F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 13 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
SHERRIE KIESLING,
Plaintiff - Appellant,
v.
JOHN D. TROUGHTON, Third
Judicial District Judge for Lincoln
County; ROBERT M. McCLOUD, No. 95-8048
Third Judicial District Clerk of (D.C. No. 94-CV-245)
Lincoln County; LYNN W. CLARK, (District of Wyoming)
Lincoln County Sheriff; TIM MALIK,
Lincoln County Deputy Sheriff;
KATHLEEN DAVISON; CLYDE
GEPHART; ROBERT MURDOCK,
Lincoln County Commissioners,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK and LUCERO, Circuit Judges.
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
In early 1993, plaintiff-appellant Sherrie Kiesling became embroiled in a
child custody dispute with her husband, Lindig Kiesling. 1 Following a series of
state court proceedings, Judge John D. Troughton of the Third Judicial District
Court of Wyoming concluded that appellant was willfully violating orders of the
Court, and was hiding and secreting her children from Mr. Kiesling. Appellees’
App. at 65-66. In accordance with that finding, Judge Troughton ordered the
Lincoln County Sheriff’s Office to take the four children into custody and deliver
them to their father. Id. at 66.
Upon observing appellant and her children in Afton, Wyoming, sheriff’s
deputies attempted to execute Judge Troughton’s order. Appellant failed to
cooperate with the officers’ requests, attempted to elude them by speeding away,
and did not bring her vehicle to a halt until boxed-in by patrol cars. Appellant’s
noncompliance with subsequent police requests resulted in a brief struggle and,
ultimately, in her being placed under arrest. 2
The foregoing events led appellant to file the underlying action in federal
district court, wherein she alleges numerous constitutional and statutory
Because we are called upon to review the district court’s entry of summary
1
judgment, we recite only those facts which are uncontroverted.
2
This incident resulted in the filing of criminal charges against appellant, including
Interference With Custody, Interference With a Peace Officer, and Fleeing a Peace
Officer. Appellees’ App. at 84. Pursuant to a negotiated disposition, Ms. Kiesling
entered a plea of nolo contendere to one count of Interference With Custody, and entered
the same plea to one count of Interference with a Peace Officer. Id.
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violations. 3 Judge William Downes of the United States District Court for the
District of Wyoming on several occasions urged Ms. Kiesling to seek the advice
of counsel. She failed to do so, however, and instead “engaged in a course of
unbridled lawlessness throughout [the] proceedings.” 4 Appellees’ App. at 152.
Defendants sought summary judgment in both their official and individual
capacities. The district court granted that motion. We exercise jurisdiction under
28 U.S.C. § 1291. We affirm.
Defendants supported their motion for summary judgment with briefs and
affidavits. Appellant opted not to file a written response or otherwise supplement
her pleadings. We review the district court’s grant of summary judgment de
novo. Webber v. Mefford, 43 F.3d 1340, 1342 (10th Cir. 1994). Summary
judgment is appropriate where “there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “If a movant establishes his entitlement to judgment as a matter of
3
Appellant alleges that defendants violated 42 U.S.C. §§ 1983, 1985, 1986, 1988,
as well as her rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to
the United States Constitution. Her complaint seeks a panoply of remedies, including
compensatory and punitive damages, attorney’s fees, costs of suit, and various forms of
declaratory and injunctive relief.
4
Appellant repeatedly refused to accept correspondence or otherwise meaningfully
participate in the federal court proceedings. For example, she inscribed the following on
defendants’ motion for summary judgment: “Return to Sender. Refused for Cause w/out
Dishonor. UCC 3-501 not corporate person described.” Appellees’ App. at 151-152.
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law based on uncontroverted, operative facts contained in the documentary
evidence, summary judgment will lie.” Webber, 43 F.3d at 1343.
“Judges are absolutely immune from civil liability for judicial acts, unless
committed in the clear absence of all jurisdiction.” Henriksen v. Bentley, 644
F.2d 852, 855 (10th Cir. 1981). The district court found that Judge Troughton’s
actions were within his official capacity and scope of authority, and consequently
concluded he was entitled to judicial immunity. Appellant advances no evidence
which would support a contrary result, and we decline to disturb the district
court’s ruling. Similar immunity principles support the court’s grant of summary
judgment in favor of Clerk Robert McCloud. See id. (clerks immune from suit
under § 1983 when performing “quasi-judicial” duties).
We next address Ms. Kiesling’s claims against defendant Malik. Appellant
asserts that deputy Malik falsely arrested her and used excessive force in doing
so. A claim of false arrest is premised on a lack of probable cause. Cottrell v.
Kaysville City, 994 F.2d 730, 733 (10th Cir. 1993). The uncontroverted evidence
establishes that Malik arrested appellant only after she refused to cooperate with
legitimate police requests and assaulted his partner. Appellees’ App. at 98.
Under these circumstances, deputy Malik had probable cause to arrest appellant.
With respect to Ms. Kiesling’s excessive force claim, the relevant inquiry is
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whether the arresting officer’s actions were objectively reasonable. See Graham
v. Connor, 490 U.S. 386, 397 (1989). As the Supreme Court has explained,
the “reasonableness” of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight . . . . With respect to a claim of excessive force . . .
[n]ot every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers . . . violates the Fourth Amendment. The
calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.
Id. at 396-397 (internal citations and quotations omitted). Relevant factors in
determining whether the force used by an arresting officer was objectively
reasonable include the severity of the crime, whether the subject posed an
immediate threat to the safety of the officer, and whether the subject was resisting
arrest. See Wilson v. Meeks, 52 F.3d 1547, 1553 (10th Cir. 1995).
The uncontroverted facts before us establish that appellant failed to comply
with police requests, initiated a car chase, attempted to elude the officers, failed
to stop her vehicle until boxed-in by patrol cars, and physically resisted arrest by
striking and kicking a deputy. Thus, we perceive no basis for concluding that
deputy Malik—or any other officer at the scene—acted in a constitutionally
impermissible manner during appellant’s arrest. We therefore decline to overturn
the district court’s entry of summary judgment as to defendant Malik. Appellant’s
claims against sheriff Clark are premised upon Clark’s alleged failure to train and
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properly supervise his deputies. Given our review of deputy Malik’s actions, we
are unable to detect any improper training or supervision.
Lincoln County Commissioners Davison, Gephart and Murdock were also
joined as defendants in appellant’s suit. If liberally construed, Ms. Kiesling’s
complaint alleges that these defendants are liable—as representatives of Lincoln
County—for condoning and ratifying the policies under which her Fourth
Amendment violations arose. This court has held that a supervisor is not liable
under § 1983 unless there is an affirmative link between the constitutional
deprivation and the supervisor’s exercise of control or direction, his personal
participation, or his failure to supervise. See Meade v. Grubbs, 841 F.2d 1512,
1527 (10th Cir. 1988). The record before us contains no evidence indicating that
appellant suffered a constitutional deprivation, nor is there evidence the Lincoln
County Commissioners could be liable under the Meade standard. Consequently,
we affirm summary judgment in their favor.
Upon careful consideration of the record, the briefs of the parties, the
district court’s order, and applicable law, we find appellant’s additional claims
and arguments to be without merit.
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AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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Kiesling v. Troughton
Combined Opinion