United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1073

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Martin E. Cooper, III, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas

Thomas Martin, Individually & in *

Official Capacity as Investigator, et al. *

*

Defendants - Appellants. *

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Submitted: December 14, 2010

Filed: February 11, 2011

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Before RILEY, Chief Judge, BEAM, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Martin E. Cooper III sued Thomas Martin, individually, and in his official

capacity as chief investigator for Crittenden County Sheriff Richard E. Busby (also

sued in his official capacity), and Crittenden County, Arkansas (collectively the

“defendants”). Cooper seeks relief under 42 U.S.C. § 1983, the Arkansas Civil Rights

Act (the “ACRA”), and Arkansas tort law. The district court denied defendants’

motion for summary judgment. Cooper v. Martin, No. 3:09CV00006, 2010 WL

29598, at *4 (E.D. Ark. Jan. 4, 2010). The defendants appeal the denial of qualified
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immunity to investigator Martin and the denial of summary judgment on Cooper’s §

1983 claims. This court reverses in part and remands for further proceedings.

I.

The facts are summarized in the light most favorable to Cooper, the nonmovant. See Walker v. City of Pine Bluff, 414 F.3d 989, 991 (8th Cir. 2005). 

Cooper and two friends had a roadside encounter with Charles Williams in

Crittenden County. Williams threatened to kill them. Cooper did not strike Williams,

although one of the friends, Jeffrey McGee, did. 

When investigator Martin interviewed Williams about the fight, he could not

recall how many people were involved, or who, or how many, hit him. Although

Williams told Martin he had consumed “several beers” the night of the fight, Martin

did not interview the paramedics who treated him at the scene. Williams later told

Martin that, according to his nephew, Cooper and Bradley Gill were at the scene of

the fight. 

Martin contacted Cooper’s father about bringing in Cooper (then a minor) for

a statement. Cooper’s father called Martin the next day, saying that Cooper wanted

to give his side of the story, that he had not touched Williams during the fight. The

Coopers later met Martin by chance at a gas station, where Martin joked with Cooper

about the fight and told him he had nothing to worry about. Cooper offered at that

time to give a statement. Cooper’s counsel contacted Martin about setting up a

meeting with his client. Cooper’s father also called Martin many times to set up a

meeting. Despite these efforts, Martin did not meet with them. Martin never spoke

with any of Cooper’s friends, either.

The victim Williams swore to affidavits for the arrests of Cooper, McGee, and

Gill on charges of both first- and second-degree battery. Martin stopped investigating,
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gave the prosecutor Williams’s affidavits, and told the prosecutor that “I was not

having any cooperation [from the suspects].” The prosecutor gave his approval for

Martin to apply for arrest warrants. Martin’s warrant application included his case file

and Williams’s affidavits (materials that are not in the record on appeal). Martin did

not swear to any facts in support of the warrant application, or speak with the state

judge about its contents. The judge issued arrest warrants for Cooper, McGee, and

Gill. Martin refused to meet with Cooper after the arrest warrants were issued. The

charges eventually were nolle prossed. 

Cooper sued alleging violations of 42 U.S.C § 1983, the ACRA, and the tort of

outrage. The district court denied qualified immunity to Martin, and defendants’

motion for summary judgment in its entirety. The defendants appeal the denial of

qualified immunity to Martin and the denial of summary judgment on Cooper’s §

1983 claims.

II.

The defendants argue that the district court should have granted qualified

immunity to Martin. “[A]n order denying qualified immunity is immediately

appealable even though it is interlocutory.” Scott v. Harris, 550 U.S. 372, 376 n.2

(2007). “‘A defendant, entitled to invoke a qualified immunity defense, may not

appeal a district court’s summary judgment order insofar as that order determines

whether or not the pretrial record sets forth a genuine issue of fact for trial’; the

appealable issue is a purely legal one.” White v. McKinley, 519 F.3d 806, 812 (8th

Cir. 2008), quoting Johnson v. Jones, 515 U.S. 304, 319-20 (1995). 

This court reviews de novo the district court’s denial of qualified immunity.

Id. at 813. The defendants bear the burden of establishing the relevant facts

supporting qualified immunity, while Cooper receives the benefit of all reasonable

inferences. See Wallingford v. Olson, 592 F.3d 888, 892 (8th Cir. 2010). Cooper
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“may not rest upon the mere allegation or denials of his pleading, but must set forth

specific facts showing that there is a genuine issue for trial,” and “must present

affirmative evidence in order to defeat a properly supported motion for summary

judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 257 (1986), citing

Fed. R. Civ. P. 56(e). 

“Qualified immunity protects public officials from damage actions if their

conduct did not violate clearly established rights of which a reasonable person would

have known.” Morris v. Lanpher, 563 F.3d 399, 402 (8th Cir.), cert. denied ___ U.S.

___, 130 S. Ct. 472 (2009), citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

A.

A police officer applying for an arrest warrant is not entitled to qualified

immunity from a § 1983 suit if “‘a reasonably well-trained officer in [the officer’s]

position would have known that [the officer’s] affidavit failed to establish probable

cause and that [the officer] should not have applied for the warrant.’” Burk v. Beene,

948 F.2d 489, 494 (8th Cir. 1991), quoting Malley v. Briggs, 475 U.S. 335, 345

(1986). In this case, Martin did not deliver his own affidavit, but rather forwarded

Williams’s affidavits to the prosecutor and judge. This court has not extended Malley

liability to a non-affiant officer like Martin, compare Michalik v. Hermann, 422 F.3d

252, 261 (5th Cir. 2005), and need not address that issue here. Because Cooper rested

on the mere allegations in his pleadings and did not present affirmative evidence (such

as the affidavits or any other materials that Martin submitted to the judge), the record

does not show whether Martin should have known that material information in

Williams’s affidavits was false. 

B.

The district court found a disputed fact whether Martin “told the judge that the

suspects were not cooperating with the investigation.” Generally, this court lacks
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jurisdiction to review such determinations on interlocutory appeal. See Johnson, 515

U.S. at 319-20. However, “‘[w]hen opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no reasonable jury could believe

it, a court should not adopt that version of the facts for purposes of ruling on a motion

for summary judgment.’” Wallingford, 592 F.3d at 892, quoting Scott, 550 U.S. at

380. 

In Wallingford and Scott, the district courts denied qualified immunity to police

officers on § 1983 claims of excessive force. Both decisions were reversed because

videotapes showed, contrary to the district courts’ findings, that “no reasonable jury

could have believed the plaintiff’s claims.” Id. (internal quotation omitted). Cooper

does not assert that Martin told the state judge that he was not cooperating with the

investigation. As Cooper’s counsel stated at oral argument, no evidence in the record

supports the district court’s finding of a disputed fact as to whether Martin had a

conversation with the judge. The district court found a disputed fact where none

exists. This court accordingly does not adopt this “fact” in ruling on qualified

immunity. Id. In sum, no facts here indicate that Martin misled the judge who issued

the arrest warrants. 

C.

The district court’s other findings of disputed fact involve the quality of

Martin’s investigation. To establish a constitutional violation based on inadequate

investigation, Cooper must show that Martin’s “failure to investigate was intentional

or reckless, thereby shocking the conscience. Negligent failure to investigate does not

violate due process.” Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 672 (8th

Cir. 2007) (citations omitted). 

The plaintiff in Brockinton was arrested for stealing a boat that he kept as

security on a debt owed by Pamela Murphy’s late husband. Id. at 670. Defendant
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deputy Randy Gurley filed the theft report without verifying who owned the boat,

even though he had previously arrested Murphy for crimes of dishonesty. Id. This

court affirmed qualified immunity for Gurley, finding that his investigation did not

“rise to the level of recklessness that shocks the conscience.” Id. at 672. 

Another defendant, detective John Scott, did not investigate the involvement

of the plaintiff’s alleged accomplice or verify the ownership of the boat before seeking

and executing search and arrest warrants for Brockinton. See id. at 670-71. After

Scott left an arrest warrant on his door, Brockinton contacted him to explain that he

legally possessed the boat long before the alleged theft. Id. at 671. Scott refused to

investigate further, even after the alleged accomplice also contacted him. Id. This

court affirmed qualified immunity for Scott, finding: “While in hindsight Scott’s

investigation was not comprehensive, Brockinton has not alleged sufficient facts to

show a constitutional violation.” Id. at 675. 

Martin failed to interview any of the suspects, joked with Cooper that there was

nothing to worry about, credited the intoxicated victim’s sworn account of the attack

over Cooper’s father’s account, and misrepresented (to the prosecutor) the suspects’

lack of cooperation. Assuming these facts to be true, Martin conducted a negligent

investigation, but, under Brockinton, the facts “do not rise to the level of recklessness

that shocks the conscience.” Id. at 672. 

Cooper has not established that Martin’s investigation violated a constitutional

right. This court reverses the district court’s denial of qualified immunity to Martin,

and dismisses Cooper’s § 1983 claim against Martin in his individual capacity.

III.

The defendants argue that this court has pendent appellate jurisdiction to

dismiss the § 1983 claims against the official-capacity defendants because those
1

The defendants do not raise on appeal the denial of summary judgment on

Cooper’s state claims. 

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claims are inextricably intertwined with the consideration of Martin’s qualified

immunity. See Lockridge v. Bd. of Trustees of University of Ark., 315 F.3d 1005,

1012-13 (8th Cir. 2003) (en banc). “An issue is inextricably intertwined with properly

presented issues only when the appellate resolution of the collateral appeal necessarily

resolves the pendent claims as well.” Id. at 1012 (internal quotation marks omitted).

“[I]n order for municipal liability to attach, individual liability must first be

found on an underlying substantive claim.” Brockinton, 503 F.3d at 674 (internal

quotation marks omitted). Martin’s qualified immunity therefore is inextricably

intertwined with the liability of the official-capacity defendants. Because Martin is

entitled to qualified immunity, the official-capacity defendants cannot be subject to

§ 1983 liability.1

 Id.

* * * * * * *

This court reverses the district court’s denial of qualified immunity to Martin

and the denial of summary judgment on Cooper’s § 1983 claims against all

defendants, and remands for further proceedings consistent with this opinion. 

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