FILED

United States Court of Appeals

Tenth Circuit

August 22, 2018

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MATTHEW RICHARD PARKER,

Plaintiff - Appellant,

v.

THE CITY OF TULSA,

Defendant - Appellee.

No. 17-5054

(D.C. No. 4:16-CV-00134-CVE-TLW)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before MORITZ, MURPHY, and EID, Circuit Judges.

Matthew Parker was convicted in Oklahoma state court of sexually abusing

K.S., a child. The Oklahoma Court of Criminal Appeals set aside Parker’s

conviction on collateral review, holding his trial and appellate counsel provided

constitutionally ineffective assistance. Parker then brought the instant 42 U.S.C.

§ 1983 civil rights suit, asserting the City of Tulsa, via its police department (the

“TPD”), violated his Fourteenth Amendment right to due process by conducting a

*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.
“results oriented investigation” that failed to investigate leads which would have

developed exculpatory evidence. The district court granted summary judgment in

favor of Tulsa, concluding Parker failed to present sufficient evidence from which

a jury could find the alleged constitutional violation occurred pursuant to official

policy or custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). 

Parker appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court

affirms.

The general background facts underlying Parker’s state court conviction are

set out in this court’s opinion denying his 28 U.S.C. § 2254 petition for habeas

relief. See Parker v. Scott, 394 F.3d 1302, 1307-08 (10th Cir. 2005). The general

background facts relating to Parker’s eventually successful efforts to obtain

collateral relief in state court are set out in Parker v. State, 414 P.3d 391, 392-94

(Okla. Civ. App. 2018). For purposes of understanding this appeal, it is sufficient

to note that Parker asserts the TPD, through Officer Rex Berry, failed to

(1) investigate reports K.S. was molested by her grandfather, (2) follow up on

information indicating possible alternative sources for K.S.’s sexual knowledge,

(3) emphasize in his reports to prosecutors acknowledged inconsistencies and

improbabilities in K.S.’s version of events, and (4) investigate the possibility of

his innocence. Parker further asserts that given Berry’s testimony he conducted

the investigation pursuant to TPD’s policies and procedures, he came forward

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with sufficient evidence Tulsa had a well-settled custom of ignoring exculpatory

evidence and/or failed to adequately train and supervise its officers.

The district court granted summary judgment in Tulsa’s favor. The district

court began its analysis by refusing to decide whether Parker’s evidence,

assuming the truth thereof, stated a constitutional violation.1 The district court

concluded Parker failed to come forward with sufficient evidence that Tulsa had a

1

In asserting TPD’s reckless failure to investigate evidence indicating his

possible innocence states a viable Fourteenth Amendment substantive due process

claim, Parker relies exclusively on case law from the Eighth Circuit. See Winslow

v. Smith, 696 F.3d 716, 732-35 (8th Cir. 2012). As far as this court can tell, the

Eighth Circuit stands alone in recognizing the existence of such a cause of action. 

The Seventh Circuit, on the other hand, has ruled that such claims must be

brought as Fourth Amendment false arrest or malicious prosecution claims and,

then, only if the claims fit within those rubrics. Brooks v. City of Chi., 564 F.3d

830, 833 (7th Cir. 2009). Several district courts have also ruled there is no such

substantive due process claim. See, e.g., Newton v. City of N.Y.C., 566 F. Supp.

2d 256, 278 (S.D.N.Y. 2008). Although there exists serious reason to doubt the

existence of the sole claim set out in Parker’s complaint, it is unnecessary to

address that issue because, as discussed more fully below, the record conclusively

establishes that even assuming the existence of such a cause of action, Berry’s

alleged failure to conduct an adequate investigation was not undertaken pursuant

to a policy, custom, or practice.

Even applying the substantive due process rubric created by the Eighth

Circuit, there is serious reason to doubt whether Parker’s claim states a

constitutional violation. To state a claim under the Eighth Circuit standard, the

failure to investigate must shock the judicial conscious. Winslow, 696 F.3d at

732-35. The record in this case reveals that the only information Berry failed to

investigate that was not in Parker’s possession was information K.S. had older

friends and a curiosity about sex. Parker has not, however, produced any

evidence that further investigation, if undertaken, would have led to exculpatory

evidence. The mere failure to investigate, without negative consequence, hardly

seems to be the stuff of a substantive due process violation. Nevertheless, for

those reasons already set out above, it is unnecessary to resolve this issue.

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well-settled practice or custom of ignoring exculpatory evidence or failed to

adequately train or supervise its officers. As to the custom or practice argument,

the district court concluded this court’s decision in Bryson v. City of Oklahoma

City, 627 F.3d 784 (10th Cir. 2010), mandated summary judgment in Tulsa’s

favor:

In Bryson . . . , the Tenth Circuit addressed issues of municipal

liability similar to those in this case. Bryson was convicted of a rape

and kidnapping based in part on the testimony of a forensic chemist

employed by the Oklahoma City Police Department who testified that

DNA evidence found at the scene of the crime implicated Bryson. 

Id. at 787. Later testing found that the forensic chemist’s lab results

indicated that the DNA found at the scene could not have come from

Bryson. Id. Bryson filed a § 1983 action against the city and the

forensic chemist, and the district court granted the city’s motion for

summary judgment, finding that the undisputed evidence did not

support a finding of municipal liability. Id. Bryson argued, inter

alia, that the city had a custom of encouraging forensic chemists to

manipulate evidence in order to obtain convictions. Id. at 790. To

support his claim, Bryson cited to the testimony of a former

Oklahoma City police chief that “forensic chemists, like everybody

who is on the prosecution team, [will] testif[y] in a way that is the

most incriminating.” Id. (alterations in original). Bryson also cited

to the statement of another forensic chemist who criticized the

testimony of the chemist involved in Bryson’s case and asserted that

her behavior “persists and is condoned by much of the criminal

justice system in Oklahoma County.” Id. The Tenth Circuit

[concluded] . . . the statements were not “sufficient to give rise to an

inference of a widespread City practice of fabricating results and

concealing evidence that was ‘so permanent and well settled as to

constitute a custom or usage with the force of law.’” Id. at 791 . . . .

Here, plaintiff has presented even less evidence of a custom

than the plaintiff in Bryson. Plaintiff relies entirely on the

statements of Berry that he was following TPD’s policies and

procedures in this investigation and that no supervisor reprimanded

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him over this case. In Bryson, the Tenth Circuit explained that the

other chemist’s statement about the false testimony being condoned

by the rest of the criminal justice system did not establish a custom

because the statement referred to only that forensic chemist and did

not suggest that other chemists were giving similarly inaccurate

testimony. Id. Thus, under Bryson, a clear pattern of behavior of

one employee is not enough to establish a custom. Here, at most the

evidence shows that TPD condoned Berry’s failure to investigate

exculpatory evidence in this case. Berry’s testimony does not even

establish a custom within his own investigations, let alone a

widespread practice across TPD that could constitute a well settled

custom with the force of law. Thus, viewing the evidence in the light

most favorable to plaintiff, plaintiff has failed to present evidence

giving rise to an inference of a custom of ignoring exculpatory

evidence sufficient to establish municipal liability.

District Ct. Order at 4-6. As to the failure-to-train component of Parker’s

municipal liability claim, the district court began by noting that “[a] city’s failure

to train or failure to supervise its employees constitutes an official policy or

custom when it ‘amounts to deliberate indifference to the rights of persons with

whom the [employees] come into contact.’” Id. at 6 (quoting City of Canton v.

Harris, 489 U.S. 378, 388 (1989)). This standard is difficult to satisfy and

generally requires a pattern of tortious conduct. Bryson, 627 F.3d at 789. The

district court concluded Parker had not established such a pattern and had also

failed to demonstrate the special circumstances necessary to advance such a claim

in the absence of a tortious pattern:

Plaintiff has presented no evidence to show a pattern of

tortious conduct. Thus, plaintiff must show that the need for more or

different training and/or supervision was so obvious that a violation

of his constitutional right to due process was likely to result from not

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providing it. At the time of the investigation, Berry had been a

police officer for over twenty years and the second in command of

the Child Crisis Unit for over a decade. Berry supervised other

investigations in the unit and had investigated over one thousand

child abuse cases by the time he conducted the investigation that led

to plaintiff’s arrest and prosecution. Berry’s uncontroverted

testimony is that he trained with a detective experienced in child

abuse cases when he first joined the unit and that TPD sent him to

several training seminars in investigating child abuse cases.

Dr. Lyman’s [Parker’s expert] report asserts that “[t]he

importance of proper supervisory oversight cannot be overstated,”

but it does not explain what “proper supervision” would have

involved. Dr. Lyman’s report gives no reason why it would be

obvious to TPD that additional oversight of a veteran detective in the

Child Crisis Unit would be obviously necessary to prevent the

detective from failing to investigate exculpatory evidence. Given

Berry’s extensive experience and training in investigating child abuse

cases, the need for a supervisor to check on Berry’s investigation to

prevent him from failing to investigate exculpatory evidence was not

highly predictable or plainly obvious. Cf. Bryson, 627 F.3d at 789

(“We are not persuaded, however, that it was highly predictable or

plainly obvious that a forensic chemist would decide to falsify test

reports and conceal evidence if she received only nine months of

on-the-job training and was not supervised by an individual with a

background in forensic science.”).

Moreover, although Dr. Lyman sets out the details of what he

believes would be a better policy regarding child abuse

investigations, he gives no reason to think it would be highly

predictable or plainly obvious that not having these policies in place

would lead to detectives failing to investigate exculpatory evidence. 

Plaintiff does not present any evidence that specific, written child

abuse investigation policies were ubiquitous in police departments at

the time. Cf. id. (“[A]lthough the record reflects that most forensic

laboratories began adopting better training and management practices

in the 1970s and early 1980s, such practices were by no means

universal in 1983, further militating against the conclusion that it

was highly predicable or plainly obvious in 1983 that the training and

supervision practices employed by the City and other jurisdictions

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would result in the violation of federal rights.”). And considering

that failure to investigate exculpatory evidence is not a problem

specific to child abuse cases, it is unclear why a specific policy on

investigating exculpatory evidence for this type of case would be

obvious. Given the undisputed evidence of Berry’s training on the

job and at specific child abuse investigation seminars, and plaintiff’s

failure to show that a written policy on child abuse investigations

was obviously necessary at the time to prevent officers from ignoring

exculpatory evidence, the Court finds that plaintiff has failed to show

deliberate indifference. Because plaintiff has not presented

sufficient evidence to support a finding of a custom or policy that

caused his constitutional deprivation, defendant’s motion for

summary judgment will be granted.

District Ct. Order at 7-9 (citations omitted).

On appeal, Parker asserts the evidence in the record is sufficient to send to

the jury his policy-or-custom and failure-to-train claims. This court reviews a

district court’s grant of summary judgment de novo, viewing the evidence in the

light most favorable to the non-moving party. Milne v. USA Cycling Inc., 575

F.3d 1120, 1129 (10th Cir. 2009). “Where the record, taken as a whole, could not

lead a rational trier of fact to find for plaintiff, there is no genuine issue for trial.” 

Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)

(quotation omitted). Upon de novo review of the district court’s order and a

meticulous review of the record, this court affirms for substantially those reasons

stated by the district court in its order granting summary judgment in favor of

Tulsa. That is, given the record before this court, no reasonable juror could

conclude Tulsa had a policy, practice, or custom of conducting investigations

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generally, or child sex abuse investigations specifically, in such a way as to avoid

discovering potentially exculpatory evidence. Likewise, no jury could conclude,

especially given the complete absence of evidence indicating a pattern of tortious

conduct, that Tulsa failed to adequately train or supervise Berry.2

For those reasons set out above, the order of the United States District

Court for the Northern District of Oklahoma granting summary judgment in favor

of Tulsa is hereby AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

2

In his brief on appeal, Parker asserts that it is not only Berry’s deposition

upon which he relies to create a fact question for the jury. In so arguing, he relies

on allegations in his complaint; lists of potential witnesses; and materials relating

to prosecutions initiated via TPD investigations which, according to Parker “were

the subject of lively (and evidentiarily speaking, unresolved) debate below.” 

Parker’s arguments in this regard are entirely misplaced. Allegations in an

unverified complaint are not evidence for purposes of determining whether there

is sufficient evidence to send a fact question to the jury. Instead, to create a fact

question, Parker needed to secure affidavits or schedule depositions of the

identified individuals. The failure to do so results in a failure of proof. 

Furthermore, Parker does not appeal from any order of the district court refusing

to force Tulsa to turn over to him documents he asserts are relevant to this claim. 

Absent such an appeal, Parker is simply wrong to assert there is any ongoing

dispute about those records. Finally, there is no indication Parker filed a Fed. R.

Civ. P. 56(f) motion, seeking additional time to develop the kind of evidence he

references in his brief.

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