* This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

APR 6 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

THE ESTATE OF AMORY JOE

PEARCE, by and through the

executrix Sydney Gonzales; SYDNEY

GONZALES, an individual,

Plaintiffs-Appellants,

v.

BENJAMIN HARRIS, an individual,

Defendant,

and

EDWARD KLEIN, an individual;

LONNIE SAPPINGTON,

an individual; GARY COBURN,

an individual; THE CITY OF NEW

CORDELL, a municipality,

Defendants-Appellees.

No. 97-6176

(D.C. No. CIV-95-1894-A)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
1 We refer only to those defendants who are appellees as defendants. 

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After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiffs appeal from the district court’s grant of summary judgment in

favor of defendants on their civil rights claims under 42 U.S.C. § 1983 and

refusal to retain federal jurisdiction over their state wrongful death claims. We

affirm. 

The parties are familiar with the facts in this case, and we provide only a

very brief summary here. Benjamin Harris shot and killed Amory Joe Pierce with

a revolver owned by defendant Edward Klein,1

 who was a police officer for

defendant City of New Cordell. Harris is the nephew of Klein and the son of

defendant Chief of Police Gary Coburn. The shooting occurred while Harris and

Pierce were in a vehicle owned by Klein. Klein kept the revolver in the vehicle,

which Harris had permission to use. 

After the shooting, plaintiff Sydney Gonzales, Pearce’s mother and

personal representative of his estate, brought suit under § 1983 alleging that

defendants violated her constitutional right to familial association and the estate’s
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constitutional right to substantive due process. The district court granted

defendants’ motion for summary judgment. The district court determined that

defendants did not violate Gonzales’ constitutional right to familial association 

because she failed to show that defendants intended to interfere with her

relationship with Pearce. 

The district court granted summary judgment on the substantive due process

claim first on the ground that as a matter of law no defendant’s conduct was

conscience shocking. Without conscience shocking conduct, the district court

necessarily rejected plaintiffs’ allegations of a state created danger. Also, the

district court concluded there was no evidence showing Coburn or the City

endorsed selective law enforcement or that they failed to provide adequate

training with regard to off-duty weapons. Finally, the district court determined

that the individual defendants were entitled to qualified immunity because

plaintiffs failed to show clearly established law governing their conduct. In a

later order, the district court exercised its discretion and dismissed plaintiffs’

state wrongful death claims without prejudice to refiling in state court. 

On appeal, plaintiffs argue the district court erred in granting summary

judgment because (1) the City and Coburn are liable for their deliberate

indifference in failing to train and supervise police officers in the use and

securing of off-duty weapons and for their custom of selective law enforcement;
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(2) the individual defendants violated plaintiffs’ clearly established constitutional

rights and are not entitled to qualified immunity; (3) defendants’ actions were

conscience shocking; (4) there was a state created danger; and (5) defendants

intended to interfere with Gonzales’ relationship with her son. 

We review the grant . . . of summary judgment de novo,

applying the same legal standard used by the district court pursuant

to Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation omitted). After

examining the briefs on appeal, plaintiffs’ appendix, and the relevant case law in

light of this standard, we conclude the district court thoroughly and correctly

addressed the issues. Accordingly, we affirm the district court’s grant of

summary judgment for substantially the reasons stated by the district court in its

order of April 10, 1997. 

Plaintiffs also argue the district court abused its discretion in failing to

retain jurisdiction over their state claims. They maintain that if they are

unsuccessful in this appeal and this appeal is decided more than one year after the

district court’s decision, they will be forced to file an action in state court while

this appeal is pending or risk not having their state claims heard. We agree with

the district court’s determination in its order of April 28, 1997, that there would
-5-

be no unfairness in requiring plaintiffs to pursue their state claims in state court. 

We, therefore, conclude the district court did not abuse its discretion in refusing

to retain supplemental jurisdiction over the state claims. See Anglemyer v.

Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995) (reviewing for abuse

of discretion); see also 28 U.S.C. § 1367(c)(3) (stating that when all federal

claims are dismissed, district court may decline to exercise jurisdiction over

remaining state claims). 

AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge