Moss v. Kopp

FILED
United States Court of Appeals
Tenth Circuit

March 18, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUSAN I. MOSS and JAMAL S.
YANAKI,

Plaintiffs-Appellants,

v.
No. 07-4098
HEINZ KOPP; KENDRA HERLIN;
AARON D. KENNARD, solely in his
capacity as Sheriff of Salt Lake
County; and SALT LAKE COUNTY,

Defendants-Appellees.

Appeal from the United States District Court for the District of Utah,
Central Division
(D.C. No. 2:06-CV-00317-TC)

Roger H. Hoole (Gregory N. Hoole with him on the briefs), Hoole & King, L.C., Salt
Lake City, Utah, for Plaintiffs-Appellants.

T.J. Tsakalos, Deputy District Attorney, Salt Lake City, Utah, for Defendants-
Appellees.

Before LUCERO, HOLLOWAY, and EBEL, Circuit Judges.

HOLLOWAY, Circuit Judge.
 Plaintiffs-appellants Jamal Yanaki and Susan Moss brought this 42 U.S.C.

§ 1983 civil rights action against two Salt Lake County sheriff’s deputies, the Salt

Lake County Sheriff, and Salt Lake County. Yanaki and Moss allege that the

sheriff’s deputies participated in an illegal search of Yanaki’s residence pursuant to

court orders issued in a civil case in which Yanaki was a defendant.

All four defendants moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6),

variously arguing that collateral estoppel applied or, alternatively, they were entitled

to quasi-judicial or qualified immunity. The district court held that collateral

estoppel did not apply but all the defendants were nevertheless entitled to quasi-

judicial immunity, and dismissed the claims against the defendants for failure to state

a claim. Moss v. Kopp, 505 F. Supp. 2d 1120 (D. Utah 2007). This timely appeal

ensued, and we have jurisdiction pursuant to 28 U.S.C. § 1291. The central question

before this court is whether the judge below erred in dismissing the § 1983 claims.

I. BACKGROUND 1

Several years ago Yanaki was a defendant before a Utah district court in an

unrelated civil case filed by a corporation named Iomed. During that action the

judge in that case issued two orders, the execution of which by Utah law enforcement

1
These facts are taken from the Amended Complaint of Yanaki and Moss.
See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“In
reviewing a [Fed. R. Civ. P. 12(b)(6)] dismissal, a court must accept as true all
well-pleaded facts, as distinguished from conclusory allegations, and those facts
must be viewed in the light most favorable to the non-moving party.”).

2
forms the basis of the claims in this case. 2

On Monday, April 15, 2002, Heinz Kopp, a Salt Lake County sheriff’s deputy,

and a private attorney 3 appeared at the home of Yanaki and Moss with a court order

captioned “Order Allowing Immediate Discovery to Prevent the Destruction or

Alteration of Evidence” (Discovery Order). The Discovery Order was obtained from

Judge Medley, a Utah state district court judge, upon an ex parte motion by the

plaintiffs in the Utah case, and it directed law enforcement to take custody of various

property at Yanaki’s home address. 4 Yanaki was not then at his house. After

2
Although neither of the orders were included as an exhibit to the Amended
Complaint, these documents were properly considered by the district court and may
likewise be considered by this court because they were referred to in the Amended
Complaint, are central to the plaintiffs’ claims, and their authenticity has not been
disputed by any of the parties. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,
1215 (10th Cir. 2007) (explaining that, notwithstanding the usual rule that a court
should consider no evidence beyond the pleadings on a Rule 12(b)(6) motion to
dismiss, the district court may consider documents referred to in the complaint if the
documents are central to the plaintiff’s claim and the parties do not dispute the
documents’ authenticity).
3
As noted by the district court, the Amended Complaint does not give the
name of the “private attorney.” Moss v. Kopp, 505 F. Supp. 2d 1120, 1122 n.3
(D. Utah 2007).
4
The Discovery Order was dated April 12, 2002, and states, in relevant part:

1. Because of the limited relief sought by this motion and the
possibility that evidence may be destroyed or altered upon notice of this
action, it is appropriate for the Court to hear and issue this order ex
parte.
....
3. The Salt Lake County Sheriff’s Office . . . is directed, with
the assistance of Iomed, to execute this Order at the residence [of
(continued...)

3
reading portions of the order, Moss advised Kopp that Yanaki was not home and that

she would not allow them into her house without him being present. The private

attorney then stated that “[w]e can come in now, or we can come in later,” and Kopp

stated that “[w]e can kick in this door.” The attorney told Moss that he was going

to obtain a further civil order and left, while Kopp remained at the home.

The private attorney returned with another order captioned “Supplemental

Order in Aid of Enforcement” (Supplemental Order). 5 Kopp threatened to detain

Moss if she interfered, and Moss stepped aside as Kopp and three other individuals

4
(...continued)
Yanaki] and to do the following:
(a) take custody of each of the hard drives in one or more
computers, of other electronic storage media, including specifically but
not limited to ZIP drives and CD ROMS, and of the electronic day
planner (a Palm Pilot) in the possession, custody or control of
Defendant Jamal Yanaki [at Yanaki’s residence];
(b) supervise the copying of information from the [above
property]
by the computer expert provided by Iomed and to return such copy to
Yanaki;
(c) file the original [property] under seal with the Court . . . .

5
The Supplemental Order was dated April 15, 2002, and in relevant part
states:

In furtherance and enforcement of the [Discovery Order], the Salt
Lake County Sheriff’s Office is hereby directed and authorized to enter
the residence and home address of Defendant Jamal Yanaki . . . and use
reasonable force, if necessary and appropriate under the circumstances,
to execute the [Discovery Order], including entering through unlocked
doors, conducting a search of the premises, and detaining any person
who resists enforcement of the [Discovery Order].

4
entered the house. Another sheriff’s deputy, Kendra Herlin, later arrived and also

threatened to detain Moss if she attempted to interfere. Kopp then took property

belonging to Yanaki, Moss, and others to a private citizen’s place of business.

After the search, Yanaki and Moss filed a civil rights suit under 42 U.S.C.

§ 1983 against Iomed (the plaintiff in the underlying Utah state case) and several

private citizens, alleging that the search of their residence violated their rights under

the United States Constitution. See Yanaki v. Iomed, 415 F.3d 1204, 1205 (10th Cir.

2005), cert. denied, 547 U.S. 1111 (2006). This court affirmed the district court’s

grant of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) because we held

that “[t]he involvement of the police in executing the court-ordered search, without

more, does not convert [the private defendants’] abuse of state law into conduct

attributable to the state for purposes of § 1983 liability,” and “[b]ecause [Yanaki and

Moss] allege nothing more than ‘private misuse’ of state laws, their complaint

[therefore] fails to satisfy the first part of the color of law test.” Id. at 1209–10.

After losing that appeal, Yanaki and Moss filed this § 1983 civil rights action

in the federal district court for the District of Utah against the sheriff’s deputies,

Kopp and Herlin, the Salt Lake County Sheriff, Aaron Kennard, and Salt Lake

County itself. The defendants each moved for dismissal, variously arguing that: (1)

the suit is barred by collateral estoppel, (2) the deputies involved in the alleged

search and seizure are protected by quasi-judicial immunity, and (3) the deputies’

conduct is protected by qualified immunity. The district court determined that

5
collateral estoppel was not applicable, but further held that the defendants were

entitled to dismissal on quasi-judicial immunity grounds. Yanaki and Moss

appealed, and we now address the district court’s dismissal.

II. STANDARD OF REVIEW

We review a dismissal under Fed. R. Civ. P. 12(b)(6) de novo. Schneider, 493

F.3d at 1177. In reviewing a dismissal, we must accept as true all well-pleaded facts,

as distinguished from conclusory allegations, and those facts must be viewed in the

light most favorable to the non-moving party. Shero, 510 F.3d at 1200. Our inquiry

is whether the complaint contains enough facts to state a claim for relief that is

plausible on its face. Schneider, 493 F.3d at 1177. “Thus, the mere metaphysical

possibility that some plaintiff could prove some set of facts in support of the pleaded

claims is insufficient; the complaint must give the court reason to believe that this

plaintiff has a reasonable likelihood of mustering factual support for these claims.”

Id.

III. DISCUSSION

A. Collateral Estoppel/Issue Preclusion

The first issue in this appeal is whether the defendants–appellees are entitled

to an affirmance of the complaint’s dismissal on the basis of collateral estoppel. 6

6
Yanaki and Moss assert that because the appellees did not file a notice of
appeal with regard to the collateral estoppel issue the appellees have now waived
the opportunity to have this issue resolved by this court. However, the appellees,
who prevailed below, need not file a cross-appeal to defend the district court’s
(continued...)

6
Collateral estoppel, or issue preclusion, 7 is designed to prevent needless relitigation

and bring about some finality to litigation. United States v. Botefuhr, 309 F.3d 1263,

1282 (10th Cir. 2002). Collateral estoppel bars a party from relitigating an issue

once it has suffered an adverse determination on the issue, even if the issue arises

when the party is pursuing or defending against a different claim. Park Lake Res.

Ltd. Liab. Co. v. USDA, 378 F.3d 1132, 1136 (10th Cir. 2004).

Collateral estoppel will bar a claim if four elements are met: (1) the issue

previously decided is identical with the one presented in the action in question, (2)

the prior action has been finally adjudicated on the merits, (3) the party against

whom the doctrine is invoked was a party or in privity with a party to the prior

adjudication, and (4) the party against whom the doctrine is raised had a full and fair

opportunity to litigate the issue in the prior action. Frandsen v. Westinghouse Corp.,

6
(...continued)
granting of their motions to dismiss, which included the appellees’ collateral
estoppel argument. See Washington v. Confederated Bands & Tribes of the
Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979) (“As the prevailing party,
the appellee was of course free to defend its judgment on any ground properly
raised below whether or not that ground was relied upon, rejected, or even
considered by the District Court or the Court of Appeals.”); United States v. Am.
Ry. Express Co., 265 U.S. 425, 435 (1924) (“But it is likewise settled that the
appellee may, without taking a cross-appeal, urge in support of a decree any
matter appearing in the record, although his argument may involve an attack upon
the reasoning of the lower court or an insistence upon a matter overlooked or
ignored by it.”).
7
The terms “collateral estoppel” and “issue preclusion” are used
interchangeably. Murdock v. UTE Indian Tribe of Uintah & Ouray Reservation,
975 F.2d 683, 686 n.4 (10th Cir. 1992).

7
46 F.3d 975, 978 (10th Cir. 1995). 8 The only element that is reasonably in question

is the first element–whether the issue decided in Yanaki is identical with the one

presented in the action in question.

In Yanaki, Yanaki and Moss sued various private parties (not the state

defendants in this case) under § 1983. 415 F.3d at 1205. As the Supreme Court has

8
Elements two, three, and four are established in this case. First, Yanaki
was finally adjudicated on the merits because this court decided the case on
appeal and our decision to affirm the dismissal was dependent on the fact that
Yanaki and Moss did not satisfy the color of law test against the Yanaki private
defendants. See Yanaki, 415 F.3d at 1210 (“Plaintiffs fail to satisfy the first part
of the color of law test because the conduct that Plaintiffs complain deprived
them of their constitutional rights was caused by and can only be attributed to the
private Defendants.”); Murdock, 975 F.2d at 687 (“To be considered adjudicated
on the merits, the previous adjudication must be necessary to the judgment.”).
Second, Yanaki and Moss were the plaintiffs in Yanaki and are the parties
against whom the doctrine is invoked here. See Frandsen, 46 F.3d at 978
(explaining that collateral estoppel requires the party against whom the doctrine is
invoked to be a party or in privity with a party to the prior adjudication).
Finally, the only argument made by the appellants that a full and fair
opportunity was not available is that “one cannot assert a theory of liability
against a party that does not exist.” To the extent that the appellants mean to
argue that they did not have a “full and fair opportunity” solely because the
defendants in this case were not defendants in Yanaki, the argument is without
merit, as collateral estoppel merely requires that the party against whom the
doctrine is invoked be a party in the prior case. See id. at 978.
Neither are any of the other factors that we use to determine if a full and
fair opportunity was present applicable. See Burrell v. Armijo, 456 F.3d 1159,
1172 (10th Cir. 2006), cert. denied, 127 S. Ct. 1132 (2007) (explaining that
whether there were significant procedural limitations in the prior proceeding,
whether the party had the incentive to litigate the issue fully, and whether
effective litigation was limited by the nature or relationship of the parties are
relevant factors for the full and fair opportunity element). Therefore this element
is established. See Frandsen, 46 F.3d at 979 (holding that there was no question
that the full and fair opportunity element was met where there was no indication
that such an opportunity was unavailable).

8
explained, § 1983 “provides that ‘[every] person’ who acts ‘under color of’ state law

to deprive another of constitutional rights shall be liable in a suit for damages.”

Tower v. Glover, 467 U.S. 914, 919 (1984) (quoting 42 U.S.C. § 1983). As this

statement makes clear, the party from whom damages are sought must have acted

under color of state law. Therefore, the relevant inquiry in Yanaki was whether the

private defendants (the only parties sued) acted under color of law.

We affirmed the dismissal of the complaint because we found that the

plaintiffs had failed to allege sufficiently that the private defendants had acted under

color of state law because the conduct of the private defendants in obtaining the

relevant court orders could not be attributed to the state so as to satisfy the first part

of the under-color-of-law test. See Yanaki, 415 F.3d at 1209–10 (holding that “[t]he

involvement of the police in executing the court-ordered search, without more, does

not convert [the private defendants’] abuse of state law into conduct attributable to

the state for purposes of § 1983 liability,” and “[b]ecause [Yanaki and Moss] allege

nothing more than ‘private misuse’ of state laws, their compliant fails to satisfy the

first part of the color of law test”); see also id. at 1211 (Holloway, J., dissenting) (“I

disagree with the Majority’s conclusion that Plaintiffs failed to sufficiently allege

concerted action between the private Defendants and the police in order to support

a finding that the Defendants were acting ‘under color of state law.’”); Yanaki v.

Iomed, Inc., 319 F. Supp. 2d 1261, 1265 (D. Utah 2004) (“Plaintiffs allege that [the

private] Defendants’ use of state discovery rules to obtain an order from a state court

9
judge permitting the search of their home and the seizure of Yanaki’s property

satisfies the first part of the test for fair attribution [to the state for purposes of

satisfying the requirement that the deprivation occur under color of state law].”).

The question here, however, is whether under the same facts the associated

state officials (defendants in this case) acted under color of law by their own

conduct, not whether the private parties acted under color of law by having their

conduct in obtaining the orders attributed to the state officials. In sum, we are

convinced that the issue in Yanaki is sufficiently different from the issue that is

raised in the instant suit so as to preclude the application of collateral estoppel here.

B. Quasi-judicial Immunity

The second issue in this appeal is whether the two sheriff’s deputies that

executed the disputed court orders are entitled to quasi-judicial immunity. We have

held that “[j]ust as judges acting in their judicial capacity are absolutely immune

from liability under section 1983, ‘official[s] charged with the duty of executing a

facially valid court order enjoy[] absolute immunity from liability for damages in a

suit challenging conduct prescribed by that order.’” Turney v. O’Toole, 898 F.2d

1470, 1472 (10th Cir. 1990) (quoting Valdez v. City & County of Denver, 878 F.2d

1285, 1286 (10th Cir. 1989)). 9 Absolute immunity for officials assigned to carry out

a judge’s orders is necessary to ensure that such officials can perform their function

9
The “absolute immunity” available to individuals executing a court order
is also sometimes alternatively referred to as “quasi-judicial immunity.” See
Turney, 898 F.2d at 1472.

10
without the need to secure permanent legal counsel. Guttman v. G.T.S. Khalsa, 446

F.3d 1027, 1033 (10th Cir. 2006); Valdez, 878 F.2d at 1288.

However, we have never held that “‘the unquestioning execution of a judicial

directive may never provide a basis for liability against a state officer.’” See Turney,

898 F.2d at 1474 (quoting Sebastian v. United States, 531 F.2d 900, 903 n.6 (8th Cir.

1976)). Rather, there are limits to how unlawful an order can be and still immunize

the officer executing it. Id. at 1474. Therefore, we have held that for the defendant

state official to be entitled to quasi-judicial immunity, the judge issuing the disputed

order must be immune from liability in his or her own right, the officials executing

the order must act within the scope of their own jurisdiction, and the officials must

only act as prescribed by the order in question. 10 Id. at 1472, 1474.

1. Judge Medley’s Immunity from Liability

We have explained that because quasi-judicial immunity derives from judicial

immunity, for quasi-judicial immunity to apply, the order must be one for which the

issuing judge is immune from liability, and therefore a state official is not absolutely

immune from damages arising from the execution of an order issued by a judge

acting in the “‘clear absence of all jurisdiction.’” Turney, 898 F.2d at 1474 (quoting

10
We have also indicated that where the defendants themselves, in bad faith,
obtain the order under which they claim immunity, that order will not provide the
same quasi-judicial immunity as an order which the defendant played no part in
procuring. Turney, 898 F.2d at 1473 n.3. However, it is undisputed that here the
defendants–appellees did not themselves obtain the order, but merely obeyed it.
They are therefore entitled to the normal degree of quasi-judicial immunity.

11
Stump v. Sparkman, 435 U.S. 349, 357 (1978)). But a judge does not act in the clear

absence of all jurisdiction even if the action he took was in error, was done

maliciously, or was in excess of his authority. Whitesel v. Sengenberger, 222 F.3d

861, 867 (10th Cir. 2000). A judge is immune from liability for his judicial acts

even if his exercise of authority is flawed by the commission of “‘grave procedural

errors.’” Id. (quoting Stump, 435 U.S. at 359).

The Supreme Court has explained that “the scope of the judge’s jurisdiction

must be construed broadly where the issue is the immunity of the judge,” and “the

necessary inquiry in determining whether a defendant judge is immune from suit is

whether at the time he took the challenged action he had jurisdiction over the subject

matter before him.” Stump, 435 U.S. at 356.

We believe that the Supreme Court’s decision in Stump v. Sparkman is

particularly cogent here. In Stump, the Court held that the Indiana circuit court judge

in that case did not act in the clear absence of all jurisdiction when he approved a

petition to sterilize a minor who later sued under § 1983 claiming that the

sterilization violated her constitutional rights. 435 U.S. at 351–53, 357. The Court

noted that it was significant that there was no Indiana statute and no case law

prohibiting a circuit court–a court of general jurisdiction–from considering a petition

of the type presented to the judge. Id. at 358. In addition, the Court explained that

even though under a relevant Indiana case a circuit judge would err as a matter of

law if he were to approve a parent’s petition seeking the sterilization of a child, the

12
case did not indicate that a circuit judge was without jurisdiction to entertain the

petition. Id. at 359. The Court explained that because the court over which the

judge presided was one of general jurisdiction, neither the procedural errors he may

have committed nor the lack of a specific statute authorizing his approval of the

petition in question rendered him liable in damages for the consequences of his

actions. Id. at 359–60. The Court further reasoned that the court of appeals’

statement that the action taken by the judge was “‘an illegitimate exercise of his

common law power because of his failure to comply with . . . procedural due

process’” misconceived the doctrine of judicial immunity, as a judge is immune from

liability for his judicial acts even if his exercise of authority is flawed by the

commission of grave procedural errors. Id. at 360 (quoting Sparkman v. McFarlin,

552 F.2d 172, 176 (7th Cir. 1977)).

Similarly, the Utah district court here is the court of general jurisdiction. See

U TAH C ODE A NN . § 78A-5-102(1) (2008) (“The district court has original jurisdiction

in all matters civil and criminal, not excepted in the Utah Constitution and not

prohibited by law.”). Even if Judge Medley’s approval of the motions that lead to

the two challenged court orders was error, even grave procedural due process error,

there is no indication under Utah law that Judge Medley was without subject matter

jurisdiction to entertain the motions. And since he was a judge of a court of general

jurisdiction, neither Judge Medley’s commission of error in granting the motions that

led to the two disputed orders, nor the apparent lack of a statute authorizing Judge

13
Medley’s approval of the motions leading to the orders, rendered his actions in “clear

absence of all jurisdiction.” Therefore, the district court here was correct to find this

aspect of the quasi-judicial immunity analysis satisfied.

2. The Court Orders’ Facial Validity

A key requirement that we have found necessary to the application of quasi-

judicial immunity where government officials are executing court orders is the

requirement that the order be “facially valid.” See Turney, 898 F.2d at 1472 (holding

that officials charged with the duty of executing a facially valid court order enjoy

absolute immunity). However, we have acknowledged that even assuming that an

order is infirm as a matter of state law, it may be facially valid, as “facially valid”

does not mean “lawful,” and erroneous orders can be valid. Id. at 1473. We

explained: “State officials ‘must not be required to act as pseudo-appellate courts

scrutinizing the orders of judges,’ but subjecting them to liability for executing an

order because the order did not measure up to statutory standards would have just

that effect.” Id. (quoting Valdez, 878 F.2d at 1289). Further, “[t]o allow plaintiffs

to bring suit any time a state agent executes a judicial order which does not fulfill

every legal requirement would make the agent ‘a lightning rod for harassing

litigation aimed at judicial orders.’” Id. (quoting Valdez, 878 F.2d at 1289). “Simple

fairness requires that state officers ‘not be called upon to answer for the legality of

decisions which they are powerless to control.’” Id. (quoting Valdez, 878 F.2d at

1289).

14
 We have also noted that a narrow conception of facial validity would deprive

the court of most of the benefit it derives from the existence of quasi-judicial

immunity for officers carrying out its orders because the unhesitating execution of

court orders is essential to the court’s authority and ability to function, and state

officers subject to litigation might neglect to execute these orders. Turney, 898 F.2d

at 1473. Even worse, “‘a fear of bringing down litigation on the [officer executing

the order] might color a court’s judgment in some cases.’” Id. (quoting Kermit

Constr. Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir. 1976)).

In short, “‘[t]he public interest demands strict adherence to judicial decrees.’” Id.

at 1473–74 (quoting Valdez, 878 F.2d at 1289).

Turning to the particulars of the case before us, a Utah sheriff’s deputy is

required to “obey [a court’s] lawful orders and directions” and “serve all process and

notices as prescribed by law.” U TAH C ODE A NN . § 17-22-2(1)(c), (k) (2008).

“Process” is defined to include “all writs, warrants, summonses and orders of the

courts of justice or judicial officers.” Id. § 17-22-1. Further, Kopp and Herlin may

have faced contempt if they had refused to execute the orders at issue in this case.

See id. § 78B-6-301(3), (5) (“The following acts or omissions in respect to a court

or its proceedings are contempts of the authority of the court: . . . (3) misbehavior

in office, or other willful neglect or violation of duty by [a] sheriff, or other person

appointed or elected to perform a judicial or ministerial service; . . . (5) disobedience

of any lawful judgment, order or process of the court . . . .”). A court order may be

15
unlawful or erroneous and yet still facially valid, and holding that the orders in this

case are facially valid, even if they were unlawful or erroneous, furthers the goals

this court sought to achieve by extending quasi-judicial immunity to officials

charged with executing court orders. If we were to hold these orders to be facially

invalid, state officials would be required to “‘act as pseudo-appellate courts

scrutinizing the orders of judges,’” which state officials such as these must not be

required to do. See Turney, 898 F.2d at 1473 (quoting Valdez, 878 F.2d at 1289).

Or worse, the officials may have to secure legal counsel to help them fulfil

that function–a result this court sought to avoid by extending quasi-judicial immunity

to this situation in the first place. See Valdez, 878 F.2d at 1288 (observing that

absolute immunity for officials assigned to carry out a judge’s orders is necessary

to ensure that such officials can perform their function without the need to secure

permanent legal counsel). Having to act as “pseudo-appellate courts,” and requiring

legal counsel to help them do so, is especially likely here, where there is a statute

directing the nonlawyer state official to execute judicial orders lest he or she be held

in contempt, and where nonlawyer sheriff’s deputies may already be accustomed to

receiving ex parte noncriminal orders to seize property. See Utah R. Civ. P. 64, 64B

(providing that a writ of replevin is available to compel delivery of property, that

“the writ may direct the officer to seize the property,” and describing procedures

when the writ is issued ex parte).

Further, we have deplored a “narrow conception” of facial validity, as it would

16
deprive the courts of most of the benefit they derive from the existence of quasi-

judicial immunity. Turney, 898 F.2d at 1473. This is especially likely here: if the

orders here were held facially invalid even though statutory law directs the officials

to execute such orders, thereby subjecting the deputies to potential liability, these

deputies and others like them may be much more reluctant to execute future orders

of the judiciary. See id. (explaining that state officers without quasi-judicial

immunity and subject to litigation might neglect to execute judicial orders). That is

unacceptable. “‘The public interest demands strict adherence to judicial decrees.’”

Id. (quoting Valdez, 878 F.2d at 1289).

Finally, as previously noted, a court order can be unlawful and yet still be

facially valid for purposes of quasi-judicial immunity. Turney, 898 F.2d at 1473.

Even if the court orders here are unlawful, several considerations demonstrate that

the orders did not reach the level of illegality necessary to render them facially

invalid for purposes of quasi-judicial immunity and to justify imposing liability on

the deputies: (1) Utah sheriff’s deputies–who do not have the benefit of a formal

legal education–are otherwise subject to being authorized to seize property in

noncriminal actions through writs of replevin; (2) we are pointed to no law totally

forbidding entry into a dwelling when executing a writ of replevin; 11 and (3) an order

11
Other states appear to authorize entry into a dwelling for purposes of
executing a writ of replevin. See, e.g., Consol. Edison Co. of New York, Inc. v.
Church of St. Cecilia, 480 N.Y.S.2d 284, 286 (N.Y. Civ. Ct. 1984) (explaining
that an order of seizure, formerly called an order of replevin, seeks a direction to
(continued...)

17
in a civil case that authorizes entry into a residence but does not meet warrant

requirements is not as clearly unlawful as a similar order in a criminal case, where

law enforcement officers are familiar with the requirements for legally obtaining

evidence. Therefore, we conclude that the court orders in this case meet the facial

validity requirement. 12

3. Actions Within the Scope of Jurisdiction

Quasi-judicial immunity will not attach to state officials acting outside the

scope of their jurisdiction. Turney, 898 F.2d at 1474. However, as explained above,

11
(...continued)
the sheriff to seize a chattel and, if necessary, to break into any place it is kept);
Durgin v. Cohen, 168 Minn. 77, 80 (Minn. 1926) (observing that court officers
had a right to take possession of property described in replevin papers, and also
had the right to enter the plaintiff’s place of abode for that purpose, provided they
could enter peaceably).
12
Plaintiffs–appellants’ reliance on Groh v. Ramirez is misplaced. That
case is distinguishable from the case before this court, and in any case, if it
applies, it only supports the application of quasi-judicial immunity here. First,
the defendants in that case raised only the defense of qualified immunity, not
quasi-judicial immunity, and therefore the Supreme Court did not have any
question of the applicability or scope of quasi-judicial immunity before it. Groh
v. Ramirez, 540 U.S. 551, 555–56 (2004). Also, that case involved a criminal
search warrant, not civil court orders aimed at preventing evidence manipulation.
Id. at 554.
Further, although the Groh Court found the criminal warrant in that case to
be facially invalid, it did so because the warrant failed to describe with
particularity the things to be seized “at all.” Id. at 557–58. However, the
Discovery Order at issue here described with particularity the things to be seized,
i.e., “hard drives in one or more computers, of other electronic storage media,
including specifically but not limited to ZIP drives and CD ROMS, and of the
electronic day planner (Palm Pilot) in the possession, custody or control of
Defendant Jamal Yanaki.”

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Utah statutory law directs sheriff’s deputies such as Kopp and Herlin to execute

judicial orders. U TAH C ODE A NN . §§ 17-22-1, -2(1)(c), (k) (directing a Utah

sheriff’s deputy to “obey [a court’s] lawful orders and directions” and “serve all

process and notices as prescribed by law,” and defining “process” to include “all

writs, warrants, summonses and orders of the courts of justice or judicial officers”).

Further, Kopp and Herlin may have faced contempt if they had refused to

execute the orders at issue in this case. See id. § 78B-6-301(3), (5) (“The following

acts or omissions in respect to a court or its proceedings are contempts of the

authority of the court: . . . (3) misbehavior in office, or other willful neglect or

violation of duty by [a] sheriff, or other person appointed or elected to perform a

judicial or ministerial service; . . . (5) disobedience of any lawful judgment, order

or process of the court . . . .”). Here Kopp and Herlin obeyed the statute and

executed Judge Medley’s orders. From the facts presented, it cannot be said that

they acted outside the scope of their jurisdiction.

4. Acts Prescribed by the Orders

Importantly, quasi-judicial immunity extends only to acts prescribed by the

judge’s order. Turney, 898 F.2d at 1474. Therefore, absolute immunity does not

protect defendants from damage claims directed not to the conduct prescribed by the

court order itself, but to the manner of the order’s execution. Martin v. Board of

County Comm’rs, 909 F.2d 402, 403–05 (10th Cir. 1990). In Valdez v. City and

County of Denver, this court explained that because the record viewed as a whole

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indicated that every action of the law enforcement officers to which the plaintiff

objected was taken under the direction of a state court judge, the law enforcement

officers qualified for quasi-judicial immunity. 878 F.2d at 1290.

However, in Turney v. O’Toole, we held that because the judge’s order only

decreed the plaintiff’s confinement and did not dictate any specific placement or

treatment within the hospital in which the plaintiff was to be confined, the

defendants were not absolutely immune from liability arising from the 17-year-old

plaintiff’s placement in a maximum security ward. 898 F.2d at 1472, 1474.

Here, Yanaki and Moss argue that the deputies exceeded Judge Medley’s

orders because (1) Kopp threatened to “kick in” Yanaki’s door, (2) Kopp and Herlin

threatened to detain Moss if she interfered, and (3) the deputies obtained property

that did not belong to Yanaki.

First, even though the court orders did not specifically authorize Kopp to

threaten to “kick in” Yanaki’s door, this single statement by Kopp is significantly

different from the conduct we have held exceeds a judicial order for the purpose of

this element of the quasi-judicial immunity analysis. In Turney, we held that the

defendants exceeded the judge’s order when they were directed to merely confine the

plaintiff at a hospital, and instead placed the plaintiff in a maximum security ward.

898 F.2d at 1472, 1474. Incorrectly placing someone in a maximum security ward

when only directed to confine the person in a hospital appears excessive. However,

the single statement by Kopp in this case (which did not even immediately prompt

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Moss to allow Kopp to enter Yanaki’s home, as she did not permit Kopp to enter

until after the private attorney returned with the supplemental order), made while

Kopp was directed to obtain property from Yanaki’s residence, cannot be said to be

similarly excessive for purposes of quasi-judicial immunity.

Second, the threats made by Kopp and Herlin to detain Moss if she interfered

were made after the private attorney returned to Yanaki’s residence with the

Supplemental Order, which specifically authorized the deputies to “detain[] any

person who resists enforcement of the [Discovery Order].” Therefore, the deputies

were merely making Moss aware of what the Supplemental Order authorized, and it

was prudent to do so.

Finally, Kopp and Herlin did not exceed the court orders even if they

inadvertently obtained property that was not “owned” by Yanaki, because the

Discovery Order specifically directed the Salt Lake County Sheriff’s Office to take

custody of property “in the possession, custody, or control” of Yanaki–not merely

property “owned” by Yanaki. Yanaki and Moss allege that Kopp and Herlin obtained

the property from Yanaki’s home, but they do not allege any facts indicating that

even though the property obtained was in Yanaki’s home, it was still not in his

“possession, custody, or control.” Further, Yanaki and Moss do not allege that

property not meeting the description of the property in the Discovery Order was

taken by the deputies. Under these facts, Kopp and Herlin did not exceed either the

Discovery Order or the Supplemental Order.

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 C. Claims Against the Sheriff and Salt Lake County

The final issue we must address is whether Yanaki and Moss have sufficiently

alleged § 1983 claims against Kennard (the sheriff of Salt Lake County who is being

sued solely in his official capacity), 13 and Salt Lake County.

Municipal entities and local governing bodies are not entitled to the traditional

common law immunities for § 1983 claims. Whitesel, 222 F.3d at 870. That is,

unlike various government officials, municipalities (e.g., local officials in their

official capacity and counties, among others) do not enjoy absolute immunity from

suit under § 1983. Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 165–66 (1993).

To establish a claim for damages under § 1983 against municipal entities or

local government bodies, the plaintiff must prove (1) the entity executed a policy or

custom (2) that caused the plaintiff to suffer deprivation of constitutional or other

federal rights. Whitesel, 222 F.3d at 870. That is, “‘a municipality cannot be held

liable under § 1983 on a respondeat superior theory.’” Leatherman, 507 U.S. at 166

(quoting Monell, 436 U.S. at 691).

More specifically, we have recognized that a municipality can be liable under

13
The Supreme Court has determined that an official-capacity suit brought
under § 1983 “‘generally represent[s] only another way of pleading an action
against an entity of which an officer is an agent,’” and as long as the government
entity receives notice and an opportunity to respond, an official-capacity suit is,
in all respects other than name, to be treated as a suit against the entity. Kentucky
v. Graham, 473 U.S. 159, 161, 165–66 (1985) (quoting Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978)).

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§ 1983 if the “final policymaker” takes the unconstitutional action. Melton v. City

of Oklahoma City, 879 F.2d 706, 724 (10th Cir. 1989), rev’d en banc in part on other

grounds, 928 F.2d 920 (10th Cir. 1991). We have also acknowledged two situations

where municipal liability may be found even though the action is taken by an

individual other than the final policymaker. Id. First, “‘egregious attempts by local

government to insulate themselves from liability for unconstitutional policies’ will

be precluded if the plaintiff establishes ‘the existence of a widespread practice that,

although not authorized by written law or express municipal policy, is so permanent

and well settled as to constitute a custom or usage with the force of law.’” Id.

(quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). In addition, if

a subordinate’s position is subject to review by the municipality’s authorized

policymakers and the authorized policymakers approve a subordinate’s decision and

the basis for it, their ratification will be chargeable to the municipality. Id.

We have also further clarified that proof of a single incident of

unconstitutional activity is ordinarily not sufficient to impose municipal liability, and

where a plaintiff seeks to impose municipal liability on the basis of a single incident,

the plaintiff must show the particular illegal course of action was taken pursuant to

a decision made by a person with authority to make policy decisions on behalf of the

entity being sued. Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996).

In their complaint Yanaki and Moss allege that a policy of Kennard that has

deprived them of their constitutional rights is shown “by the fact that two Salt Lake

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County Sheriff’s Deputies, one of whom is a Sergeant, were willing to assist in the

illegal actions to deprive Moss and Yanaki of their rights.” However, assuming

Kennard is the “final policymaker” for § 1983 purposes, they fail to allege any

conduct by Kennard or by Salt Lake County officials apart from the conduct of Kopp

and Herlin. See Melton, 879 F.2d at 724 (recognizing that a municipality may be

liable under § 1983 if the final policymaker takes the unconstitutional action or when

a “widespread practice” exists). 14 Neither do they allege that Kennard approved the

underlying search that forms the basis of their § 1983 claim. See id. (charging the

policymakers’ approval of the unconstitutional activity of a subordinate to the

municipality).

Further, Yanaki and Moss are alleging that Kennard and Salt Lake County

should be liable on the basis of this single incident, but do not allege the incident

occurred pursuant to a decision made by Kennard. See Jenkins, 81 F.3d at 994

(explaining that where a plaintiff seeks to impose municipal liability on the basis of

a single incident the plaintiff must show the particular illegal course of action was

taken pursuant to a decision made by a person with authority to make policy

decisions on behalf of the entity being sued).

As Yanaki and Moss rely entirely on the conduct of the deputies alone, they

can only be alleging respondeat superior liability for Kennard and Salt Lake County,

14
In fact, at oral argument Yanaki and Moss conceded that they had no
evidence of a pattern or practice other than the case at bar.

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which the Supreme Court has ruled cannot support § 1983 liability against

municipalities. Leatherman, 507 U.S. at 166 (observing that a municipality cannot

be held liable under § 1983 on a respondeat superior theory). Therefore, the district

court properly dismissed the claims against Kennard and Salt Lake County.

IV.

Because we have found that the appellees are entitled to dismissal on grounds

other than qualified immunity, we need not determine if the appellees would be

entitled to dismissal based on qualified immunity under the facts alleged. Because

the sheriff’s deputies were entitled to quasi-judicial immunity, and appellants did not

state a claim against either the Sheriff of Salt Lake County or Salt Lake County

itself, the district court did not err by granting the appellees’ motions to dismiss. Its

decision is therefore

AFFIRMED.

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