F I L E D

United States Court of Appeals

Tenth Circuit

APR 1 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARY BIG ELK; SAM MCCLANE,

Plaintiffs-Appellees,

v.

DONNA KASTNING; DAN HIVLEY;

WES PENLAND; OSAGE COUNTY

SHERIFF’S DEPARTMENT, Donna

Kastning, in her official capacity as a

Deputy Sheriff, Dan Hivley, in his official

capacity as a Deputy Sheriff; and Wes

Penland in his official capacity as

Lieutenant and Undersheriff,

Defendants-Appellants,

and

No. 97-5012

(D.C. No. 96-CV-87)

(N.D. Oklahoma)

OSAGE COUNTY DISTRICT

ATTORNEY, Larry D. Stuart, in his

official capacity as District Attorney for

Osage County, Oklahoma; JOHN DOE,

other unknown persons or person having

responsibility or involvement in the

circumstances of the violation of the civil

rights of the Plaintiffs including persons

acting in concert and joint participation

with other Defendants herein and who are

joined herein for purposes of declaratory

relief and damages as may be appropriate,

Defendants.
*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

1

 Except for county attorney Larry Stuart, who was granted summary judgment.

2

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, LOGAN and MURPHY, Circuit Judges.

Plaintiffs Mary Big Elk and Sam McClane brought this action under 42 U.S.C.

§ 1983 against various sheriff’s deputies, the district attorney, the sheriff, and the Board

of County Commissioners of Osage County, Oklahoma, alleging that the deputies assisted

a private individual in taking possession of plaintiffs’ horses in violation of their Fourth

and Fourteenth Amendment rights. The district court denied defendants’ motion for

summary judgment, finding that disputed issues of fact precluded defendants from

obtaining summary judgment on their qualified immunity claim. The court also denied

the sheriff and the board’s motion for summary judgment because factual issues

remained. Defendants1

 appeal. Applying the Supreme Court cases of Johnson v. Jones,

515 U.S. 304 (1995), and Behrens v. Pelletier, 116 S. Ct. 834 (1996), we hold that we

lack jurisdiction to review the district court’s ruling that disputed material facts preclude

summary judgment for defendant deputies on plaintiffs’ § 1983 claim. Because we
3

cannot consider the deputies’ appeal of the denial of qualified immunity, we also lack

pendent jurisdiction to hear the appeals by the sheriff and Osage County Board of County

Commissioners.

I

This case arose out of a dispute between Tina Kastning (Tina) and plaintiff Sam

McClane. Tina loaned McClane, a horse trader and trainer, $8,000 to buy horses. Tina

and McClane did not have a written agreement or repayment schedule. Tina asserts that

when McClane had difficulty paying back the loan, he told her they were now partners in

the horses. McClane denies any partnership agreement and characterizes the transaction

as a loan. In any event, when McClane continued to delay repayment, Tina became

concerned she would never be repaid. McClane was then boarding horses (which he now

says belonged to plaintiff Big Elk) in leased stalls at the fairgrounds in Osage County. 

Tina first padlocked McClane’s rented stalls to ensure he did not move the nine to eleven

horses in those stalls. Later, Tina decided she wanted to take possession of the horses. 

She contacted her attorney, who called the district attorney, Larry Stuart. Stuart advised

that it was a civil matter but apparently said that if Tina took possession of the horses he

would not prosecute her.

Three separate incidents followed in which defendant deputies and others assisted

Tina both with ensuring that plaintiffs did not move the horses and in helping her take

possession of them. First, Tina called defendant deputy sheriff Donna Kastning (Donna),
4

her sister-in-law, and asked her to come and “stand by” while she took the horses. After

Tina and others had moved two of the horses, plaintiff Big Elk arrived and told Donna

that she and McClane owned the horses. Donna demanded that Big Elk identify herself. 

Donna called a judge and told Tina to postpone taking more horses until she went to

court.

In the second incident, McClane had loaded some of the horses on a trailer but

Tina and her husband had blocked the trailer with their vehicles. When Donna and other

deputies arrived they refused McClane’s request to have Tina move her car, and

essentially told McClane to just leave the horses at the fairground for now.

The third incident occurred the next day, while plaintiffs were not present. Tina

enlisted defendant deputy Dan Hivley to help her move the horses; Donna was present. 

They loaded the horses and, after apparently calling the dispatcher, took the horses to

Hivley’s property for boarding.

Tina had not yet procured a court order supporting her right to take possession of

the horses, although she apparently told some of the deputies that the district attorney had

said she had permission to move the horses. The record also indicates that when Big Elk

called in a complaint, the dispatcher called Tina to advise her of the call and that “no

information [was] given.” II App. 514. There is also evidence that the sheriff knew of

the deputies’ assistance to Tina and did not object. Policy allowed a deputy to stand by
5

during a repossession, but if the owner was present and asked them to leave, the

repossession would be stopped.

On appeal the deputies argue that they were entitled to qualified immunity because

their actions did not violate clearly established law which a reasonable person should

have known.

II

Orders denying qualified immunity before trial are immediately appealable if they

resolve abstract issues of law. See Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996);

Johnson v. Jones, 515 U.S. 304, 312-14 (1995). “A determination that the law allegedly

violated by the defendant was clearly established at the time of the challenged actions is

an abstract issue of law that is immediately appealable. A determination that under either

party’s version of the facts the defendant violated clearly established law is also

immediately appealable.” Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997) (citing

Behrens, 116 S. Ct. at 842) (other citations omitted). Government officials, however,

“cannot appeal pretrial denial of qualified immunity to the extent the district court’s order

decides nothing more than whether the evidence could support a finding that particular

conduct occurred.” Id. (citing Behrens, 116 S. Ct. at 842). “An order denying qualified

immunity on summary judgment is not appealable if it merely determines the facts

asserted by the plaintiff are sufficiently supported by evidence in the record to survive

summary judgment.” Foote, 118 F.3d at 1422 (citing Johnson, 515 U.S. at 312-14).
6

The district court found that the record contained factual questions as to whether

the deputy defendants’ actions violated clearly established due process rights under the

Fourth and Fourteenth Amendments that should reasonably have been known to

defendants.

A

We have jurisdiction to review the defendants’ assertion that the district court

mistakenly identified clearly established law only if the district court denied summary

judgment for a purely legal reason. In ruling that the law was clearly established on the

date of the incidents, the district court relied upon Soldal v. Cook County, Illinois, 506

U.S. 56 (1992).

In Soldal, mobile home park owners had begun proceedings to evict plaintiff’s

trailer from the mobile home park but forcibly evicted the trailer before obtaining a court

order. At the park manager’s request deputies came during the eviction and told the

trailer owner that the deputy was there to see that the trailer owner did not interfere. 

Plaintiff sued under 42 U.S.C. § 1983 for Fourth and Fourteenth Amendment violations. 

The court of appeals held that there was no seizure under the Fourth Amendment because

it was not made in the course of “public law enforcement” and did not invade plaintiff’s

privacy. In reversing, the Supreme Court noted that a seizure is a “meaningful

interference with an individual’s possessory interests in []property.” Id. at 61. It held that

the Fourth Amendment protects property rights, and stated that Fourth Amendment
7

seizure need not be the outcome of a search; a seizure may occur even when there is no

invasion of privacy.

Defendants attempted to distinguish this case from Soldal because here the

incidents occurred on a public fairground, and thus did not involve trespass. In Soldal,

however, the officers were not trespassing on private property; they came at the invitation

of the landowner. Soldal clearly held that if police officers actually assisted in an illegal

seizure then they would be violating plaintiff’s constitutional rights.

B

The district court found that plaintiffs presented enough evidence to create a

factual question as to whether defendants’ conduct violated clearly established law as set

out in Soldal. “[I]f what is at issue in the sufficiency determination is nothing more than

whether the evidence could support a finding that particular conduct occurred, the

question decided is not truly ‘separable’ from the plaintiff’s claim and hence there is no

‘final decision’ under Cohen [v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949),]

and Mitchell [v. Forsyth, 472 U.S. 511 (1985)].” Behrens v. Pelletier, 116 S. Ct. at 842.

This case presents a problem discussed in Behrens and Johnson: when a district

court does not fully identify the particular conduct that it deemed adequately supported,

“a court of appeals may have to undertake a cumbersome review of the record to

determine what facts the district court, in light most favorable to the nonmoving party,
8

likely assumed. That is the task now facing the Court of Appeals.” Id. at 842 (quoting

Johnson, 115 S. Ct. at 319).

We thus must determine what facts the district court most likely assumed in

finding that “[t]here are allegations, with sufficient factual support in the record, that the

sheriff, as the Osage County policy maker, and the named deputies either joined in or

condoned the seizure of the subject horses.” III R. 915; Buonocore v. Harris, 65 F.3d

347, 357 (4th Cir. 1995) (court dismissed for lack of jurisdiction even though defendants

contended their behavior did not violate clearly established right because defendants

relied upon their own statement of facts: “defendants cannot demonstrate that

[plaintiff’s] allegations do not state a violation of a clearly established right simply by

substituting their own version of the facts”).

Our review of the record indicates that the district court likely based its ruling on

testimony that defendant deputies participated in (1) standing by while Tina took

possession of two of plaintiffs’ horses; (2) preventing plaintiffs from moving their

property in a lawful manner; and (3) actually moving some of plaintiffs’ horses to deputy

Hivley’s property. The court also likely based its denial of summary judgment on a

finding that there was conflicting evidence as to whether the deputies conspired to allow

Tina to gain possession of the horses.
2

 We note that the sheriff is sued in his official capacity. Thus the suit against him

is a suit against the county. Taylor v. Meacham, 82 F.3d 1556, 1564 (10th Cir.), cert.

denied, 117 S. Ct. 186 (1996). The county is not entitled to assert qualified immunity. 

Owen v. City of Independence, 445 U.S. 622, 650-53 (1980) (government entities may

not assert qualified immunity).

9

We are without jurisdiction to review the court’s finding that summary judgment

was inappropriate because plaintiffs raised genuine issues of disputed facts. See Sevier v.

City of Lawrence, 60 F.3d 695, 700-01 (10th Cir. 1995).

III

Defendants county commission and sheriff2

 asked us to assert appellate

jurisdiction over their appeals under the doctrine of pendent appellant jurisdiction. 

Because we do not have jurisdiction of the deputies’ appeal from the denial of qualified

immunity we must dismiss that appeal. Therefore no appeal remains to support the

pendent jurisdiction claim by the county or sheriff. See Sevier, 60 F.3d at 701. We

dismiss for lack of jurisdiction the appeals by the deputy sheriffs, the sheriff, and the

board of county commissioners.

DISMISSED.

Entered for the Court

James K. Logan

Circuit Judge