* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. SeeFed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiffs appeal from the district court’s grant o f summary judgment in favor of defendants on their civil rights claims un der 42 U.S.C. § 1983 and refusal to retain federal jurisdiction over their s tate wrongful death claims. We affirm. The parties are familiar with the facts in this cas e, 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 nephe w of Klein and the son of defendant Chief of Police Gary Coburn. The shootin g occurred while Harris and Pierce were in a vehicle owned by Klein. Klein kep t the revolver in the vehicle, which Harris had permission to use. After the shooting, plaintiff Sydney Gonzales, Pear ce’s mother and personal representative of his estate, brought suitunder § 1983 alleging that defendants violated her constitutional right to fam ilial association and the estate’s-3-

constitutional right to substantive due process. The district court granted defendants’ motion for summary judgment. The distr ict court determined that defendants did not violate Gonzales’ constitutionalright to familial association because she failed to show that defendants intendedto 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 n o defendant’s conduct was conscience shocking. Without conscience shocking c onduct, the district court necessarily rejected plaintiffs’ allegations of a s tate created danger. Also, the district court concluded there was no evidence show ing Coburn or the City endorsed selective law enforcement or that they fai led to provide adequate training with regard to off-duty weapons. Finally, the district court determined that the individual defendants were entitled to qua lified immunity because plaintiffs failed to show clearly established law g overning their conduct. In a later order, the district court exercised its discr etion and dismissed plaintiffs’ state wrongful death claims without prejudice to re filing in state court. On appeal, plaintiffs argue the district court erre d in granting summary judgment because (1) the City and Coburn are liable for their deliberate indifference in failing to train and supervise poli ce officers in the use and securing of off-duty weapons and for their custom o f selective law enforcement;-4-

(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 w ith her son.

We review the grant . . . of summary judgment de no vo, applying the same legal standard used by the distri ct court pursuant to Fed. R. Civ. P. 56(c). Summary judgment is appr opriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving p arty is entitled to judgment as a matter of law. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation om itted). After examining the briefs on appeal, plaintiffs’ appendi x, and the relevant case law in light of this standard, we conclude the district co urt thoroughly and correctly addressed the issues. Accordingly, we affirm the d istrict court’s grant of summary judgment for substantially the reasons stat ed 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 deci ded more than one year after the district court’s decision, they will be forced to f ile 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. SeeAnglemyer v. Hamilton County Hosp. , 58 F.3d 533, 541 (10th Cir. 1995) (reviewing for abuse of discretion); see also28 U.S.C. § 1367(c)(3) (stating that when all fede ral claims are dismissed, district court may decline to exercise jurisdiction over remaining state claims).
AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge