                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                February 26, 2009
                             FOR THE TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

    CHRISTOPHER CHASE SPENCER,

                Plaintiff-Appellant,

    v.                                                 No. 07-6234
                                                (D.C. No. 5:06-cv-00500-C)
    JEFF LANDRITH, in his official                     (W.D. Okla.)
    capacity as Mayor of City of Mustang,
    a Political Subdivision of Oklahoma;
    MONTE L. JAMES, in his official
    capacity as Chief of Police of the City
    of Mustang Police Department;
    CAMIE McNEIL, in her official
    capacity; KIRK DICKERSON, in his
    individual and official capacities;
    CLIFF DACUS, in his individual and
    official capacities; TERRY DWYANE
    TAYLOR,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BALDOCK, BRORBY, and EBEL, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Christopher Chase Spencer appeals from the district court’s order granting

summary judgment in favor of the City of Mustang, Oklahoma; various City

officials and officers (the City defendants); and a local private resident on his

federal claim under 42 U.S.C. § 1983 and dismissing without prejudice his

state-law claims. We affirm.

                                  BACKGROUND

Factual Basis

      On May 17, 2004, seventeen-year-old Chase Spencer and a friend spent

time together in Edmond, Oklahoma. Their activities included drinking beer.

Mr. Spencer then drove to Mustang, where the friend lived. While Mr. Spencer

was driving his truck around Mustang, the friend threw two beer bottles onto the

lawn of defendant Terry Dwyane Taylor. In his car, Mr. Taylor chased

Mr. Spencer’s truck, catching up with him outside the friend’s home.

Mr. Spencer dropped off the friend and, alone in the truck, he attempted to elude

Mr. Taylor.

      Notwithstanding Mr. Spencer’s driving efforts, Mr. Taylor passed the truck

and forced it off the road. He broke the truck window, grabbed Mr. Spencer, put

him into the car, and sped back to his house. There, Mr. Taylor placed

Mr. Spencer under a self-described “citizen’s arrest.” In the process, he

handcuffed him, knocked him to the ground, punched him in the head, dragged

him across a driveway, and planted a foot on his neck.

                                          -2-
      On Mr. Taylor’s instructions, the Mustang police were called. Defendants

Dacus and Dickerson, who were familiar with Mr. Taylor from previous

domestic-disturbance incidents, arrived at Mr. Taylor’s front lawn. After

removing Mr. Taylor’s handcuffs from Mr. Spencer’s wrists, an officer walked

Mr. Spencer toward his patrol car. Noticing the smell of alcohol and observing

that Mr. Spencer was unsteady on his feet, with glassy eyes, Officer Dacus

administered a roadside sobriety test. He determined that Mr. Spencer’s

responses indicated intoxication. Officer Dacus handcuffed Mr. Spencer and

placed him in a patrol vehicle. Attempting to sort out the situation, the officers

interviewed Mr. Taylor, who contended that he had placed Mr. Spencer under

citizen’s arrest for Driving Under the Influence (DUI). Mr. Spencer, however,

declined to provide any information other than his name. Officer Dacus took

Mr. Spencer into custody, based on a citizen’s arrest.

      At the police station, Officer Dacus administered a breathalizer test. The

results indicated that Mr. Spencer’s blood alcohol level was .01, which meant he

was not legally intoxicated under Oklahoma’s general DUI rules. 1 Within two


1
       In its memorandum and order, the district court noted that, “[a]s a
minor . . . it would have been unlawful for Plaintiff to have been driving with
‘any measurable quantity of alcohol on his breath.’” Aplt. App., Vol. 4, Tab 2
at 895 (quoting 47 Okla. Stat. § 11-906.4(A)(1)). Although he does not list it as
an issue presented for review, Mr. Spencer argues on appeal that the district court
should have certified the question of whether .01 is a measurable quantity of
alcohol under state law. Aplt. Br. at 15-17. Because Mr. Spencer did not ask the
                                                                       (continued...)

                                         -3-
hours after his seizure by Mr. Taylor, Mr. Spencer was released to his father. The

next morning he sought medical care for contusions, abrasions, and cervical strain

received during the citizen’s arrest. His physician prescribed rest, an

anti-inflammatory, and a painkiller. 2

      The City of Mustang did not charge Mr. Spencer with any criminal conduct

arising from the incident, although it cited his friend for throwing the bottles. In

a subsequent inquiry, Defendant McNeil, a police investigator, determined that

Mr. Taylor’s manhandling of Mr. Spencer did not occur in the context of a proper

citizen’s arrest. Mr. Taylor was ultimately convicted of misdemeanor destruction

of property and assault and battery.

      Later, Mr. Spencer filed suit seeking redress under several Oklahoma tort

provisions and 42 U.S.C. § 1983. His complaint named as defendants the mayor

of Mustang, the chief of police, the two police officers present at the Taylor

home, the police investigator, and Mr. Taylor. The complaint asserted claims for

negligent hiring, retention, and supervision; false arrest; abuse of process; libel


1
 (...continued)
district court to certify the issue, we will not consider this contention. See
Stewart v. Kempthorne, __ F.3d. __, 2009 WL 225874, *5 (10th Cir. Feb. 2,
2009) (declining to consider arguments raised for the first time on appeal).
2
      In district court, Mr. Spencer claimed that the City defendants deprived him
of medical care while in custody. Because he does not pursue this issue on
appeal, the facts related to his physical condition illustrate the nature of his
confrontation with Mr. Taylor, but are not directly relevant to this court’s
resolution of his case.

                                         -4-
and slander; assault and battery; intentional or negligent infliction of emotional

distress; false imprisonment; and constitutional torts. The City defendants sought

summary judgment. For his part, Mr. Spencer filed a partial summary-judgment

motion. Defendant Taylor did not respond to the other parties’ filings.

Basis of District Court’s Ruling

      In a thoughtful Memorandum Opinion and Order, the district court

acknowledged that the parties had presented “voluminous, mostly disputed facts

regarding many tangential aspects of [the] case,” but also recognized that factual

disputes preclude the granting of summary judgment only if they pertain to

material facts. Aplt. App., Vol. 4, Tab 2 at 891. See Scott v. Harris, 550 U.S.

372, 127 S. Ct. 1769, 1776 (2007) (stating that only a “‘genuine issue of material

fact’” can “‘defeat an otherwise properly supported motion for summary

judgment’”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986)). The court therefore distilled the record to uncontested facts, then

analyzed the issues in light of the applicable law.

      For several reasons, the court determined that all defendants were entitled

to summary judgment on Mr. Spencer’s federal false-arrest claim. First, the

mayor, police chief, and investigator were not liable under any theory. Because

they did not personally participate in the event, they could not be held

accountable in their individual capacities. See Foote v. Spiegel, 118 F.3d 1416,

1423 (10th Cir. 1997) (“Individual liability under § 1983 must be based on

                                         -5-
personal involvement in the alleged constitutional violation.”). To the extent

Mr. Spencer was attempting to hold the mayor and police chief liable as

supervisors, this claim also fails. The theory of negligent supervision cannot

provide a basis for liability under § 1983. See Darr v. Town of Telluride,

495 F.3d 1243, 1256 (10th Cir. 2007). Moreover, “there is no concept of strict

supervisor liability under section 1983.” Jenkins v. Wood, 81 F.3d 988, 994

(10th Cir. 1996) (quotation and citation omitted). “[I]t is not enough for a

plaintiff merely to show a defendant was in charge of other state actors who

actually committed the violation.” Id. Rather, “the plaintiff must establish a

deliberate, intentional act by the supervisor to violate constitutional rights.”

Id. at 994-95 (quotations and citations omitted). Mr. Spencer’s filings do not

provide a basis for the imposition of supervisor liability.

      And in the supervisors’ official capacities, Mr. Spencer was required to

demonstrate that his injuries were the result of a municipal “policy or custom.”

Novitsky v. City of Aurora, 491 F.3d 1244, 1259 (10th Cir. 2007) ( “A

municipality cannot be held liable for its officers’ actions under § 1983 unless

those actions were caused by a policy or custom of the municipality.”); Myers v.

Okla. County Bd. of County Comm’rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998)

(recognizing that suits against municipal officers acting in an official capacity are

treated the same as those against a municipality). A “‘custom’ . . . mean[s] an act

that, although not formally approved by an appropriate decision maker, has such

                                          -6-
widespread practice as to have the force of law.” Marshall v. Columbia Lea Reg’l

Hosp., 345 F.3d 1157, 1177 (10th Cir. 2003). Mr. Spencer’s assertions that the

Mustang Police Department had been complacent in responding to earlier

problems with Mr. Taylor did not add up to a municipal custom. And his further

allegations that Mr. Taylor’s sister is a former dispatcher for Mustang and her

husband is an Oklahoma City police officer added no weight to his case.

Mr. Spencer’s evidence did “not show that the City of Mustang had an unlawful

custom regarding Taylor or that such a custom resulted in Plaintiff’s alleged

constitutional violations.” Aplt. App., Vol. 4, Tab 2 at 892.

      Second, the officers on the scene had independent reasons for their

determination that probable cause existed to continue the arrest begun by

Mr. Taylor. In particular, Officer Dacus observed Mr. Spencer with classic signs

of intoxication, indicating that he had committed the crime of DUI. Baptiste v.

J.C. Penney Co., 147 F.3d 1252, 1256 (10th Cir. 1998) (stating that “[e]ven law

enforcement officials who reasonably but mistakenly conclude that probable

cause is present are entitled to immunity” in a § 1983 warrantless-arrest case

“if a reasonable officer could have believed that probable cause existed to arrest

the plaintiff”) (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995)

(further quotation omitted). “[A] reasonable officer would have believed that

probable cause existed for [Mr. Spencer’s] arrest.” Aplt. App., Vol. 4, Tab 2

at 896.

                                         -7-
      Third, the undisputed facts did not demonstrate that City defendants were

responsible for Mr. Taylor’s conduct under the theory of “danger creation.”

Id. at 899-900. “In general, state actors may only be held liable under § 1983 for

their own acts, not the acts of third parties.” Robbins v. Oklahoma, 519 F.3d

1242, 1251 (10th Cir. 2008). The “danger creation” exception to this rule,

proposed by Mr. Spencer, applies to instances “when a state actor affirmatively

acts to create, or increases a plaintiff’s vulnerability to, or danger from private

violence.” Id. (quotation omitted). To qualify for this exception,

      [a] plaintiff must show that (1) state actors created the danger or
      increased the plaintiff’s vulnerability to the danger in some way,
      (2) the plaintiff was a member of a limited and specifically definable
      group, (3) the defendants’ conduct put the plaintiff at substantial risk
      of serious, immediate, and proximate harm, (4) the risk was obvious
      or known, (5) the defendants acted recklessly in conscious disregard
      of that risk, and (6) the conduct, when viewed in total, shocks the
      conscience.

Id. Plaintiff’s case satisfied none of these requirements, as “the

evidence . . . clearly demonstrate[d] that Taylor’s pursuit, arrest, and detention

of Plaintiff were factually and legally independent of any state action. . . .”

R., Vol. 4, Tab 2 at 899-900.

      Fourth, Mr. Taylor was not “a proper defendant for [a] federal

constitutional claim.” Id. at 899. “[T]he only proper defendants in a Section

1983 claim are those who represent the state in some capacity, whether they act in

accordance with their authority or misuse it.” Gallagher v. Neil Young Freedom


                                          -8-
Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (footnotes and brackets omitted).

Thus, Mr. Spencer was required to come forward with facts demonstrating that

Mr. Taylor can “fairly be said to be a state actor.” Anderson v. Suiters, 499 F.3d

1228, 1233 (10th Cir. 2007) (quotations omitted). To satisfy this standard,

Mr. Spencer relied on three of the four tests outlined by the Supreme Court:

the nexus test, the symbiotic relationship test, and the joint action test. Aplt.

App., Vol. 4, Tab 2 at 899. See also Anderson, 499 F.3d at 1233. Mr. Spencer’s

evidence did not demonstrate a nexus between the City’s purposes and

Mr. Taylor’s conduct, a long-term symbiotic interdependence between the City

and Mr. Taylor, or concerted action undertaken by the City and Mr. Taylor to

deprive Mr. Spencer of his rights. See Gallagher, 49 F.3d at 1448-56 (describing

and applying each of the tests).

      The district court concluded that Mr. Spencer “may have remaining grounds

for relief against Taylor,” but he had not asserted the material facts essential to

a § 1983 claim. Aplt. App., Vol. 4, Tab 2 at 899. Accordingly, it granted the

City defendants’ motion for summary judgment as to the federal-law claims and

sua sponte granted summary judgment to Mr. Taylor. It also dismissed his

state-law claims without prejudice. Id. at 901. Mr. Spencer has appealed,

asserting seven issues for this court’s review.




                                          -9-
                                   DISCUSSION

      “We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court.” Thomas v. City of Blanchard, 548 F.3d

1317, 1322 (10th Cir. 2008) (quotation omitted). Summary judgment is

appropriate only “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      Five of Mr. Spencer’s overlapping appellate issues were addressed in the

district court’s order. He argues that (1) there were genuine issues of material

fact that precluded summary judgment; (2) the district court improperly engaged

in credibility determinations; (3) there was “a genuine issue of material fact to

support the claim that Taylor was acting under color of law when he executed a

citizen’s arrest;” (4) there was a genuine issue of material fact concerning his

claim that the Mustang Police Department’s “custom or policy of complacency

regarding the actions of Taylor . . . resulted in a violation of [Mr. Spencer’s]

constitutional rights;” and (5) there was a genuine issue of fact to support his

claim that the City defendants “were acting jointly with Taylor.” Aplt. Br. at 1-2.

      Upon our review of the record and the parties’ arguments, we conclude that

the district court properly analyzed and resolved Mr. Spencer’s federal claims

against the City defendants. Accordingly, we affirm the entry of summary




                                         -10-
judgment in favor of the City defendants for substantially the same reasons set

forth in the district court’s memorandum and order of August 8, 2007.

      Mr. Spencer also argues that the district court erred in granting summary

judgment in favor of Mr. Taylor on the § 1983 claim. Id. at 2. “[A] sua sponte

grant of summary judgment although not encouraged, is permissible, provided

that the losing party was put on notice to come forward with all its evidence.”

Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d 1057, 1067 (10th Cir. 2007).

Mr. Spencer’s arguments concerning the § 1983 liability of the City defendants

and Mr. Taylor were intertwined. He was therefore on notice of the need to come

forward with all evidence indicating Mr. Taylor’s accountability for a federal

constitutional violation. We reject Mr. Spencer’s contentions on this issue and

affirm the district court’s grant of summary judgment to Mr. Taylor.

      Finally, Mr. Spencer asserts that there were genuine issues of material

fact supporting his claims under the Oklahoma Government Tort Claims Act.

Aplt. Br. at 2. The implication is that the district court wrongly entered summary

judgment on certain of his state claims. The district court’s order, however,

stated that it “decline[d] to exercise supplemental jurisdiction over Plaintiff’s

state law claims,” and therefore dismissed them without prejudice. Aplt. App.,

Vol. 4, Tab 2 at 900. In accordance with 28 U.S.C. § 1367(c)(3), a district court

has the discretion to decline to exercise supplemental jurisdiction over a state-law

claim if “the district court has dismissed all claims over which it has original

                                         -11-
jurisdiction.” See also Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d

1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the

court may, and usually should, decline to exercise jurisdiction over any remaining

state claims.”). This issue is without merit.

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




                                         -12-
