James L. DEAN; Lois P. White, as Personal Representative of the Estate of Joseph White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor; Debra Sheldon, Plaintiff-Appellant v. COUNTY OF GAGE, NEBRASKA, a Nebraska political subdivision; Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; Ryan L. Timmerman, Personal Representative of the Estate of Jerry O. DeWitt, Defendants-Appellees Richard T. Smith, in his official and individual capacities; Gerald Lamkin, Dep., in his official and individual capacities; Gage County Attorney‘s Office, a Nebraska political subdivision; Gage County Sheriff‘s Office, a Nebraska political subdivision, Defendants James L. Dean; Lois P. White, as Personal Representative of the Estate of Joseph White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor; Debra Sheldon, Plaintiffs-Appellees v. County of Gage, Nebraska, a Nebraska political subdivision, Defendant Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; Ryan L. Timmerman, Personal Representative of the Estate of Jerry O. DeWitt, Defendants-Appellants
Nos. 14-1747, 14-1773
United States Court of Appeals, Eighth Circuit
Dec. 7, 2015
Rehearing and Rehearing En Banc Denied Jan. 13, 2016
807 F.3d 931
v.
COUNTY OF GAGE, NEBRASKA, a Nebraska political subdivision; Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; Ryan L. Timmerman, Personal Representative of the Estate of Jerry O. DeWitt, Defendants-Appellees
Richard T. Smith, in his official and individual capacities; Gerald Lamkin, Dep., in his official and individual capacities; Gage County Attorney‘s Office, a Nebraska political subdivision; Gage County Sheriff‘s Office, a Nebraska political subdivision, Defendants
James L. Dean; Lois P. White, as Personal Representative of the Estate of Joseph White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor; Debra Sheldon, Plaintiffs-Appellees
v.
County of Gage, Nebraska, a Nebraska political subdivision, Defendant
Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; Ryan L. Timmerman, Personal Representative of the Estate of Jerry O. DeWitt, Defendants-Appellants
Nos. 14-1747, 14-1773.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 17, 2015.
Filed: Dec. 7, 2015.
Rehearing and Rehearing En Banc Denied Jan. 13, 2016.
Herbert J. Friedman, argued, Lincoln, NE, for Appellant Dean.
Maren Lynn Chaloupka, argued, Scottsbluff, NE, and Matthew Kosmicki, argued, Lincoln, NE, for Appellant Sheldon.
Richard L. Boucher, Paul L. Douglas, Patrick T. O‘Brien, Kim Sturzenegger, Jennifer M. Tomka, argued, Lincoln, NE, for appellees/cross-appellants.
Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
DNA evidence exonerated Joseph E. White and the five other plaintiffs of rape and murder. They sued Gage County and the officers involved in their case. After an appeal from summary judgment and a mistrial on remand, the district court dismissed plaintiffs’ conspiracy claim and all claims against Gage County. The district court denied qualified immunity to the officers. Having jurisdiction under
I.
In 1989, Joseph White was convicted for the rape and murder of Helen Wilson. The prosecution used testimony and confessions from White‘s co-defendants—Ada JoAnn Taylor, Thomas W. Winslow, James L. Dean, Kathleen A. Gonzalez, and Debra Sheldon—all of whom pled guilty to related charges. After DNA testing in 2008, all convictions were pardoned or overturned. Plaintiffs individually filed
Trial of the consolidated claims began January 6, 2014. At the close of plaintiffs’ evidence, the district court granted the Gage County and the officers’ Rule 50(a)(1) motion, dismissing the conspiracy claim against all parties and all claims against Gage County. It denied the officers’ Rule 50(a)(2) motion for qualified immunity on the remaining claims of manufacturing evidence and conducting a reckless investigation. After three days of jury deliberation with no verdict, the district court declared a mistrial and ordered a new trial. One month later, the district court certified its Rule 50(a)(1) order under Rule 54(b) to authorize an appeal. It also denied the officers’ renewed motion for qualified immunity, which they cross-appeal.
II.
The officers claim they are entitled to qualified immunity. “[A] district court‘s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of
This court reviews the district court‘s denial of a motion for judgment as a matter of law de novo, “using the same standards as the district court.” Luckert v. Dodge Cnty., 684 F.3d 808, 816-17 (8th Cir.2012) (reviewing denial of Rule 50(b) motion for qualified immunity). This court “must draw all reasonable inferences in favor of the nonmoving party without making credibility assessments or weighing the evidence.” Phillips v. Collings, 256 F.3d 843, 847 (8th Cir.2001) (reviewing denial of Rule 50(b) motion for qualified immunity).
To overcome qualified immunity, plaintiffs must demonstrate both that “(1) there was a deprivation of a constitutional or statutory right, and (2) the right was clearly established at the time of the deprivation.” Parker v. Chard, 777 F.3d 977, 980 (8th Cir.2015). Since this court previously denied qualified immunity for the officers as a matter of law, the district court should not consider a Rule 50 motion on qualified immunity unless substantially different evidence was produced at trial. See, e.g., Kerman v. City of New York, 374 F.3d 93, 110 (2d Cir.2004) (applying law-of-the-case doctrine in appeal from Rule 50 qualified immunity decision); Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir.2000) (same). See generally Little Earth of the United Tribes, Inc. v. U.S. Dep‘t of Hous. & Urban Dev., 807 F.2d 1433, 1441 (8th Cir.1986) (“[W]e will reconsider a previously decided issue only if substantially different evidence is subsequently introduced or the decision is clearly erroneous and works manifest injustice.“).
The officers argue that the evidence introduced at trial varies greatly from that identified at summary judgment. Resolving the appeal from summary judgment, this court previously stated, “Another troubling piece of evidence is that Price offered to serve as Dean‘s therapist without initially informing Dean of his role as a
The officers also claim that “the testimony by the attorneys who represented Dean, Sheldon, and Taylor all indicated that they were never informed by their clients that the officers were doing anything that would amount to coercion or that they were being mistreated by the officers.” This court previously affirmed the dismissal of the coercion claim, and the claim is not at issue in this appeal. See Winslow, 696 F.3d at 738. The trial testimony does not support the officers’ entitlement to qualified immunity. The district court correctly denied the renewed Rule 50 motion for qualified immunity.
III.
A.
Before addressing the conspiracy claim and claims against Gage County, this court is obligated to independently consider its jurisdiction. Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1118 (8th Cir.2011). It is a general rule that only orders that dispose of all claims are final and appealable. Williams v. Cnty. of Dakota, Neb., 687 F.3d 1064, 1067 (8th Cir.2012).
“Rule 54(b) creates a well-established exception to this rule by allowing a district court to enter a final judgment on some but not all of the claims in a lawsuit.” Id. Rule 54(b) states:
When an action presents more than one claim for relief—whether as a 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 and liabilities 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.
A district court considering Rule 54(b) certification “must first determine that it is dealing with a ‘final judgment’ that disposes of a claim. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Second, “[i]n determining that there is no just reason for delay, the district court must consider both the equities of the situation and judicial administrative interests, particularly the interest in preventing piecemeal appeals.” Williams, 687 F.3d at 1067 (alteration in original), quoting Curtiss-Wright, 446 U.S. at 7, 100 S.Ct. 1460.
Interlocutory appeals are “generally disfavored” and “only the special
If these judicial concerns are met, this court gives the district court‘s weighing of equities substantial deference, reviewing the certification for an abuse of discretion. Williams, 687 F.3d at 1068 (holding the district court is “most likely to be familiar with the case and with any justifiable reasons for delay“). This court‘s role “is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are juridically sound and supported by the record.” Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. 1460 (“The reviewing court should disturb the trial court‘s assessment of the equities only if it can say that the judge‘s conclusion was clearly unreasonable.“). See Williams, 687 F.3d at 1067 (“Certification should be granted only if there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal.“).
As for the first determination, the district court‘s order dismissing the conspiracy claim and all claims against Gage County was final.
As for the second determination, the district court, considering “equities of the situation and judicial administrative interests,” ruled it was “preferable” to allow plaintiffs to appeal after the mistrial instead of after a second trial because the record is “fully developed ... and the issues are fairly limited in scope,” involving questions of law (whether plaintiffs waived their conspiracy claim and whether officers were “policy makers“). The district court properly reasoned that an appeal from the dismissal of the conspiracy claim was likely, and that an appeal from the county‘s dismissal was a “near certainty.”
The mistrial created the special case for an immediate appeal. This litigation has already generated three interlocutory appeals, including this one. The district court recognized “the large trial record and the complexity and difficulty of this case.” Delaying the appeal until the close of another trial will add to this case‘s complexity by requiring consideration of two separate, fully developed records, and may require yet another trial if the appeal were successful.
The certified issues on appeal are “self-contained” and an “appellate ruling will finally resolve the sufficiency” of the claims. See Outdoor Cent., 643 F.3d at 1120. Rule 54(b) certification is appropriate.
B.
This court reviews ”de novo the grant or denial of a motion for judgment as a matter of law, using the same standards as the trial court.” Shaw Hofstra & Assocs. v. Ladco Dev., Inc., 673 F.3d 819, 825 (8th Cir.2012). Reviewing the sufficiency of the evidence, this court draws “all reasonable inferences in favor of the nonmoving party without making credibility assessments or weighing the evidence.” Id. A Rule 50(a) motion is proper only if “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.”
1.
Plaintiffs challenge the district court‘s dismissal of their conspiracy claim. The district court held that plaintiffs “failed to preserve [their conspiracy] claim in the final pretrial conference order” and that the evidence at trial was insufficient “to prove the essential elements of a conspiracy claim.” After a thorough review of the record, this court disagrees.
True, “[t]he issues identified in the Pretrial Order supersede any issues raised in the Complaint and Amended Complaint.” Hartman v. Workman, 476 F.3d 633, 634 n. 3 (8th Cir.2007). However, the district court heard the case on remand, after this court held that “a fact-finder could determine that White‘s conviction was the result of a purposeful conspiracy by Defendants to fabricate evidence.” White, 696 F.3d at 757. (The other plaintiffs’ conspiracy claims were not at issue in prior appeals, although their claims arise from the same facts.) Affirming the denial of summary judgment on conspiracy, this court preserved the claim for trial. The district court‘s initial pretrial order and its reframing of issues on remand are nearly identical. They both include as a controverted issue whether “Defendants, or any one of them, manufactured false evidence against a named Plaintiff.” The district court did not say that its reframing of issues excluded the previously pled conspiracy claim. Plaintiffs continued to argue the conspiracy issue in trial, proffering evidence (arguing hearsay testimony was made in furtherance of a conspiracy) and submitting proposed jury instructions on the conspiracy claim. They did not waive their conspiracy claim. The district court improperly held that the claim was waived on remand.
“To prove a civil conspiracy under
The evidence in support of conspiracy, viewed in favor of plaintiffs, is substantial. At trial, plaintiffs submitted evidence that defendants: were unable to
Plaintiffs “produced proof of questionable procedures” and “hasty condemnation” by officers in charge of policymaking. See Moran, 296 F.3d at 647-48 (reversing grant of Rule 50(a) motion on conspiracy claim, holding police department “publicly and financially committed itself to producing a culprit for an alleged wrongdoing before any such wrongdoing was actually established“). Neither the district court nor the officers point to substantially different evidence presented at trial that would alter this court‘s previous finding on conspiracy. See Little Earth, 807 F.2d at 1441; Mosley v. City of Northwoods, Mo., 415 F.3d 908, 911 (8th Cir.2005) (holding law of the case “does not deprive the district court of the ability to reconsider earlier rulings to avoid reversal“). There was a sufficient evidentiary basis for a jury to find for plaintiffs on their conspiracy claim. This court again concludes that “the facts viewed in the light most favorable to White [and plaintiffs] give rise to the reasonable inference that Defendants acted in concert with the goal of securing” plaintiffs’ convictions. See White, 696 F.3d at 757. The district court erred in dismissing the conspiracy claim.
2.
Plaintiffs challenge the dismissal of their official-capacity claims against Gage County. Plaintiffs argue that sheriff DeWitt and county attorney Smith “were the final decisionmakers and sole policymakers for their respective elected county offices,” and “their conduct in those specific areas is fairly attributed to Gage County.” Because this court previously determined that “there is no evidence that any action taken by Smith prior to the filing of criminal complaints against Plaintiffs was unconstitutional,” it need not consider whether the County is liable for his actions. See Winslow, 696 F.3d at 739.
“[A] local government is liable under
Relying on Poor Bear v. Nesbitt, 300 F.Supp.2d 904 (D.Neb.2004), the district court ruled that a “county sheriff acts pursuant to state-enacted restrictions in enforcing the criminal laws of Nebraska and is not himself a policy maker for the county for which he is a sheriff.” See Poor Bear, 300 F.Supp.2d at 917. In Buzek v. County of Saunders, 972 F.2d 992, 995 (8th Cir.1992), this court said that a Nebraska sheriff had “broad discretion to set policy as the County‘s elected Sheriff.” Although in Buzek the specific policymaking authority was the “exclusive authority to fire” a deputy, Buzek shows that a Nebraska sheriff has final policymaking authority in certain areas. Nebraska law determines if a Nebraska sheriff has final policymaking authority in the area of law enforcement investigations and arrests. See Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir.2013) (“Whether Sanders exercised final policymaking authority for the city is ‘a question of state law.‘” (quoting St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion))). See also Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion) (“Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.“).
Sheriff DeWitt made final policy with regard to law enforcement investigations and arrests in Gage County. “It has been the declared policy of the State of Nebraska in the exercise of its police powers to foster and promote local control of local affairs. Highest ranking in this hierarchy of local matters is the supervision of law enforcement. The state provides a system of law enforcement and local officers to carry out the functions thereof on a day-to-day basis within such system.”
In McMillian, the parties agreed that the sheriff had final policymaking authority in the area of law enforcement, but disagreed whether the sheriff made policies for the state or the county. This court must “simply ask whether Sheriff [DeWitt] represents the State or the county when he acts in a law enforcement
A comparison of Nebraska and Alabama law demonstrates that Nebraska sheriffs make policy on behalf of their counties. In McMillian, the Court examined three compelling authorities: (1) the Alabama constitution lists sheriffs as members of the state executive branch; (2) “authority to impeach sheriffs was moved from the county courts to the State Supreme Court,” and (3) the Alabama Supreme Court has held that “tort claims brought against sheriffs based on their official acts ... constitute suits against the State, not suits against the sheriff‘s county.” McMillian, 520 U.S. at 788-89, 117 S.Ct. 1734. Nebraska law differs from Alabama law in each area. Neither the Nebraska constitution nor its statutes list sheriffs as members of its executive branch. See
Other Nebraska laws indicate that sheriffs represent the county when acting in a law enforcement capacity. A sheriff is a county officer. See
The county “may only be held liable for constitutional violations which result from a policy or custom of the municipality.” Scheeler v. City of St. Cloud, 402 F.3d 826, 832 (8th Cir.2005). It is for the jury to determine whether Sheriff DeWitt‘s decisions “caused the deprivation of rights at issue, by policies which affirmatively command that it occur.” Jett, 491 U.S. at 737, 109 S.Ct. 2702. The district court erroneously dismissed the claim against the county believing that “the plaintiffs failed to present evidence of an official policy, unofficial custom, or a deliberately indifferent failure to train or su-
*
*
*
*
*
*
The order dismissing the conspiracy claim and all claims against Gage County is reversed, and the case remanded for further proceedings consistent with this opinion. The order denying qualified immunity is affirmed.