McBeth v. Himes

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
March 8, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

KAREN MCBETH,

Plaintiff-Appellee,

v. No. 07-1165

JEFFREY HIMES, individually and as an
investigator and deputy sheriff of the
Arapahoe County Sheriff's Office,

Defendant-Appellant.

KAREN McBETH,

Plaintiff-Appellant,

v. No. 07-1283

TERRY L. SANTI, individually and in
her capacity as a Department of Human
Services Employee; KATHI WAGONER,
individually and in her capacity as a
Department of Human Services
Employee; JEFFREY HIMES,
individually and as an investigator and
deputy sheriff of the Arapahoe County
Sheriff's Office,

Defendants-Appellees.

Appeal from the United States District Court
for the D. Colo.
(D.C. No. 02-cv-0851-JLK-MJW)
Robin Cochran, Assistant County Attorney (Kathryn L. Schroeder, Arapahoe County
Attorney, Douglas Jewell and Sean T. Olson of Bruno, Colin, Jewell & Lowe, P.C.,
Denver, Colorado, with her on the briefs), Littleton, Colorado, for Defendant-Appellant
in Case No. 07-1165.

A. Thomas Elliott, Jr. of A. Thomas Elliott, Jr., P.C., Denver, Colorado, for Plaintiff-
Appellee in Case No. 07-1165.
________________________________

A. Thomas Elliott, Jr. of A. Thomas Elliott, Jr., P.C., Denver, Colorado, for Plaintiff-
Appellant in Case No. 07-1283.

Kathleen L. Spalding, Assistant Attorney General (John W. Suthers, Attorney General;
Friedrick C. Haines, First Assistant Attorney General with him on the brief), Denver,
Colorado, for Defendants-Appellees Terry L. Santi and Kathi Wagoner in Case No. 07-
1283.

Robin E. Cochran, Deputy County Attorney, Kathryn L. Schroeder, Arapahoe County
Attorney, Littleton, Colorado, and Douglas Jewell and Sean T. Olson of Bruno, Colin,
Jewell & Lowe, P.C., Denver, Colorado, filed a brief for Defendant-Appellee Jeffrey
Himes in Case No. 07-1283.

Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

These consolidated appeals arise out of an investigation by the Arapahoe County

Sheriff’s Office and the Colorado Department of Human Services, Division of Child Care

(“DHS”) that resulted in Karen McBeth surrendering her license to run a daycare facility

in Colorado. The district court granted summary judgment in favor of DHS employees

Terry Santi and Kathi Wagoner on all counts on the ground of qualified immunity, and

2
granted Detective Jeffrey Himes qualified immunity on all counts except for McBeth’s

claim that he retaliated against her for exercising her First Amendment rights. McBeth v.

Santi, No. 02-cv-00851-JLK, 2007 WL 274743, at *6 (D. Colo. Jan. 29, 2007). In appeal

number 07-1165, Himes appeals the district court’s denial of qualified immunity on the

First Amendment claim; in appeal number 07-1283, McBeth appeals the district court’s

grant of qualified immunity on all the other claims. We REVERSE the denial of

qualified immunity to Himes, DISMISS the appeal of the grant of qualified immunity to

Himes, and AFFIRM the grant of qualified immunity to Santi and Wagoner.

I. Background

In 2001, McBeth possessed a valid license issued by DHS, authorizing her to

operate a daycare facility in her Littleton, Colorado home. See Colo. Rev. Stat. § 26-6-

104(1)(a) (requiring operator of daycare facility to possess a license). Steven Forsyth,

McBeth’s adult son, also lived in the house at the time. Forsyth had visitation rights with

his minor daughter, E.F., every other weekend. E.F. spent the weekend of June 23, 2001

with her father at McBeth’s home. One of E.F.’s friends, E.W., spent time with E.F. and

Forsyth that weekend, and afterwards told her parents that Forsyth had sexually assaulted

both her and E.F. E.W.’s parents contacted the police and, on June 24, the police went to

McBeth’s home and arrested Forsyth.

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 Jeffrey Himes, an investigator with the Arapahoe County Sheriff’s Office assigned

to the Child Victims Unit, was assigned to investigate the charges against Forsyth. On

June 25, Himes asked McBeth for her records concerning the children who currently

attended her daycare, and McBeth voluntarily complied. At some point either on the 25th

or the 26th, Himes also asked McBeth for the records regarding all the children who had

attended the daycare since 1995, when Forsyth began living with McBeth. On the 26th,

McBeth informed Himes that she had consulted with an attorney, who told her that she

did not have to turn over any records in the absence of a court order directing her to do

so. Pursuant to that advice, McBeth declined to provide the additional records Himes

sought. Later that same day, Himes obtained and executed a search warrant for the

records in question, and McBeth then turned them over. None of the parents contacted

by Himes claimed that Forsyth molested or abused their children.

While Himes was conducting the police investigation, DHS began its own

investigation. On June 25, the day following her son’s arrest, McBeth called Kathi

Wagoner, a Licensing Specialist employed by Front Range Community College.1

Wagoner was responsible for conducting licensing interviews on behalf of DHS, as well

as investigating allegations of child abuse. During their conversation on June 25,

McBeth informed Wagoner of her son’s arrest and told her that the alleged conduct took

place in McBeth’s home. McBeth apparently only told Wagoner that Forsyth was

1
Front Range Community College contracts with DHS to provide licensing and
inspection services for daycare facilities.

4
accused of molesting his daughter and did not mention E.W. After speaking to McBeth,

Wagoner called Terry Santi, her supervisor at DHS, and informed Santi of her

conversation with McBeth.

On June 26, according to McBeth, after she denied Himes’ request for her records

dating back to 1995, Himes complained to Santi at DHS that McBeth was refusing to

cooperate with the police investigation by withholding the records of her former daycare

clients. McBeth alleges that as a result of this complaint, Wagoner came to McBeth’s

home and threatened to take her daycare license. Prior to doing so, Wagoner told

McBeth that she was required to produce the records sought by Himes. While Wagoner

was in McBeth’s home, McBeth spoke to Santi on the phone, who informed her that DHS

would suspend her license because of Himes’ “complaint” that she was not cooperating

with the police. Santi informed her that if she voluntarily relinquished her license, it

would be easier for McBeth to have it reinstated. Directly as a result of this “coercion,”

McBeth argues, she surrendered her license to Wagoner.

The defendants dispute significant portions of this account of the June 26 events.

The parties agree that Himes informed DHS on June 26 that McBeth was refusing to turn

over her records.2 According to Santi, however, the information provided by Himes did

2
The defendants have some disagreement among themselves as to who initiated the
contact. Himes maintains that he did not “complain” to DHS about McBeth’s refusal to
turn over her records; instead, Himes stated that he “either answered a telephone call
from [DHS] or returned a call to DHS” in which he informed the DHS employee with
whom he spoke that McBeth denied him access to past records and that he was obtaining
Continued . . .
5
not cause DHS to seek to retaliate against McBeth; rather, the nature of the charges

against Forsyth and the potential threat of harm to children resulted in DHS assigning the

complaint against McBeth a severity level of one, which is the second highest level of

seriousness and requires inspection and contact with the licensee within forty-eight hours.

Pursuant to this categorization of the complaint, Wagoner visited McBeth on June 26.

Before going to McBeth’s house, Wagoner first contacted Himes, who informed her that

he was in the process of obtaining a warrant and assured her that her visit would not

interfere with his investigation. Wagoner told McBeth that she was there “because of a

complaint received concerning [McBeth’s] refusal to cooperate with authorities.” (App.

at 271.) McBeth informed Wagoner that her attorney advised her to withhold the

records; this is the first time that the record shows either Wagoner or Santi learned that

McBeth had spoken with an attorney.

Wagoner suggested that if McBeth felt uncomfortable turning over the records to

the police, McBeth could turn them over to her instead, but McBeth declined to do so.

While Wagoner was still at McBeth’s house, Wagoner received a call from Santi, who

told her that she had learned from Himes that a second child victim (E.W.) had been

identified, and that because the charges now extended beyond the immediate family,

a search warrant. (App. at 432.) Santi claims that “DHS received a complaint from”
Himes on June 26 that McBeth was not cooperating with the police and was withholding
the records of former clients. (Id. at 262.) Regardless of who initiated the contact and
whether the conversation is appropriately categorized as a “complaint,” the defendants
and McBeth all agree that Himes informed DHS on June 26 that McBeth refused to
surrender her records.

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DHS had decided to proceed with emergency suspension of McBeth’s license. Santi and

Wagoner then explained McBeth’s options to her, and told her that it would be easier to

have her license reissued if she voluntarily surrendered it because that would not appear

on her permanent record. Although initially reluctant to do so, McBeth ultimately gave

Wagoner her license.

McBeth brought suit against Santi, Wagoner, and Himes, alleging violations of her

Fourth, Sixth, and Fourteenth Amendment rights, and seeking a declaratory judgment,

damages, and injunctive relief pursuant to 42 U.S.C. § 1983.3 Shortly after commencing

her suit, McBeth applied for and received a new daycare license, and she has accordingly

withdrawn her claim for injunctive relief. The defendants all moved for summary

judgment on the ground that they are entitled to qualified immunity. The district court

granted Santi and Wagoner’s motion for summary judgment, concluding that they did not

violate any clearly established rights of McBeth. McBeth, 2007 WL 274743, at *6. The

court also granted in part Himes’ motion for summary judgment on the ground of

qualified immunity, but concluded that a factual dispute precluded summary judgment as

to McBeth’s claim that Himes violated her constitutional rights by retaliating against her

for consulting with an attorney. Id. at *4-6. The district court denied Himes’ motion to

reconsider. In appeal number 07-1165, Himes appeals the district court’s denial of

3
McBeth also sued DHS, but the district court dismissed those charges. In addition,
McBeth brought a claim under 42 U.S.C. § 1985(3) against all the defendants for
conspiracy to interfere with her civil rights, but the district court dismissed that as well.
Neither of these dismissals are the subject of the present appeals.

7
summary judgment on qualified immunity grounds. In appeal number 07-1283, McBeth

appeals the district court’s grant of summary judgment to Himes, Santi, and Wagoner.

Based on the common facts, record, and parties, this court consolidated the appeals.

II. Discussion

A. Himes

The district court denied Himes’ motion for summary judgment on qualified

immunity grounds as to McBeth’s claim that Himes called DHS in retaliation for McBeth

exercising her First Amendment right to consult with an attorney. Id. at *4-5. The court

also granted Himes’ motion for summary judgment regarding McBeth’s claims that he

violated her Fourth and Fourteenth Amendment rights. Id. at *5-6. Both of these

decisions have been appealed.

1. Denial of qualified immunity on First Amendment claim

a. Jurisdiction

Turning to Himes’ appeal of the district court’s denial of summary judgment on

qualified immunity grounds, we first note that denial of a summary judgment motion is

generally not an appealable order under 28 U.S.C. § 1291. See Bowling v. Rector, 584

F.3d 956, 963 (10th Cir. 2009). We do possess jurisdiction over such an appeal,

however, “when the defendants are public officials asserting a qualified immunity

defense and the appealed issue is whether a given set of facts establishes that defendants

violated clearly established law.” Id. (quotation omitted); see also Mitchell v. Forsyth,
8
472 U.S. 511, 530 (1985). Thus, while we may consider “neat abstract issues of law”

presented on appeal, we lack jurisdiction over the appeal to the extent it requires us to

determine “whether the record supports the district court’s factual assumptions.”

Bowling, 584 F.3d at 963 (quoting Johnson v. Jones, 515 U.S. 304, 317, 319-20 (1995))

(internal quotation omitted).

Here, the district court did state that Himes’ motive in discussing McBeth’s

situation with DHS presented a factual dispute for a jury to resolve. McBeth, 2007 WL

274743, at *5; see also 3/13/07 Minute Order (Doc. No. 78) (recognizing that a “factual

dispute preclud[es] entry of summary judgment in Defendant Himes’s favor”). We lack

jurisdiction to consider the district court’s conclusion that a genuine issue of material fact

precludes summary judgment here. See Dixon v. Kirkpatrick, 553 F.3d 1294, 1301 (10th

Cir. 2009) (“A district court’s determination that the record raises a ‘genuine issue of

material fact,’ precluding summary judgment in favor of the defendants is not appealable

even in a qualified immunity case.”).

Himes contends, however, that even if he possessed a retaliatory motive when he

spoke to DHS, he is nevertheless entitled to qualified immunity because he did not

violate any clearly established constitutional right of McBeth’s. This presents strictly

legal questions—whether his retaliatory conduct violated McBeth’s First Amendment

rights, and, if so, whether such rights were clearly established at the time—and we may

properly consider them on appeal. See Eaton v. Meneley, 379 F.3d 949, 955 (10th Cir.

2004) (“Even if issues of fact exist, we have jurisdiction because we inquire only into the
9
legal question whether [defendant’s] conduct, as alleged by the plaintiffs and construed in

the light most favorable to them, would violate constitutional law.”); see also Johnson v.

Martin, 195 F.3d 1208, 1214 (10th Cir. 1999) (“[I]f a defendant's appeal of the denial of a

motion for summary judgment is based on the argument that, even under the plaintiff's

version of the facts, the defendant did not violate clearly established law, then the district

court's summary judgment ruling is immediately appealable.”).

b. Standard of review

“We review de novo the district court’s denial of a summary judgment motion

asserting qualified immunity.” Bowling, 584 F.3d at 963. Summary judgment is

appropriate where “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). In applying this

standard, we construe the evidence in the light most favorable to McBeth as the non-

moving party. See Bowling, 584 F.3d at 964.

“Because of the underlying purposes of qualified immunity, we review summary

judgment orders deciding qualified immunity questions differently from other summary

judgment decisions.” Id. (quoting Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir.

2007) (en banc)). When a defendant asserts a qualified immunity defense, the plaintiff

must “meet a strict two-part test.” Id. (quotation omitted). The plaintiff must establish

“(1) that the defendant violated a constitutional or statutory right, and (2) that this right

was clearly established at the time of the defendant's conduct,” id. (quotation omitted),
10
but we have discretion to “decid[e] which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case at

hand.” Pearson v. Callahan, --- U.S. ---, 129 S. Ct. 808, 818 (2009).

c. First Amendment retaliation

Turning to the merits of Himes’ appeal, Himes contends that the district court

erred in denying his motion for summary judgment on McBeth’s First Amendment

retaliation claim on qualified immunity grounds. Himes initially argues that McBeth

never even brought such a claim against him. Although the Complaint does refer to

“Plaintiff’s Sixth Amendment Right to Counsel,” it neither states which Defendants

allegedly violated that right, nor does it so much as mention the First Amendment. (App.

at 15.) Not until McBeth’s response to Himes’ motion for summary judgment did she

clearly allege a retaliation claim against Himes, and that claim was based on the Sixth

Amendment.

While dismissing McBeth’s Sixth Amendment retaliation claim on the ground that

the Sixth Amendment was never implicated because she was never charged with a crime,

the district court also analyzed her retaliation claim under the First Amendment.

McBeth, 2007 WL 274743, at *4. “Generally, failure to set forth in the complaint a

theory upon which the plaintiff could recover does not bar a plaintiff from pursuing a

claim.” Elliott Indus. Ltd. v. BP Am. Prod. Co., 407 F.3d 1091, 1121 (10th Cir. 2005). If

the new theory prejudices the other party in maintaining its defense, however, courts will

not permit the plaintiff to change her theory. See Ahmad v. Furlong, 435 F.3d 1196,
11
1202 (10th Cir. 2006) (“A plaintiff should not be prevented from pursuing a claim simply

because of a failure to set forth in the complaint a theory on which the plaintiff could

recover, provided that a late shift in the thrust of the case will not prejudice the other

party in maintaining its defense.” (quoting Green Country Food Mkt., Inc. v. Bottling

Group, LLC, 371 F.3d 1275, 1279 (10th Cir. 2004) (internal quotation omitted).

Himes has not argued that he was prejudiced by the failure of McBeth to assert the

claim as a First Amendment retaliation claim as opposed to a Sixth Amendment

retaliation claim. Indeed, Himes was on notice of a claim concerning McBeth’s right to

counsel as early as the Complaint, and she put Himes on further notice of the basis for the

allegations in her response to Himes’ motion for summary judgment. (See McBeth’s

Resp. to Himes’ Mot. for Summ. J., App. at 126 (arguing that, under the Sixth

Amendment, “a person has the right to seek legal advice when confronted with a request

for materials or documents from a law enforcement official” and not to be retaliated

against for doing so).) We therefore fail to see any prejudice that resulted from the

district court’s decision to treat McBeth’s retaliation claim as arising under the First

Amendment, and, accordingly, we conclude that her claim is properly before us.

We have previously recognized that “[t]he right to retain and consult with an

attorney . . . implicates . . . clearly established First Amendment rights of association and

free speech.” DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990). Those rights “are

violated when a police officer retaliates” against an individual for seeking legal advice.

Malik v. Arapahoe Co. Dep’t of Social Servs., 191 F.3d 1306, 1315 (10th Cir. 1999). To
12
recover under a First Amendment retaliation claim, McBeth must establish that (1) she

was “engaged in constitutionally protected activity,” (2) the defendant’s actions caused

her to suffer an “injury that would chill a person of ordinary firmness from continuing to

engage in that [protected] activity,” and (3) the defendant’s actions “were substantially

motivated as a response to [her] protected conduct.” See Nielander v. Bd. of County

Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009) (citing Worrell v. Henry, 219 F.3d 1197,

1212 (10th Cir. 2000)). Himes does not dispute that McBeth’s consultation with an

attorney constituted constitutionally protected activity. See DeLoach, 922 F.2d at 620.

Also, the district court concluded that a factual dispute existed as to whether Himes acted

with a retaliatory motive, and, as noted above, we lack jurisdiction to consider the

propriety of that determination. See Johnson, 515 U.S. at 313 (holding that portion of a

summary judgment order that turns exclusively on an issue of evidence sufficiency is not

appealable). Thus, neither the first nor third elements of McBeth’s First Amendment

retaliation claim can support reversing the district court’s denial of summary judgment.

Himes focuses his argument on appeal on the second element: namely, whether

Himes’ actions caused McBeth to suffer an injury that would chill a person of ordinary

firmness from consulting with an attorney. McBeth alleges that, because she consulted

with an attorney, Himes informed DHS that she was not cooperating with the

investigation, which led to her injury when DHS threatened her with suspension of her

daycare license and coerced her into agreeing to relinquish her license. Himes contends

that, even accepting McBeth’s allegations as true, her allegations do not establish that
13
Himes’ complaint to DHS caused McBeth’s injury. Although “causation is generally a

jury question,” Stevens v. Barnard, 512 F.2d 876, 879 (10th Cir. 1975), whether a

plaintiff sufficiently alleges causation is a legal question, see United States ex rel.

Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1517 n.1 (10th Cir. 1996) (noting

that “the sufficiency of the allegations underlying [a] claim is a legal question”). Thus,

because determining whether the allegations suffice to show causation does not require

this court to “second-guess[] the district court’s determinations of evidence sufficiency,”

we may consider whether Himes is entitled to qualified immunity on the basis of a lack of

causation between Himes’ conduct and McBeth’s injury, based on the version of facts

most favorable to McBeth. Gross v. Pirtle, 245 F.3d 1151, 1156-57 (10th Cir. 2001).

Himes contends that his alleged complaint to DHS could not have caused DHS to

seek suspension of McBeth’s daycare license because DHS already possessed the legal

authority to suspend McBeth’s license and would have done so even in the absence of his

complaint. In Hartman v. Moore, 547 U.S. 250 (2006), the Supreme Court held that the

causation required in a First Amendment retaliatory prosecution claim connecting a

retaliatory motive to the adverse action taken by the defendant is “but-for causation,

without which the adverse action would not have been taken.”4 Id. at 260. In Hartman,

4
The claim in Hartman was brought against federal officials pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), but the Court made clear that its
holding applied to § 1983 claims against state officials as well. See Hartman, 547 U.S. at
255 n.2, 259, 261 (discussing § 1983 claims); see also Becker v. Kroll, 494 F.3d 904, 925
(10th Cir. 2007) (applying Hartman to a § 1983 retaliation claim).

14
the plaintiff alleged that police initiated a criminal prosecution against him in retaliation

for his protected speech. See id. at 254. The defendant there was the police officer, and

yet the adverse action, the criminal prosecution, had to be initiated by the prosecutor. See

id. at 261-62. In the retaliatory prosecution context, the Court noted the difficulty in

establishing causation because the lawsuit generally must be brought against the law

enforcement officer who acted with the retaliatory motive, as the prosecutor enjoys

absolute immunity for his prosecutorial decisions. Id. at 261-62. Thus, unlike in the

normal retaliation case, where the same person possesses the retaliatory animus and takes

the adverse action against the plaintiff, in the retaliatory prosecution context, the requisite

causal connection is “between the retaliatory animus of one person and the action of

another.” Id. at 262. To “bridge the gap between the nonprosecuting government agent’s

motive and the prosecutor’s action,” the Court held that a plaintiff bringing a claim for

retaliatory prosecution must allege and prove an absence of probable cause. Id. at 263.

Himes argues that we should extend Hartman to this case because the causation at

issue here poses the same problems as that in the retaliatory prosecution context. As in

Hartman, the retaliatory animus was held by a different person (Himes) than those who

acted adversely to McBeth by seeking the suspension of her license (Santi and Wagoner).

See id. at 262 (noting that the cause of action at issue is not “strictly for retaliatory

prosecution, but for successful retaliatory inducement to prosecute”). Accordingly, just

as the plaintiff in a retaliatory prosecution case must allege and prove the absence of

probable cause, Himes argues that McBeth should be required to show the lack of a legal
15
basis for the adverse actions taken by DHS. Because McBeth has not so much as alleged

the lack of any such basis—indeed, Colorado law permits DHS to suspend a license if an

administrative judge finds that substantial evidence shows that someone living in the

same house as the daycare facility commits an act of child abuse, Colo. Rev. Stat. § 26-6-

108(2)(k), or if the license holder refuses to cooperate with a DHS investigation, Colo.

Rev. Stat. § 26-6-108(2)(f)—Himes contends that he is entitled to qualified immunity on

McBeth’s retaliation claim.

McBeth disputes the applicability of Hartman to this case. According to McBeth,

Hartman applies solely to retaliatory prosecution cases, which this is not. McBeth points

out that Hartman discusses not only the difficulty in establishing a causal chain inherent

in retaliatory prosecution claims, but also the unique role of the prosecutor and the “long-

standing presumption of regularity accorded to prosecutorial decisionmaking” in federal

courts. Hartman, 547 U.S. at 263. Hartman emphasized that “[i]t is . . . the need to prove

a chain of causation from animus to injury, with details specific to retaliatory-prosecution

cases, that provides the strongest justification for the no-probable-cause requirement.”

Id. at 259 (emphasis added); see also Skoog v. County of Clackamas, 469 F.3d 1221,

1234 (9th Cir. 2006) (“[D]ifferences between retaliatory prosecution claims and other

retaliation claims justified and necessitated the additional requirement in retaliatory

prosecution claims.”). McBeth therefore argues that Hartman does not impose any

additional burden on a plaintiff alleging a retaliation claim such as hers, and because she

has alleged that Himes’ complaint was the cause of the DHS investigation that ultimately
16
led to the suspension of her license, she has sufficiently alleged the causation element.

We agree with Himes that the Hartman framework applies to these facts. As in

Hartman, the retaliation claim against Himes is really for “successful retaliatory

inducement” of DHS to seek suspension of McBeth’s license. Hartman, 547 U.S. at 262.

This case thus presents the same difficulties in tracing the chain of causation as Hartman

did, as the defendant who allegedly acted with the retaliatory animus is not the same

individual as the one who caused Plaintiff’s injury. It would therefore be just as difficult

to establish that DHS would not have sought suspension of McBeth’s license in the

absence of Himes’ complaint as it is to determine whether charges would have been

brought in the absence of a retaliatory motive on the part of the investigator. Id. at 260

(“If there is a finding that retaliation was not the but-for cause of the [adverse action], the

claim fails for lack of causal connection between unconstitutional motive and resulting

harm, despite proof of some retaliatory animus in the official’s mind.”).

The Court in Hartman drew a distinction between the sort of retaliation case it had

in mind and an “ordinary” retaliation claim, such as a “public employee’s claim that he

was fired for speech criticizing the government.” Id. at 259. The Court stated that a

retaliatory prosecution case differs from the ordinary retaliation case in two ways: first, a

retaliatory prosecution claim possesses a distinct body of highly relevant evidence (i.e.

evidence of probable cause) that is “apt to prove or disprove retaliatory causation,” and

second, the more complex causation involved when the retaliator brings about the injury

through the acts of a third party (such as a prosecutor). Id. at 261-62. Both of these
17
distinctions show that McBeth’s claim is more akin to the retaliatory prosecution claim

than the “ordinary” retaliation claim. As to the second factor, the causation inquiry is

complicated by the fact that Himes only made a complaint, and it was DHS employees

who acted on it and caused McBeth’s injury. And, just like in Hartman, we have a body

of evidence here that will be highly probative of whether Himes’ retaliatory conduct

really was the but-for cause of McBeth’s eventual loss of her license: whether the DHS

employees possessed legal authority to seek suspension of McBeth’s license. The

rationale of the Hartman holding therefore applies to these facts.

While we have not directly considered this question before, other circuits have

also applied Hartman beyond claims in which a police officer is sued for retaliation on

the basis of the subsequent actions of a prosecutor. In Williams v. City of Carl Junction,

480 F.3d 871 (8th Cir. 2007), for example, the Eighth Circuit applied Hartman to the

plaintiff’s claim that the mayor’s animus towards him because of his protected speech

criticizing town officials led to city officials issuing the plaintiff twenty-six citations over

a two-year period. Id. at 876. The Eighth Circuit concluded that “the Supreme Court’s

holding in Hartman is broad enough to apply even where intervening actions by a

prosecutor are not present,” and applied the probable cause requirement “to ‘bridge the

gap’ in these circumstances between the Mayor’s retaliatory animus and the officers’

‘prosecution.’” Id. (quoting Hartman, 547 U.S. at 263). Courts have also extended the

Hartman requirement of alleging a lack of probable cause to apply to retaliatory

prosecution claims where the police officers obtained an indictment directly from a grand
18
jury without “the intervening actions of a prosecutor.” See Barnes v. Wright, 449 F.3d

709, 720 (6th Cir. 2006); and to at least some Fourth Amendment false arrest claims, see

Beck v. City of Upland, 527 F.3d 853, 864 (9th Cir. 2008). While we do not hold that the

Hartman rule is applicable to “ordinary” retaliation claims, we do think that the logic of

the rule necessitates its application here, where “multi-layered causation” complicates the

court’s inquiry into whether the defendant’s retaliatory animus caused the adverse action

that harmed the plaintiff. Skoog, 469 F.3d at 1234 (declining to extend Hartman to case

of “ordinary” retaliation that did not involve complex questions of causation).

We therefore conclude that McBeth must allege and prove that the state officials

lacked cause to seek suspension of her license. She has not done so. Colorado Revised

Statute § 26-6-108(2)(f) permits DHS to suspend the license of any individual who

“refuse[s] to make available to the department any records required by it in making

investigation of the facility for licensing purposes.” Subsection (2)(k) of the same statute

allows suspension of a daycare license if anyone who lives with the licensee is charged

with an “unlawful sexual offense” and an administrative law judge concludes that

substantial evidence supports the charge. Colo. Rev. Stat. § 26-6-108(2)(k).

Additionally, DHS is entitled to suspend a license summarily if it “has objective and

reasonable grounds to believe and finds upon a full investigation, . . . that the public

health, safety, or welfare imperatively requires emergency action,” provided that a

hearing is held promptly after the emergency suspension. Colo. Rev. Stat. § 24-4-

104(4)(a). A “full investigation means a reasonable ascertainment of the underlying facts
19
on which the agency action is based.” Id. Thus, DHS had ample bases to seek the

suspension of McBeth’s license regardless of any complaint made by Himes.

As the Court stated in Hartman, the “connection” that “bridge[s] the gap” between

the official with the retaliatory animus and the official who takes the adverse action

against the plaintiff “is the absence of probable cause.” Hartman, 547 U.S. at 263. Here,

Santi and Wagoner had reasons to seek the suspension of McBeth’s license; accordingly,

McBeth cannot prove the causation element of her retaliation claim. Himes is therefore

entitled to summary judgment on the ground of qualified immunity on this claim, because

he did not violate any clearly established right possessed by McBeth, even if he called

DHS with the motive to retaliate against McBeth.

2. Grant of qualified immunity

The district court granted Himes summary judgment on qualified immunity

grounds with respect to McBeth’s Fourth and Fourteenth Amendment claims. Although

McBeth seeks to appeal this determination in appeal no. 07-1283, we lack jurisdiction to

consider it.

Because the district court did not enter judgment on all the claims in McBeth’s

case, we do not have jurisdiction under 28 U.S.C. § 1291 unless the district court certified

its decision as final and appealable under Fed. R. Civ. P. 54(b).5 See Okla. Turnpike

5
Rule 54(b) provides:

When an action presents more than one claim for relief—whether as a
Continued . . .
20
Auth. v. Bruner, 259 F.3d 1236, 1243 n.5 (10th Cir. 2001) (“28 U.S.C. § 1291 only

confers jurisdiction over final decisions of district courts, and as we have discussed, the

district court has not certified a final judgment under Rule 54(b). . . . Thus, under no

statutory provision do we possess jurisdiction to hear the merits of [Defendant’s]

appeal.”).

After the district court’s decision granting qualified immunity to Santi and

Wagoner on all claims and to Himes on all claims but the First Amendment retaliation

claim, McBeth filed a motion entitled “Motion for Final Judgment and Permission to

Appeal Order for Summary Judgment re Defendants Santi and Wagoner.” (App. at 596.)

Although the motion did not list Himes in its title or introductory paragraph, in the body

of the motion, McBeth did argue that, in light of the fact that Himes is already taking an

interlocutory appeal of the denial of qualified immunity on McBeth’s First Amendment

claim against him, it only makes sense to allow her to appeal the district court’s decision

“on qualified immunity as to all defendants.” (Id. at 597 (emphasis added).) In that

claim, counterclaim, crossclaim, or third-party claim—or when multiple
parties are involved, the court may direct entry of a final judgment as to one
or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay. Otherwise, any order or
other decision, however designated, that adjudicates fewer than all the
claims or the rights of fewer than all the parties does not end the action as
to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights
and liabilities.

Fed. R. Civ. P. 54(b).

21
motion, McBeth further asserted that attorneys for Santi, Wagoner, and Himes did not

oppose McBeth’s certification motion. (Id. at 597-98.) And, at the conclusion of that

motion, McBeth requested “that the Court make its summary judgment on qualified

immunity grounds in favor of Defendants Santi and Wagoner and those rulings in favor

of Jeffrey Himes [] on qualified immunity grounds final allowing Plaintiff leave to appeal

its orders in that regard to the U.S. Court of Appeals for the 10th Circuit.” (Id. at 598.)

The title of McBeth’s certification motion, therefore, indicated she sought certification

only as to her claims against Santi and Wagoner, but the body of the motion indicated

that she sought certification on all of her unsuccessful claims asserted against all three

defendants.

On June 12, 2007, the district court granted McBeth’s “Motion for Final Judgment

and Permission to Appeal Order for Summary Judgment re Defendants Santi and

Wagoner” without elaboration. (Id. at 600.) McBeth then filed her notice of appeal from

the district court’s decision granting “summary judgment on qualified immunity grounds

on all claims as to the Defendants Santi and Wagoner and on certain claims as to

Defendant Jeffrey Himes.” (Id. at 601 (emphasis added).)

The Tenth Circuit requested that the district court clarify its Rule 54(b)

certification because the “certification entered by the district court does not articulate the

reasons for granting the certification, as required by Stockman’s Water Co. v. Vaca

22
Partners, 425 F.3d 1263, 1265 (10th Cir. 2005).”6 (App. at 607.) In response, the district

court entered an order clarifying its earlier Rule 54(b) certification. In that clarification

order, the district court again referred to McBeth’s “Motion for [Entry of] Final Judgment

and Permission to Appeal Order for Summary Judgment re Defendants Santi and

Wagoner.” (Id. at 610.) Throughout the body of that order, the district court referred

only to McBeth’s claims against Santi and Wagoner. And the district court expressly

directed the clerk “to enter final judgment against Plaintiff and for Defendants Santi and

Wagoner on each of Plaintiff’s claims against them.” (Id. at 612-13.) The district court

clerk did so as to those two defendants only.

Therefore, as judgment has only been entered against McBeth on Santi’s and

Wagoner’s claims, this court lacks jurisdiction to consider McBeth’s appeal of the district

court’s grant of qualified immunity for Himes. See Heimann v. Snead, 133 F.3d 767, 770

(10th Cir. 1998) (recognizing that failure to obtain a Rule 54(b) certification from the

district court is a “jurisdictional defect”). McBeth cannot point to any order by the

district court that enters final judgment against Himes or otherwise provides a basis for

her to appeal the district court’s decision granting Himes summary judgment.

McBeth nevertheless urges that Himes has no reason to contest this, because the

6
Stockman’s Water Company held “that courts entering a Rule 54(b) certification should
clearly articulate their reasons and make careful statements based on the record
supporting their determination of finality and no just reason for delay so that we can
review a 54(b) order more intelligently and thus avoid jurisdictional remands.” 425 F.3d
at 1265 (quotation, alterations omitted).

23
appeal will only return once final judgment is entered against Himes, and the parties will

need to brief and argue the same issues a second time. This may be true, but her appeal

suffers from a jurisdictional defect, and we may not consider an appeal over which we

lack jurisdiction. In fact, we have previously rejected the notion that efficiency for the

parties and the court can provide a reason to overlook a jurisdictional deficiency caused

by a failure to comply with Rule 54(b).

To be sure, once parties have expended the effort of briefing and argument
on appeal, it may appear wasteful and inefficient for the appellate court to
decline to rule. But in the long run it will be less wasteful and more
efficient for district and appellate courts to adhere to . . . Rule 54(b).

Jordan v. Pugh, 425 F.3d 820, 829 (10th Cir. 2005). Accordingly, we dismiss McBeth’s

appeal of the order granting Himes summary judgment for lack of jurisdiction.

B. Santi and Wagoner

The district court granted summary judgment in favor of Santi and Wagoner on all

of McBeth’s claims based on qualified immunity grounds and, as noted, certified the

judgment as final. We therefore possess jurisdiction to consider McBeth’s appeal as to

Santi and Wagoner pursuant to 28 U.S.C. § 1291.

The same de novo standard of review applies to our review of the district court’s

grant of summary judgment on qualified immunity grounds as it did for our consideration

of the district court’s denial of summary judgment on those same grounds. See, e.g.,

Thomson v. Salt Lake County, 584 F.3d 1304, 1311 (10th Cir. 2009). Additionally,

because the district court entered summary judgment in favor of Santi and Wagoner, our

24
jurisdiction is not limited, as it was in our review of her retaliation claim against Himes,

to reviewing only “neat abstract issues of law.” Rosewood Servs., Inc. v. Sunflower

Diversified Servs., Inc., 413 F.3d 1163, 1165 (10th Cir. 2005) (quotation omitted).

Rather, we review the entire record to determine whether a genuine issue of material fact

exists and, if not, whether the substantive law was correctly applied. See McKnight v.

Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). “In determining whether

[McBeth] has met [her] burden of establishing a constitutional violation that was clearly

established, we will construe the facts in the light most favorable to [McBeth] as the

nonmoving party.” Thomson, 584 F.3d at 1312.

1. Fourteenth Amendment

McBeth claims that Santi and Wagoner violated her procedural due process rights

by coercing her into relinquishing her daycare license without affording her notice of any

violations and an opportunity to be heard. The Fourteenth Amendment to the United

States Constitution ensures that state officials shall not “deprive any person of life,

liberty, or property without due process of law.” U.S. Const. amend XIV; see also Ward

v. Anderson, 494 F.3d 929, 932 n.3 (10th Cir. 2007) (“[T]he Fourteenth Amendment

imposes a due process requirement on state officials.”). McBeth contends that she

possessed both a liberty and a property interest in her license and that she was deprived of

the license without due process of law.

The initial problem with McBeth’s theory is that she voluntarily relinquished her

license before any suspension proceedings could take place. The district court thus
25
concluded that “[b]ecause McBeth relinquished her license and no formal suspension

proceedings were ever initiated, the facts alleged simply do not fit within the due process

rubric.” McBeth, 2007 WL 274743, at *6. Indeed, if one voluntarily relinquishes some

property or liberty interest, then she cannot have a claim for a due process violation

because no state official deprived her of the interest. See, e.g., Potts v. Davis County,

551 F.3d 1188, 1194 (10th Cir. 2009) (“[I]f [a] Plaintiff[] resigned of [his] own free will,

even as a result of Defendant’s actions, then [he] voluntarily relinquished [his] property

interests and, thus, Defendant did not deprive [him] of property without due process of

law.” (brackets in original) (quotation omitted)).

McBeth claims, however, that her relinquishment of the license was not actually

voluntary, but was rather coerced by Santi’s and Wagoner’s threats of initiating

suspension proceedings. In the public employment context, one’s resignation can be “so

involuntary” as to “deprive her of her property interest without due process.” Parker v.

Bd. of Regents of Tulsa Junior Coll., 981 F.2d 1159, 1162 (10th Cir. 1992). Here,

however, Santi and Wagoner provided McBeth the alternative of voluntary

relinquishment of her daycare license as a less punitive option than proceeding with

suspension proceedings. McBeth has not disputed that the officials had, or imminently

could obtain, authority to suspend her license, given the presence of Forsyth in her home,

as well as her refusal to cooperate fully with authorities. See Colo. Rev. Stat. § 26-6-

108(2)(k) (permitting DHS to suspend the license of anyone who lives with an individual

charged with the commission of an act of child abuse if an administrative law judge
26
determines the charge is supported by substantial evidence); Colo. Rev. Stat. § 26-6-

108(2)(f) (permitting DHS to suspend the license of anyone who “refuse[s] to make

available to the department any records required by it in making investigation of the

facility for licensing purposes”); see also Colo. Rev. Stat. § 24-4-104(4)(a) (permitting

state agency to “summarily suspend [a] license pending proceedings for suspension”

when it determines that “the public health, safety or welfare imperatively requires

emergency action”). Nor does McBeth challenge that Santi and Wagoner were truthful

when they informed her that voluntary surrender of the license would not remain on her

record as a “negative licensing action,” while a suspension pursuant to DHS procedures

would. See id. § 26-6-102(5.7)(a) (defining “negative licensing action” to include

suspension of a license, but not voluntary relinquishment).

Thus, McBeth cannot credibly claim that Santi and Wagoner coerced her into

voluntarily relinquishing her license when their suggestion that she do so arguably

provided a less punitive option than the action DHS was otherwise lawfully considering.

McBeth had the option of voluntarily relinquishing her license and not having any mark

on her permanent record that might impair her reapplication for a license, or of invoking

the administrative procedures to which she would be entitled if DHS sought suspension

of her license. See Colo. Rev. Stat. § 26-6-108(3) (“The department shall suspend or

revoke a license only in conformity with the provisions and procedures specified in

article 4 of title 24, C.R.S., and after a hearing thereon as provided in said article 4 . . . .”)

Viewed from this perspective, McBeth’s claim is that she did not receive adequate
27
process when she chose to forego the process that she would have been afforded in a

suspension proceeding. That claim is insufficient as a matter of law to state a procedural

due process violation. Therefore, McBeth has failed to demonstrate that Santi and

Wagoner violated her constitutional right to due process when McBeth voluntarily

relinquished her daycare license.

2. First Amendment

McBeth alleged that Santi and Wagoner also retaliated against her for seeking

legal advice by threatening to suspend her license. The district court rejected this claim

because, among other reasons, there was no evidence that Santi and Wagoner knew that

McBeth had consulted an attorney. McBeth, 2007 WL 274743, at *4. But McBeth

asserts that she informed Wagoner of her consultation with an attorney on June 26, and

Wagoner acknowledges that McBeth told her about meeting with an attorney when she

went to McBeth’s home on that date. (App. at 271 (“Mrs. McBeth informed me that she

had legal counsel under a prepaid legal services plan who had advised her to withhold

those records and she had decided not to release records.”).)

Nevertheless, we conclude that Santi and Wagoner are entitled to summary

judgment on this claim. As noted above, to prove a First Amendment retaliation claim,

McBeth must establish that (1) she was engaged in constitutionally protected activity, (2)

the defendants’ actions caused her to suffer an injury that would chill a person of

ordinary firmness from continuing to engage in that protected activity, and (3) the

defendant actions were substantially motivated as a response to her protected conduct.
28
See Nielander, 582 F.3d at 1165. While McBeth’s consultation with an attorney

constitutes protected activity under the First Amendment, see Malik, 191 F.3d at 1315,

she has not produced any evidence to suggest that Santi and Wagoner were substantially

motivated to seek the suspension of her license because of her consultation with an

attorney.

When the qualified immunity inquiry turns on a subjective element, as it does

when examining motive, the qualified immunity analysis is “modified slightly.” Bruning

v. Pixler, 949 F.2d 352, 356 (10th Cir. 1991). The defendant “must do more than merely

raise the [qualified] immunity defense; he must make a prima facie showing of the

objective reasonableness of the challenged conduct.” Id. at 356-57 (quotation omitted);

see also Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 847-48 (10th Cir. 2005)

(applying “objectively reasonable” analysis to the “substantially motivated” prong of a

First Amendment retaliation claim). “If the defendant makes this prima facie showing,

the plaintiff must then produce specific evidence of the defendant’s culpable state of

mind to survive summary judgment.” Bruning, 949 F.2d at 356.

Santi and Wagoner have little trouble making a prima facie showing of the

objective reasonableness for seeking the suspension of McBeth’s license. As noted

above, Santi and Wagoner had legitimate statutory bases for seeking the suspension of

the license. In addition, Santi stated in her affidavit that DHS did not decide to seek

suspension of McBeth’s license until DHS learned that McBeth’s son had molested a

second child in addition to McBeth’s granddaughter. And at that point, rather than
29
simply commencing suspension proceedings against McBeth, which, if successful, would

have resulted in a negative licensing action being placed on her record, see Colo. Rev.

Stat. § 26-6-102(5.7)(a), Santi and Wagoner gave McBeth the option to relinquish her

license voluntarily. We conclude that this evidence constitutes a prima facie showing

that Santi and Wagoner acted objectively reasonably when they sought suspension of

McBeth’s daycare license.

The burden then shifted to McBeth to provide “specific evidence” of Santi’s and

Wagoner’s “culpable state of mind.” Bruning, 949 F.2d at 356. McBeth lacks any such

evidence. McBeth contends that Santi and Wagoner knew that Forsyth was accused of

molesting two children, as opposed to just Forsyth’s own daughter, prior to Wagoner

meeting with McBeth on June 26. And because Santi stated that it was this fact that

prompted DHS to decide to suspend McBeth’s license, McBeth argues that the evidence

that Santi and Wagoner knew ahead of time that two children were involved shows that

their only motivation was to retaliate against McBeth once they learned she had spoken to

an attorney.

McBeth bases her argument that Santi and Wagoner learned about the allegations

concerning E.W. prior to the afternoon of June 26 solely on a computer-generated

document created by DHS. The document, with a heading that reads “Child Care

Facility-Complaint Tracking System,” states that McBeth’s son was arrested “for sexual

30
assault on his child and another child.”7 (App. at 330-32 (emphasis added).) The

document lists “6/26/01” as the “Date Received” and “10:50:59 AM” as the “Time

Received,” which McBeth argues shows that DHS already knew that there was a second

child victim prior to Wagoner’s visit to McBeth’s home on the afternoon of the 26th.

(Id.) In the same paragraph that states two children were involved, however, the

document also details the meeting between Wagoner and McBeth on the afternoon of the

26th. The document thus could not have been entirely generated at 10:50 a.m. on June

26. This document therefore cannot reasonably be read the way that McBeth urges, and

so it does not create a genuine issue as to when Santi and Wagoner learned of the

allegations concerning E.W. See Simms v. Oklahoma ex rel. Dep’t of Mental Health &

Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999) (“[A]n issue of material

fact is genuine only if the nonmovant presents facts such that a reasonable jury could find

in favor of the nonmovant.” (quotation omitted)).

McBeth therefore has no specific evidence demonstrating that Santi and Wagoner

were “substantially motivated” by a desire to retaliate against McBeth for speaking to an

attorney. See Nielander, 582 F.3d at 1165. There is no evidence to refute the position

taken by Santi and Wagoner that they sought suspension of McBeth’s license because the

7
On appeal, Santi and Wagoner object to the admissibility of the document on the
grounds that is not authenticated. They did not make this objection in the district court,
however, and simply stated that the document was consistent with their view of the facts.
Since the argument contesting the admissibility of the evidence was not raised below,
Santi and Wagoner have waived it. Jones v. C.I.R., 903 F.2d 1301, 1303 n.2 (10th Cir.
1990).

31
allegations against Forsyth concerned two children, one of whom was unrelated to

Forsyth. Summary judgment was thus proper on this claim.

3. Fourth Amendment

McBeth argues on appeal that Santi and Wagoner retaliated against her for

exercising her Fourth Amendment rights when she refused to give Himes her records in

the absence of a warrant. She never raised such a claim in the district court, however,

and has thus waived the claim. See Anderson v. Commerce Constr. Servs., Inc., 531 F.3d

1190, 1198 (10th Cir. 2008) (“By not arguing this issue before the district court, [the

plaintiff] waived it.”). While the Complaint mentions the Fourth Amendment at one

point, it is unclear which defendants McBeth believed violated her Fourth Amendment

rights, and she did not clarify the issue during the summary judgment briefing. In

responding to Santi and Wagoner’s motion for summary judgment, McBeth stated that

her “clearly established Fourth Amendment rights were violated,” but in the ensuing

discussion of that claim, she only refers to Himes’ conduct. (App. at 306-07 (“Plaintiff

had a clearly established constitutional right based on the Fourth Amendment when she

believed that it was unreasonable for Defendant Himes to request the materials

concerning her former child care clients to insist that he seek a warrant based upon

probable cause.”).) In fact, nowhere in the Fourth Amendment section of her brief filed

in response to Santi and Wagoner’s motion for summary judgment does she even

mention Santi and Wagoner.

32
 Based on the lack of allegations against Santi and Wagoner, the district court

reasonably concluded that, “[w]hile Ms. McBeth asserts a claim for deprivation of her

Fourth Amendment rights against Defendants collectively, it is clear the claim is directed

to Officer Himes only” because “McBeth offers no fact or legal theory of relief against

either Santi or Wagoner in support of any Fourth Amendment claim against them.”

McBeth, 2007 WL 274743, at *5, n.4. We agree that McBeth did not allege any Fourth

Amendment claim against Santi and Wagoner below, and she may not do so for the first

time on appeal. See Anderson, 531 F.3d at 1198.

III. Conclusion

We DISMISS McBeth’s appeal (no. 07-1283) as it relates to Himes, and otherwise

AFFIRM the ruling of the district court granting summary judgment to Santi and

Wagoner. We REVERSE the district court’s denial of qualified immunity to Himes in

appeal 07-1165. We REMAND for proceedings consistent with this opinion.

33