                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                               FOR THE TENTH CIRCUIT                         March 20, 2020
                           _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
    MICHAEL VALDEZ,

          Plaintiff - Appellee/Cross –
          Appellant,
                                                         Nos. 19-1182 and 19-1194
    v.                                             (D.C. No. 1:15-CV-00109-WJM-STV)
                                                                 (D. Colo.)
    ROBERT MOTYKA, JR., Denver Police
    Officer, in his individual capacity; CITY
    OF DENVER, a municipality,

          Defendants - Appellants/Cross-
          Appellees,

    and

    JOHN MACDONALD, Denver Police
    Officer, in his individual capacity,

          Defendant - Cross-Appellee.
                          _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

Before BRISCOE, KELLY, and CARSON, Circuit Judges.**
                  _________________________________



*
  This order and judgment is not binding precedent, except under the doctrines of law of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.
**
   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 submitted without oral
argument.
       These interlocutory appeals raise questions of qualified immunity and pendent

appellate jurisdiction. In the pending civil rights action, Plaintiff-Appellee and Cross-

Appellant Michael Valdez seeks recovery from Defendant-Appellants and Cross-

Appellees Sergeant Robert Motyka, Lieutenant John Macdonald, and the City and

County of Denver (Denver) under 42 U.S.C. § 1983. Mr. Valdez alleges that the

individual defendants violated his Fourth Amendment rights when they shot him in the

back and finger following a violent vehicle chase. On summary judgment, the district

court granted qualified immunity to Lieutenant Macdonald, denied it to Sergeant Motyka,

and determined that there was a genuine issue of material fact as to municipal liability on

the theory that Denver ratified the actions of its officers. Valdez v. Macdonald,

No. 15-cv-00109-RPM, 2019 WL 1651857 (D. Colo. Apr. 17, 2019). The case was

ultimately reassigned to another district judge who certified these appeals as frivolous

because it turned on evidentiary sufficiency no matter how else phrased. Valdez v.

Motyka, 416 F. Supp. 3d 1250 (D. Colo. 2019).

       In No. 19-1182, Sergeant Motyka challenges the district court’s denial of

qualified immunity claiming that it turns on questions of law. Should that challenge be

successful, with the court finding as a matter of law that there was no constitutional

violation on the part of Sergeant Motyka, Denver contends that we should exercise

pendent appellate jurisdiction and reverse the district court’s decision on allowing the

municipal liability claim to advance. Aplt. Jt. Prin. Br. at 48–49. Mr. Valdez cross-

appeals in No. 19-1194, arguing that if we accept jurisdiction over Sergeant Motyka’s

qualified immunity appeal, we should exercise pendent appellate jurisdiction over the

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grant of qualified immunity to Lieutenant Macdonald because his conduct is virtually

identical and he failed to intervene. Aplee./Cross-Aplt. Br. at 29. Because the denial of

qualified immunity is based on evidentiary sufficiency, we lack jurisdiction and dismiss

these appeals.

                                      Background

       This case arises following a violent vehicle chase that occurred in the Denver

metropolitan area on January 16, 2013. Earlier that morning, Johnny Montoya was

involved in a domestic dispute involving a firearm. He fled the scene and an alert was

put out for the red Dodge truck he was seen driving. At some point later that day, he

picked up his brothers –– Jude and Chuck Montoya –– and a woman named Alyssa

Moralez. They also picked up Mr. Valdez, an intellectually disabled, periodically

homeless man, who asked for a ride. Shortly thereafter, Denver police officers spotted

the truck and a chase ensued. At the time the chase began, Mr. Valdez was sitting in the

truck bed but quickly climbed into the cab through the rear window.

       At some point during the chase, someone in the cab of the truck began shooting at

police vehicles in pursuit. A bullet struck Sergeant Motyka in the shoulder. He briefly

pulled over to inspect the wound before re-joining the chase. Not long after, the truck

crashed into a tree. Officer Jeremy Olive was the first to arrive on the crash scene. He

observed Jude Montoya flee on foot but did not shoot at him. Moments thereafter,

Sergeant Motyka arrived and began firing. He testified to shooting two rounds of six or

seven shots. Lieutenant Macdonald was right behind Sergeant Motyka, and he also

began shooting. During this altercation, Mr. Valdez was struck in the back and finger,

                                            3
temporarily paralyzing him and causing permanent damage to his finger. The bullet in

his back was later found to have come from Sergeant Motyka’s gun but it was not

determined which officer hit Mr. Valdez’s finger.

       After Mr. Valdez was struck, Sergeant Motyka withdrew from the scene. He

testified that his vision had begun blurring because of the pain in his shoulder and he

believed he was becoming a liability. The altercation continued for several more minutes

with officers eventually shooting and killing Johnny Montoya after he was seen grabbing

a handgun from the truck cab.

       Mr. Valdez initiated the underlying action in 2015. In pertinent part, he claims

excessive force and, as to municipal liability, that Denver ratified the actions of its

officers by honoring them and claiming that they did not violate policy or procedures. A

separate interlocutory appeal was filed previously resulting in the dismissal of several

claims. Valdez v. Derrick, 681 Fed. App’x 700 (10th Cir. 2017). Thereafter, Mr. Valdez

moved to voluntarily dismiss certain claims against some of the officers.

       The district court denied qualified immunity to Sergeant Motyka based upon

evidentiary sufficiency. It determined that, at a minimum, there were factual disputes

that could demonstrate that Mr. Valdez was seized when shot and immobilized and that

Sergeant Motyka’s actions were objectively unreasonable. The district court authored the

following narrative, which it determined could be the version of events that a reasonable

juror might find after drawing all inferences in favor of Mr. Valdez:

              Motyka started shooting immediately on arrival at his position. He
              fired a burst of six or seven rounds. After a brief pause he fired
              another burst. Lt. Macdonald arrived in moments and started firing
                                              4
in the same direction as Motyka. He shot six times. In his interview
with DPD Motyka said that “probable cause is in my shoulder”
suggesting he was acting out of revenge and anger at having been
shot.

Chuck Montoya stayed in the truck bed. During the police pursuit
and hearing gunshots, Valdez had crawled up into the cab through
the rear window and crouched down above Moralez who was curled
up on the floor.

Valdez and Moralez testified that they went out the passenger door
immediately after Jude and went down to the ground in a prone
position between the truck and a tree, facing into the park.

During the bursts of gunfire by Motyka and Macdonald Valdez was
hit in a finger and in his back. The bullet that hit him in the back,
causing serious injury, came from Motyka’s gun. It was not possible
to determine whether the bullet that hit his finger came from the
shooting by Motyka or Macdonald. During the DPD investigation
multiple bullets were found in the lower part of the tree and one on
the grass near where Valdez had lain.

It is apparent that the area was sprayed with bullets permitting the
inference that the officers were firing without aiming at a clear
target.

Motyka was in extreme pain from the wound in his shoulder. In an
interview with a DPD investigator on January 18, 2013, he said that
the pain was causing him to nearly faint, saying that he saw a black
cloud closing his peripheral vision and after shooting he backed off
to avoid becoming a liability to the other officers. Macdonald
helped him to a car. Motyka was very angry as well and very eager
to get the occupant who shot him. In the same interview he said that
he kept thinking about aiming with the front sight as he had been
trained. These statements and the scattered bullets warrant an
inference that Motyka started shooting without making any effort to
determine whether there was any immediate threat to him or others
as the occupants of the cab came out. Johnny Montoya was the last
occupant to come out the passenger door. He was shot dead by other


                               5
              officers after failing to obey their commands several minutes after
              Motyka withdrew from the immediate scene.

              The shootings by Motyka and Macdonald are actions in sharp
              contrast to the conduct of Olive who was there first and who did not
              assess an immediate threat requiring shooting for the safety of the
              officers or anyone else.

              Both Motyka and Macdonald have said that they were firing at a
              man who had a gun and went to his knee to get into a firing position.
              Olive did not support that view. Presumably Johnny had a gun when
              he was shot.

              Three guns were found. DNA testing excluded Valdez as a source
              of what was found on them. Johnny Montoya had come out the
              passenger door and was standing when Valdez and Moralez were on
              the ground. He must not have been seen as an immediate threat by
              Olive or other officers until he was shot three minutes after Motyka
              and Macdonald were done shooting. They were about three car
              lengths away from the occupants when firing.

Valdez, 2019 WL 1651857, at *1–2. The district court granted qualified immunity to

Lieutenant Macdonald after finding no clearly established law that rendered his conduct

violative of the Fourth Amendment. Id. at *4. However, the court denied qualified

immunity for Sergeant Motyka, finding that the question of whether Mr. Valdez

presented an imminent threat –– sufficient to justify Sergeant Motyka’s decision to fire at

him –– was disputed in the record and best left to a jury. Id. at *3. The district court also

denied Denver’s motion for summary judgment on grounds that the City’s public reasons

for ratifying the conduct of Sergeant Motyka conflated “the conduct of John Montoya

and Michael Valdez as threats requiring lethal force” which it believed was “contrary to

what a jury may find.” Id. at *4.


                                              6
A. Qualified Immunity as to Sergeant Motyka

       The denial of qualified immunity is a question of law we review de novo. Cortez

v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2017). Plaintiffs seeking to overcome a

qualified immunity defense must show that (1) the defendant violated a constitutional or

statutory right, and (2) the right was clearly established at the time of the defendant’s

unlawful conduct. Mecham v. Frazier, 500 F.3d 1200, 1204 (10th Cir. 2007).

       However, “a defendant, entitled to invoke a qualified immunity defense, may not

appeal a district court’s summary judgment order insofar as that order determines

whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v.

Jones, 515 U.S. 304, 319–20 (1995). As such, “[t]his court [] lacks jurisdiction at this

stage 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.” Fancher v. Barrientos, 723 F.3d 1191, 1199 (10th

Cir. 2013) (internal citations omitted). “[I]n reviewing the district court’s rejection of

[the defendant]’s qualified immunity defense, we must scrupulously avoid second-

guessing the district court’s determinations regarding whether [the plaintiff] has

presented evidence sufficient to survive summary judgment.” Id. (internal citations

omitted) (emphasis in original).

       Appellants argue that the district court committed legal error in finding that a

reasonable jury could find for Mr. Valdez on his Fourth Amendment excessive force

claim. However, the district court reached this conclusion only after discussing the sheer

number of factual disputes presented by the record, and we have “no interlocutory

                                                7
jurisdiction to review ‘whether or not the pretrial record sets forth a ‘genuine’ issue of

fact for trial.’” Estate of Booker v. Gomez, 745 F.3d 405, 409 (10th Cir. 2014) (quoting

Johnson, 515 U.S. at 320); see also id. at 409–10 (“Thus, ‘if a district court concludes

that a reasonable jury could find certain specified facts in favor of the plaintiff, the

Supreme Court has indicated we usually must take them as true1—and do so even if our

own de novo review of the record might suggest otherwise as a matter of law.’” (quoting

Roosevelt–Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013))). Here, the district

court clearly articulated which factual disputes precluded granting qualified immunity to

Sergeant Motyka and provided a detailed analysis of how those facts could lead to a

jury’s reasonable conclusion that Sergeant Motyka violated Mr. Valdez’s Fourth

Amendment rights. Though the Appellants argue legal errors pervade the district court’s

view of the facts concerning seizure and objective reasonableness, in the end they are

challenging the district court’s view of the facts. As a result, dismissal of these appeals is

warranted. See Ralston v. Cannon, 884 F.3d 1060, 1067–68 (10th Cir. 2018).

B. Pendent Jurisdiction

       As noted, Denver’s request that we exercise pendent appellate jurisdiction was

conditional on an appellate finding that no individual constitutional violation occurred as

a matter of law. Because we do not reach the legal merits of Sergeant Motyka’s qualified




1
 “A key exception to Johnson’s jurisdictional rule arises if a district court fails to specify
which factual disputes precluded a grant of summary judgment for qualified immunity.”
Estate of Booker, 745 F.3d at 410. This exception is not applicable here as the district
court clearly explained the relevant factual disputes.
                                               8
immunity appeal and dismiss it, there is no predicate for pendent appellate jurisdiction on

this basis.

       Likewise, Mr. Valdez’s request that we exercise pendent appellate jurisdiction

over the grant of qualified immunity to Lieutenant Macdonald was conditional on

affirming the denial of qualified immunity to Sergeant Motyka. Having not reached the

merits of Sergeant Motyka’s qualified immunity appeal, it is axiomatic that the grant of

qualified immunity to Lieutenant Macdonald is neither inextricably intertwined or in aid

of our decision in this case. See Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906,

915 (10th Cir. 2008).

       APPEALS DISMISSED. All pending motions are denied.


                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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