## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-10232

_______________

DANETTE HOPE GROS; ET AL.,

Plaint iffs,



### D ANETTE 

### H OPE 

### G ROS 

### ; E DITH 

### D. S IKES



### ,

Plaintiffs-AppelleesCross-Appellants,

VERSUS



### T HE 

### C ITY OF 

### G RAND 

### P RAIRIE



### , T EXAS



### , ET AL



### .,

Defendants,



### H ARRY 

### L. C RUM



### ,

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 of summary

judgment on his qualified immunit y 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 quali fied 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 o fficer

(“Rogers”) who allegedly sexually assaulted

them, and by having a hi ring 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 mate rial fact as to

Crum’s deliberate indifference to plaint iffs’

con st itutional rights, we reverse the denial of

summary judgment and remand for further

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

cross-appeals, so we dismiss those crossappeals.

I.

Gros and Sikes allege that Rogers, a former

GPPD officer, physically, sexually, and

verba l ly abused them. Gros contends that

during a routine traf

fic stop, Rogers used

excessive force against her. While on routine

patrol, Ro gers pulled Gros over for driving

without wearing a seatbelt. After being

stopped for about twenty minutes, 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 blou se and

grabbed her breast. He then handcuffed her

and placed her under arrest wi thout 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 he aring Gros’s

requests for help. At the police statio n, Gros immediately

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

Rogers’s conduct with respect to this incident

was cond uct ed in which the internal

investigative unit of the GPPD determined that

Gros’s claim was “not sustained.”

Sikes contends that in February 1996, 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 arres t fo r not paying traffic tickets.

Sikes asked Rogers not to take her to jail, and

while t elling 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 wa s wearing any

underwear.

Before Sikes cou ld answer, Rogers lifted

Sikes’s top, 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 l icked 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 stati on to report

the incident and was informed that Rogers had

had three other complaints lodged against him.

Rogers went to Sikes’s d ormitory 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 char g es. He was thereby

plac e d on indefinit e suspension and charged3

wit h criminal official oppression, to which he

pleaded guilty.

II.

Plaint iffs filed their § 1983 claims against

the city, Crum, and Lieutenant Bend er, the

officer in charge of the Department of Internal

Affairs at GPPD. The distri ct court granted

su mmary judgment for the City on qualified

immunit y grounds. We vacated and remanded

on the ground that the di s trict court had

applied incorrect legal standards t o the

evidence submitted by the plaint iffs. S ee Gros

v. City of Grand Prairie

, 181 F.3d 613, 615-

16 (5th Cir. 1999).

Crum and Bender moved for summary

judgment on qualified immunit y grounds. The

district court granted Bender’s motion as to all

claims asserted against him; thes e rulings are

not being appealed. The court granted Crum’s

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

improperly tr ained and supervised Rogers.

The court denied Crum’s motion as to his act

of hiring Rogers.

All the losing parties with res pect to the

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

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

exercise our pendent appellate jurisdiction

over those cla ims t hat they allege are

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

III.

On the issue of qualified immunity, Crum

asserts that plaint iffs presented insufficient evidence that he was deliberately indifferent to their constitutional rights i n hiring Rogers.

Plaint iffs respond by pointing to evidence that

the district court concluded created an issue of

material fact properly presented to the jury.

We first must determine whe t her plaint iffs

have alleged a violation of a clearly established

constitutional right, before we reach the

narrower issue of qualified immunit y. S iegert

v. Gilley

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

plaint iffs allege that Crum was deliberately indifferent to their constitutional rights to be free

from f alse arrest, illegal search and seizure,

excessive force, sexual harassment, and sexual

assault.

Under Board of County Comm’rs v. Brown

, 520 U.S. 397, 407 (1997), “d e liberate

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 of simple or even

heightened negligence will not suffice.” Thus,

“deliberate indifference” exists wh ere adequate

scrutiny of an applica nt ’s background would

lead a reasonable s upervisor to conclude that

the plainly obv io us consequences of the

decision to hire would be the deprivation of a

t h ird 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 c onnection between the

background of the particular applicant and the

specific violation alleged. B rown

, 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 tha t t he hired4

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 limit ed to a review of whether the factual issues on w h ich

the district court based its decision were

material, and we are precluded from reviewing

t he district court’s determination that the

issues of fact in question are genuine. 1 As

evidentiary support fo r their contention that

there was a material issue of fact w hether

Crum was de liberately indifferent to their

constitutional rights in hiring Rogers, plaint iffs

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

reports from his previous employm e nt 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 t hat if

the GPPD hired Rog ers, they would have to

“monitor his activities and guide him in the

d irection [they] want to go”; (3) a

psychological test don e for entry into UTA

that ind icated Rogers was inflexible, too

defensive, and unwilling to take direction

conflicting with his own desire; (4) a l etter 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 Rog ers for being harassing and overbearing durin g a traffic stop

(The overbearing complaint was sustained, 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 supervis io n and

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

by another officer that Ro g ers was “a little

rash in his demeanor and his personality tended

to aggravate a situation” and “was almost to

the point of bei ng badge heavy;” (10)

comm ents that Rogers “needs to know the

difference between escalati ng and when not

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

weapon,” that “when he reacts to o fast he

usually reacts in an aggressive manner,” and

that “with his take-charge atti tude, sometimes

Rogers overdoes it”; and (11) information that

during high school, the princ ipal suspended

Rogers for continuing to talk to a girl who had

rebuffed his advances.

To defeat summary judgment, the proffered

evidence mus t be sufficient to create an issue

o f material fact whether a reasonable offi cer

would conclude that the obvious consequence

of hiring Rogers would be that he would sexually harass, sexually assault, falsely arrest, use

excessive f

o rce, 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 q uality of

evidence of deliberate indifference that is

necessary:

There, Reserve Deputy Stacy Burns

(“Burns”) stood convic t ed 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 rehearin g en banc),

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

suspended license, resisting arrest,

public drunkenness, and a conviction for

assault and bat t ery . Looking at this

record, t h e Supreme Court held that

Sheriff Moore’s failure to examine

Burns’s cr iminal record did not

“reflect[] a conscious disregard for a

high risk that Burns would use excessive

force in violation of r espondent’s

federally protected right.”

Aguillard v. McGow en , 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

t hings, that he had previously threatened the

mothe r o f a juvenile with arrest, that he

meddled in this mothe r’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 M cGowen was

neither arrested nor convicted o f the alleged

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

for broadcasting personal messag es and for

refusing to convey information to one party in

a vehicular accident.

Presented with t his evidence in support of

the denial of the county’s motion for judgment

as a matter of law, the Aguillard court

nevertheless reversed, re asoning that “McGowen had never wrongfully shot anyone

before, nor did his record re v eal him to be likely to use excess i ve 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 Co unt y 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 plaint iffs does not rise to the level

of a constitutional violation. To be sure, there

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

sometimes too aggressi ve for UTA’s campus

police department . There are al so l etters of

reprimand and sustained complaints for being

overbearing and abusive during a traffic stop.

But while thes e fact s suggest that Crum, like

the county in Agui llard , 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 a s saulted,

sexually harassed, falsely arrested, improperly

searched or seized, or used excessive force

against any third pa rty. Indeed, the record

reflects that he never co mmitted a serious

crime. Just as in A guillard

, the incident in

Ro gers’s past that was potentially mo st

damaging to his record 

### SS the complaint for an

alleged improper drawing of his weapon

during a traffic stop 

### SS

was not sustained by

UTA. And the reprimands and complaints that

were sustained do not meet Brown ’s

requirement of a “strong” causal connection

between Rogers’s background and the specific

constitut io nal violations alleged. S ee Brown

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

related to insubordination for refusing to sign6

a r epo rt 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 further to “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 things to 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 c oncluded

that he “w ould be a good officer, but the

above problems need to be ad dressed,” and

chara ct erized 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 off

icer 

### S S the one who suggested

that Rogers would have to be mo nitored by

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

force 

### SS noted that Rogers voluntarily went to

the psychologist becaus e it was department

p olicy 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 depa rtment woul d

want.”

Several of the officers who noted Rogers’s

aggressiv eness merely thought it was

inappropriate for the ca mpus environment in

which he worked. Those officers felt that

Rogers would benefit from being placed in a

larger po lice department, and they too recommended him as a good o fficer. In

addition, Rogers’s personnel file reflected that

he had received good evaluati o ns since

becoming a UTA police off icer, and three of

those evaluations placed him above average.

Two other officers who s erved as Rogers’s

personal references had only positive things to

say about him.

In the end, the evidence in Roge rs’s

personnel file was, at worst, mixed. If mere

negligenc e were enough to sustain a claim

against Crum, we might be presented with a

closer case, though the positive feedback still

seems t o outweigh the negative. That

evidence is insufficient, however, to

dem onstrate constitutional deliberate

indifference on

Crum’s part, because it does

no t establish a strong causal connection

between Rogers’s b ackground and the

particular constitutional violations asserted.

With the benefit of hindsight, it is apparent

that Rogers wa s a bad hire, but there is

insufficient evid ence to show that Crum was

deliberately indifferent t o plaint iffs

constitutional rights when he made h is 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.

Plaint iffs also asserted claims against Crum

for failure adequately to train and super vise

Rogers and for h aving a hiring policy that allowed persons with a prop ensity toward

violent behavior into the GPPD. Because the

district court granted su mmary judgment to

Crum based on his qualified immunit y on both

of these claims, and because the court denied7

summary judgment on plaint iffs’ deliberateindifference-in-hiring claim, plaint iffs properly

recognize t hat the appeal of summary

judgment o n these two claims is an

interlocutory appeal not typically immediately

reviewable by this court.

Nevertheless, plaint iffs urge us to assert jurisdiction for these cross-appeals using pendent

appellat e jurisdiction. They argue that such

jurisdiction is justified because the facts and

legal issues of these two claims are

“inextricably intertwined” with tho se of the

appealable order denying summary judgment.

They also assert that our exercise of pendent

appellate jurisdiction would prom ote judicial

economy by providing both parti es with a

speedy resolution of the entire case.

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

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

such circumstances, becaus e all three of their

claims are inextricably intertwined 

### SS they arise

from the set of facts, and all concern the

employment practices o perated by Crum at

different levels of specificity. For instance,

plaint iffs’ claim against Crum fo r failure

adequately to train and supervise Rogers flows

from Crum’s alleged dis r egard for the same

information in Rogers’s pre-employment file

that gave rise t o the deliberate-indifference

claim. Also, plaintiffs’ claim challenging

Crum’s hiring policy merely recasts the deliberate-indifference-in-hiring claim at a high e r

l evel of generality; that is, it challenges a l l

hiring decisions made pursuant to the po licy,

rather t han the individual decision to hire

Rogers.

But despite the fact that these claims do

o verlap, they were treated separately by the district court; each has unique elements and

relevant facts. The claim for inadequate

training and su p ervision, for example, relies

heavily on a GPPD psychol o gist’s evaluation

that Rogers “has a

tendency to be

apprehensive and may be tense an d 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’s init ial decision to

hire Rogers. Similarly, the claim challenging

Crum’s general hiring policy require s much

more eviden c e of systemic problems, beyond

the single decision to hire Rogers.

Consequently, much of the evidence necessary

for the hiring-policy claim is not relevant to the

denial of summary judgment on the deliberateindifference-in-hiring claim.

As their closest relevant case, plaint iffs’ rely

on Morin v. Caire

, 77 F.3d 116 (5th C i r.

1996), in which we e x ercised pendent

appel lat e 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 closel y rel ated to

this [denial o f summary judgment] issue

prope rly before us.” I

d. at 119. M

orin does

not support the exercise of that discretion

here.

In Morin

, the c ourt properly had before it

the appeal of the denial of a qualified immunit y

defense on plaint iffs’ § 1983 claims. Plaint iffs

also asserted related state law claims that were

not subject to the “exception” allowing

immediate appeal of the denial of qualified

immunit y. In justifying its decision to exercise

pendent appellate jurisdiction over these state

law claims, the court noted:

Although w e generally exercise this8

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 s t ate law claims, o ur refusal

would defeat the p rincipal purpose of

all owing an appeal of immunity issues

before a government employee is forced

to go to trial

.

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

omitted).

Here, unli

k e the circumstance in Morin

, declining pendent appellate juris diction 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 pre sent ed with the “rare and

unique” circumstances in which we might exercise our pendent appella t e jurisdiction, and

we decline to do so.

The order denying summary judgment is

REVERSED, the cro ss-appeal is DISMISSED

for want of

jurisdiction, and this matter is

REMANDED.