FILED

United States Court of Appeals

Tenth Circuit

December 17, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN B. ELLIS, as Administrator on

Behalf of the Philemon B. Ellis Estate and

Next-of-Kin,

Plaintiff - Appellant,

v.

OGDEN CITY; MATT JONES, Ogden

City Police Officer; TROY BURNETT,

Odgen City Police Officer,

Defendants - Appellees.

No. 08-4166

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 1:07-CV-122-DAK)

Michael P. Studebaker, Law Office of Michael Studebaker, LLC, Ogden, Utah,

 for the Plaintiff - Appellant.

Stephen F. Noel, Smith Knowles, Ogden, Utah, (Allan L. Larson and Heather S. 

White, Snow, Christensen & Martineau, Salt Lake City, Utah, for the Defendants -

Appellees, Ogden City and Troy Burnett), for the Defendant - Appellee, Matt Jones.

Before HARTZ, HOLLOWAY, and TYMKOVICH, Circuit Judges.

HOLLOWAY, Circuit Judge.
1

The First Amended Complaint appears in the Appendix at 008-015.

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This tragic case addresses the level of intent necessary to prove a 42 U.S.C. § 1983

claim against officers for their conduct in a high-speed chase resulting in a bystander’s

death. The teaching of County of Sacramento v. Lewis, 523 U.S. 833, 836 (1998), is that

in such circumstances “only a purpose to cause harm unrelated to the legitimate object of

arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary

for a due process violation.” See also id. at 858 (Kennedy, J., concurring) (“intent to

injure” is required).

Because Plaintiff-Appellant here failed to allege facts sufficient to establish such

intent, the District Court properly dismissed the First Amended Complaint pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure.

I. BACKGROUND

On December 18, 2006, Officer Matt Jones and Sergeant Troy Burnett are alleged

to have initiated a “high speed chase” after Eddie Bustos through Ogden, Utah. First

Amended Complaint at ¶¶ 3-4, 12, 14.1

 The officers had been conducting a stakeout in a

known gang member area of Ogden. Id. at ¶ 12. According to the First Amended

Complaint, the officers began to follow and then chase Mr. Bustos “through town at

speeds that exceeded 55 miles per hour, and at times reached 80 miles per hour.” Id. at ¶

15. Officer Jones was aware of the residential address of Mr. Bustos and could have

waited at that address to arrest Mr. Bustos for any crimes he may have committed. Id. at ¶
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22. Throughout the chase Mr. Bustos would drive into oncoming traffic and lanes and the

defendants continued to chase him. Id. at ¶ 17. The officers were advised and ordered by

dispatch to disengage from the pursuit. Id. at ¶ 19.

The First Amended Complaint further alleges that the officers disregarded the order

and/or gave false information to police dispatch about their speed and that they were

disengaging the chase. Id. at ¶¶ 20, 24. During the chase Mr. Bustos struck the vehicle

which Mr. Ellis was driving, and this led to Mr. Ellis’s death. Id. at ¶ 23.

Mr. Ellis’s estate filed suit against Ogden City, Officer Jones, and Sergeant Burnett

for allegedly violating Mr. Ellis’s Fifth and Fourteenth Amendment rights to due process

and his Fourteenth Amendment right to equal protection of the law. The estate’s suit was

maintained pursuant to 42 U.S.C. § 1983 for acts which “deprived Ellis of his civil rights

and his life.” Id. at ¶¶ 6, 35, 42. The estate also alleged the City of Ogden fostered and

encouraged a policy of turning a blind eye to dangerous police pursuits, thus exposing the

city to municipal liability. Id. at ¶¶ 39-40. A demand for trial by jury was made in the

complaint. Id. at ¶ 1. Defendants-Appellees moved to dismiss the case pursuant to Fed.

R. Civ. P. 12(b)(6) for failure to state a claim, and the District Court granted the motion. 

Memorandum Decision & Order, App. at 156.

The District Court held that the estate failed to allege facts establishing that the

officers acted with the requisite intent for such a constitutional violation so that

Defendants’ Rule 12(b)(6) motion was appropriate. Id. at 7. The estate appealed the

dismissal.
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II. DISCUSSION

The District Court had federal question jurisdiction over this case pursuant to 28

U.S.C. §§ 1331 and 1343. This court has appellate jurisdiction pursuant to 28 U.S.C. §

1291.

A.

The Element of Intent Under Lewis for a Section 1983 

Claim Arising From a High-speed Police Pursuit

Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, provides a remedy

against any person who, under color of state law, deprives another of rights protected by

the Constitution. Radecki v. Barela, 146 F.3d 1227, 1229 (10th Cir. 1998). To establish a

substantive due process violation, a plaintiff must show that the officers acted in a manner

“so egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience.” Lewis, 523 U.S. at 847, n.8. Whether conduct shocks the conscience

depends on the factual circumstances of the case and the level of intent exhibited by the

officers. See id. at 850 (“[O]ur concern with preserving the constitutional proportions of

substantive due process demands an exact analysis of circumstances before any abuse of

power is condemned as conscience shocking.”).

Lewis specified that in the context of a high-speed police pursuit there must be

evidence that the officers intended to “harm the suspects physically or to worsen their

legal plight” in order for their conduct to shock the conscience and therefore violate due

process. Id. at 854. “Accordingly, we hold that high-speed chases with no intent to harm

suspects physically or to worsen their legal plight do not give rise to liability under the
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Fourteenth Amendment, redressible by an action under § 1983.” Id. (emphasis added). 

Applying Lewis, in Radecki v. Barela, we stated that under the circumstances presented

“only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the

element of arbitrary conduct shocking to the conscience necessary for a due process

violation.” 146 F.3d 1227, 1230 (10th Cir. 1998) (quoting Lewis, 523 U.S. at 836). 

Although Lewis did not explicitly define what constitutes a high-speed pursuit, the

Court stated:

In this setting, a deliberate indifference standard does not

adequately capture the importance of such competing

obligations, or convey the appropriate hesitancy to critique in

hindsight decisions necessarily made in haste, under pressure,

and frequently without the luxury of a second chance.

523 U.S. at 852 (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)). The Supreme

Court continued:

As the very term “deliberate indifference” implies, the

standard is sensibly employed only when actual deliberation

is practical, see Whitley v. Albers, 475 U.S. at 320 .... 

Lewis, 523 U.S. at 851.

When an officer is in a high-pressure situation where time is of the essence, there

must be evidence of a purpose to cause harm unrelated to the legitimate object of the arrest

to satisfy the element of arbitrary conduct shocking to the conscience for a due process

violation. Id. at 836. Here, we are satisfied that this complaint alleged facts showing there

was not time to deliberate; therefore we must focus on the possibility of liability based on
2

The First Amended Complaint describes the pursuit as a “high speed chase” and

notes the speed at which the parties were traveling. First Amended Complaint at ¶¶ 3-4,

15. The complaint makes no mention of the officers having time to deliberate as they

sped “through town” following Bustos as he drove “into oncoming traffic and lanes.” Id.

3

The fact that Mr. Ellis was a bystander and not the suspect being pursued does not

change our view of the controlling effect of Lewis here. Arguably an innocent bystander

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an intent to injure the injured party.2

B.

The District Court Properly Granted DefendantsAppellees’ Motion to Dismiss for Failure to

State a Claim.

When reviewing a dismissal pursuant to Rule 12(b)(6), this Court will “accept all

the well-pleaded allegations of the complaint as true and . . . construe them in a light most

favorable to the plaintiff.” David v. City & County of Denver, 101 F.3d 1344, 1352 (10th

Cir. 1997) (citations omitted). The dismissal order is reviewed de novo and the court will

determine “whether the complaint contains ‘enough facts to state a claim to relief that is

plausible on its face.’” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th

Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). If the

plaintiff fails to allege an essential element of his claim, the complaint is appropriately

dismissed pursuant to Rule 12(b)(6). Forest Guardians v. Forsgreen, 478 F.3d 1149, 1160

(10th Cir. 2007).

The estate’s First Amended Complaint failed to allege facts establishing liability

based on the theory of intent to harm. There is no dispute about the alleged underlying

police activity resulting in Mr. Ellis’s death being a high-speed pursuit.3

 Thus, Lewis
presents a stronger case for liability against the pursuing officers than does a fleeing

suspect. But we perceive no difference in the strength of Lewis as a defense against a

bystander’s claim or other persons pursued. See Bingue v. Prunchak, 512 F.3d 1169,

1175 (9th Cir. 2008) (“Lewis applies to injuries resulting from a high-speed police chase

regardless of whether the injured victim was a fleeing suspect or an innocent bystander.”);

See also Helseth v. Burch, 258 F.3d 867, 872 (8th Cir. 2001); Davis v. Township of

Hillside, 190 F.3d 167, 170 n.2 (3rd Cir. 1999). The Court in Lewis, grouped together

“suspects, their passengers, other drivers, or bystanders.” 523 U.S. at 853 (emphasis

added).

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applies. 523 U.S. at 836 (“The issue in this case is whether a police officer violates the

Fourteenth Amendment's guarantee of substantive due process by causing death through

deliberate or reckless indifference to life in a high-speed automobile chase aimed at

apprehending a suspected offender.”). Lewis requires the plaintiff to assert that the

officers acted with an intent to either physically harm the suspect or worsen his legal

plight. Id. at 854. As we have noted, the estate failed to allege sufficient facts to meet the

requirement of Lewis, 523 U.S. at 854:

Accordingly we hold that high-speed chases with no intent to

harm suspects physically or to worsen their legal plight do not

give rise to liability under the Fourteenth Amendment,

redressible by an action under § 1983.

The estate failed to allege sufficient facts to support an intent to physically harm or worsen

the legal plight of the injured party.

The only allegation in the complaint suggesting an intention to cause harm is that

Officer Jones “acknowledged . . . ‘[t]he suspect [Bustos] was traveling against traffic and

an obvious danger to the public.’” First Amended Complaint at ¶ 16. However, an

awareness that pursuing a suspect at speeds between 55 to 80 miles per hour through
4

This test analyzes whether (1) the plaintiff was a member of a limited and

specifically definable group; (2) the defendant’s conduct put the members of that group at

risk for harm; (3) the risk was obvious or known; and (4) the defendant acted in conscious

disregard of that risk. Medina, 960 F.2d at 1496.

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Ogden was an obvious danger to the public is not a sufficient averment that the officer

intended to cause physical harm to the suspect or worsen his legal plight. In Radecki v.

Barela, we directed entry of judgment for the defendants stating:

Under these circumstances, however, where plaintiffs have not

even alleged that Deputy Barela acted with an intent to harm

the participants or to worsen their legal plight, under the Lewis

standard there is no constitutional liability.

146 F.3d at 1232.

The estate asserts on appeal that the appropriate test for determining whether the

officers intended to hurt Mr. Ellis was the four-factor test of Medina v. City & County of

Denver, 960 F.2d 1493 (10th Cir. 1992).4

 Appellant’s Opening Brief at 17-18. The

plaintiff maintains that Medina “is still good law” on liability for disregarding the known

danger. Id. at 18. We disagree. Here, the complaint failed to allege that the officers acted

with an intent to harm either the suspect Mr. Bustos or Mr. Ellis. We feel that in view of

the direct applicability of Lewis to this high-speed chase scenario, the Medina four-factor

test is not controlling. In Lewis, the Court directly decided the level of intent an officer

must exhibit during a high-speed pursuit to constitute a violation of an injured individual’s

substantive due process rights. 523 U.S. at 836. The Court held that “only a purpose to

cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary
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conduct shocking to the conscience, necessary for a due process violation.” Id. 

As noted, the required purpose to cause harm during a high-speed chase was

clarified in Lewis as either an intention to cause physical harm or to worsen the suspect’s

legal plight. Id. at 854. The Supreme Court did not espouse factors like those of Medina. 

Even though the Court did not explicitly mention Medina, it focused on application of the

requirement that the officers actually intend to cause harm. Here, the complaint failed to

allege the officers had any intention to injure anyone by their high-speed chase.

The First Amended Complaint here stated that at least “Defendant Jones was aware

of the residential address of Bustos and could have waited at that address to arrest Bustos

for any crimes he may have committed.” Id. at 22. Nevertheless defendants chased Mr.

Bustos through town at speeds that exceeded 55 miles per hour, and at times reached 80

miles per hour. Id. at ¶ 15. Since the pursuit was “through town,” the estate now asserts

the distance traversed shows the officers had adequate time to deliberate and consider

whether to continue giving chase or to attempt to arrest Mr. Bustos at his home. 

Appellant’s Opening Brief, pp. 15-16. The estate relies upon Officer Jones’s admission of

the danger posed to the public by Mr. Bustos’s driving as evidence of the officer’s reckless

indifference. Id.

Lewis makes it clear that in such high-speed chase circumstances, the standard of

Lewis applies when officers are “often forced to make split-second judgments – in

circumstances that are tense, uncertain, and rapidly evolving.” Lewis, 523 U.S. at 853

(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). For a constitutional claim to be
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viable, the plaintiff must establish not that the officers acted with reckless indifference but

that the officers intended to cause harm. Lewis, 523 U.S. at 853 (quoting Graham v.

Connor, 490 U.S. 386, 397 (1989)). Here, importantly the First Amended Complaint

failed to assert sufficient facts to establish the officers had time to deliberate. The

complaint describes the pursuit as a “high speed chase” and notes the speed at which the

officers were traveling. First Amended Complaint at p.3. The only possible reference to

having time to deliberate is that the chase occurred “through town.” Id. But even when

viewed in the light most favorable to the estate, this vague reference to the distance is not

sufficient to support the officers having sufficient time to deliberate and thus lower the

level of intent to that of deliberate indifference. Because the estate here failed to allege

facts supporting the required element of intent to harm, the District Court was correct to

dismiss the case for failure to state a claim.

C.

The District Court Properly Dismissed the Claims Asserting a

Theory of Municipal Liability.

A municipality, such as Ogden, can be directly sued under § 1983 when its officers

commit constitutional violations in accordance with the municipality’s official policy. 

Monell v. New York, 436 U.S. 658, 690 (1978). However, liability will not attach “where

there was no underlying constitutional violation by any of [the municipality’s] officers.” 

Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (citing City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986)).

In this case, the District Court dismissed the case against Officer Jones and
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Sergeant Burnett. Since the officers were not alleged sufficiently to have committed a

constitutional violation, they could not provide the nexus required for municipal liability

under § 1983. See Graves, 450 F.3d at 1218. Therefore, once the claims against the

officers were properly dismissed, the claims against the municipality were also properly

dismissed since liability for the municipality could not attach.

The estate’s First Amended Complaint failed to allege sufficient facts to support the

required element of intent. Accordingly, we AFFIRM.