders's motion to one for summary judgment and denied it. Sergeant Sanders appeals the district court's decision, invoking the collateral order doctrine as the purported basis for appellate jurisdiction.

We lack jurisdiction over Sergeant Sanders's appeal to the extent his arguments depend on facts that differ from those the district court assumed in denying his summary judgment motion. Exercising jurisdiction over the abstract issues of law advanced by Sergeant Sanders, we hold the district court did not err.

I. BACKGROUND

A. Factual History¹

On December 31, 2017, Steve Gustin, a sergeant with the Montrose County Sheriff's Department, observed Mr. Vette driving on a public road in Montrose, Colorado. Sergeant Gustin attempted to pull Mr. Vette over to run a warrant check. Mr. Vette drove away, and Sergeant Gustin pursued. Mr. Vette eventually drove into a field and fled on foot; Sergeant Gustin continued his pursuit. Sergeant Sanders and his police dog, Oxx, arrived at the field after Sergeant Gustin.

Sergeant Gustin and another officer apprehended Mr. Vette. After Mr. Vette was apprehended, Sergeant Sanders "punched [him] and hit [him] in the face with a dog chain" and "let[ ] [Oxx] attack" him. Dist. Ct. Op. at 9 (third and fourth alterations in original) (citing Verified Complaint² at 4). Oxx bit Mr. Vette's right shoulder.

Mr. Vette was charged with one felony offense of "Vehicular Eluding," one felony offense of "Identity Theft," and eleven misdemeanor offenses based, in part, on items found in Mr. Vette's possession.³ App. at 53. Law enforcement took three photographs of Mr. Vette at the arrest scene—the first two photographs show teeth marks from Oxx on Mr. Vette's right shoulder, and the third shows him sitting cross-legged on the ground, with only the right half of his face visible.

B. Procedural History

Mr. Vette, proceeding pro se , filed a verified complaint (the "Verified Complaint") in the United States District Court for the District of Colorado, alleging, among other things, that Sergeant Sanders subjected him to excessive force.⁴ He signed the Verified Complaint under penalty of perjury. As relevant to his excessive force claim, Mr. Vette alleged the following:

On December 31 2017, Deputy Sanders Violated My Constitutional Rights Amendments 8 and 14 by, Police Brutality and us[ ]ing over excessive force when date of arrest due to Sanders punching, hitting with dog chain in face and letting dog attack me after I was already Ap[p]reh[e]nded by two sheriffs. There's no reason why I was getting assaulted by deputy [S]anders an[d] Ox[x] while after being ap[p]rehended. This in[ci]dent hurt me and physically, emotionally, menta[ ]lly.

Verified Complaint at 4. Mr. Vette further alleged that "Ox[x] bit[ ] my right shoulder to where I have scar[ ]s to prove." Id. at 5.

Sergeant Sanders filed a motion to dismiss the Verified Complaint or, in the alternative, for summary judgment, asserting he was entitled to qualified immunity. In support of his motion, Sergeant Sanders attached two exhibits: (1) the Montrose County Sheriff's Department's incident report of the arrest (the "Incident Report"), which included his narrative account prepared shortly after the arrest (the "Supplemental Narrative"); and (2) an affidavit he prepared for litigation (the "Affidavit"). In his Supplemental Narrative, Sergeant Sanders states that Oxx "came unlatched and ... attempted to bite" Mr. Vette, but he "immediately grabbed" Oxx and "prevented him from engaging [Mr. Vette] further." App. at 56. He further states that Oxx caused "some abrasions and scratches [to Mr. Vette's right shoulder], but no broken skin." Id. In his Affidavit, Sergeant Sanders affirms that the Supplemental Narrative "complete[ly] and accurate[ly]" documents his interactions with Mr. Vette on the night of his arrest—including "Oxx's attempt to bite Mr. Vette"—and avers that he did not personally use any force against Mr. Vette. Id. at 62. Mr. Vette, still proceeding pro se , filed a response in opposition to Sergeant Sanders's motion. Sergeant Sanders filed a reply brief, to which he attached as an additional exhibit the three photographs of Mr. Vette taken at the arrest scene.

The district court converted Sergeant Sanders's motion to one for summary judgment and denied it. Viewing the evidence in the light most favorable to Mr. Vette as the nonmovant, the court concluded a reasonable jury could find that, after Mr. Vette was apprehended by two officers, Sergeant Sanders punched him, hit him in the face with a dog chain, and allowed Oxx to attack and bite him.⁵ The court further held this alleged conduct constituted a violation of Mr. Vette's clearly established rights under the Fourth Amendment.⁶ It accordingly held Sergeant Sanders was not entitled to qualified immunity.

Sergeant Sanders timely appealed. Although Mr. Vette appeared pro se before the district court, he is represented by counsel on appeal.

II. DISCUSSION

Sergeant Sanders challenges the district court's denial of his summary judgment motion based on qualified immunity. We begin by setting forth the jurisdictional standards broadly relevant to this appeal and then we address Sergeant Sanders's specific arguments.

A. Standards of Appellate Jurisdiction

As the appellant, Sergeant Sanders has the duty to establish the existence of this court's appellate jurisdiction. Fed. R. App. P. 28(a)(4) ; EEOC v. PJ Utah, LLC , 822 F.3d 536, 542 n.7 (10th Cir. 2016) ("[T]he appellant ... bears the burden to establish appellate jurisdiction."). Except in limited circumstances, this court may exercise jurisdiction only over appeals from "final decisions of the district courts of the United States," 28 U.S.C. § 1291, and "orders denying summary judgment are ordinarily not appealable final orders for purposes of 28 U.S.C. § 1291," Ralston v. Cannon , 884 F.3d 1060, 1066 (10th Cir. 2018) (internal quotation marks omitted). The collateral order doctrine, however, allows interlocutory review of a decision "deemed ‘final’ [because] it disposes of a matter ‘separable from, and collateral to’ the merits of the main proceeding, ‘too important to be denied review,’ and ‘too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ " Gelboim v. Bank of Am. Corp. , 574 U.S. 405, 414 n.5, 135 S.Ct. 897, 190 L.Ed.2d 789 (2015) (quoting Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ).

Under the collateral order doctrine, this court has jurisdiction to review a state official's appeal from the denial of qualified immunity at the summary judgment stage, but our jurisdiction is limited to abstract questions of law. See, e.g. , Estate of Valverde ex rel. Padilla v. Dodge , 967 F.3d 1049, 1058 (10th Cir. 2020) (explaining this court "ha[s] jurisdiction only to the extent that the appeal turns on abstract legal conclusions" (internal quotation marks omitted)). In particular, we may review "(1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation," and "(2) whether that law was clearly established at the time of the alleged violation." Id. (internal quotation marks omitted); see also Thomas v. Durastanti , 607 F.3d 655, 659 (10th Cir. 2010) ("[E]ven if the district court concludes that controverted issues of fact remain, an appellate court may consider the legal question of whether the defendant's conduct, taken as alleged by the plaintiff, violates clearly established law.").

In the same vein, this court generally "lack[s] jurisdiction to review factual disputes in this interlocutory posture," Crowson v. Washington County , 983 F.3d 1166, 1177 (10th Cir. 2020), including "the district court's determination ... that the evidence could support a finding that particular conduct occurred," Walker v. City of Orem , 451 F.3d 1139, 1155 (10th Cir. 2006) (internal quotation marks omitted); accord Fancher v. Barrientos , 723 F.3d 1191, 1199 (10th Cir. 2013) (explaining that this court "lacks jurisdiction at this stage to review a district court's factual conclusions, such as the existence of a genuine issue of material fact for a jury to decide, or that a plaintiff's evidence is sufficient to support a particular factual inference."). Thus, ...