FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 5, 2018
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
KENNETH E. GEORGE,
Plaintiff - Appellant
v. No. 16-8045
(D.C. No. 1:15-CV-00039-SWS)
DAROLD NEWMAN, in his individual (D. of Wyo.)
capacity; KENNETH BLACKBURN,
in his official capacity as Big Horn
County Sheriff,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, HARTZ, and HOLMES Circuit Judges.
Kenneth George sued Deputy Darold Newman and Sheriff Kenneth
Blackburn, both of the Big Horn Sheriff’s Department, for using excessive force
during the 2014 arrest of Mr. George’s brother. Mr. George also alleged that
Deputy Newman made threatening late-night phone calls to him after the incident.
Mr. George brought federal claims under 42 U.S.C § 1983 and a Wyoming state-
law battery claim. Deputy Newman and Sheriff Blackburn moved for summary
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
judgment. The district court granted the motion on all of Mr. George’s claims.
Mr. George appealed.
We affirm the district court’s ruling on Mr. George’s federal claims. But we
reverse the district court’s ruling on the Wyoming state-law claim and remand with
instructions to dismiss that claim without prejudice.
I
On September 10, 2014, Chief Christopher Kampbell of the Basin Police
Department got a tip that Richard George (the Appellant’s brother) was driving
drunk. 1 Chief Kampbell began following Richard as he drove home. Mr. George,
who lived next door to his brother, was driving behind Chief Kampbell.
Richard reached his home’s driveway. Chief Kampbell signaled for him to
stop. Mr. George arrived less than a minute later, pulling into a parking space in
front of his own house, which was two spaces over from his brother’s car. Mr.
George got out of the car and told Richard to “keep his mouth shut and not leave
the property.” Aplt.’s App. at 149 (Dep. of Kenneth George, dated Feb. 10, 2016).
Mr. George went briefly into his home, then came back outside and stood beside
his car, watching Chief Kampbell’s interaction with his brother.
Chief Kampbell started to perform a sobriety test on Richard. Mr. George,
who was standing a few feet away, became noticeably upset when his brother
1
Because they share the sir name “George,” we refer to the brother of
Appellant Kenneth George hereafter only by his first name, “Richard.”
2
cooperated. After a few minutes, Chief Kampbell called for a backup officer.
Deputy Newman soon arrived. Traveling down the road leading to Mr. George’s
home—Richardson Avenue—Deputy Newman was “driving fast . . . with his lights
and sirens on.” Aplt.’s App. at 437 (Tr. of Dispositive Mots. Hr'g, dated Apr. 7,
2016). Mr. George was “visibly upset,” apparently at the manner in which Deputy
Newman was driving and started “walking toward him” and ended up “standing
within arm’s length of [Deputy] Newman’s car door.” Id. at 436–38.
Mr. George alleges that Deputy Newman then “got out of his vehicle and
grabbed [his] right arm forcefully.” Aplt.’s App. at 9 (Pl.’s Second Am. Compl.,
dated Nov. 6, 2015). Mr. George said, “What the hell do you think you’re doing
on my private property? . . . I haven’t done anything.” Id. at 157. Deputy
Newman grabbed Mr. George again and told him to stand next to a truck parked
nearby. Mr. George admits that he was standing so close to the patrol car that
Deputy Newman’s “right hand [was] on the window jamb of the [car] door” when
he grabbed Mr. George the second time. Id. at 164. Mr. George complied at this
point and walked toward the truck.
Chief Kampbell eventually arrested Richard and took him to jail. After
Chief Kampbell had left, Deputy Newman walked toward Mr. George and told him
that “we’re [i.e., the officers are] done here.” Id. at 161. The two men shook
hands, and Deputy Newman drove away.
3
On November 21 or 22, 2014, Mr. George met with two attorneys at his
home to discuss a possible suit against Deputy Newman. Mr. George eventually
filed suit in federal district court against Deputy Newman and Sheriff Blackburn,
amending his initial complaint twice. In his second amended complaint—which is
the operative one here—Mr. George alleged that Deputy Newman (1) used
excessive force, (2) retaliated against him in violation of his First Amendment
free-speech rights, (3) retaliated against him in violation of his First Amendment
right to petition the government, and (4) committed unlawful battery under
Wyoming state law. The two First Amendment claims were originally based on a
few threatening late-night phone calls that Deputy Newman allegedly made to Mr.
George in September and October 2014. Mr. George claimed that those calls were
meant to “threaten[] [him] for reporting Newman’s use of excessive force” and to
“intimidate [him] so that he would not file a lawsuit against Newman.” Id. at 11.
The parties conducted discovery. In his deposition, Mr. George testified
that he received the threatening phone calls sometime in September or October
2014. He acknowledged that the first two were brief and any threats were not
explicit: “one of them said, ‘Ken.’ The other one said -- well, it just kind of went,
‘Uh[.]’” Id. at 253. But Mr. George said that “the third was pretty blatant”; the
caller stated, “We all get ours in the end.” Id. However, the phone records
available at the time did not show any late-night calls to Mr. George in September
or October 2014. Only later, after subpoenaing Mr. George’s phone provider a
4
few days after his deposition, did the parties see phone records for the months
after October 2014. Those new records showed one late-night phone call was in
fact made to Mr. George from an out-of-state caller at 2:07 a.m. on November 23,
2014.
By that time, Deputy Newman had moved for summary judgment on all of
Mr. George’s claims. Deputy Newman argued that he was entitled to qualified
immunity on the excessive-force claim, and that Mr. George’s First Amendment
retaliation claims failed because Mr. George could not prove that Deputy Newman
had ever called him. In response, Mr. George filed a brief with an attached
affidavit that referenced the November 23, 2014 phone call. The affidavit stated
that the caller had left an answering-machine message in which he “made
threatening comments to [Mr. George], causing [him] to believe that someone was
trying to intimidate” him into not filing a lawsuit. Id. at 303 (Aff. of Kenneth E.
George, filed Mar. 14, 2016). The affidavit also stated that Mr. George had
received “two other odd messages before then,” but both had been “very short”
and mostly unintelligible. Id. According to Mr. George, it was not until Deputy
Newman’s deposition that he “recognized [Deputy Newman’s voice] as being the
voice of the person who left the phone message” on November 23. Id.
Deputy Newman moved to strike Mr. George’s affidavit and the
supplemental phone records that showed the November 23, 2014 call. The district
court granted the motion. In doing so, it “agree[d] [that] the affidavit is an attempt
5
to create a sham issue of fact” as to whether Deputy Newman had made the
threatening phone calls to Mr. George. Id. at 426–27. The court pointed out that
the affidavit “only offer[ed] a new recollection of the third late-night phone call
that now more accurately fits with his phone records,” id. at 429, and that Mr.
George did “not even assert [he] was confused at the time of the deposition,” id.,
until he filed his response to Deputy Newman’s motion to strike, in which he
claimed that “his memory was refreshed regarding the timing of the phone calls
once he received and reviewed the supplemental phone record,” id. at 430. In
sum, the court granted the motion to strike, rejecting what it viewed as Mr.
George’s effort to create a sham fact issue to avoid summary judgment. And,
because the now-stricken affidavit was the only connection between the
supplemental phone records and the First Amendment retaliation claims, the court
excluded those records as irrelevant.2 Perceiving these retaliation claims to be
devoid of evidentiary support, the court entered judgment regarding them in favor
of Deputy Newman.
The district court also granted judgment to Deputy Newman regarding
Mr. George’s Fourth Amendment claim, finding that Deputy Newman’s use of
2
The court also found that, even if Mr. George’s account of the third
November phone call was accurate, the message that was supposedly delivered in that
call—i.e., “We all get ours in the end”—was not sufficient to give rise to First
Amendment violations because it would not have chilled a person of ordinary firmness
from continuing to engage in protected activity. Aplt.’s App. at 433.
6
force was objectively reasonable. The court also entered judgment against Mr.
George’s state-law battery claims with prejudice, pointing out that Wyoming
battery is not actionable when an officer uses objectively reasonable force on a
person.
On appeal, Mr. George challenges the district court’s rulings on all of his
claims.
II
We review de novo the district court’s grant of summary judgment. Water
Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). “The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED .
R. C IV . P. 56(a). We view the facts in the light most favorable to the nonmovant
and draw all reasonable inferences in his favor. See, e.g., Talavera ex rel.
Gonzalez v. Wiley, 725 F.3d 1262, 1267 (10th Cir. 2013).
A
In his summary-judgment motion, Deputy Newman raised a qualified-
immunity defense to Mr. George’s Fourth Amendment claim. Qualified immunity
protects governmental officials from liability for civil damages for conduct that
does not violate clearly established federal statutory or constitutional rights. See,
e.g., Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine also protects
those employees from the burdens of litigation. See, e.g., Allstate Sweeping,
7
LLCV v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013). When a defendant asserts a
qualified-immunity defense, the plaintiff must show (1) that the defendant violated
a federal right, and (2) that the right was clearly established at the time of the
challenged conduct. See, e.g., Quinn v. Young, 780 F.3d 998, 1004 (10th Cir.
2015). If a plaintiff fails to establish either prong, the defendants are entitled to
qualified immunity. Id.
We review qualified-immunity summary-judgment decisions differently
from other summary-judgment decisions. Cortez v. McCauley, 478 F.3d 1108,
1114 (10th Cir. 2007) (en banc). We “accept the plaintiff’s version of the facts,”
so long as that version “find[s] support in the record.” A.M. v. Holmes, 830 F.3d
1123, 1136 (10th Cir. 2016) (quoting Thomson v. Salt Lake City, 584 F.3d 1304,
1312 (10th Cir. 2009)); see also York v. City of Las Cruces, 523 F.3d 1205, 1201
(10th Cir. 2008) (“[W]hen opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it,
a court should not adopt that version of the facts[.]”) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007))).
In dismissing Mr. George’s excessive-force claim, the district court
addressed only the first prong of the qualified-immunity analysis—specifically,
whether a constitutional violation occurred at all. We also follow this path.
The central inquiry is whether Deputy Newman’s use of force was
“reasonable” under the Fourth Amendment. See, e.g., Graham v. Connor, 490
8
U.S. 386, 395 (1989) (“[A]ll claims that law enforcement officers have used
excessive force—deadly or not—in the course of an arrest, investigatory stop, or
other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment
and its ‘reasonableness’ standard . . . .”). We ask “whether the officers’ actions
were ‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Thomson, 584 F.3d
at 1313 (emphasis added) (quoting Graham, 490 U.S. at 397).
In evaluating the reasonableness of an officer’s actions, we “balance . . . the
nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.” Cavanaugh v. Woods
Cross City, 625 F.3d 661, 664 (10th Cir. 2010) (quoting Graham, 490 U.S. at 396).
In doing so, we consider the totality of the circumstances, examining factors
including the three that the Supreme Court in Graham highlighted: “the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Thomson, 584 F.3d at 1313 (quoting Graham, 490 U.S. at
396). We underscore that our inquiry is not limited, however, to these three
Graham factors. See Graham, 490 U.S. at 396 (“[P]roper application requires
careful attention to the facts and circumstances of each particular case.”); Estate of
Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (“We
assess objective reasonableness based on ‘whether the totality of the circumstances
9
justified the use of force,’ and ‘pay careful attention to the facts and circumstances
of the particular case.’” (quoting Sevier v. City of Lawrence, 60 F.3d 695, 699
(10th Cir. 1995))).
We weigh the totality of the circumstances from the perspective of a
reasonable officer on the scene. See, e.g., Cavanaugh, 625 F.3d at 664–65 (stating
that totality-of-the-circumstances test does not rely on “the 20/20 vision of
hindsight”) (quoting Graham, 490 U.S. at 396). We also understand that “officers
may have ‘to make split-second judgments in uncertain and dangerous
circumstances.’” Thomson, 584 F.3d at 1313 (quoting Phillips v. James, 422 F.3d
1075, 1080 (10th Cir. 2005)). And, relatedly, we acknowledge that “the Fourth
Amendment ‘does not require [police officers] to use the least intrusive means in
the course of a detention.’” Marquez v. City of Albuquerque, 399 F.3d 1216, 1222
(10th Cir. 2005) (quoting United States v. Melendez-Garcia, 28 F.3d 1046, 1052
(10th Cir. 1994)).
In challenging the district court’s Fourth Amendment ruling, Mr. George
repeatedly objects to the district court’s characterization of certain facts in the
summary-judgment record. Specifically, he contends that the district court erred
by viewing the evidence in the light most favorable to Deputy Newman and that
the district court treated disputed facts as undisputed. Since our review is de novo,
we generally “need not separately address such arguments” and may proceed to the
merits at the heart of the matter. See, e.g., Rivera v. City & Cty. of Denver, 365
10
F.3d 912, 920 (10th Cir. 2004) (“Because our review is de novo, we need not
separately address Plaintiff’s argument that the district court erred by viewing
evidence in the light most favorable to the City and by treating disputed issues of
fact as undisputed.”). However, our summary-judgment analysis would benefit
from addressing at the outset some of Mr. George’s more salient factual
contentions because we conclude that they are “blatantly contradicted by the
record.” Scott, 550 U.S. at 380; accord Henderson v. Glanz, 813 F.3d 938, 950
(10th Cir. 2015).
For instance, Mr. George argues that he did not approach Deputy Newman’s
car, as the district court had found. Instead, Mr. George claims that Deputy
Newman “slid into the yard of [Mr. George] and stopped next to [Mr. George].”
Aplt.’s Opening Br. at 20 n.14. However, Mr. George himself testified that he was
“walking towards [Deputy Newman] the whole time,” and that after Deputy
Newman came “sliding into [his] yard, [he] was walking up to the front of the
car.” Aplt.’s App. at 156. And he testified that Deputy Newman had not pulled up
beside him; rather, “[he] was walking up to [Deputy Newman]” when Deputy
Newman got out of his car. Id. at 159. Since Mr. George’s own testimony
contradicts his briefing assertion that he did not approach Deputy Newman’s car,
we cannot accept this account as true. See, e.g., A.M., 830 F.3d at 1136 (noting
that we “accept the plaintiff’s version of the facts,” so long as that version “find[s]
support in the record”).
11
Mr. George also argues that he was not visibly upset when Deputy Newman
arrived. But the record belies this assertion. Indeed, Mr. George’s own deposition
testimony makes it clear that he was visibly angry about something when Deputy
Newman arrived. As explicated infra, it ultimately does not matter what caused
Mr. George to be angry, but the circumstances unfolding at the scene validate that
he in fact was visibly angry. Mr. George’s anger may have stemmed from his
brother getting into trouble and cooperating with Chief Kampbell’s drunk-driving
investigation, or from Deputy Newman’s fast driving, or—quite likely—from both.
In any event, his anger was noticeable.
In this regard, Mr. George testified that he was “P.O.’d at [his] brother” and
“upset that he would create a situation like that for himself again.” Aplt.’s App. at
231. He testified that, when Richard admitted to Chief Kampbell that he’d been
drinking, Mr. George “put [his] hands up in the air and walked back towards [his]
house . . . shaking [his] head.” Id. at 154. Mr. George also was apparently upset
at Deputy Newman for the fast manner in which he drove down the road. Mr.
George described Deputy Newman’s driving as reckless and dangerous. He said
that he only started walking “[w]hen I seen [sic] [Deputy Newman] come racing”
down Richardson Avenue and saw “what he was doing.” Id. at 162, 163.
And then I looked up the street, and here -- I don’t understand
why they do that, because there wasn’t anything going on, but he
was speeding down the street where kids play. I was the one that
had the signs to slow the heck down because kids are playing, and
they’re posted along there. . . . Because I didn’t want anybody
12
speeding down that street because all the kids that play in that
street.
....
But anyway, here [Richard] is in handcuffs, and I looked up the
street, and I noticed a Sheriff come blasting down the street with
his lights on. Pulls up, slides into my yard. His car wasn’t all the
way in it, but his front wheel and part of the front of the car was
on my property. . . . And I was walking towards him the whole
time. I was walking towards him, watching him come down the
street. And I was -- Why is he -- what? There’s no accident
around here. My brother’s in handcuffs. I haven’t been accosting
anybody or saying anything. I said that one thing to my brother,
and that was it. Next thing we know, he comes sliding into my
yard, and I was walking up to the front of the car, and I said,
“Hey, what’s up?”
Id. at 237–38. Mr. George acknowledged that he typically has become angry
whenever he sees somebody speeding down Richardson Avenue. He conceded
that, “[n]ormally, [he] throw[s] rocks at people,” even his “own neighbors if
they’re speeding,” and said that he “just get[s] upset when [he] think[s] about
that.” Id. at 162–63. So given his testimony about Deputy Newman—whom he
described as “racing,” “speeding,” and “blasting” down Richardson Avenue in his
patrol car—the record strongly suggests that Mr. George also was visibly upset at
Deputy Newman’s fast-paced travel down Richardson Avenue.
At bottom, the source of Mr. George’s anger is not the material point. What
matters is whether the record clearly establishes that he was visibly upset about
13
something when he approached Deputy Newman’s patrol car.3 This objective
circumstance would not have been lost on a reasonable officer present at the scene.
See, e.g., Cavanaugh, 625 F.3d at 664–65 (noting that our excessive-force analysis
requires us to adopt the perspective of a reasonable officer on the scene).
Substantially through Mr George’s own testimony we may conclude that the record
does clearly establish this fact. And the deposition testimony of Deputy Newman
and Chief Kampbell bolsters this conclusion. Deputy Newman said that Mr.
George was pacing, and that from his body language, Mr. George looked like “a
man that was upset about something.” Aplt.’s App. at 72 (Dep. of Darold
Newman, dated Feb. 11, 2016). Chief Kampbell said that Mr. George
“immediately started yelling” when Chief Kampbell arrested Richard, and that Mr.
George was “pacing and yelling” throughout the episode. Id. at 61, 62 (Dep. of
Christopher Kampbell, dated Feb. 11, 2016).
With these salient factual contentions addressed, we turn to the central legal
question regarding the Fourth Amendment claim: whether Deputy Newman’s use
of force was reasonable. We answer that question in the affirmative. Responding
3
Mr. George repeatedly argues that there is no evidence to show that
he was in fact angry at Deputy Newman during the encounter. See, e.g., Aplt.’s
Reply Br. at 2 (“Newman presents no undisputed material evidence that George
was angry at Newman at any time before Newman used force on him.”). But, as
noted supra, this point is immaterial. We are concerned with the objective
circumstances that would have been within the ken of a reasonable officer at the
scene, not with Mr. George’s subjective state of mind (e.g. the actual source of Mr.
George’s anger).
14
to a call for backup, Deputy Newman approached the scene in his patrol car.
Before he could exit the vehicle and determine what assistance Chief Kampbell
required, a visibly upset man—Mr. George—walked towards his vehicle, stood
next to the driver’s side door, and started questioning him. Under these
circumstances, it was not unreasonable for Deputy Newman to do what he did: to
get out of his vehicle, firmly move the man away from the vehicle, and try to
establish control of the situation by directing the man to stand back. And when
Mr. George did not immediately comply with Deputy Newman’s direction and,
according to Mr. George’s own testimony, became confrontational, it was not
unreasonable for Deputy Newman to grab Mr. George’s arm and move him away.
Arguing to the contrary, Mr. George contends that the Graham factors cut in
his favor: specifically, Mr. George notes that he had committed no crime, was not
a threat to the officers or to other people, and was not resisting arrest or trying to
flee. See Graham, 490 U.S. at 396. But we must use the perspective of a
reasonable officer in Deputy Newman’s position. See Cavanaugh, 625 F.3d at
664–65. From that perspective, at the very least, it would not have been clear to
such a reasonable officer that Mr. George was not a threat to the officers or other
people. In this regard, the district court correctly observed: “A reasonable officer
would have reason to be concerned for his own safety as well as the safety of
others. One of the purposes of calling for backup is to ensure the initial officer is
safe and the scene is secure and bystanders are controlled.” Aplt.’s App. at 438.
15
And it would be improper for us to engage in a “retrospective inquiry” into
whether Deputy Newman used the least forceful means possible to address this
potential threat. Jiron v. City of Lakewood, 392 F.3d 410 (10th Cir. 2004)
(“Perhaps the situation might have been more peacefully resolved had Officer
Halpin waited for backup to arrive. We cannot answer that question, nor is this
kind of retrospective inquiry relevant.”); see Marquez, 399 F.3d at 1222 (noting
that “the Fourth Amendment does not require [police officers] to use the least
intrusive means in the course of a detention” (quoting Melendez-Garcia, 28 F.3d at
1052)).
Moreover, even though Deputy Newman had no reason to believe that Mr.
George had committed a crime, an officer in his position who was responding to a
call for backup ordinarily would have been entitled to use some force against a
non-suspect to secure the scene of an investigation and ensure his own safety. See
Walker v. City of Orem, 451 F.3d 1139, 1149 (10th Cir. 2006) (“The Supreme
Court has recognized that detention or control of both suspects and non-suspects
may be necessary to insure officer safety and to maintain the officers’ control over
a crime scene.”). To be sure, this first Graham factor regarding the severity of the
crime at issue would typically weigh in favor of only a modest degree of force
when the individual subjected to the force had committed no crime. But Deputy
Newman could have reasonably believed that his shoving and grabbing Mr. George
qualified as such modest force under the circumstances present here.
16
In sum, having considered the totality of the circumstances, we conclude
that Deputy Newman applied a reasonable amount of force to Mr. George—viz.,
his application of force to him was not excessive. Accordingly, Deputy Newman
did not violate Mr. George’s Fourth Amendment rights and is entitled to qualified
immunity.
B
In attacking the district court’s resolution of his First Amendment retaliation
claims, Mr. George contests the court’s decision to strike his March 14, 2016
affidavit. Recall that the court did so on the grounds that Mr. George was
attempting to create a sham issue of material fact in order to defeat Deputy
Newman’s summary-judgment motion. He also argues that the court’s related
decision to exclude the supplemental phone records was erroneous. We need not,
however, reach these contentions of error. Irrespective of whether the district
court erred regarding these matters, we conclude that Mr. George has failed to
state viable First Amendment retaliation claims. Put another way, even if we
factored Mr. George’s affidavit and the supplemental phone records into the
summary-judgment calculus, Mr. George could not prevail on his First
Amendment retaliation claims. Therefore, any error by the district court regarding
these matters would be harmless.
When a government defendant is neither the plaintiff’s employer nor a party
to a contract with the plaintiff, a plaintiff bringing a First Amendment retaliation
17
claim must show three elements: (1) that the plaintiff was engaged in
constitutionally protected activity, (2) that the defendant’s actions caused the
plaintiff to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity, and (3) that the defendant’s adverse action
was substantially motivated by the plaintiff’s exercise of constitutionally protected
conduct. See, e.g., Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007);
Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000).
In his second amended complaint and his March 14 affidavit, Mr. George
described the following circumstances regarding his First Amendment retaliation
claims:
! Mr. George met with his attorneys on November 21 or 22, 2014 to
discuss filing a lawsuit against Deputy Newman. Aplt.’s App. at 302.
! Then, at 2:07 a.m. on November 23, 2014, someone called his home
and left a message with a cryptic warning that “[w]e all get ours in
the end.” Id. at 173; see id. at 303.
! Mr. George says that it was not until months later, at Deputy
Newman’s deposition, that he became aware that it was Deputy
Newman who placed the November 23 call. See id. at 303.
! Mr. George also averred that “he had received two other odd
messages on my phone prior to that one, but they had been very short,
with a man saying, ‘Ken’ on one and ‘ugh’ on the other.” Id.
18
It is axiomatic that we can affirm on any ground supported by the record.
See, e.g., Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (“We have
discretion to affirm on any ground adequately supported by the record.”); accord
Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1088 (10th Cir.
2006). With this proposition in mind, we conclude that, even accepting the truth
of Mr. George’s allegations and taking into account the supplemental phone
records, Mr. George cannot prevail on his First Amendment retaliation claims
because he has not demonstrated that Deputy Newman made any call—including
the more explicit November 23 call—because of Mr. George’s protected activity,
specifically, his meeting with his attorneys. Nothing in the record suggests that
Deputy Newman even knew about Mr. George’s attorney meeting on November 21
or 22, 2014. Even if the November 23 caller was Deputy Newman, his message
did not mention anything about lawyers, lawsuits, or a potential legal action
against him. Simply put, there is no evidence that shows a connection between
any of the alleged phone calls to Mr. George and his meeting with his lawyers—let
alone evidence that the alleged calls were “substantially motivated” by this
meeting. Shero, 510 F.3d at 1203.
To be sure, Mr. George argues that the timing of the November 23 call is
enough to show such a causal connection. But temporal proximity alone is not
enough to make out a First Amendment retaliation case at the summary-judgment
stage. See, e.g., Trant v. Okla., 754 F.3d 1158, 1170 (10th Cir. 2014)
19
(“[T]emporal proximity between the protected speech and the alleged retaliatory
conduct, without more, does not allow for an inference of a retaliatory motive.”);
accord Couch v. Bd. of Trustees, 587 F.3d 1223, 1236 (10th Cir. 2009); Baca v.
Sklar, 398 F.3d 1210, 1221 (10th Cir. 2005). Instead, a plaintiff has to show
“some facts [that] demonstrate the defendants ‘acted on the basis of a culpable
subjective state of mind’ to satisfy the third [causation] step.” Trant, 754 F.3d at
1170 (quoting McCook v. Spriner Sch. Dist., 44 Fed. App’x 896, 905 (10th Cir.
2002)). Mr. George has not demonstrated such facts, so he cannot put forward
viable First Amendment retaliation claims. We affirm the district court’s grant of
summary judgment on these claims.
C
The district court granted summary judgment on Mr. George’s battery claim
on state-law grounds. Specifically, the court held that Wyoming only allows
battery claims to proceed when an officer’s use of force is excessive. See, e.g.,
Kimbley v. City of Green River, 663 P.2d 871, 888 (Wyo. 1983) (“There is no
evidence of any actionable assault and battery on the appellants. . . . Many, if not
most, arrests are bound to involve some touching, but this does not become
actionable unless excessive, of which courts will then take[] cognizance.”).
Mr. George argues that the district court erred in dismissing his claim with
prejudice. He contends that the court should have dismissed the claim without
prejudice so that he could pursue it in state court. We agree. We have held that
20
“[i]f federal claims are dismissed before trial, leaving only issues of state law, ‘the
federal court should decline the exercise of jurisdiction by dismissing the case
without prejudice.’” Brooks v. Gaenzle, 614 F.3d 1213, 1229–30 (10th Cir. 2010)
(quoting Bauchman v. W. High Sch., 132 F.3d 542, 549 (10th Cir. 1997)).
Whenever a district court dismisses a state-law claim with prejudice before trial,
we typically reverse and remand with instructions to dismiss without prejudice.
See, e.g., Estate of Reat v. Rodriguez, 824 F.3d 960, 967 (10th Cir. 2016);
Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d 1073, 1086 (10th Cir. 2011); Brooks,
614 F.3d at 1229.
We adopt this approach here. We reverse the district court’s ruling on Mr.
George’s state-law battery claim and remand with instructions to dismiss the claim
without prejudice.
III
For the foregoing reasons, we affirm the district court’s rulings on Mr.
George’s federal claims. But we reverse the court’s order resolving Mr. George’s
Wyoming state-law claim with prejudice and remand with instructions to dismiss
that claim without prejudice.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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George v. Newman
Combined Opinion