                       UNITED STATES COURT OF APPEALS
Filed 10/21/96
                                      TENTH CIRCUIT



 MILDRED PEARSON, Personal
 Representative of the Estate of Denny
 Pearson and Mildred Pearson, an
 individual,

           Plaintiff - Appellant,
 v.

 CITY OF OKLAHOMA, a municipal
 corporation; W. B. SMITH, LT.,
 individually; RON REINERT,
                                                                  No. 95-6404
 individually; EMERGENCY
                                                           (D.C. No. CV-94-1166-T)
 MEDICAL SERVICE AUTHORITY, a
                                                         (Western District of Oklahoma)
 public trust; KEVIN WADE BARNES,
 individually and in his representative
 capacity as an employee of the city of
 Oklahoma City; WADE GRAY,
 individually and in his representative
 capacity as an employee of the city of
 Oklahoma City; SAM GONZALES,
 Chief of Police of the Oklahoma City
 Police Department, individually,

           Defendants - Appellees.




                                ORDER AND JUDGMENT *




       *
         This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
Before KELLY, BRISCOE and LUCERO, Circuit Judges.



       Denny Pearson was killed in Oklahoma City, Oklahoma when he was struck

by a police vehicle as he walked to work. Alleging violations of 42 U.S.C. §

1983 and state law, plaintiff, Pearson’s wife and the personal representative of his

estate, brought suit against the police officer involved in the accident, Kevin

Wayne Barnes; two other police officers, Wade Gray and W. B. Smith; the Chief

of Police, Sam Gonzales; the City of Oklahoma City; the emergency medical

technician, Ron Reinert; and Reinert’s employer, the Emergency Medical Service

Authority (“EMSA”). The district court granted summary judgment to all

defendants on plaintiff’s § 1983 claims and dismissed the state law claims without

prejudice. Plaintiff now appeals the dismissal of his § 1983 claims against all

defendants except W.B. Smith.

       The facts, briefly stated, are that before dawn on September 10, 1993,

Pearson was walking on a street in an industrial area when he was struck from

behind by a police car driven by Officer Barnes. Officer Barnes was responding

to an audible alarm at a nearby office building. Barnes was driving 70 to 75 miles

per hour in a 50 mile-per-hour zone, and was not using his siren or overhead

lights. 1 Upon impact with Barnes’ vehicle, Pearson’s legs were amputated below



       1
         By driving in that manner, Barnes violated police department policy requiring the use of
a siren and overhead lights when officers exceed the speed limit.
the knees and his body was thrown 245 feet. He suffered multiple traumatic

injuries, including a skull fracture and ruptured liver.

      Immediately after the accident, at approximately 5:45 a.m., Barnes and his

backup officer, Wade Gray, requested an EMSA ambulance. The ambulance

arrived at approximately 5:52 a.m. An EMSA paramedic, Ron Reinert,

determined that Pearson was dead. Because of that determination, Reinert did not

initiate any life-saving procedures or transport Pearson to a hospital.

      The district court ruled that Barnes did not violate Pearson’s constitutional

rights, and that, absent a constitutional violation by Barnes, plaintiff could not

bring claims against the City or Officer Gonzales for inadequate training or an

unconstitutional policy. The district court also ruled that EMSA and Reinert did

not violate Pearson’s constitutional rights, as the evidence showed that Pearson

was dead when the ambulance and Reinert arrived at the accident. Alternatively,

the court reasoned that even if Pearson was still alive, the evidence does not show

that EMSA and Reinert acted in a manner that shocks the conscience. Finally, the

district court ruled that Officer Gray was qualifiedly immune from plaintiff’s §

1983 claim because, even if Gray had a constitutional obligation to render

medical care, that obligation was not clearly established at the time of the

accident.




                                          -3-
         We review the grant of summary judgment de novo, applying the same

standard the district court applied, Fed. R. Civ. P. 56(c). Committee for the First

Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir. 1992). Summary

judgment is appropriate if the record “show[s] that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). We review the record in the light most favorable to

plaintiff, the non-moving party. See Uhlrig v. Harder, 64 F.3d 567, 571 (10th Cir.

1995).

         Plaintiff contends that Barnes violated Pearson’s substantive due process

rights by recklessly creating the danger that resulted in his death. 2 This court

acknowledged in Medina v. City & County of Denver, 960 F.2d 1493, 1496-97

(10th Cir. 1992), that an officer’s reckless conduct may result in liability where

that conduct is “directed toward the plaintiff.” This occurs where:

         (1) the plaintiff is a member of a limited and specifically definable
         group, (2) the defendant’s conduct specifically put the members of
         that group at substantial risk of serious, immediate, and proximate
         harm, (3) the risk was obvious or known, and (4) the defendant acted
         recklessly in conscious disregard of that risk.

Id. We clarified in Uhlrig v. Harder that the defendant’s reckless conduct must

also “shock the conscience” in order to violate a plaintiff’s substantive due

process rights. 64 F.3d at 572.


       In her complaint, plaintiff also alleged violations of her rights to procedural due process
         2

and equal protection. She does not pursue those claims on appeal.

                                                -4-
       In Apodaca v. Rio Arriba County Sheriff’s Dep’t, 905 F.2d 1445, 1446-47

(10th Cir. 1990), a case similar to the one at hand, we concluded that a deputy

sheriff responding to a silent burglar alarm was merely negligent when he hit a

car as he rounded a curve, driving 20-30 miles per hour over the speed limit.

Although it was dark and had been sleeting and raining, the deputy sheriff did not

activate his siren or overhead lights. Id. at 1446. Nevertheless, we determined

that the case boiled down to “driving too fast for road and visibility conditions,”

which, at most, amounted to negligence. Id. at 1446 n.3.

       After carefully reviewing the entire record, we agree with the district court

that there is no basis for distinguishing the present case from Apodaca.

Moreover, even if we were to find that Barnes’ conduct of exceeding the speed

limit without his siren or overhead lights was reckless, the record does not show

that such conduct was directed toward Pearson, as contemplated by Medina, 960

F.2d at 1496-97. 3 Absent a constitutional violation by Officer Barnes, the failure-

to-train and unlawful-policy claims against the City and Police Chief Gonzales,

which are premised upon such a violation, also fail. See Hinton v. City of

Elwood, 997 F.2d 774, 782 (10th Cir. 1993).

       Plaintiff’s claim against Officer Gray is based on his failure to give

Pearson emergency medical treatment. Immediately after the accident, Officer

       3
        Because we cannot conclude that Barnes’ conduct was directed towards Pearson, we
need not address whether the conduct shocks the conscience under Uhlrig.

                                            -5-
Gray arrived at the scene and called for an ambulance. Appellee’s Supp. App. at

65. Plaintiff points out that Gray did not touch Pearson or attempt to administer

CPR. Gray, however, thought Pearson was dead. Appellant’s App., Vol. 1 at

229. The district court properly concluded that Gray is entitled to qualified

immunity. Even if the due process clause required Gray to provide emergency

medical treatment beyond calling for an ambulance, that duty was not clearly

established when the accident occurred. See Wilson v. Meeks, 52 F.3d 1547,

1555 (10th Cir. 1995).

      Finally, plaintiff protests the dismissal of her claims against EMSA and

Reinert. With careful analysis, the district court explained why it granted

summary judgment to EMSA and Reinert. Appellant’s App., Vol. II at 497-501.

We affirm the grant of summary judgment to EMSA and Reinert for substantially

the reasons stated by the district court.

      AFFIRMED. Appellant’s Motion to Strike is DENIED.


                                            ENTERED FOR THE COURT



                                            Carlos F. Lucero
                                            Circuit Judge




                                             -6-
