* The Honorable Bruce S. Jenkins, Senior District J udge for the

United States District Court for the District of Ut ah, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 31 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARY BIG ELK and RAYMOND POLLARD, a/k/a SAM McCLANE,

Plaintiffs-Appellants, No. 99-5115

v. N.D. Okla. BOARD OF COUNTY COMMISSIONERS OF OSAGE COUNTY, DONNA KASTNING, RUSSELL COTTLE in his official capacity, and LARRY STUART in his individual capacity,

Defendants-Appellants. (D.C. No. 96-CV-87-B)

ORDER AND JUDGMENT

Before HENRY and BRISCOE , Circuit Judges, and JENKINS , Senior District Judge. *

Mary Big Elk and Raymond Pollard, also known as SamMcClane, filed suit against various defendants pursuant to 42 U.S.C. § 1983, alleging that their horses had been illegally seized in violation of the Fourt h and Fourteenth Amendments. Following a trial, the jury found two of the defend ants liable, namely, the Board-2-

of County Commissioners of Osage County (“Board”) and Donna Kastning, a deputy sheriff for Osage County, and awarded the pl aintiffs actual and punitive damages. The district court later amended the judg ment pursuant to a motion by the defendants, reducing the actual damages award b y three thousand dollars. In addition, the district court refused to grant the p laintiffs injunctive relief, holding that the policy of the Osage County sheriff’s department, under which a deputy is permitted to attend a civil repossession in a stand -by capacity only, did not violate the Constitution. The plaintiffs now appeal on var ious grounds. For the reasons set forth below, we affirm in part and vacate and r emand in part.

I. BACKGROUND The facts of the case are well known to the parties and have been recounted in part in a prior appeal. See Big Elk v. Kastning , No. 97-5012, 1998 WL 161053 (10th Cir. Apr. 1, 1998). To summarize, this case arose out of a dispute between Mr. McClane and Tina Kastning. Fearing that Mr. Mc Clane would not pay a debt owed her, Tina Kastning seized several horses that were housed in stalls rented by Mr. McClane. She was assisted in her efforts by se veral private citizens as well as several deputy sheriffs, including her sister-in-law Donna Kastning. Under an unwritten policy in the sheriff’s department, a dep uty is permitted to attend a civil repossession but in a stand-by capacity only. Thatis, a private citizen can call a-3-

deputy and have the deputy accompany her to the sit e where the property is being held. The deputy is not to take an active part in the repossession; rather, her sole purpose in attending is to ensure that no breach of peace takes place.

II. PROCEDURE In their complaint, the plaintiffs alleged that the defendants had illegally seized their horses in violation of the Fourth and Fourteenth Amendments. The named defendants were: (1) Donna Kastning, Dan Hiv ely, and Wes Penland, all deputy sheriffs for Osage County; (2) Michael Kastn ing, Tina Kastning, Calvin Kastning, and Jana Welch, all private citizens; and (3) Larry Stuart, district attorney for Osage County. Approximately six month s later, the plaintiffs reached a settlement agreement with Michael Kastning, Tina Kastning, and Calvin Kastning. These defendants were subsequently dismi ssed from the lawsuit. A default judgment was later obtained against Ms. Wel ch, the remaining private citizen defendant. On July 26, 1996, the district court issued a sched uling order, which provided in part that joinder of additional parties and/or amendment of pleadings take place by July 29, 1996. Despite this order, t he district court permitted the plaintiffs to amend their complaint several months later for the limited purpose of “add[ing] the Board of Commissioners of Osage County and Henry Bloomfield,1 Because Mr. Bloomfield died before trial and was being sued in his

official capacity only, Russell Cottle, the new she riff, was later substituted for him. See Aplts’ App. vol. V, at 0001405 (district court ord er, filed Aug. 27, 1998). -4- [s]heriff of Osage County, as parties to the case.” 1 Aplts’ App. vol. V, at 001157 (district court order, filed Nov. 5, 1996). The pl aintiffs did so. However, in their amended complaint, they did not simply name the Boa rd and Sheriff Bloomfield as additional defendants; they also asked for the f irst time for injunctive relief, more specifically, for a permanent injunction to en join the sheriff’s department from continuing its policy under which a deputy is permitted to attend a civil repossession in a stand-by capacity. Furthermore, the plaintiffs stated their intention to proceed with the suit as a class actio n, at least with respect to the claim for injunctive relief. Almost a month later, the plaintiffs formally movedfor class certification pursuant to Federal Rule of Civil Procedure 23(b)(2 ). The district court denied the motion as untimely. Thereafter, the district c ourt ruled on various summary judgment motions pending before it. Initially, it denied the motions but then amended its order after reconsideration and grantedsummary judgment to Mr. Stuart, the district attorney for Osage County. The deputy sheriff defendants – Donna Kastning, Mr. Hively, and Mr. Penland – subsequently filed an interlocutory appea l, arguing that the district-5-

court should have granted them summary judgment on the basis of qualified immunity. This court dismissed the appeal. The tr ial began several months later, and, on October 6, 1998, the jury returned a verdic t in favor of the plaintiffs against the Board and Donna Kastning, awarding $25, 325 in actual damages and $10,000 in punitive damages. The remaining defendants were found not liable. The next day, the district court entered judgment. Subsequently, both the plaintiffs and the defendants moved that it be alte red or amended. The plaintiffs moved (1) to include prejudgment interest in the aw ard of actual damages; (2) to reconsider their request for class certification; and (3) to grant their request for injunctive relief (i.e., to enjoin the sheriff’s de partment’s policy). The district court denied the motion. It granted, however, the defendants’ motion, reducing the award of actual damages by three thousand dollars to reflect the amount the plaintiffs had received as part of the settlement a greement with Michael Kastning, Tina Kastning, and Calvin Kastning.

III. DISCUSSION On appeal, the plaintiffs raise five arguments, nam ely, that the district court erred in (1) refusing to grant them injunctive reli ef; (2) rejecting their motion for class certification; (3) granting summary judgment to Mr. Stuart, the district attorney for Osage County; (4) denying them prejudg ment interest; and (5)-6-

reducing their actual damages award by three thousand dollars. We address each of these arguments in turn. A. Injunctive Relief In their amended complaint, the plaintiffs included in their prayer for relief a request for a permanent injunction to enjoin the sheriff’s department from continuing its policy under which a deputy is permi tted to attend a civil repossession in a stand-by capacity. The district court refused to grant this relief, holding that, because the policy only allowed the d eputy to be present at the repossession and nothing more, it did not violate e ither the Fourth or Fourteenth Amendments. We hold that the district court proper ly denied the plaintiffs injunctive relief but on the basis that the plaintiffs lacked standing. See Wilson v. Glenwood Intermountain Properties, Inc. , 98 F.3d 590, 592-93 (10th Cir. 1996) (“Standing is a jurisdictional issue that may be ra ised by the court at any time.”). Under City of Los Angeles v. Lyons , 461 U.S. 95 (1983), a plaintiff lacks standing to seek prospective injunctive relief if h e or she cannot show a real or immediate threat of future harm. See id. at 105-06; see also O’Shea v. Littleton , 414 U.S. 488, 495-96 (1974) (“Past exposure to ille gal conduct does not in itself show a present case or controversy regarding injunc tive relief . . . if unaccompanied by any continuing, present adverse effects.”); Buchwald v. University of N.M. Sch. of Med. , 159 F.3d 487, 493 (10th Cir. 1998)2 According to the plaintiffs, they were “debtors b efore, during, and after

the horsetaking [sic] incidents,” Aplts’ Reply Br. at 18. However, the plaintiffs make only one citation to the record to support thi s claim, and that citation merely indicates that the two were in financial difficulty . See Aplts’ App., vol. I, at 000139-40 (testimony of Ms. Big Elk). Still, for p urposes of this opinion, we assume that the plaintiffs were in fact debtors. -7- (“[P]laintiff’s standing to seek an injunction orde ring her admission to the school based solely on her allegations of past misconduct does not entail standing to seek an injunction prohibiting future use of the dispute d preference.”). According to the plaintiffs, they can demonstrate such a threat because they continued to be debtors 2 after the seizure of the horses, thus making re-imposition of the policy a likely recurrence. See Aplts’ Reply Br. at 18. This argument, however, i s not persuasive, especially in light of Smith v. Colorado Department of Corrections , 23 F.3d 339 (10th Cir. 1994). In Smith , the plaintiff challenged a prison regulation unde r which an inmate’s property would no longer be held in storag e if the inmate was placed in a higher security facility such as maximum security o r administrative segregation. According to the plaintiff, he had standing to chal lenge this regulation because “he ha[d] twice been regressed to higher security f acilities” and so “it [was] foreseeable that it could recur,” especially since “he ha[d] twenty-seven years [remaining] to serve” and “being regressed is a com mon occurrence among inmates.” Id. at 341. This court rejected the argument, conclud ing that “[t]his-8-

does not suffice for the concrete, actual[,] or imm inent injury suffered by the plaintiff required for standing.” Id. In short, neither the plaintiff’s past regressions nor his current status as inmate were, by themselves, sufficient to establish a real or immediate threat of being subje ct to the prison regulation in the future.Given Smith , we fail to see how the plaintiffs in the instant case had standing: The fact that they were debtors does notdemonstrate, without more, that they stood a “good chance” of being subject once again to the policy. Facio
v. Jones , 929 F.2d 541, 544 (10th Cir. 1991) (noting that the Supreme Court has held that, “while a plaintiff who has been constitu tionally injured can bring a § 1983 action to recover damages, that same plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured in the future”). Arguably, the threat of future harm would have been more concrete if the plaintiffs had debts whic h were, with certainty, secured by personal property and past due; if one of their creditors expressed a desire to repossess the property pledged as security; and if the creditor actually contacted the sheriff’s department, seeking to have a deputy stand by during the repossession. But again, nothing in the record sug gests that this was the case; therefore, the threat remained nothing more than sp eculation, ungrounded in reality.-9-

B. Class Certification Soon after filing their amended complaint with the district court, the plaintiffs formally moved for class certification p ursuant to Federal Rule of Civil Procedure 23(b)(2). The relief sought was, once ag ain, a permanent injunction to enjoin the sheriff’s department from continuing its policy. The district court denied the motion on the basis that it was not time ly filed in compliance with the scheduling order the district court had issued seve ral months earlier. We note first that, under Federal Rule of Civil Pro cedure 16(f), “[i]f a party or party’s attorney fails to obey a scheduling or p retrial order, . . . the judge, upon motion or the judge’s own initiative, may make suchorders with regard thereto as are just . . . .” Fed. R. Civ. P. 16(f). However, we need not resolve the issue of whether the district court acted properly pursuant to Rule 16(f) because there is a simpler way to resolve the issue. Because the plai ntiffs did not themselves have standing to enjoin the sheriff’s department’s polic y, they cannot bring a class action on behalf of others seeking that same relief. See Fallick v. Nationwide
Mut. Ins. Co. , 162 F.3d 410, 423 (6th Cir. 1998) (“Threshold ind ividual standing is a prerequisite for all actions, including class actions.”); see also Simon v. Eastern Ky. Welfare Rights Org. , 426 U.S. 26, 40 n.20 (1976) (noting that the threshold question when considering whether an acti on should be certified as-10-

class action must necessarily be whether the plaint iff has standing to sue on his own behalf). C. Summary Judgment to Mr. Stuart Mr. Stuart, the district attorney for Osage County, was named as a defendant in the proceedings because of a conversat ion that had taken place between him and Tina Kastning’s attorney, Steve Lam irand, prior to the seizure of the horses. Before Tina Kastning seized the horses , she contacted Mr. Lamirand, who then called Mr. Stuart, asking him if a crimina l matter was at stake given certain facts. Mr. Stuart told Mr. Lamirand that t he repossession of partnership assets was a civil matter and that if Tina Kastning took possession of the horses he would not prosecute her. During the proceedings below, the district court gr anted summary judgment to Mr. Stuart on the basis that he “did not partici pate in or condone the horse seizure.” Aplts’ App., Ex. D, at 2 (district courtorder, filed Jan. 30, 1997). The district court also noted that summary judgment was proper because Mr. Stuart was “not an employee of Osage County or a policy maker for the purposes of a § 1983 violation.” Id. (district court order, filed Jan. 30, 1997). On appeal, the plaintiffs seek to reverse this order but only for purposes of injunctive relief – i.e., to enjoin the sheriff’s department’s policy. Once again, because the plaintiffs did not have standing to seek this relief, they can sustain no such claim.-11-

D. Prejudgment Interest It is well established that “[t]he decision [of] wh ether or not to allow prejudgment interest rests within the sound discret ion of the trial court. Accordingly, the standard of review on appeal is wh ether the trial court abused its discretion in awarding – or in declining to award – prejudgment interest.” Kleier Adver., Inc. v. Premier Pontiac, Inc. , 921 F.2d 1036, 1040 (10th Cir. 1990) (internal quotation marks omitted). “Under the abu se of discretion standard[,] a trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a cle ar error of judgment or exceeded the bounds of permissible choice in the circumstances.” Towerridge, Inc. v. T.A.O., Inc. , 111 F.3d 758, 763 (10th Cir. 1997) (internal quot ation marks omitted). In its order, the district court began its analysis by explaining that “[t]he rationale underlying an award of prejudgment intere st is ‘to compensate the wronged party for being deprived of the monetary va lue of his loss from the time of the loss to the payment of judgment.’” Aplts’ Br ., Ex. A, at 2-3 (district court order, filed Apr. 16, 1999) (quoting U.S. Indus., Inc. v. Touche Ross & Co. , 854 F.2d 1223, 1256 (10th Cir. 1988), implied overruling on other grounds recognized by Anixter v. Home-Stake Prod. Co. , 77 F.3d 1215, 1231 (10th Cir. 1996)). It then denied the plaintiffs prejudgment interest, co ncluding that such an award3 We note that the district court did award prejudg ment interest to the

plaintiffs with respect to their claim against Ms. Welch. Notably, prejudgment (continued...) -12- would be enrichment and not compensation because th e plaintiffs had unduly delayed in filing suit after the horses were seized and then returned. See id. at 4 (district court order, filed Apr. 16, 1999) (“The s uit was commenced some 17 months after the return of the horses to Plaintiffs . Under these facts, awarding compensation in the form of prejudgment interest wo uld serve to enrich Plaintiffs for a substantial period of time after the return o f their horses and the Court concludes it is not warranted.”). A delay in filing may be taken into account in maki ng a determination on prejudgment interest. See Martin A. Schwartz & John E. Kirklin, 1C Section 1983 Litigation § 16.17 (1997) (noting that, in deciding whether and how much prejudgment interest should be granted, federal cou rts have considered various factors, including delay in filing); cf. Williamson v. Handy Button Mach. Co. , 817 F.2d 1290, 1298 (7th Cir. 1987) (discussing delay in filing in § 1981 context) . However, as the plaintiffs note, they requested pre judgment interest only from the date they filed the complaint, not from the date th e horses were seized or returned. We therefore must vacate and remand so t hat the district court may reconsider the denial in light of the fact that the plaintiffs seek prejudgment interest only from the date the complaint was filed. 33 (...continued)

interest began to accrue on the day the plaintiffs filed their complaint. See Aplts’ App. vol. V, at 001411 (district court order, filedNov. 25, 1996) (awarding prejudgment interest “from the date of filing until the date of this Judgment”). -13- E. Reduction in Actual Damages Award Following the jury verdict, the district court redu ced the award of actual damages by three thousand dollars to reflect the su m paid by Michael Kastning, Tina Kastning, and Calvin Kastning as part of the s ettlement agreement with the plaintiffs. We review the method of calculation of damages de novo and the actual calculation of damages for clear error. See Southern Colo. MRI, Ltd. v. Med-Alliance, Inc. , 166 F.3d 1094, 1100 (10th Cir. 1999). As a preliminary matter, we note that § 1983 does n ot contain any provision as to the propriety of offsetting an actual damages award because of a settlement. Because § 1983 does not provide any substantive lawon the matter, we are obligated to “fill [the] interstices” of this federal statutory scheme. Miller v. Apartment & Homes of N.J., Inc. , 646 F.2d 101, 107 (3d Cir. 1981). Happily, “Congress [has] provided [us with] some modest guid ance for resolving” this problem through 42 U.S.C. § 1988. Id. at 105. Section 1988 dictates that, where there are gaps in a civil rights statute, we must f irst look to federal law to supply the substantive law, but if federal law is somehow deficient then we apply state4 The plaintiffs do not argue whether reduction shoul d proceed on a dollarfor-dollar basis or a proportionate share basis. S ee Dobson v. Camden , 705 F.2d 759, 768 (5th Cir. 1983) (discussing the various po ssible methods of reducing), reh’g en banc , 725 F.3d 1003 (1984). Consequently, we do not ad dress this matter on appeal. See In re Walker , 959 F.2d 894, 896 (10th Cir. 1992) (noting the general rule that “a federal appellate court do es not consider an issue not passed upon below”) (internal quotation marks omitt ed).

-14- law, that is, assuming it is consistent with the Co nstitution and other federal law.
See 42 U.S.C. § 1988. For purposes of this case, whether we are guided byfederal law or state law is not important because, under either, there w ould be a reduction in the plaintiffs’ actual damages award because of the mon ey received as part of the settlement agreement. 4 See generally Miller , 646 F.2d at 101 (applying federal common law and reducing the damages award by the am ount of settlement); 12 Okla. Stat. Ann. § 832(H)(1) (“When a release, covenant not to sue, or a similar agreement is given in good faith to one of two or m ore persons liable in tort for the same injury . . . [i]t does not discharge any o ther tort-feasor from liability for the injury . . . unless the other tort-feasor is sp ecifically named; but it reduces the claim against others to the extent of any amount st ipulated by the release or the covenant, or in the amount of the consideration pai d for it, whichever is greater . . . .”). In any event, the plaintiffs do not seriously co ntend that there should be no offset whatsoever. The real issue for the plaintiffs is the amount of the offset.-15-

The district court reduced the actual damages award by three thousand dollars – i.e., the entire settlement award. According to th e plaintiffs, this was error because the settlement award was not simply compens ation for the seizure of the horses; rather, the settlement award also covered o ther injuries sustained by the plaintiffs for which only the settling defendants w ere responsible, including an assault of Mr. McClane and damage to a car as a res ult of the assault. Consequently, the plaintiffs assert that the offsetshould be less than three thousand dollars. We disagree, concluding that the district court did not clearly err in reducing the actual damages award by the entire amo unt of the settlement. Admittedly, there is some evidence in the record th at suggests Mr. McClane was assaulted and that this assault led to property dam age. Furthermore, the settlement agreement specified that it covered not only actual claims raised in the pleadings but potential claims as well. See Aplts’ App. vol. V, at 001136-37 (agreed journal entry of compromise, settlement andjudgment dismissing claims with prejudice, filed Aug. 26, 1996). However, eve n if the assault and property damage were taken into account in negotiating the s ettlement, the settlement agreement on its face made no distinction as to whi ch part of the award was compensation for which injury. The district court therefore had no meaningful way of determining an appropriate set-off. Notably , the plaintiffs themselves-16-

failed to provide any guidance on the matter, simpl y contending that the set-off should be an unspecified amount less than three tho usand dollars. Accordingly, we AFFIRM in part and VACATE and REMAN D in part for further proceedings consistent with this opinion. Entered for the Court,

Robert H. Henry Circuit Judge