*

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

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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

May 24, 2010

Elisabeth A. Shumaker

Clerk of Court PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JACK WADE FLETCHER,

Plaintiff - Appellee,

v. No. 09-7003

JEROME BURKHALTER,

Defendant - Appellant,

MCINTOSH COUNTY BOARD OF

COUNTY COMMISSIONERS,

Oklahoma,

 Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA*

(D.C. NO. 6:07-CV-00338-SPS)

Submitted on the Briefs:

Chris J. Collins and Timothy M. Melton, Collins, Zorn & Wagner, P.C.,

Oklahoma City, Oklahoma, for Defendant - Appellant.

Jim Wilcoxen, Wilcoxen & Wilcoxen, Muskogee, Oklahoma, and Dennis N.

Shook, Wagoner, Oklahoma, for Plaintiff - Appellee.

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1

Deputy Burkhalter’s last name was misspelled Burkholter on the district

court’s docket and in pleadings filed below. We also note that he is no longer a

sheriff’s deputy. But in this court the parties have referred to him as Deputy

Burkhalter, and we do likewise.

-2-

Before HARTZ, MCKAY, and O’BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Jack Wade Fletcher (Plaintiff Fletcher) sued McIntosh County Deputy

Sheriff Jerome Burkhalter1

 under 42 U.S.C. § 1983. He alleged that Deputy

Burkhalter had violated his rights under the Fourth Amendment (as applied to the

states under the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S. 643, 655

(1961)), by signing a probable-cause affidavit that led to his improper arrest for

engaging in a fraudulent land sale. According to Plaintiff Fletcher, the evidence

provided to Deputy Burkhalter by the victim of the fraud clearly showed that he

was not the Jack Fletcher who had committed the offense. 

Deputy Burkhalter sought summary judgment on the ground of qualified

immunity. The United States District Court for the Eastern District of Oklahoma

denied his motion. He appeals, contending that the evidence does not support a

finding of malice, that he did not proximately cause Plaintiff Fletcher’s arrest,

and that a reasonable person in his position would not have recognized that his

actions violated a clearly established constitutional right. We lack jurisdiction to

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consider some of Deputy Burkhalter’s arguments and reject those that we have

jurisdiction to consider.

I. BACKGROUND

A. Investigation and Arrest

On October 5, 2004, James Gollhardt reported to Deputy Burkhalter that he

had been the victim of a fraudulent land sale. Gollhardt identified the seller as

Jack Fletcher (Seller Fletcher) and gave Deputy Burkhalter several documents

relating to the transaction. One document set forth personal information about

Seller Fletcher, including his post-office box in Eufala, Oklahoma; his cell-phone

number; and the license-plate number, make, model, and color of his car. With

respect to his age, the document says “Estimated in his 70’s 86.” Aplt. App. at

116. (When the word 70’s was crossed out is not apparent from the record.) 

Another sheet contained a hand-drawn map showing where Seller Fletcher lived. 

The map included street names, highway numbers, and the name of a nearby

landmark, but did not give a town name. Gollhardt also gave Deputy Burkhalter

an executed bill of sale that contained the initials “JEF” next to a minor

modification of the sale terms.

Deputy Burkhalter filled out an incident report and attached to it the

materials provided by Gollhardt. In addition, he searched for records under the

name Jack Fletcher in an Oklahoma Department of Public Safety (DPS) database. 

The search yielded data on Plaintiff Fletcher, including his address, driver-license

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number, and date of birth (October 19, 1970). The search also returned data on

another Jack Fletcher, this one a resident of Oklahoma City, whose vehicle

information matched the vehicle description provided by Gollhardt. Plaintiff

Fletcher’s data from the DPS were included in Deputy Burkhalter’s incident

report. Defendant Burkhalter contended in district court that the data were added

to the report by someone else after he had signed it.

Soon after preparing the report, Deputy Burkhalter was reassigned from day

to night shifts. He had no further involvement in the investigation until

August 17, 2005, when he signed an affidavit prepared by the district attorney’s

office to obtain an arrest warrant for Plaintiff Fletcher. The criminal-case caption

at the top of the affidavit named the suspect as “Jack Wade Fletcher,” and

included Plaintiff Fletcher’s driver-license number and date of birth. The

substance of the affidavit states: 

Affiant, Jerome Burkhalter is a certified police officer

employed as a deputy sheriff for the McIntosh county sheriff’s

department. On the[]5th day of October, 2004, affiant received

complaint from James Gollhardt stating that Jack Fletcher had sol[d]

him property at Porum Landing for $10,000.00 on or about the 26th

day of July, 2003. That the property sold to Mr. Gollhardt by Jack

Fletcher did not belong to Mr. Fletcher. 

Based on this information, the undersigned prays that this

Honorable Court issue a finding of fact that probable cause exists to

believe that a crime has been committed and that there is probable

cause to believe the defendant above named committed the crime. 

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Aplt. App. at 50. The state court determined that there was probable cause to

arrest Plaintiff Fletcher. He was charged by a criminal information with

obtaining money by false pretenses, and a felony warrant for his arrest was

issued. 

On February 26, 2006, Plaintiff Fletcher was stopped for a traffic violation

and then arrested on the warrant. After he posted bond and retained counsel, the

case against him was dismissed.

B. District-Court Proceedings

On October 12, 2007, Plaintiff Fletcher brought this suit against Deputy

Burkhalter and the Board of County Commissioners of McIntosh County. An

amended complaint added Terry Jones, the McIntosh County Sheriff, as a

defendant. Plaintiff Fletcher alleged causes of action under 42 U.S.C. § 1983,

Oklahoma’s common law of negligence, and Oklahoma’s government-torts

statute. The district court entered summary judgment for the Board and Jones on

all claims, and granted summary judgment to Deputy Burkhalter on Plaintiff

Fletcher’s state-law claims. 

As for the § 1983 claim against Deputy Burkhalter, he argued that he was

entitled to qualified immunity because (1) the factual statements in his affidavit

were true, (2) he had “not ‘knowingly or recklessly ma[d]e a false statement in an

affidavit in support of an arrest or search warrant,’” Aplt. App. at 43 (quoting

Bruning v. Pixler, 949 F.2d 352, 357 (l0th Cir. 1991)), and (3) the district

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attorney’s and judge’s actions were superseding causes of Plaintiff Fletcher’s

arrest. 

Because Plaintiff Fletcher had been arrested on a judicial warrant, the

district court analyzed Deputy Burkhalter’s § 1983 constitutional-tort claim by

analogizing it to the common-law tort of malicious prosecution. See Pierce v.

Gilchrist, 359 F.3d 1279, 1285–91 & n.3 (l0th Cir. 2004) (the elements of the

common-law tort are merely a starting point; they are not dispositive). The

elements of such a claim are (1) initiation of the action against the plaintiff by the

defendant, (2) termination of the action in favor of the plaintiff, (3) lack of

probable cause to initiate the action by the arrest, (4) malice of the defendant

(which, the parties agree, requires intentional or reckless disregard of the truth),

and (5) damages. See id. at 1286, 1291–97. The district court ruled that there

was sufficient evidence to raise a bona fide factual issue regarding each element

of the constitutional tort, and it therefore denied Deputy Burkhalter’s motion for

summary judgment on the § 1983 claim. 

On appeal Deputy Burkhalter does not contest the district court’s rulings

that the original action terminated in Plaintiff Fletcher’s favor, that there was not

probable cause for Plaintiff Fletcher’s arrest, or that Plaintiff Fletcher suffered

damages. He argues (1) that the evidence does not support a finding of the

requisite malice, (2) that his actions were not the proximate cause of Plaintiff

Fletcher’s arrest or prosecution (that is, he is not responsible for the initiation of

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the action against Plaintiff Fletcher), and (3) that a reasonable person in his

position would not have recognized that his actions violated a clearly established

constitutional right. As we now explain, (1) we lack jurisdiction to review his

argument regarding malice; (2) to the extent that we have jurisdiction to review

his proximate-cause argument, we affirm the district court; and (3) we affirm the

district court on his clearly-established-law argument because it amounts to no

more than a recharacterization of his other arguments. 

II. DISCUSSION

Deputy Burkhalter contends that the § 1983 claim against him is barred by

the qualified-immunity doctrine. Under that doctrine, “government officials

performing discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant pleads qualified

immunity, the plaintiff bears the burden of (1) presenting evidence that the

defendant’s actions violated a federal constitutional or statutory right and (2)

showing that the federal right was clearly established at the time of the challenged

conduct. See Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007). 

Although the plaintiff bears this burden, the evidence is reviewed in the light

most favorable to the plaintiff when, as here, the defendant seeks summary

judgment on the ground of qualified immunity. See id. at 1115. 

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Qualified immunity protects public servants not only from liability, but also 

from the burdens of litigation. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945–46

(2009). Thus, in certain circumstances a defendant claiming qualified immunity

is entitled to appeal from a district-court denial of a motion for judgment on the

pleadings or a motion for summary judgment, even though such denials are

ordinarily not final judgments appealable under 28 U.S.C. § 1291. See id. A

denial of qualified immunity may be an appealable “collateral order” when the

denial satisfies the conditions that it “[1] conclusively determine the disputed

question, [2] resolve an important issue completely separate from the merits of

the action, and [3] be effectively unreviewable on appeal from a final judgment.” 

Johnson v. Jones, 515 U.S. 304, 310 (1995) (brackets in Johnson; internal

quotation marks omitted). As the Supreme Court has explained: 

The requirement that the issue underlying the order be “effectively

unreviewable” later on . . . means that failure to review immediately

may well cause significant harm. The requirement that the district

court’s order “conclusively determine” the question means that

appellate review is likely needed to avoid that harm. The

requirement that the matter be separate from the merits of the action

itself means that review now is less likely to force the appellate court

to consider approximately the same (or very similar) matter more

than once, and also seems less likely to delay trial court proceedings

(for, if the matter is truly collateral, those proceedings might

continue while the appeal is pending).

Id. at 311 (citations and internal quotation marks omitted).

Not all denials of qualified immunity satisfy these requirements for an

appealable collateral order. In Johnson the Supreme Court held that the

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defendant could not appeal a denial of a summary-judgment motion that raised

“only a question of ‘evidence sufficiency.’” 15 U.S. at 313. The Court suggested

that such questions generally do not satisfy the collateral-order requirement that

they be “completely separate from the merits of the action” and also noted that

district judges have much greater experience with such questions than do

appellate judges. See id. at 314–18. It further observed that interlocutory review

of an evidence-sufficiency issue can lead to duplicative review because “in the

many instances in which [the appellate court] upholds a district court’s decision

denying summary judgment, [it] may well be faced with approximately the same

factual issue again, after trial, with just enough change (brought about by the trial

testimony) to require it, once again, to canvass the record.” Id. at 316–17. The

Court concluded:

[C]onsiderations of delay, comparative expertise of trial and

appellate courts, and wise use of appellate resources argue in favor

of limiting interlocutory appeals of “qualified immunity” matters to

cases presenting more abstract issues of law. Considering these

competing considerations, we are persuaded that immunity appeals

interfere less with the final judgment rule if they are limited to cases

presenting neat abstract issues of law. 

Id. at 317 (brackets, ellipsis, and internal quotation marks omitted); see Gross v.

Pirtle, 245 F.3d 1151, 1156–57 (10th Cir. 2001) (“[W]e lack jurisdiction only if

our review would require second-guessing the district court’s determinations of

evidence sufficiency.”).

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We now turn to the arguments raised by Deputy Burkhalter on appeal. We

recognize that “the categories of ‘fact-based’ and ‘abstract’ legal questions used

to guide the Court’s decision in Johnson are not well defined.” Iqbal, 129 S. Ct.

at 1947. But the application of Johnson appears to us to be noncontroversial in

this case. Our analysis differs for each of Deputy Burkhalter’s three arguments.

A. Malice

We lack jurisdiction to consider Deputy Burkhalter’s argument that the

district court erred in holding that there is sufficient evidence to support a finding

of malice. Such a determination is a quintessential evidence-sufficiency issue. 

Indeed, intent was the one issue singled out by the Court in Johnson in explaining

why evidence-sufficiency issues should not be addressed in interlocutory appeals. 

It wrote: 

Many constitutional tort cases, unlike the simple “we didn’t do it”

case before us, involve factual controversies about, for example,

intent—controversies that, before trial, may seem nebulous. To

resolve those controversies—to determine whether there is or is not a

triable issue of fact about such a matter—may require reading a vast

pretrial record, with numerous conflicting affidavits, depositions, and

other discovery materials.

515 U.S. at 316. Even if this case does not present “a vast pretrial record,” the

Supreme Court “decide[s] appealability for categories of orders rather than

individual orders,” and does not “in each individual case engage in ad hoc

balancing to decide issues of appealability.” Id. at 315. We follow the Supreme

Court’s guidance in holding that the sufficiency of the evidence of malice is not

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an appealable issue when qualified immunity is denied, particularly because we

see no abstract legal issue in whether Deputy Burkhalter acted with malice. We

find support in our recent summary ruling that we lacked jurisdiction in a

qualified-immunity appeal to consider whether the district court had erred in

deciding that the defendant’s motive was a factual dispute for the jury to resolve. 

See McBeth v. Himes, 598 F.3d 708, 717 (10th Cir. 2010). Accordingly, we

dismiss Deputy Burkhalter’s appeal on this issue.

B. Causation

Deputy Burkhalter contends that even if he erred in his affidavit, “[t]he acts

of the DA’s Office (drafting the probable-cause affidavit for Deputy Burkhalter to

sign and filing charges against Plaintiff) and the acts of the district court (finding

that probable cause existed for Plaintiff’s arrest and issuing a felony warrant)

superseded Deputy Burkhalter’s act of merely signing the affidavit as the cause of

Plaintiff’s arrest[,]” and that “[t]herefore, Deputy Burkhalter was not the

proximate cause of any Fourth Amendment or other constitutional violation.” 

Aplt. Br. at 13. We have jurisdiction to review one component of this argument,

but nothing more. 

The abstract legal issue that we can review is whether the acts of the

district attorney or the judge can or must be considered superseding causes of

Plaintiff Fletcher’s injuries. But our review can be brief. The issue was resolved

by our decision in Pierce. In that case defendant Gilchrist had allegedly provided

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false forensic analyses leading to the charges against Pierce. Gilchrist argued that

“[s]ince she was not involved in Mr. Pierce’s arrest nor was she responsible for

filing charges, . . . as a matter of law, she is not liable for her alleged fabrication

of evidence and failure to disclose exculpatory evidence.” 359 F.3d at 1291. We

rejected the argument: 

Gilchrist cannot “hide behind” the fact that she neither initiated nor

filed the charges against Mr. Pierce. The actions of a police forensic

analyst who prevaricates and distorts evidence to convince the

prosecuting authorities to press charges is no less reprehensible than

an officer who, through false statements, prevails upon a magistrate

to issue a warrant. In each case the government official maliciously

abuses a position of trust to induce the criminal justice system to

confine and then to prosecute an innocent defendant.

Id. at 1293. We noted that we had “previously held that officers who conceal or

misrepresent material facts to the district attorney are not insulated from a § 1983

claim for malicious prosecution simply because the prosecutor, grand jury, trial

court, and appellate court all act independently to facilitate erroneous

convictions.” Id. at 1292. Accordingly, we reject Deputy Burkhalter’s argument

that the approvals of the district attorney and the judge absolved him of liability,

and we affirm the denial of summary judgment on that issue.

To the extent that Deputy Burkhalter is relying on the specific facts of this

case to argue that he was not responsible for Plaintiff Fletcher’s arrest, he is

raising merely an evidence-sufficiency issue, and we therefore lack jurisdiction to

review his argument. We recognize that in Pierce we reviewed the particulars of

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the case in rejecting the qualified-immunity argument. But Pierce concerned the

denial of a motion to dismiss the complaint. There was no need to review the

evidence in the record, because the allegations of the complaint are deemed true

on a motion to dismiss. As the Supreme Court stated in Iqbal, “The concerns that

animated the decision in Johnson are absent when an appellate court considers the

disposition of a motion to dismiss the complaint for insufficient pleadings.” 129

S. Ct. at 1947.

C. Clearly Established Law

Deputy Burkhalter entitles a section of his opening brief, “A Reasonable

Person in Defendant’s Position Would Not Have Recognized That Deputy

Burkhalter’s Actions Violated a Clearly Established Constitutional Right.” Aplt.

Br. at 18. But this section fails to argue that any legal doctrine relied on by the

district court had not been clearly established law at the time of his challenged

conduct. Rather, he merely reiterates his malice and causation arguments. He

asserts that he did nothing wrong; that if he did, he was at most merely negligent;

and that he was not the cause of Plaintiff Fletcher’s arrest. Then he argues that

the law was not clearly established that an officer can be liable despite having

acted without malice and despite not having been the proximate cause of the

violation of the plaintiff’s constitutional rights. The district court, however, held

that there was sufficient evidence to support findings of both malice and

causation. Thus, Deputy Burkhalter’s clearly-established-law argument depends

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on his successfully challenging those holdings. Because we have refused to

reverse those holdings, this argument must fail.

III. CONCLUSION

We lack jurisdiction to review the district court’s determinations of factual

sufficiency, and the district court did not err on the abstract issues of law raised

by Deputy Burkhalter. We therefore AFFIRM the district court’s denial of

Deputy Burkhalter’s motion for summary judgment.

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