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

                           FOR THE TENTH CIRCUIT                         July 15, 2013
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DANA F. BURGIN, individually and as
the surviving spouse of Carlton L.
Burgin, deceased; WILLIAM L.
BURGIN,

             Plaintiffs-Appellants,

v.                                                         No. 12-5210
                                              (D.C. No. 4:12-CV-00277-CVE-TLW)
RAYMOND L. LEACH, in his individual                        (N.D. Okla.)
capacity and in his official capacity as
Deputy of the Pawnee County Sheriff’s
Department; MIKE WATERS, in his
individual and official capacity; THE
PAWNEE COUNTY SHERIFF’S
DEPARTMENT; PAWNEE COUNTY
BOARD OF COUNTY
COMMISSIONERS,

             Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before HOLMES, HOLLOWAY, and BACHARACH, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Carlton Burgin was killed when Pawnee County Deputy Sheriff Raymond

Leach’s patrol car crashed into Mr. Burgin’s car. Mr. Burgin’s wife, Dana Burgin,

and father, William Burgin, survived the accident and sued Pawnee County Sheriff

Mike Waters, Deputy Leach, and the Pawnee County Board of County

Commissioners. The district court dismissed the suit insofar as the Burgins had

asserted § 1983 claims, and it remanded to state court a negligence claim against

Deputy Leach and a motion for leave to add a negligence claim against the Pawnee

County Board of Commissioners. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm for substantially the same reasons identified by the district court.

                                    BACKGROUND

      On July 17, 2011, Mr. Burgin was driving north on Highway 48 in Pawnee

County, Oklahoma, with his wife and father. Deputy Leach was driving south on

Highway 48 and decided to respond to a non-emergency “domestic incident” that he

had heard reported by dispatch roughly forty-five minutes to an hour earlier. Aplt.

App. at 14. While en route to the incident, Deputy Leach exceeded the posted speed

limits and activated his emergency lights only “when he was immediately behind a

vehicle he wished to pass.” Id.

      When Mr. Burgin saw Deputy Leach approaching, Mr. Burgin pulled his

vehicle off the road to allow Deputy Leach to pass. While traveling at over 90 miles

per hour in a no-passing zone, Deputy “Leach crossed from the southbound lane to

the northbound lane to avoid colliding with another vehicle,” and in the process, his


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patrol car “careened into an uncontrollable slide” and struck Mr. Burgin’s vehicle

head on. Id. at 15. Mr. Burgin was pronounced dead at the scene, and his wife and

father were critically injured.

       The Burgins sued in state court before the defendants removed to federal court.

On the defendants’ motions to dismiss, the federal district court determined that the

Burgins’ § 1983 claim against Deputy Leach, which asserted a substantive

due-process violation, failed because although Deputy Leach may have acted

negligently, he did not act with “‘an extreme risk of very serious harm’” to the

Burgins. Id. at 106 (quoting Green v. Post, 574 F.3d 1294, 1303 (10th Cir. 2009)).

Accordingly, the court concluded that Deputy Leach was shielded by qualified

immunity because his conduct did not rise to the level of a constitutional violation. 1

       With no constitutional violation by Deputy Leach, the district court further

determined that the Burgins’ § 1983 claim against Sheriff Waters for inadequately

supervising Deputy Leach necessarily failed and he was also entitled to qualified

immunity. Likewise, the Burgins’ claim for municipal liability failed in the absence

of a constitutional violation by any municipal officer. Finally, the district court

declined to exercise supplemental jurisdiction over the remaining state-law issues,

and it remanded them to state court.
1
       The district court alternatively concluded that even if the Burgins had
established a due-process violation, the law was not so clearly established “that a
reasonable police officer would have known that it was unlawful to drive in excess of
the speed limit and pass in a no passing zone when responding to a non-emergency
domestic disturbance call.” Id. at 108.


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                                      DISCUSSION

                                I. Standards of Review

      We review de novo the district court’s decision to grant a motion to dismiss

based on qualified immunity. See Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir.

2011). To survive a motion to dismiss under a qualified immunity framework, the

plaintiffs’ complaint must allege facts sufficient to show that the defendants plausibly

violated their federal rights, and those rights were clearly established at the time.

See Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). In reviewing a

motion to dismiss, “all well-pleaded factual allegations in the . . . complaint are

accepted as true and viewed in the light most favorable to the nonmoving party.”

Brown, 662 F.3d at 1162 (internal quotation marks omitted).

                                    II. Due Process

      “The due process clause of the Fourteenth Amendment prohibits executive

abuse of power which shocks the conscience.” Muskrat v. Deer Creek Pub. Sch.,

715 F.3d 775, 786 (10th Cir. 2013) (ellipsis and internal quotation marks omitted).

The standard for determining whether an abuse of power shocks the conscience turns

on whether “unforeseen circumstances demand an officer’s instant judgment” or

whether “actual deliberation is practical.” Green, 574 F.3d at 1301 (internal

quotation marks omitted). When an officer must make an instant judgment in

response to unforeseen circumstances, “even precipitate recklessness fails to inch

close enough to harmful purpose to” constitute conscience-shocking behavior. Id.


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(internal quotation marks omitted). In that case, a plaintiff must show an intent to

harm. County of Sacramento v. Lewis, 523 U.S. 833, 853-54 (1998). But when an

officer has time to deliberate, the challenged behavior is assessed under a deliberate-

indifference standard, Green, 574 F.3d at 1301, which asks whether the officer was

“deliberate[ly] indifferen[t] to an extreme risk of very serious harm to the plaintiff,”

id. at 1303.

       The district court declined to apply the intent-to-harm standard, and instead

applied the less demanding deliberate-indifference standard, reasoning that Deputy

“Leach made a delayed response to the domestic disturbance call.” Aplt. App. at

105. But even so, the district court concluded that Deputy Leach had exhibited no

more than ordinary negligence:

       [P]olice officers routinely drive at speeds in excess of the speed limit
       when responding to calls, and the fact that [Deputy] Leach lost control
       of his vehicle when responding to a call does not remove this case from
       the realm of ordinary negligence. The Court also notes that . . . the
       accident occurred when [Deputy] Leach lost control of his vehicle while
       trying to avoid colliding with another vehicle. This suggests that
       [Deputy] Leach was actively trying to avoid causing harm to others and
       that the accident resulted from an unintended loss of control over his
       vehicle. This tends to negate any inference that [Deputy] Leach’s
       actions were so “egregious or outrageous to the extent that it shocks the
       judicial conscience.”

Id. at 106 (quoting Green, 574 F.3d at 1303).

       The Burgins argue that Deputy Leach was not engaged in police business when

the accident occurred; rather, they claim he was traveling to the domestic disturbance

“out of personal curiosity.” Aplt. Opening Br. at 10. But their complaint does not in


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any manner allege that he responded out of curiosity. Indeed, the complaint alleges

that he was “acting in his capacity as a Deputy Sheriff employed by the [Pawnee

County Sheriff’s Department].” Aplt. App. at 14.

      Next, the Burgins argue that the district court actually applied the more

demanding intent-to-harm standard despite stating that the lower standard applied.

They rely on the district court’s observation “that the accident resulted from an

unintended loss of control over [Deputy Leach’s] vehicle.” Id. at 106 (emphasis

added).

      We reject this argument. The observation that Deputy Leach did not intend to

lose control of his car relates to the court’s statement that he “was actively trying to

avoid causing harm to others.” Id. at 106. And it was that attempt to avoid harm that

led the district court to conclude that Deputy Leach’s actions were not so egregious

or outrageous as to shock the judicial conscience. Nothing in the district court’s

reasoning indicates it applied the intent-to-harm standard under the guise of the

deliberate-indifference standard.

      Additionally, our review is de novo. And we conclude from the allegations of

the Burgins’ complaint that Deputy Leach was not deliberately indifferent to an

extreme risk of very serious harm to the Burgins. Although Deputy Leach was

traveling at a high rate of speed in response to a non-emergency call and only




                                          -6-
intermittently activating his emergency lights, 2 Carlton Burgin was nevertheless able

to pull his vehicle off the road and wait for Deputy Leach to pass. It was only after

Deputy Leach lost control of his vehicle while trying to avoid colliding with another

vehicle that he struck the Burgins’ vehicle. While the resulting accident is

indisputably tragic, we agree with the district court that the allegations of the

Burgins’ complaint fail to meet the deliberate-indifference standard. Consequently,

Deputy Leach is entitled to qualified immunity.

      Without a constitutional violation by Deputy Leach, Sheriff Waters is immune

from suit on the Burgins’ supervisory-liability theory. See Fogarty v. Gallegos,

523 F.3d 1147, 1162 (10th Cir. 2008) (explaining that supervisory liability requires a

constitutional deprivation affirmatively linked to the supervisor’s personal

participation). The Burgins’ municipal-liability claim likewise fails. See Ellis ex rel.

Estate of Ellis v. Ogden City, 589 F.3d 1099, 1104 (10th Cir. 2009) (observing that

municipal “liability will not attach where there was no underlying constitutional

violation by any of the municipality’s officers” (brackets and internal quotation

marks omitted)).




2
       That Deputy Leach may have violated Oklahoma law by exceeding the
maximum speed limit, see Okla. Stat. Ann. § 11-106, “does not by itself constitute a
violation of the Federal Constitution,” Pavatt v. Jones, 627 F.3d 1336, 1341
(10th Cir. 2010) (internal quotation marks omitted).


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                                    CONCLUSION

      The judgment of the district court is AFFIRMED for substantially the same

reasons identified by the district court in its November 26, 2012, Opinion and Order.

                                              Entered for the Court


                                              Jerome A. Holmes
                                              Circuit Judge




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