                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                       UNITED STATES CO URT O F APPEALS
                                                                October 23, 2007
                                                      Elisabeth A. Shumaker
                           FO R TH E TENTH CIRCUIT        Clerk of Court



    DANIELLE RHOTEN, as an
    individual and as heir at law of
    Xavier Rhoten, deceased,

                 Plaintiff-Appellant,

    v.                                                 No. 06-3346
                                                (D.C. No. 04-CV-4160-SAC)
    FRANK PA SE, as an agent and                         (D . Kan.)
    employee of Topeka, Kansas, and as
    an individual; C ITY O F TO PEKA,
    KANSAS,

                 Defendants-Appellees,

          and

    B RU CE D IC KSO N , IV ,

                 Defendant.



                                OR D ER AND JUDGM ENT *


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      Plaintiff Danielle Rhoten appeals from the district court’s grant of summary

judgment in favor of defendants City of Topeka, Kansas, and Frank Pase, a

Topeka Police Department lieutenant, on her claim under 42 U.S.C. § 1983 for

violation of her right to substantive due process. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                          I.

      Around 7:00 p.m. on February 5, 2004, Bruce Dickson, IV, was driving on

Topeka Boulevard in Topeka at speeds exceeding the posted 35 m.p.h. speed

limit, even though the streets were slick, icy, and slushy. Lt. Pase noticed

M r. Dickson’s speeding, quick lane changes, and passing of vehicles and deemed

him to be a danger to the public. Lt. Pase pursued M r. Dickson in his unmarked,

dark blue police car without using either the lights or the siren and without

contacting the police dispatcher. Before Lt. Pase was able to stop M r. Dickson,

M r. Dickson hit a van in which M s. Rhoten was a passenger. She was severely

injured and her unborn child, whose birth was expected in two weeks, died.

      M s. Rhoten filed a complaint in district court alleging that because Lt. Pase

did not use lights and a siren or summon assistance when engaging in a

high-speed chase, he created a dangerous condition resulting in her injury and in

the violation of her substantive due process rights. She also alleged that the City

of Topeka customarily allowed police officers to speed without activating lights

                                         -2-
or sirens, allowed officers to ignore state laws and city regulations for activating

lights and sirens during emergency operations, and did not discipline officers for

doing so, thereby placing her in danger in violation of her substantive due process

rights.

          The City of Topeka and Lt. Pase both filed motions for summary judgment.

Lt. Pase argued that he was entitled to qualified immunity because there was no

constitutional violation as there was no causal connection between the accident

and his conduct. In addition, he asserted that because his conduct did not shock

the conscience and because he did not take affirmative action placing M s. Rhoten

in danger, he did not violate her substantive due process rights.

          The district court granted summary judgment to Lt. Pase and the City of

Topeka after concluding that M s. Rhoten’s constitutional rights were not violated.

Construing the facts in the light most favorable to her, the court found that there

was no genuine issue of material fact whether Lt. Pase’s conduct influenced

M r. Dickson’s conduct or was causally related to M s. Rhoten’s injuries, because

M r. Dickson was unaw are that Lt. Pase was pursuing him. In addition, the court

concluded that Lt. Pase’s failure to use his lights or siren did not raise a question

of fact whether he created a danger that resulted in M s. Rhoten’s injuries, because

that danger already existed by virtue of M r. Dickson’s driving. As an alternative

basis for granting summary judgment, the court decided that Lt. Pase’s acts did

not shock the conscience of the court. Lastly, the court concluded that resolution

                                           -3-
of the constitutional claim against Lt. Pase also defeated the constitutional claim

against the City of Topeka. 1 M s. Rhoten appealed.

                                          II.

                                          A.

      Before considering the merits of this appeal, we first address procedural

concerns. Federal Rule of Appellate Procedure 28(a)(7) requires an appellant’s

brief to contain “a statement of facts relevant to the issues submitted for review

with appropriate references to the record.” The Statement of the Facts section of

M s. Rhoten’s brief, however, states only the following: “See Appendix,

hereinafter ‘Aplt. App.’ at pp. 27-59.” Aplt. Br. at 3. These appendix pages refer

to her response to the City of Topeka’s motion for summary judgment and

therefore do not satisfy the requirements of Rule 28(a)(7). See also 10th Cir. R.

28.4 (disapproving of incorporating by reference statement of facts in district

court pleading and noting that incorporation does not satisfy Rule 28(a)).

      In addition, the argument section of her brief lacks appropriate references

to relevant record authority; she again cites to her response to the City of

Topeka’s summary judgment motion rather than to record evidence to support her

arguments. Her citation to a district court brief does not fulfill the

Fed. R. App. P. 28(e) requirement for citations to the appendix. Cf. Doeblers’



1
      The district court declined to exercise supplemental jurisdiction over any
pending state-law claims.

                                         -4-
Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006) (deciding party

cannot fulfill obligation to provide record support by citing to statement of

undisputed facts in summary judgment motion).

         Although we may dismiss M s. Rhoten’s appeal due to her failure to follow

the rules of appellate procedure, we decline to do so. See MacArthur v. San Juan

County, 495 F.3d 1157, 1161 (10th Cir. 2007). Given the appendices provided by

both parties, we have a sufficient record to review the merits of this appeal and to

conclude M s. Rhoten’s arguments are without merit. See id.; Fryar v. Curtis,

485 F.3d 179, 182 n.1 (1st Cir. 2007). W e, however, will resolve any uncertainty

regarding the facts against her. See Alberty-Velez v. Corporacion de Puerto Rico

Para La D ifusion Publica, 361 F.3d 1, 4 n.1 (1st Cir. 2004) (summary judgment

case). 2

                                           B.

         M s. Rhoten argues that the district court erred in granting summary

judgment to Lt. Pase and the City of Topeka and in concluding that they did not

violate her substantive due process rights. “W e review the district court’s grant

of summary judgment de novo.” Graves v. Thom as, 450 F.3d 1215, 1217

(10th Cir. 2006). Summary judgment is proper “if the pleadings, depositions,

answ ers to interrogatories, and admissions on file, together w ith the affidavits, if



2
         W e remind counsel of the duty to follow the appellate and Tenth Circuit
rules.

                                          -5-
any, show that there is no genuine issue of material fact and that the moving party

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

record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 127 S. Ct.

1769, 1776 (2007) (quotation omitted).

      In reviewing the district court’s grant of summary judgment, we first

consider the claims against Lt. Pase. In response to the claims against him,

Lt. Pase asserted an entitlement to qualified immunity. W hen resolving the

qualified immunity question, we first consider whether the facts alleged show that

Lt. Pase’s conduct violated a constitutional right. See id. at 1774. Only if we

determine that there has been a constitutional violation will we proceed to the

next step in the qualified immunity analysis and decide whether that right was

clearly established within the specific context of this case. See id. W hether

M s. Rhoten alleged conduct by Lt. Pase that violated a constitutional right is a

question of law we review de novo. Radecki v. Barela, 146 F.3d 1227, 1229

(10th Cir. 1998). Because we conclude after de novo review that M s. Rhoten did

not allege the violation of a constitutional right, we need not address the next step

in the qualified immunity analysis. See Graves, 450 F.3d at 1218.

      “Substantive due process protects individuals against ‘arbitrary action of

government’ that deprives a citizen of life, liberty or property ‘whether the fault

lies in a denial of fundamental procedural fairness . . . or in the exercise of power

                                          -6-
without any reasonable justification in the service of a legitimate governmental

objective.’” Perez v. Unified Gov’t of Wyandotte County/Kan. City, Kan.,

432 F.3d 1163, 1166 (10th Cir. 2005) (quoting County of Sacramento v. Lewis,

523 U.S. 833, 845-46 (1998)), cert. denied, 126 S. Ct. 2971 (2006). “The

ultimate standard for determining whether there has been a substantive due

process violation is whether the challenged government action shocks the

conscience of federal judges.” M oore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir.

2006) (quotations omitted). “[I]n a high-speed automobile chase aimed at

apprehending a suspected offender . . . only a purpose to cause harm unrelated to

the legitimate object of arrest will satisfy the element of arbitrary conduct

shocking to the conscience, necessary for a due process violation.” Lewis,

523 U.S. at 836.

      Because the accident in this case involved a third party, M r. Dickson,

M s. Rhoten argues that Lt. Pase created a danger for her in violation of her

substantive due process rights by engaging in a high speed pursuit without using

lights and siren. “The danger creation theory is an exception to the rule that state

actors are not liable for the violent acts of third parties.” M oore, 438 F.3d at

1042. It “makes a state official liable for the private violence of third parties if

that official created the danger that caused the harm and the official’s conduct

was conscience shocking.” Id. The danger-creation theory “applies only when a

state actor affirmatively acts to create, or increases a plaintiff’s vulnerability to,

                                           -7-
danger from private violence.” Id. (quotation omitted). A six-part test applies to

analyze claims under the danger-creation theory:

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

Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003) (quotation

omitted). As reflected by this six-part test, the danger-creation theory is reserved

for exceptional circumstances. See Ruiz v. M cDonnell, 299 F.3d 1173, 1184

(10th Cir. 2002). O rdinary negligence does not shock the conscience. Id.

“Rather, a plaintiff must demonstrate a degree of outrageousness and a magnitude

of potential or actual harm that is truly conscience shocking.” Id. (quotation

omitted).

      The district court concluded that Lt. Pase did not violate M s. Rhoten’s

substantive due process rights because there was no causal connection between

the accident and his behavior, he did not create a danger resulting in her injuries,

and his behavior did not shock the conscience. M s. Rhoten argues that there is a

genuine issue of material fact whether M r. Dickson believed that he was being

chased such that a causal connection existed. The basis for the argument is a

recorded statement he made to his insurance adjuster. Apparently, M s. Rhoten



                                         -8-
planned to use this statement, which is not included in the appendices of either

party, to infer that M r. Dickson believed, contrary to his deposition testimony,

that he could have been pursued or chased by someone who might have been

Lt. Pase and that the chasing could have influenced his driving, thereby causally

connecting him to the accident. The district court excluded the statement as

hearsay under Fed. R. Evid. 801(c), because it was offered to prove the truth of

the matter asserted. M s. Rhoten argues that the district court abused its discretion

by excluding the statement since the statement was admissible against a

party-opponent under Fed. R. Evid. 801(d)(2)(A).

      Rule 801(d)(2)(A) provides that a statement is not hearsay if it “is offered

against a party and is . . . the party’s own statement.” M s. Rhoten did not offer

M r. Dickson’s statement as an admission against him; she offered it as an

admission against Lt. Pase and the City of Topeka. Thus, the district court did

not abuse its discretion in excluding this inadmissible hearsay. See Argo v. Blue

Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)

(“W e review a district court’s evidentiary rulings at the summary judgment stage

for abuse of discretion.”). A nd we therefore do not consider this inadmissible

statement w hen reviewing the district court’s order granting summary judgment.

See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (“It is

well settled in this circuit that we can consider only admissible evidence in

reviewing an order granting summary judgment.”).

                                          -9-
      But even assuming the statement was admissible, the district court decided

that it failed to support M s. Rhoten’s position, because it did not show that

M r. Dickson knew he was being followed by Lt. Pase. The court decided that the

statement along with M r. Dickson’s deposition testimony and the other record

evidence did not raise a question of fact whether Lt. Pase’s actions were a factor

in causing M s. Rhoten’s injury. W e agree. First, a statement that is not included

in the appendices cannot be a basis for a determination that there is a genuine

issue of material fact. Second, M r. Dickson’s statement and deposition testimony

both indicate he did not believe he was being chased. In his statement,

M r. Dickson indicated that he saw a white car–not a dark blue car like Lt. Pase

was driving–make a U-turn, move fast, and weave in and out of traffic, but he did

not know if the car was chasing him. Aplee. Supp. App., Vol. 1 at 223-24

(quoting M r. Dickson’s statement to insurance adjuster in M s. Rhoten’s response

to the City of Topeka’s motion for summary judgment). He did not pay much

attention to the car and did not know if a private person was tracking him down.

Id. He did not think the car w as a police car. Id. at 235-36. Similarly,

M r. Dickson testified at his deposition that he “was never under the impression

[he] was being chased.” Id. at 86; id., Vol. II at 468; see id., Vol. I at 92; id.,

Vol. II at 471. No one driving behind him caused him to change the manner of

his driving. Id., Vol. I at 98; id., Vol. II at 472. Indeed, he only learned that




                                          -10-
Lt. Pase was chasing him after the accident. See id., Vol. I at 86; id., Vol. II

at 468-69.

      In addition, contrary to her argument, M s. Rhoten has alleged no facts

showing affirmative conduct by Lt. Pase that created or increased danger to her or

conduct that shocks the conscience. “Affirmative conduct for purposes of § 1983

should typically involve conduct that imposes an immediate threat of harm, which

by its nature has a limited range and duration. Ruiz, 299 F.3d at 1183.

M s. Rhoten’s claim is that she suffered injuries due to Lt. Pase’s failure to turn on

his lights and siren while pursuing M r. Dickson, who denied knowing he was

being pursued. Lt. Pase’s conduct therefore did not impose an immediate threat

of harm to M s. Rhoten, and she cannot point to affirmative actions by Lt. Pase

that created or increased the danger to her. Nor has she shown any outrageous

conduct by Lt. Pase that shocks the conscience.

      M s. Rhoten also argues that Topeka police department policy creates a

practice of intentional and reckless conduct to use police vehicles to engage in

high speed pursuit without activating the siren or lights, thereby denying other

roadway users notice of an impending danger. According to M s. Rhoten, that

policy allowed Lt. Pase to speed without activating his lights and siren and later

deny that he was engaged in a pursuit. Nothing in the appendices indicates that

M r. Dickson believed that Lt. Pase was pursuing him. Even if police policy

influenced Lt. Pase’s actions, M r. Dickson was solely responsible for the

                                         -11-
accident, Lt. Pase did not intend to harm M s. Rhoten, and Lt. Pase’s conduct was

not conscience shocking. Because M s. Rhoten did not raise a genuine issue of

material fact that Lt. Pase caused the accident, created a danger, or acted in a

conscience-shocking manner, we conclude that the district court properly granted

summary judgment to Lt. Pase.

      The district court also properly granted the City of Topeka’s motion for

summary judgment. “A municipality may not be held liable where there was no

underlying constitutional violation by any of its officers.” Camuglia v. City of

Albuquerque, 448 F.3d 1214, 1223 (10th Cir. 2006) (quotation omitted).

      W e AFFIRM the judgment of the district court.


                                                     Entered for the Court



                                                     W ade Brorby
                                                     Senior Circuit Judge




                                         -12-
