FILED

United States Court of Appeals

Tenth Circuit

May 11, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT ALAN CANCEMI; JERRY

PENDLEY,

Plaintiffs-Appellees,

v.

ALAN MCCORMACK, individually

and in his official capacity,

Defendant-Appellant,

and

CUSTER COUNTY, sued as Custer

County Board of County

Commissioners; MIKE BURGESS,

individually and in his former official

capacity as the Sheriff of Custer

County,

Defendants.

______________________________

ROBERT ALAN CANCEMI; JERRY

PENDLEY,

Plaintiffs-Appellees,

v.

MIKE BURGESS, individually and in

his former official capacity as the

Sheriff of Custer County,

Defendant-Appellant,

No. 09-6191

(D.C. No. 5:08-CV-00683-R)

(W.D. Okla.)

No. 09-6192

(D.C. No. 5:08-CV-00683-R)

(W.D. Okla.)

Appellate Case: 09-6192 Document: 01018419080 Date Filed: 05/11/2010 Page: 1 
* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

-2-

and

ALAN MCCORMACK, individually

and in his official capacity; CUSTER

COUNTY, sued as Custer County

Board of County Commissioners,

Defendants. 

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, BALDOCK, and TACHA, Circuit Judges.

In these consolidated appeals, Defendants-Appellants Mike Burgess and

Alan McCormack challenge the district court’s order denying their motions for

summary judgment on the basis of qualified immunity. Because we lack

jurisdiction, we dismiss these appeals.

BACKGROUND

At the times relevant to these appeals, Burgess was the sheriff of Custer

County, Oklahoma, and McCormack was a deputy sheriff. On March 3, 2007,

McCormack was in the City of Thomas police station interviewing a woman who

Appellate Case: 09-6192 Document: 01018419080 Date Filed: 05/11/2010 Page: 2 
-3-

had reported domestic abuse. Plaintiff-Appellee Jerry Pendley, a City of Thomas

police officer, was present during at least part of the interview. At some point,

McCormack and Pendley had a disagreement, prompting McCormack to arrest

Pendley and charge him with obstructing a law-enforcement officer, interfering

with the performance of an executive official’s duty, and conspiracy. Soon

thereafter, Plaintiff-Appellee Robert Alan Cancemi, the City of Thomas police

chief, arrived at the station and confronted McCormack in the station’s parking

lot. After a short discussion, McCormack arrested Cancemi and charged him with

the same offenses leveled against Pendley. Cancemi and Pendley were booked

into the county jail, where they remained for several hours until they posted bond.

Two days later, Cancemi met with Burgess and the Custer County district

attorney in Burgess’s office. Cancemi attempted to record the meeting, but he

was not permitted. After some discussion, the meeting terminated.

Ultimately, Cancemi and Pendley were not prosecuted. But they sued

Custer County, Burgess and McCormack under 42 U.S.C. § 1983 for false arrest

and imprisonment. Their claims included the initial arrests and imprisonment, as

well as Cancemi’s assertion that he was falsely imprisoned during the meeting in

Burgess’s office. On Burgess’s and McCormack’s motions for summary

judgment, the district court declined to grant qualified immunity because there

were significant factual disputes between the parties. Indeed, the district court

observed that “each law enforcement officer’s version of the relevant facts herein

Appellate Case: 09-6192 Document: 01018419080 Date Filed: 05/11/2010 Page: 3 
-4-

differs from every other law enforcement officer’s version.” Aplts.’ App., Vol. 7

at 1278. This appeal followed.

DISCUSSION

“[A] district court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final decision’ within the

meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). But our jurisdiction is limited to

“whether or not certain given facts showed a violation of ‘clearly established’

law.” Johnson v. Jones, 515 U.S. 304, 311 (1995). Thus, “we are not at liberty to

review a district court’s factual conclusions, such as the existence of a genuine

issue of material fact for a jury to decide, or that a plaintiff’s evidence is

sufficient to support a particular factual inference.” Zia Trust Co. ex rel. Causey

v. Montoya, 597 F.3d 1150, 1152 (10th Cir. 2010) (quotation omitted). And

where, as here, a district court determines that fact issues remain for trial but it

does not make explicit factual findings, “we must review the record to extract the

facts the district court likely relied on in reaching its conclusion.” Garrett v.

Stratman, 254 F.3d 946, 953 (10th Cir. 2001) (quotation omitted).

Both Burgess and McCormack state that they are entitled to qualified

immunity under Cancemi’s and Pendley’s versions of the facts. But Burgess and

McCormack fail to mention those facts in their briefs. Instead, they recount the

incidents that gave rise to this litigation using their own versions of the facts. For

Appellate Case: 09-6192 Document: 01018419080 Date Filed: 05/11/2010 Page: 4 
-5-

instance, McCormack asserts that Pendley interfered with his interview of the

domestic abuse complainant by attempting to grab her partially-completed written

statement and by ordering her to stop cooperating with the deputies. But

Pendley’s evidence indicates that he simply asked her to remain in the station

until Cancemi arrived, and that when McCormack told him to leave, he (Pendley)

complied, but was arrested anyway. And despite McCormack’s testimony that

Cancemi confronted him belligerently in the parking lot, there is evidence that

McCormack escalated the confrontation and had decided to arrest Cancemi even

before he arrived. As for the meeting in Burgess’s office, Cancemi indicates that

he was not allowed to leave until he relinquished his tape recorder and Burgess

had completed erasing its contents. Finally, while Burgess states that his only

personal involvement in this case was during the meeting with Cancemi and the

district attorney, there is evidence showing he knew that Pendley and Cancemi

were being arrested, yet he declined to intervene.

By ignoring Pendley’s and Cancemi’s versions of events, Burgess and

McCormack are essentially challenging the district court’s determination that the

record presents sufficient conflicting evidence to necessitate a jury’s involvement. 

See Lowery v. County of Riley, 522 F.3d 1086, 1092 (10th Cir. 2008). We lack

jurisdiction to review that determination. See Zia Trust Co., 597 F.3d at 1152.

Appellate Case: 09-6192 Document: 01018419080 Date Filed: 05/11/2010 Page: 5 
-6-

CONCLUSION

We dismiss these appeals for lack of jurisdiction.

Entered for the Court

Deanell R. Tacha

Circuit Judge

Appellate Case: 09-6192 Document: 01018419080 Date Filed: 05/11/2010 Page: 6