Lewis v. Tripp

final days entry judgment after By D. L.R. 54.1. their

order.” Colo.

terms, the local rules these district may applied be to EAJA cost re-

courts Additionally, may a district court

quests.4 party

specifically prevailing order that

may by filing be awarded costs bill days. within a specified

costs number of Quinlisk Astrue,

E.g., No. 08-cv-02694- (D.Colo.

PAB, 148279,at 2010 WL *4 Jan. 2010). reasons,

For RE- foregoing to the

VERSE REMAND matter

district court for consideration of Ms. EAJA, request

Fruitt’s cost under 2412(a)(1).

U.S.C.

Jeffrey LEWIS, D.C., W.

Plaintiff-Appellee, TRIPP, D.C.,

Ronald Defendant-

Appellant, Chiropractic Board of

Oklahoma State

Examiners; D.C.; Gilstrap, Russell

Hugh McClure, D.C.; Shayne Javer

sak, D.C.; Mead, D.C.; Corder, Bill

D.C.; Toy; Carter, Dr. James Kent

D.C.; Rasler, D.C.; Viki Jeanie Gard

ner; Carter; Joseph English, Beth De

fendants. 09-6105.

No. Appeals,

United States Court of Circuit.

Tenth 17, 2010.

May 83(a). A4. district court amend rules its local Fed.R.Civ.P. "acting by majority judges." of its district defendant, among sued. He named as others, Tripp, president Ronald Chiropractic Oklahoma Board of Examin- summary judgment, ers. At the district court Tripp’s denied Dr. claim qualified immunity, but it not set did forth with specificity supporting the facts its conclu- sion that Dr. violated Dr. Lewis’s Fourth rights. Amendment In these cir- cumstances, our to precedent instructs us “review the entire record ... and deter- plaintiff mine de novo in fact presented sufficient evidence to forestall on judgment the issue of quali- Armijo fied immunity.” Wagon Mound Sch., (10th Pub. Cir. 1998). that, just Doing we see no evidence suggest this record to that Dr. Tripp personally was involved the Fourth Amendment Dr. alleges. violation Lewis Accordingly, we hold Dr. qualified immunity. entitled to I Moak, E. Attorney Assistant Gen- Grant (M. eral Daniel and Tricia L. Dr. practicing Weitman Lewis started chiropractic Everest, General, Attorneys Assistant Norman, medicine in Oklahoma in briefs), Attorney Oklahoma General’s years for almost ran ten his own busi- Office, OK, City, Oklahoma for Defendant ness, Chiropractic. West Norman In Appellant Ronald Tripp. 2006, however, March the Oklahoma State Board of Chiropractic Examiners revoked Gamino,

Daniel J. Daniel J. Gamino & license, Dr. apparently Lewis’s medical Associates, P.C., OK, City, Oklahoma for due to untrue Dr. statements Lewis made Plaintiff-Appellee Lewis, Jeffrey W. D.C. in his application. license The Board BRISCOE, Judge, Before Chief stayed the revocation one month to BALDOCK, GORSUCH, Circuit allow Dr. to replacement Lewis time find a Judges. practice. take over his During Sanders, period, Dr. Lewis hired Ben who GORSUCH, Judge. Circuit began Dr. Lewis’s treating patients on After Oklahoma state authorities re- 1,May 2006. Jeffrey license to voked later, Two weeks the Board’s executive chiropractic medicine, they suspected him Carter, director, Beth received an anony- continuing practice unlawfully. In tip mous that Dr. Lewis still practic- was order, they an short swore out administra- ing medicine, though now a li- without tive and searched his office to cense. To work out what the Board’s their suspicions. Believing confirm response be, Ms. should Carter consulted search carried out violation of rights, his Fourth Amendment Board’s counsel and the Board’s Later that same Amendment of the Tripp. Fourth United president, out an administra- day, Ms. Carter swore States Constitution. Lewis named as subpoena requiring Dr. Lewis to Board, tive defendants the the individual Board records, claims, turn over medical “[a]ll members, Carter, Ms. English. and Mr. which indicate documents forms however, and/or practice, After motions all that from ... March patient(s) name[s] point remains for resolution at this are Dr. present.” Aple.App. against Tripp. Lewis’s claims At sum- court, mary judgment before the district Carter, accompanied by her assis- Ms. Tripp argued that he was entitled to tant, English, and sheriffs Joseph two qualified immunity. The district court re- Norman deputies, then went West Chi- defense, jected Dr. Tripp now ropractic subpoena to serve the on Dr. arrived, appeal ruling seeks to to us.1 they Lewis. When Dr. Lewis was office, gave out of the so Ms. Carter II employee. receptionist to an A patient then handed over treatment cards Tripp argues Dr. that the district court According she had at the front desk. erred in him denying Lewis, though hotly disputed by Dr. Dr. because there are no in the record Tripp, someone also took from in- records from which a reasonable could find personal side desk. Ms. Car- he in participated allegedly employees, ter next told various as well as unlawful conduct that Dr. Lewis complains patients sitting waiting several part, of. For his disputes Lewis all room, that the clinic had to close. The this, arguing to us that the facts are suffi- week, clinic remained closed for one later suggest cient to Dr. Tripp personally reopening supervi- under Dr. Sanders’s involved. Before par- we can address the sion, though patient the seized records however, dispute, ties’ factual we must approximately weren’t returned until two preliminary question first confront a con- Meanwhile, months later. Dr. Lewis’s re- cerning authority our to do so. peated requests for reinstatement of his license have failed. A shield them from in “[T]o undue

Upset with the search of his of fice, responded public] with law terference with their duties [to suit, contending that the search potentially disabling violated and from threats of 1161, (10th Cir.1996). reaching qualified 1. Before put- of F.3d 1164 Even immunity, Tripp initially argues ting to the side that Dr. Lewis is the sole standing Chiropractic Lewis doesn’t have Article III shareholder of West Norman all, pursue injuries this case at because overlap West have sustained suffered, Chiropractic patients admittedly Norman and its with those the business —and Guides, injured by alleged not Dr. Group Prop. Lewis—were Ltd. v. Yarmouth cf. III, Inc., 1065, (10th Mgmt., search and seizure. See U.S. Const. art. 295 F.3d 1072 Cir. 2; Earth, 2002), (albeit see also v. Friends Inc. Dr. Lewis has offered some con- Servs., Inc., 167, 180, tested) Laidlaw Envt’l suggesting 528 U.S. that records from 693, (2000) (re 120 S.Ct. personal inside his desk were searched and quiring "injury an Aple.App. in fact” for Article III seized. See at 47-48. Because it is standing). jurisdic When we determine our "well established” this circuit that "an summary judgment stage, at employee expectation pri- tion howev ahas reasonable er, office,” Anderson, generally accept well-plead vacy we as true all in his United States v. 1225, (10th Cir.1998), supported by ed facts the record and draw all standing. injury reasonable inferences in favor of Lewis has suffered a sufficient to in- Court, Supreme jurisdiction precedents. See United States v. Colo. voke our under our servants, (2009), including Dr. one liability,” public routinely L.Ed.2d 868 re- immunity. qualified appeals are entitled to view Tripp, grant de novo from the 800, 806, Fitzgerald, Still, v. 457 U.S. summary judgment. Harlow Johnson held (1982). 2727, 73 L.Ed.2d 396 102 S.Ct. that this doesn’t normally pertain immunity immunity from Qualified is “an appeals from the denial qualified than a to liabili- rather mere defense suit 313, immunity. 515 U.S. at See 115 S.Ct. U.S. ty.” Forsyth, Mitchell So, example, for if a district court 105 S.Ct. 86 L.Ed.2d concludes that find omitted). It “the (emphasis represents certain specified facts favor of plain- Harlow, officials, public norm” tiff, Court has indicated we 102 S.Ct. to insu- and serves usually take them as must true —and do so suit “all plainly incompe- late from but the even if our own de novo review of the those who violate the knowingly tent or might suggest record otherwise as a mat- law,” 335, 341, Malley Briggs, ter of law. (1986). 1092, 89 A 106 S.Ct. L.Ed.2d rule might appear, Johnson’s at first may overcome a plaintiff public official’s glance, to good foreclose least a portion first, immunity only by showing, appeal. all, of Dr. Tripp’s pri- After plaintiffs that the official violated the fed- mary seems complaint to be that dis- the statutory and, rights, eral or constitutional trict court erred when it found sufficient second, that rights question the were facts in the record from which jury a could clearly established at the time of their infer his involvement in allegedly the ille- Callahan, alleged violation. Pearson v. gal But that search. isn’t the the end of -, 815-16, 808, 129 172 -U.S. S.Ct. matter, because Johnson’s rule at- has (2009). L.Ed.2d 565 exceptions tracted we must con- also this, Despite all v. Johnson attempting sider. Without an exhaustive that, the indicated Jones Court exceptions, list of the Supreme those Court least, summary judgment it stage at the has drawn attention our to at least three. generally is district court’s exclusive First, the Court has indicated job jury which to determine a could that, district summary when the court at reasonably find present from the evidence judgment identify fails to particular 304, 313, by the litigants. ed to it 515 U.S. charged that it adequately conduct deemed (1995). 2151, 115 S.Ct. record, supported by may we look so, doing After the district and we court denying summary behind the order judg may legal then consider the “abstract” ment and review the entire novo record de whether questions those facts suffice to to determine as a ourselves' matter show a violation of law and law which factual a inferences reasonable law was established at the time of jury could and could not make. See Beh alleged 317, violation. Id. at 115 S.Ct. Pelletier, 299, 312-13, rens 516 v. U.S. 116 Ordinarily it speaking, is these 834, (1996); L.Ed.2d S.Ct. 133 773 see also questions questions two latter not —and Johnson, 319, U.S. at S.Ct. jury might reasonably about what facts a (If court a district does not state the facts appeals we find—that consider jury summary could reasonable find at from the denial of judgment, court of course, appeals may “a summary have judgment. Of “deter undertake a cumbersome review of mining genuine whether there is a issue of facts.”). record to determine material fact at Sec judgment [it [those] ond, law,” question Iqbal, when the dis self] “version events” the Ashcroft - -, 1947, 173 trict court holds a jury S.Ct. reasonable we) (or, later, way no can ration- by the rec- there is blatantly credit “is .contradicted ally our determine whether those facts consti- ord,” the case based on may assess we a violation of established law. facts a reason- tute view of which own de novo accept as Scott jury could able true. case, In the district court Harris,, 127 S.Ct. to set forth the facts it believed a failed (2007). Third, need L.Ed.2d 686 respect could find with reasonable district court’s assessment to the not defer question the critical before us—the nature factual inferences of the reasonable involvement, any, if in an Tripp’s of Dr. at the motion to complaint from a arise Instead, and unlawful search seizure. may instead assess for stage, but dismiss merely Tripp phoned court stated sufficiency complaint ourselves the May 16 sent two the Board’s office on and Iqbal, a matter of law de novo. emails to the Board’s counsel. at 1947.2 immediately summarily then court concluded B [unspecified] and other [t]his within the first of This case falls proffered by creates a plaintiff exceptions. obligation The initial these Tripp per as to whether Dr. assessing the district court directed, sonally or had actual knowl summary judgment is immunity defense at in, edge acquiesced of and the asserted specificity to set forth with facts —the unspecified] violation. constitutional [but who, what, when, where, why a—that Marcantel, See Poolaw v. jury could infer from the evi (“For (10th Cir.2009) liability un by parties. See Ar presented dence participation der section direct is (the at district court mijo, 159 F.3d necessary. Any official who not ‘causes’ facts specificity must “set forth with the deprived a citizen to be of her constitu support finding ... that a that the defen can liable. rights tional also be held clearly right”); dant violated a established The connection satis requisite causal Behrens, 313, 116 at see also S.Ct. fied if the defendant set in motion a 834; Johnson, at series of events that the defendant knew Only 2151. then can the district court reasonably or have should known would (and we, job appeal) on undertake the of plaintiff of deprive cause others to the defen answering (internal rights.”) quo her constitutional qualified immunity dant is entitled to omitted). tation a Put those facts as matter of law. differ D. atOp. Ct. 7-8. ently, unless the district court undertakes specifying problem task of what a The with this discussion is that essential be, Tripp tell us what Dr. did or jury could find the facts to doesn’t Whether, extent, ions, engaged excep- questions are all that have com- and to what these 2. See, Brown, e.g., mentators. Mark R. tions are reconcilable with Johnson's stated only legal questions Qualified Immunity: rationale ''abstract” Fall and Rise From that Harris, orders; immediately Hope L.J. appealable or the to 9 Nev. are (2008); sufficiency Healy, fact we of a Thomas The Rise Unneces- that when assess so, summary judgment sary Rulings, at we do as Constitutional 83 N.C. L.Rev. record however, noted, law, (2005). Iqbal just Happily, appeal a matter as we this stage; require us to handle of these do at the motion to or the fact doesn’t dismiss thorny opine questions, and we take Johnson’s rule that in other areas we decline to on the currently posited by legal consequences exceptions as of factual scenarios that and its analysis controlling implausible we of law Court as our in would hold as matter doing offering advisory opin- this case. because so risks It where, when, goes took action district court never told us. with- why he saying out that different facts demand dif- have violated Dr. Lewis’s might that legal analyses In other ferent and call for different rights. Amendment Fourth words, specifici- discharge with outcomes. And we cannot our it does not “set forth finding duty say to whether or not Dr. support ... ty the facts violated Dr. Lewis’s violated a estab- the defendant rights knowing, at constitutional without first Armijo, 159 F.3d 1259. right.” lished matter, Instead, jury as a factual what a reasonable merely advances the opinion so, could did find he did. legal conclusion legal standard for “su- paraphrasing the said, scarcely That' have the district 42 U.S.C. pervisory liability” under paucity court to' blame for the of facts. holding and then we set forth Poolaw The reason the district court couldn’t tell “conclusory satisfied. Such the standard anything us about “asserted constitu- findings of ruling” does not constitute plaintiff, tional violation” is that Armijo, to which we can defer. fact Lewis, complaint. never described it in his at 1262.3 F.3d Instead, just presented his own court, According conclusory legal allegation to the district a reason- “[all the] conclude that Dr. Defendants’ unlawful conduct violates able directed, be from rights or had actual knowl- Plaintiffs free warrant- “personally in,” guaranteed” by seizures as edge acquiesced of and some constitu- less the Fourth Complt., But Amendment. Op. Aplt.App. tional violation. D. Ct. 7-8. precise left the court offered no indication what that Lewis thus contours of was, that “unlawful conduct” to the violation and thus what court’s constitutional in- Tripp allegedly imagination. Perhaps recognizing did. Could a reason- firmity, find that Dr. didn’t offer he did offer one version of the able training opposition summary judg- staff sufficient administra- his court, suggesting tive work? That he told Ms. ment the district sub- the Board facilitated (including Tripp) Carter to swear-out an administrative through by “fail[ing] to rifle Dr. Lewis’s Ms. Carter’s to fulfill poena?. Or conduct practice? statutory requirements promul- to close Dr. Lewis’s papers? [state] Or something gate governing rules inter- things? Some or all of these Or administrative procedures, else still? don’t know because the nal ... ‘direct’ the Executive We spectrum, Iqbal, the the In the Court other end of the Ninth Ashcroft Iqbal recently “purpose possibly holding that rather than Circuit read as that held has required” knowledge required impose "purpose merely ... in is to Bivens liabil is cases alleged by ity charged governmental ... an official with violations discrimination racial officials, superintendent given Iqbal arising from his her re that itself alle- involved — U.S. —, sponsibilities.” gations 129 S.Ct. of racial discrimination and such dis- (2009); only see also id. crimination violates the Constitution ("each only Ashcroft, Government official ... liable when it is See al-Kidd v. intentional. misconduct”). (9th Cir.2009). Many or her for his own This an 976 n. 25 generated significant positions surely plausi- nouncement has debate intermediate are also See, Nahmod, scope continuing vitality e.g., about the and ble. Sheldon Constitution- Torts, liability only supervisory Supervisory not ac Bivens al Over-Deterrence and Lia- tions, bility Iqbal, § like but also 1983 suits the one 14 Lewis & Clark L.Rev. after spectrum, (discussing before us. At one end of the some alterna- tives). Iqbal position dissenters seemed to believe that We need not stake out a because, majority opinion supervisory today "eliminates ... this debate will become clear, liability entirely," overruling cases like Poo- Dr. Lewis's claims fail even under our J., (Souter, dissenting). preexisting law. Id. at 1957 At Poolaw standard. Director, training, again ... U.S. at 319. And it is here that we provide ... and pick up parties’ investigator.” Objection arguments merits timely hire an to significance about the and Summary Judgment, content Aplt.App. Motion for record evidence. up that doesn’t clear at But 133-34. appellate briefing confusion because Viewing the record before us in light suggested a Dr. has now Lewis different Lewis, most favorable Dr. to reasonable Dr. Tripp

version of the facts—that “di- following facts find the about by telephone Carter] and [Ms. rected Dr. Tripp’s alleged involvement in the prepare email ... to Dr. Tripp search and seizure. was the and financial to not seize clinic rec- Carter, president, Board Ms. as the ords, business and run but to close the off director, Board’s executive worked for Br. at 22. the staff.” Answer Given Dr. day him. On the same Ms. Carter wrongs Lewis’s own indecision about the to Dr. office to went Lewis’s serve the behest, at Dr. allegedly Tripp’s he suffered subpoena, copied Dr. Tripp Ms. Carter on it’s little wonder the district court two to the emails he sent Board’s ambiguity found that “[s]ome existfed] as counsel. at 24-25. Aple.App. According to of the underlying the exact nature con- to deposition, Ms. these Carter’s emails by Lewis, alleged stitutional Dr. violation” concerned Dr. Lewis’s unlicensed medical D. Op. Ct. at 1 n. and did not make and indicated Dr. had specific findings spoken attorney’s about Tripp’s city factual with the office and police Id. at department. conduct. 25-26. One legal citations, of the emails contained Ill though Ms. Carter have received that email after at Dr. the incident Lewis’s Given that we' lack from the district 33; Aplt.App. office. Id. at at 83.4 Ac- Tripp’s court a set of about Dr. con- Lewis, Dr. cording to Dr. also called guide duct to our anal- the Board day, office sometime same ysis, it falls on to- review the us entire though Ms. didn’t Carter remember record, construing the evidence in light phone Aple.App. call or its contents. most favorable Dr. Lewis as the plain- 27-28. tiff, and to ask de novo whether sufficient

evidence exists for readily These facts lend themselves to upon conclude that Dr. trenched the inference that Dr. suspected rights. Armi- Lewis of practicing medicine without a li- (when jo, 159 F.3d district They fairly suggest cense. also specify court fails to the facts in play, the Tripp wanted report Lewis’s activi- appeals court of must “review the entire ties to other state authorities who could record, construing light the evidence the obtain and search of perhaps execute a and plaintiff’ most favorable to the to “deter- close But practice. nothing his there’s in, mine de plaintiff novo the fact illegal, illegal, any let alone about presented Indeed, sufficient evidence to forestall of this. would seem perfectly it summary judgment quali- on the issue of normal that of a president state medi- Behrens, fied immunity”); society report also cal see 516 would wish to the unau- 834; Johnson, practice U.S. 116 thorized 515 of medicine and see it record, Boulder, though ny. Simpson 4. The emails are not Colo. Univ. Cf. of (10th Cir.2007) (discuss- testimony deposition describing Ms. Carter's F.3d 1179 n. 3 ing challenge them is. At has Dr. no time raised waiver of to admission of hear- objection say summary judgment). to the of consideration that testimo- records, desk, including from his it Oklahoma his was investigated. happens, As actually a .As empow- and warrantless seizure. he reads expressly “authoriz[es] law law, Board adopt and seek to Oklahoma has the the Board to er[s]” ... authority “subpoena papers and accred- for the standards professional enforce investigation tit. of matters come See Okla. Stat. requirements. itation 161.6(B).5 [it],” before Okla. Stat. tit. judg- § To avoid 161.6(B)(8), ment, § and once Dr. Lewis to be record evidence from had there has revoked, jury could infer some- license his unlicensed of which a reasonable enough longer qualified than this. It’s not that medicine no as a “mat- thing more view, ... pursuant statutory to his before” the Board. On this Tripp, acting ter[ ] then, jurisdiction the Board had no authority, in motion a series of events to issue set naturally subpoena, lead to the or execute the and Ms. that would Carter lawful warrant or the seized Dr. Lewis’s execution of a search law- documents without DeForte, legal authority. practice. closure of Under See Mancusi ful Poolaw, 370-71, jury must be able to a reasonable 88 S.Ct. (1968); deliberately Dr. Tripp conclude that set L.Ed.2d 1154 United States v. Anderson, (10th into motion a series of events he knew or F.3d Cir.1998) (holding should’ve known would lead to that warrantless search unlawful of office against private usually action Lewis. violates Fourth Amendment).6 obstacle, Recognizing this Dr. Lewis re- tell, Second, if we can that his even Ms. Carter had the plies, as best au- rights thority to subpoe- Fourth Amendment issue administrative na, First, ways. sug- appears suggest in two he were violated she subpoena wrongfully the administrative itself treated like a search warrant. gests, invalid, serving subpoena Ms. collection of Instead of on Dr. so Carter’s Act, Chiropractic pay ropractic Practice Practice 5. Under the Oklahoma and fees for Act, services; (8) such Order or witnesses, inspection attendance of of empowered authorized and to: Board is premises production records and and the of (1) procedure Establish and maintain a papers investiga- relevant books and for the system the certification or accreditation for may come tion of matters that before the chiropractic physicians who are Board; (11) ... Establish minimum stan- chiropractic post-doctorate Diplómate continuing programs dards for education (2) chiropractic specialties; and all other by chiropractic administered associations adopt registration system Establish a and ...; (19) promulgate a code of [and] and enforce standards for the education ethics. training chiropractic physicians and who 161.6(B)(1)-(3), (7)-(8), Okla. Stat. tit. 59 engage issuing profes- in the business of (11), (19). condition, opinions prognosis sional on the patient; Adopt or treatment of 6. We harbor doubts about this view of Okla- governing profession- enforce standards all, accept homa law. After it asks us to chiropractic physicians, al conduct of con- Chiropractic the Oklahoma Practice Act en- provisions with the the Oklahoma sistent Act, apply trusts the Board "to to court of com- Chiropractic purpose Practice for the enjoining petent jurisdiction an order an maintaining high establishing stan- person practicing chiroprac- unlicensed from honesty, dignity, integrity profi- dard of and tic,” 161.14(B), § yet Okla. Stat. tit. 59 ciency profession; Employ in the counsel, needed, prohibits time the Board from inves- legal represent same as to practicing tigating chiro- and to whether someone is Board in all matters assist prosecuting practic medicine a license. But we without authorized state officers because, restraining will violations of the Oklahoma Chi- need decide none of this have, however, waiting response, Lewis and for a she used previously We and consis- warrant, it to seize records without a in tently rejected exactly assumption, cluding records from Dr. Lewis’s desk. emphasizing that “more than pure specula- an subpoena permits required While administrative tion” is “to defeat a motion for government compel production summary judgment.” v. Mem’l Setliff documents, argues, of Hosp. it doesn’t County, Sheridan of (10th Cir.1988). allow the unfettered access that comes 1393 recently, Most See, with a search warrant. e.g., See v. Serna v. Department Colorado Correc- of Seattle, 541, 544-45, tions, (10th City Cir.2006), 455 F.3d 1146 (1967) (“while held the Colorado prisons director of inspect may by the demand to be issued was entitled to because agency, in the form of an ad [state] mere authorization of a prison’s special subpoena, may ministrative not operations be made response team in circumstances by inspector enforced calling field” for its use—without more—didn’t unless he or she also has a search war him implicate in the subsequent team’s use rant). against excessive force inmates. See id. at 1152-54. We did so explaining “no assuming Even without deciding that all suggests evidence used [the director] [his so, insuperable this is an difficulty re authorizing] communications to instruct mains. The record before us lacks the officers to unconstitutionally.” act Id. suggesting Dr. Tripp’s involve at 1153-54. ment in any allegedly—unlawful of these— evidence, activities. We have no for exam Exactly the same can be said ple, that Dr. Tripp instructed Ms. Carter here. There is no that Dr. Tripp to obtain an subpoena. administrative Or legally was report authorized to the unli advised Ms. Carter to treat practice censed of medicine and solicit help as a search warrant and from other state authorities to ensure its search personal Dr. Lewis’s desk. In investigation and cessation. To survive short, while the record permits before us Poolaw, judgment under the inference that doing was his Lewis had to come forward with some statutorily-charged duty of lawful—and — evidence that Dr. Tripp somehow knew or alerting the authorities to a possible case should’ve known that an investi unlawful practice medicine, unauthorized gation would follow from his decision to the record lacks facts suggesting Dr. report Dr. Lewis’s unauthorized reasonably “knew or should have us, medicine. In the record before known” that doing so would lead to an there is no evidence of this. Accordingly, seizure, search or let alone one in unlawful Dr. Lewis hasn’t demonstrated a constitu violation of law. Poo violation, tional let alone a estab law, 565 F.3d at 732-33. lished one. If qualified immunity is to Instead, Dr. Lewis’s ease rests on the anything, mean it must mean that public speculative assumption that one state offi- employees just who doing are jobs their cer seeking report a violation of law to generally are immune from suit. And Dr. other “just state officers should’ve known” Lewis presented has sug no evidence to that those other respond officers would gest doing anything by the report violating themselves the law. other than that.7 apparent, become argument Dr. Lewis's fails claim based on Article II 30 of the Okla- another, more fundamental reason. Throughout pro- homa Constitution. these ceedings, parties and district court have In pursuing addition to a claim under the Amendment, Fourth pursued Dr. Lewis also Jones, 304, 319, v.

Johnson (1995), L.Ed.2d 238 “it falls denying sum- court’s order The district upon us to review the entire record ... reversed, and this mat- judgment is mary and to ask novo whether sufficient evi- de instructions that the remanded with ter is jury exists for a reasonable to con- dence summary judgment court enter district upon that Dr. Tripp clude trenched Tripp. favor of Dr. clearly rights,” Lewis’s established id. at BRISCOE, Judge, dissenting. Chief disagree. 1228. I First, disagree I respectfully I dissent. Though the district court did not elabo- the district the notion because with by “personally rate on what it meant di- Tripp tell us what Dr. did or court “doesn’t rected,” explanation I do not think such an where, when, any why or he took action Rather, necessary. was it is clear from might have violated language the district court’s what it Maj. Op. rights,” Fourth Amendment see thought jury a reasonable could find based 1226-27, “it on us ... deter- [to falls upon allegations present- and evidence sufficient evidence exists mine] by Tripp Dr. Lewis: that Dr. called ed jury a to conclude explained Ms. Carter and emailed and/or upon trenched Dr. Lewis’s that he wanted her to serve a on at 1228. And rights,” see id. Dr. Lewis and that he wanted her to shut second, engage if in the fact- even we must Chiropractic. down Norman Be- West finding majority sug- which the expedition adequately cause the district court set majori- the facts the gests, disagree I with forth the believed reasonable ty finds. find, juris- the limited nature of our court found that Dr. Lewis The district appeal diction to entertain an from a denial as to wheth- had “create[d] immunity us to requires accept ... Tripp personally er directed as true Dr. Lewis’s assertion that Dr. violation,” explicitly asserted constitutional Tripp directed all of Ms. relevant Carter’s noting its reliance on the evidence which day question. behavior on the And that “Ms. Carter ... was demonstrated true, allegations as I accepting these would sent copied on emails upon conclude that based estab- Lewis,” regarding Board’s counsel Fourth lished nature of Lewis’s Amend- phoned and that “Dr. the Board pursuant rights, ment to our decision May Op. 16th.” D. Ct. at 7 office Marcantel, v. Poolaw added). majority (emphasis contends (10th Cir.2009) (noting supervisor court “doesn’t tell that because district § if may be held liable under he or where, when, us what Dr. did or or they “set in motion a series of events she might action that why he took have reasonably have known knew should Dr. Lewis’s Fourth Amendment violated 1226-27, Maj. Op. pursuant to would result a constitutional viola- Rights,” [in proceeded premise with Court's inter- on the that Dr. Lewis's tension coextensive, law claim and rises or state pretation of the Fourth Amendment because falls, with his Fourth Amendment claim. See copy” an exact the former is "almost Op. appeal, parties D. Ct. at 1 n. 2. On State, (quoting latter Okla.Crim. DeGraff assumption, don't let alone chal- mention (1909))). Accordingly, 103 P. lenge give it or reason to believe that it us we hold Dr. constitutional Lewis's Oklahoma State, Long 706 P.2d erroneous. Cf. claim fails for the same reasons as his Fourth (declining (Okla.Crim.App.1985) Amendment claim does. interpret opportunity Article II 30 in tion]”), would, is not entitled to sum- again light once in of Dr. Lewis’s mary judgment on rights and our decision grounds. Poolaw, in conclude that Dr. is not summary entitled to judgment

Further, if engage even we must immunity grounds. fact-finding suggested by majority, I reach the would same conclusion. The

majority contends that: record before us lacks evidence

suggesting Tripp’s involvement allegedly—unlawful activi- these' — evidence,

ties. We have no example, instructed Ms. Carter to obtain an subpoena. administrative Or ZURICH AMERICAN INSURANCE that Dr. Tripp advised Ms. Carter COMPANY, capacity in its as Admin treat the as a search warrant Plan, istrator of the Zurich Medical personal search Dr. Lewis’s desk. Plaintiff-Appellee, omitted). Maj. Op. at (emphasis I disagree with the absolutes used in de- scribing the absence of present- evidence O’HARA, Keith LLC, Ross & Pines ed. There was sufficient present- trustee of the Keith O’Hara Full Com ed here to enable Dr. Lewis to withstand a pensation Fund, Defendants-Appel motion for judgment. lants. As majority explains, work out “[t]o No. 08-16875.

what the response Board’s allega- [to the be, against tions Lewis] should Ms. Carter United States Appeals, Court of consulted president, Board’s Eleventh Circuit. Tripp.” Id. at 3. If we view this consulta- tion—which occurred the form of two April emails and one phone call-in light Lewis,

most favorable to Dr. it is reason-

able to infer that Dr. Tripp told Ms. Car-

ter both to obtain the subpoena and to it in

execute the manner that she did.1 Harris,

See Scott v. 372, 378,

(“[C]ourts required are to view the facts

and draw reasonable light inferences

most favorable to the party opposing the

summary judgment motion. In qualified cases,

immunity usually this adopt- means

ing ... plaintiffs version of the facts.”

(citations omitted) (internal and alteration omitted)).

quotation marks And because drawn, can reasonably inference be I acknowledge 1. I that reasonableness of this the communications between Ms. Carter and might inference ques- have been called into properly been admitted into evi- tion had regarding more details the nature of dence.

Case Details

Case Name: Lewis v. Tripp

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 17, 2010

Citation: 604 F.3d 1221

Docket Number: 09-6105

Court Abbreviation: 10th Cir.