IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 99-10232

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DANETTE HOPE GROS; ET AL.,

Plaintiffs,

DANETTE HOPE GROS; EDITH D. SIKES,

Plaintiffs-AppelleesCross-Appellants,

VERSUS

THE CITY OF GRAND PRAIRIE, TEXAS, ET AL.,

Defendants,

HARRY L. CRUM,

Defendant-AppellantCross-Appellee.

_________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________

April 25, 2000

Before DAVIS, CYNTHIA HOLCOMB

HALL,* and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Harry Crum appeals the denial ofsummary

judgment on his qualified immunity defense in

a 42 U.S.C. § 1983 suit brought by Danette

Gros and Edith Sikes, who are cross-appealing

those portions of the order that granted Crum

summary judgment on qualified immunity

grounds. Plaintiffs alleged that Crum, as Chief

 of Police of Grand Prairie, Texas, violated * Circuit Judge of the Ninth Circuit, sitting by

designation.
2

their constitutional rights by hiring and failing

properly to train and supervise an officer

(“Rogers”) who allegedly sexually assaulted

them, and by having a hiring policy that

allowed persons with a propensity toward

violent behavior into the Grand Prairie Police

Department (“GPPD”). Concluding that there

was no genuine issue of material fact as to

Crum’s deliberate indifference to plaintiffs’

constitutional rights, we reverse the denial of

summary judgment and remand for further

proceedings. We also decline to exercise pendent appellate jurisdiction over plaintiffs’

cross-appeals, so we dismiss those crossappeals.

I.

Gros and Sikes allege that Rogers, a former

GPPD officer, physically, sexually, and

verbally abused them. Gros contends that

during a routine traffic stop, Rogers used

excessive force against her. While on routine

patrol, Rogers pulled Gros over for driving

without wearing a seatbelt. After being

stopped for about twentyminutes, Gros exited

her vehicle and inquired of Rogers how much

longer the stop would take. Rogers ordered

Gros back into the car, at which point Gros

stated that she had an appointment and needed

to leave as soon as possible. 

Rogers then allegedly grabbed Gros’s arm,

twisted it behind her back, threw her on top of

her car, and reached into her blouse and

grabbed her breast. He then handcuffed her

and placed her under arrest without a

recitation of Miranda warnings, putting her in

his squad car on a hot day with the windows

closed. Eventually he rolled down his window

a little to aerate the inside, but then turned the

volume on the radio up very high, allegedly to

prevent passers-by from hearing Gros’s

requests for help.

At the police station, Gros immediately

complained of her treatment to Rogers’s supervisors. As a result, an investigation of

Rogers’s conduct with respect to this incident

was conducted in which the internal

investigative unit ofthe GPPD determined that

Gros’s claim was “not sustained.” 

Sikes contendsthat in February1996, while

responding to a call, Rogers sexually abused

her. Sikes had been stopped by Rogers and

advised that there was an outstanding warrant

for her arrest for not paying traffic tickets.

Sikes asked Rogers not to take her to jail, and

while telling her that he would not, Rogers began to fondle her. As Sikes retreated, Rogers

told her that she would have to make it up to

him. Rogers grabbed her breasts and asked

Sikes whether she was wearing any

underwear. 

Before Sikes could answer, Rogers lifted

Sikes’stop, pulled out her pants, and stuck his

hand inside. As he was touching her, he stated

that he wanted her “on his finger” so he could

taste her on his way home. After he pulled out

his hand from inside her pants, he licked his

finger and told Sikes that she tasted sweet.

The following day, Rogers called Sikes and

told her he was coming to her dormitory room

before beginning work. Sikes immediately

called and went to the GPPD station to report

the incident and wasinformed that Rogers had

had three other complaintslodged against him.

Rogers went to Sikes’s dormitory room that

night. 

When compiling his report on the Sikes incident, Rogers denied ever having touched her.

After an internal investigation, however, he

admitted to Sikes’s charges. He was thereby

placed on indefinite suspension and charged
3

with criminal official oppression, to which he

pleaded guilty.

II.

Plaintiffs filed their § 1983 claims against

the city, Crum, and Lieutenant Bender, the

officer in charge of the Department of Internal

Affairs at GPPD. The district court granted

summary judgment for the City on qualified

immunity grounds. We vacated and remanded

on the ground that the district court had

applied incorrect legal standards to the

evidence submitted by the plaintiffs. See Gros

v. City of Grand Prairie, 181 F.3d 613, 615-

16 (5th Cir. 1999).

Crum and Bender moved for summary

judgment on qualified immunity grounds. The

district court granted Bender’s motion asto all

claims asserted against him; these rulings are

not being appealed. The court granted Crum’s

motion with respect to the claimsthat he maintained an improper hiring policy and that he

improperly trained and supervised Rogers.

The court denied Crum’s motion as to his act

of hiring Rogers. 

All the losing parties with respect to the

claims against Crum appeal these rulings. Although they recognize that the grant of summary judgment on two of their three claims is

an interlocutory order that is typically not immediately appealable, plaintiffs urge us to

exercise our pendent appellate jurisdiction

over those claims that they allege are

“inextricably intertwined” with the deliberateindifference-in-hiring claim.

III.

On the issue of qualified immunity, Crum

assertsthat plaintiffspresented insufficient evidence that he was deliberately indifferent to

their constitutional rights in hiring Rogers.

Plaintiffsrespond by pointing to evidence that

the district court concluded created an issue of

material fact properly presented to the jury.

We first must determine whether plaintiffs

have alleged a violation of a clearly established

constitutional right, before we reach the

narrower issue of qualified immunity. Siegert

v. Gilley, 500 U.S. 226, 232 (1991). Here,

plaintiffs allege that Crum was deliberately indifferent to their constitutionalrightsto be free

from false arrest, illegal search and seizure,

excessive force,sexual harassment, and sexual

assault. 

UnderBoard ofCountyComm’rs v.Brown,

520 U.S. 397, 407 (1997), “deliberate

indifference” to the “known or obvious consequences” of a hiring decision can amount to a

constitutional violation on the part of the decision maker, but “[a]showing ofsimple or even

heightened negligence will not suffice.” Thus,

“deliberate indifference” existswhere adequate

scrutiny of an applicant’s background would

lead a reasonable supervisor to conclude that

the plainly obvious consequences of the

decision to hire would be the deprivation of a

third party’s constitutional rights. Snyder v.

Trepagnier, 142 F.3d 791, 797 (5th Cir.

1998), cert. granted, 525 U.S. 1097, and cert.

dismissed, 119 S. Ct. 1493 (1999). There

must be a strong connection between the

background of the particular applicant and the

specific violation alleged. Brown, 520 U.S.

at 412. Accordingly, plaintiffs cannot succeed

in defeating summary judgment merely

because there was a probability that a poorlyscreened officer would violate their protected

rights; instead, they must show that the hired
4

officer was highly likely to inflict the particular

type of injury suffered by them. Id.

Because the district court denied summary

judgment on this claim, we are limited to a review of whether the factual issues on which

the district court based its decision were

material, and we are precluded fromreviewing

the district court’s determination that the

issues of fact in question are genuine.1 As

evidentiary support for their contention that

there was a material issue of fact whether

Crum was deliberately indifferent to their

constitutionalrightsin hiring Rogers, plaintiffs

rely primarily on the contents of Rogers’s preemployment personnel file. They point to (1)

reports from his previous employment as a

police officer for the University of Texas at

Arlington (“UTA”) that indicated that Rogers

went to a psychologist after being involved in

back-to-back incidents where force was used;

(2) statements from a UTA supervisor that if

the GPPD hired Rogers, they would have to

“monitor his activities and guide him in the

direction [they] want to go”; (3) a

psychological test done for entry into UTA

that indicated Rogers was inflexible, too

defensive, and unwilling to take direction

conflicting with his own desire; (4) a letter of

reprimand issued to Rogers for losing another

officer’s location; (5) a letter of reprimand for

insubordination for refusing to sign a report;

(6) a complaint against Rogers for being harassing and overbearing during a traffic stop

(The overbearing complaint wassustained, but

the harassment complaint was not.); (7) an

unsustained complaint that Rogers was

threatening and unprofessional and improperly

drew his weapon during a traffic stop; (8) an

evaluation that Rogers was “unable to take

criticism, he disregarded supervision and

didn’t adhere to dept policies”; (9) statements

by another officer that Rogers was “a little

rash in his demeanor and his personalitytended

to aggravate a situation” and “was almost to

the point of being badge heavy;” (10)

comments that Rogers “needs to know the

difference between escalating and when not

to,” that “he is at times[too] quick to draw his

weapon,” that “when he reacts too fast he

usually reacts in an aggressive manner,” and

that “with his take-charge attitude, sometimes

Rogers overdoesit”; and (11) information that

during high school, the principal suspended

Rogersfor continuing to talk to a girl who had

rebuffed his advances.

To defeatsummaryjudgment, the proffered

evidence must be sufficient to create an issue

of material fact whether a reasonable officer

would conclude that the obvious consequence

of hiring Rogers would be that he would sexuallyharass,sexuallyassault, falselyarrest, use

excessive force, or illegally search or seize a

third person. In other words, the evidence

must demonstrate that Crum was deliberately

indifferent to this obvious consequence.

This court has recently noted that Brown is

instructive as to the quantum and quality of

evidence of deliberate indifference that is

necessary:

There, Reserve Deputy Stacy Burns

(“Burns”) stood convicted of using excessive force when he wrested a woman

from a car, badly damaging her knees in

the process. Burns, who was the greatnephew of Sheriff Moore, Bryan County’s Sheriff and policy-maker, had a

criminal record that included arrests for

driving while intoxicated, driving with a

 

1

See Colston v. Barnhart, 146 F.3d 282, 284

(5th Cir.) (on suggestion for rehearing en banc),

cert. denied, 525 U.S. 1054 (1998).
5

suspended license, resisting arrest,

public drunkenness, and a conviction for

assault and battery. Looking at this

record, the Supreme Court held that

Sheriff Moore’s failure to examine

Burns’s criminal record did not

“reflect[] a conscious disregard for a

high risk that Burns would use excessive

force in violation of respondent’s

federally protected right.”

Aguillard v. McGowen, 2000 U.S. App.

LEXIS 3884, at *10 (5th Cir. Mar. 15, 2000)

(quoting Brown, 520 U.S. at 415-16). In

Aguillard, the deputy officer, Joseph McGowen, was convicted of murder for a

shooting committed while he was on duty.

McGowen’s record showed, among other

things, that he had previously threatened the

mother of a juvenile with arrest, that he

meddled in this mother’s supervision of the

child while he was off duty, that colleagues at

the police department reported that he wanted

to “ride where the women were,” that a female

colleague stated that she did not want to ride

with him under any circumstances, and, most

importantly, that there was a report that he had

assaulted and pistol-whipped a teenage boy

who was driving his car around McGowen’s

apartment complex, though McGowen was

neither arrested nor convicted of the alleged

assault. McGowen’s informal disciplinary record included infractions for using police radio

for broadcasting personal messages and for

refusing to convey information to one party in

a vehicular accident. 

Presented with this evidence in support of

the denial of the county’s motion for judgment

as a matter of law, the Aguillard court

nevertheless reversed, reasoning that “McGowen had never wrongfully shot anyone

before, nor did his record reveal him to be

likely to use excessive force in general or

possess a trigger-happy nature in particular.”

Aguillard, 2000 U.S. App. LEXIS 3884, at

*12. Thus, the court concluded that “[w]hile

the County may have been negligent in its

employment decision, the magnitude of its

error does not reach constitutional cognizance.” Id.

Likewise, in the instant case, the evidence

presented by plaintiffs does not rise to the level

of a constitutional violation. To be sure, there

are scattered statements in Rogers’s preemployment file that suggest he was

sometimes too aggressive for UTA’s campus

police department. There are also letters of

reprimand and sustained complaints for being

overbearing and abusive during a traffic stop.

But while these facts suggest that Crum, like

the county in Aguillard, might have been

negligent in failing adequately to review Rogers’s records and in ultimately deciding to hire

him, they do not provide sufficient evidence of

a deliberate indifference to constitutional

rights. 

Rogers had never sexually assaulted,

sexually harassed, falsely arrested, improperly

searched or seized, or used excessive force

against any third party. Indeed, the record

reflects that he never committed a serious

crime. Just as in Aguillard, the incident in

Rogers’s past that was potentially most

damaging to his recordSSthe complaint for an

alleged improper drawing of his weapon

during a traffic stopSSwas not sustained by

UTA. And the reprimands and complaints that

were sustained do not meet Brown’s

requirement of a “strong” causal connection

betweenRogers’s background and the specific

constitutional violations alleged. See Brown,

520 U.S. at 412. Instead, those reprimands

related to insubordination for refusing to sign
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a report and for losing track of an officer on

patrol.

Moreover, in reviewing the record we consider the context of Rogers’s colleagues’

statements about the need furtherto “monitor”

him and to the effect that he might be too “aggressive,” “almost badge heavy,” and “a little

rash in his demeanor.” Without exception, the

UTA officers who made these statements also

had positive thingsto say about Rogers and ultimately recommended him as a good hire. 

For instance, the officer who noted Rogers’s problems with being aggressive, reacting

too fast under stress, and that he was “too

quick to draw his weapon,” also concluded

that he “would be a good officer, but the

above problems need to be addressed,” and

characterized Rogers as “a real aggressive,

professional officer, a real go-getter, who gets

the job done.” Significantly, this officer’s personal reference for Rogers was the worst one.

Another officerSSthe one who suggested

that Rogers would have to be monitored by

GPPD, and who brought to light Rogers’s interview with a psychologist after he was involved in “back to back incidents” of

forceSSnoted that Rogers voluntarily went to

the psychologist because it was department

policy that anyone involved in a couple of

incidents of force must do so. The officer

concluded, however, that “Rogers is a good

cop,” “the kind that any department would

want.”

Several of the officers who noted Rogers’s

aggressiveness merely thought it was

inappropriate for the campus environment in

which he worked. Those officers felt that

Rogers would benefit from being placed in a

larger police department, and they too

recommended him as a good officer. In

addition, Rogers’s personnelfile reflected that

he had received good evaluations since

becoming a UTA police officer, and three of

those evaluations placed him above average.

Two other officers who served as Rogers’s

personalreferences had only positive thingsto

say about him.

In the end, the evidence in Rogers’s

personnel file was, at worst, mixed. If mere

negligence were enough to sustain a claim

against Crum, we might be presented with a

closer case, though the positive feedback still

seems to outweigh the negative. That

evidence is insufficient, however, to

demonstrate constitutional deliberate

indifference on Crum’s part, because it does

not establish a strong causal connection

between Rogers’s background and the

particular constitutional violations asserted. 

With the benefit of hindsight, it is apparent

that Rogers was a bad hire, but there is

insufficient evidence to show that Crum was

deliberately indifferent to plaintiffs

constitutional rights when he made his hiring

decision. Consequently, there are no issues of

fact that warrant a jury determination, because

the evidence presented is not material in light

of Brown and Aguillard, and the district court

should have granted Crum summary judgment

on this claim. 

IV.

Plaintiffs also asserted claims against Crum

for failure adequately to train and supervise

Rogers and for having a hiring policy that allowed persons with a propensity toward

violent behavior into the GPPD. Because the

district court granted summary judgment to

Crum based on his qualified immunity on both

of these claims, and because the court denied
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summary judgment on plaintiffs’ deliberateindifference-in-hiring claim, plaintiffs properly

recognize that the appeal of summary

judgment on these two claims is an

interlocutory appeal not typically immediately

reviewable by this court. 

Nevertheless, plaintiffsurge usto assert jurisdiction for these cross-appeals using pendent

appellate jurisdiction. They argue that such

jurisdiction is justified because the facts and

legal issues of these two claims are

“inextricably intertwined” with those of the

appealable order denying summary judgment.

They also assert that our exercise of pendent

appellate jurisdiction would promote judicial

economy by providing both parties with a

speedy resolution of the entire case.

Pendent appellate jurisdiction should be exercised only in “rare and unique” circumstances. Woods v. Smith, 60 F.3d 1161, 1166 n.29

(5th Cir. 1995). Plaintiffs assert that these are

such circumstances, because all three of their

claims are inextricably intertwinedSSthey arise

from the set of facts, and all concern the

employment practices operated by Crum at

different levels of specificity. For instance,

plaintiffs’ claim against Crum for failure

adequatelyto train and supervise Rogersflows

from Crum’s alleged disregard for the same

information in Rogers’s pre-employment file

that gave rise to the deliberate-indifference

claim. Also, plaintiffs’ claim challenging

Crum’s hiring policy merely recasts the deliberate-indifference-in-hiring claim at a higher

level of generality; that is, it challenges all

hiring decisions made pursuant to the policy,

rather than the individual decision to hire

Rogers.

But despite the fact that these claims do

overlap, they were treated separately by the

district court; each has unique elements and

relevant facts. The claim for inadequate

training and supervision, for example, relies

heavily on a GPPD psychologist’s evaluation

that Rogers “has a tendency to be

apprehensive and may be tense and driven

which may require further [scrutiny] by his

field training officer.” This evidence was not

in Rogers’s pre-employment file from UTA

and is not relevant to Crum’sinitial decision to

hire Rogers. Similarly, the claim challenging

Crum’s general hiring policy requires much

more evidence of systemic problems, beyond

the single decision to hire Rogers.

Consequently, much ofthe evidence necessary

for the hiring-policy claimis not relevant to the

denial ofsummary judgment on the deliberateindifference-in-hiring claim.

Astheir closest relevant case, plaintiffs’rely

on Morin v. Caire, 77 F.3d 116 (5th Cir.

1996), in which we exercised pendent

appellate jurisdiction in a qualified immunity

case, noting that “[i]n the interest of judicial

economy, this court may exercise its discretion

to consider under pendent appellate

jurisdiction claims that are closely related to

this [denial of summary judgment] issue

properly before us.” Id. at 119. Morin does

not support the exercise of that discretion

here. 

In Morin, the court properly had before it

the appeal of the denial of a qualified immunity

defense on plaintiffs’ § 1983 claims. Plaintiffs

also asserted related state law claimsthat were

not subject to the “exception” allowing

immediate appeal of the denial of qualified

immunity. In justifying its decision to exercise

pendent appellate jurisdiction over these state

law claims, the court noted:

Although we generally exercise this
8

power with caution, it is appropriate for

us to do so in this situation, for if we

were to refuse to exercise jurisdiction

over the state law claims, our refusal

would defeat the principal purpose of

allowing an appeal of immunity issues

before a government employee isforced

to go to trial.

Id. at 119-20 (emphasis added) (footnotes

omitted).

Here, unlike the circumstance in Morin,

declining pendent appellate jurisdiction over

the claims for which summary judgment was

granted in favor of Crum would not defeat the

purposes of qualified immunity. Instead, as

the public employee who prevailed on his qualified immunity defense, Crum is not being

forced to trial on those claims. Consequently,

we are not presented with the “rare and

unique” circumstances in which we might exercise our pendent appellate jurisdiction, and

we decline to do so.

The order denying summary judgment is

REVERSED, the cross-appeal is DISMISSED

for want of jurisdiction, and this matter is

REMANDED.