                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       August 22, 2018
                   UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                TENTH CIRCUIT                           Clerk of Court



 MATTHEW RICHARD PARKER,

              Plaintiff - Appellant,

 v.                                                      No. 17-5054
                                            (D.C. No. 4:16-CV-00134-CVE-TLW)
 THE CITY OF TULSA,                                      (N.D. Okla.)

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before MORITZ, MURPHY, and EID, Circuit Judges.



      Matthew Parker was convicted in Oklahoma state court of sexually abusing

K.S., a child. The Oklahoma Court of Criminal Appeals set aside Parker’s

conviction on collateral review, holding his trial and appellate counsel provided

constitutionally ineffective assistance. Parker then brought the instant 42 U.S.C.

§ 1983 civil rights suit, asserting the City of Tulsa, via its police department (the

“TPD”), violated his Fourteenth Amendment right to due process by conducting a


      *
        This order and judgment is not binding precedent except under the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.
“results oriented investigation” that failed to investigate leads which would have

developed exculpatory evidence. The district court granted summary judgment in

favor of Tulsa, concluding Parker failed to present sufficient evidence from which

a jury could find the alleged constitutional violation occurred pursuant to official

policy or custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

Parker appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court

affirms.

      The general background facts underlying Parker’s state court conviction are

set out in this court’s opinion denying his 28 U.S.C. § 2254 petition for habeas

relief. See Parker v. Scott, 394 F.3d 1302, 1307-08 (10th Cir. 2005). The general

background facts relating to Parker’s eventually successful efforts to obtain

collateral relief in state court are set out in Parker v. State, 414 P.3d 391, 392-94

(Okla. Civ. App. 2018). For purposes of understanding this appeal, it is sufficient

to note that Parker asserts the TPD, through Officer Rex Berry, failed to

(1) investigate reports K.S. was molested by her grandfather, (2) follow up on

information indicating possible alternative sources for K.S.’s sexual knowledge,

(3) emphasize in his reports to prosecutors acknowledged inconsistencies and

improbabilities in K.S.’s version of events, and (4) investigate the possibility of

his innocence. Parker further asserts that given Berry’s testimony he conducted

the investigation pursuant to TPD’s policies and procedures, he came forward


                                         -2-
with sufficient evidence Tulsa had a well-settled custom of ignoring exculpatory

evidence and/or failed to adequately train and supervise its officers.

      The district court granted summary judgment in Tulsa’s favor. The district

court began its analysis by refusing to decide whether Parker’s evidence,

assuming the truth thereof, stated a constitutional violation. 1 The district court

concluded Parker failed to come forward with sufficient evidence that Tulsa had a


      1
        In asserting TPD’s reckless failure to investigate evidence indicating his
possible innocence states a viable Fourteenth Amendment substantive due process
claim, Parker relies exclusively on case law from the Eighth Circuit. See Winslow
v. Smith, 696 F.3d 716, 732-35 (8th Cir. 2012). As far as this court can tell, the
Eighth Circuit stands alone in recognizing the existence of such a cause of action.
The Seventh Circuit, on the other hand, has ruled that such claims must be
brought as Fourth Amendment false arrest or malicious prosecution claims and,
then, only if the claims fit within those rubrics. Brooks v. City of Chi., 564 F.3d
830, 833 (7th Cir. 2009). Several district courts have also ruled there is no such
substantive due process claim. See, e.g., Newton v. City of N.Y.C., 566 F. Supp.
2d 256, 278 (S.D.N.Y. 2008). Although there exists serious reason to doubt the
existence of the sole claim set out in Parker’s complaint, it is unnecessary to
address that issue because, as discussed more fully below, the record conclusively
establishes that even assuming the existence of such a cause of action, Berry’s
alleged failure to conduct an adequate investigation was not undertaken pursuant
to a policy, custom, or practice.
       Even applying the substantive due process rubric created by the Eighth
Circuit, there is serious reason to doubt whether Parker’s claim states a
constitutional violation. To state a claim under the Eighth Circuit standard, the
failure to investigate must shock the judicial conscious. Winslow, 696 F.3d at
732-35. The record in this case reveals that the only information Berry failed to
investigate that was not in Parker’s possession was information K.S. had older
friends and a curiosity about sex. Parker has not, however, produced any
evidence that further investigation, if undertaken, would have led to exculpatory
evidence. The mere failure to investigate, without negative consequence, hardly
seems to be the stuff of a substantive due process violation. Nevertheless, for
those reasons already set out above, it is unnecessary to resolve this issue.

                                          -3-
well-settled practice or custom of ignoring exculpatory evidence or failed to

adequately train or supervise its officers. As to the custom or practice argument,

the district court concluded this court’s decision in Bryson v. City of Oklahoma

City, 627 F.3d 784 (10th Cir. 2010), mandated summary judgment in Tulsa’s

favor:

                 In Bryson . . . , the Tenth Circuit addressed issues of municipal
         liability similar to those in this case. Bryson was convicted of a rape
         and kidnapping based in part on the testimony of a forensic chemist
         employed by the Oklahoma City Police Department who testified that
         DNA evidence found at the scene of the crime implicated Bryson.
         Id. at 787. Later testing found that the forensic chemist’s lab results
         indicated that the DNA found at the scene could not have come from
         Bryson. Id. Bryson filed a § 1983 action against the city and the
         forensic chemist, and the district court granted the city’s motion for
         summary judgment, finding that the undisputed evidence did not
         support a finding of municipal liability. Id. Bryson argued, inter
         alia, that the city had a custom of encouraging forensic chemists to
         manipulate evidence in order to obtain convictions. Id. at 790. To
         support his claim, Bryson cited to the testimony of a former
         Oklahoma City police chief that “forensic chemists, like everybody
         who is on the prosecution team, [will] testif[y] in a way that is the
         most incriminating.” Id. (alterations in original). Bryson also cited
         to the statement of another forensic chemist who criticized the
         testimony of the chemist involved in Bryson’s case and asserted that
         her behavior “persists and is condoned by much of the criminal
         justice system in Oklahoma County.” Id. The Tenth Circuit
         [concluded] . . . the statements were not “sufficient to give rise to an
         inference of a widespread City practice of fabricating results and
         concealing evidence that was ‘so permanent and well settled as to
         constitute a custom or usage with the force of law.’” Id. at 791 . . . .

                Here, plaintiff has presented even less evidence of a custom
         than the plaintiff in Bryson. Plaintiff relies entirely on the
         statements of Berry that he was following TPD’s policies and
         procedures in this investigation and that no supervisor reprimanded

                                            -4-
      him over this case. In Bryson, the Tenth Circuit explained that the
      other chemist’s statement about the false testimony being condoned
      by the rest of the criminal justice system did not establish a custom
      because the statement referred to only that forensic chemist and did
      not suggest that other chemists were giving similarly inaccurate
      testimony. Id. Thus, under Bryson, a clear pattern of behavior of
      one employee is not enough to establish a custom. Here, at most the
      evidence shows that TPD condoned Berry’s failure to investigate
      exculpatory evidence in this case. Berry’s testimony does not even
      establish a custom within his own investigations, let alone a
      widespread practice across TPD that could constitute a well settled
      custom with the force of law. Thus, viewing the evidence in the light
      most favorable to plaintiff, plaintiff has failed to present evidence
      giving rise to an inference of a custom of ignoring exculpatory
      evidence sufficient to establish municipal liability.

District Ct. Order at 4-6. As to the failure-to-train component of Parker’s

municipal liability claim, the district court began by noting that “[a] city’s failure

to train or failure to supervise its employees constitutes an official policy or

custom when it ‘amounts to deliberate indifference to the rights of persons with

whom the [employees] come into contact.’” Id. at 6 (quoting City of Canton v.

Harris, 489 U.S. 378, 388 (1989)). This standard is difficult to satisfy and

generally requires a pattern of tortious conduct. Bryson, 627 F.3d at 789. The

district court concluded Parker had not established such a pattern and had also

failed to demonstrate the special circumstances necessary to advance such a claim

in the absence of a tortious pattern:

             Plaintiff has presented no evidence to show a pattern of
      tortious conduct. Thus, plaintiff must show that the need for more or
      different training and/or supervision was so obvious that a violation
      of his constitutional right to due process was likely to result from not

                                          -5-
providing it. At the time of the investigation, Berry had been a
police officer for over twenty years and the second in command of
the Child Crisis Unit for over a decade. Berry supervised other
investigations in the unit and had investigated over one thousand
child abuse cases by the time he conducted the investigation that led
to plaintiff’s arrest and prosecution. Berry’s uncontroverted
testimony is that he trained with a detective experienced in child
abuse cases when he first joined the unit and that TPD sent him to
several training seminars in investigating child abuse cases.

       Dr. Lyman’s [Parker’s expert] report asserts that “[t]he
importance of proper supervisory oversight cannot be overstated,”
but it does not explain what “proper supervision” would have
involved. Dr. Lyman’s report gives no reason why it would be
obvious to TPD that additional oversight of a veteran detective in the
Child Crisis Unit would be obviously necessary to prevent the
detective from failing to investigate exculpatory evidence. Given
Berry’s extensive experience and training in investigating child abuse
cases, the need for a supervisor to check on Berry’s investigation to
prevent him from failing to investigate exculpatory evidence was not
highly predictable or plainly obvious. Cf. Bryson, 627 F.3d at 789
(“We are not persuaded, however, that it was highly predictable or
plainly obvious that a forensic chemist would decide to falsify test
reports and conceal evidence if she received only nine months of
on-the-job training and was not supervised by an individual with a
background in forensic science.”).

       Moreover, although Dr. Lyman sets out the details of what he
believes would be a better policy regarding child abuse
investigations, he gives no reason to think it would be highly
predictable or plainly obvious that not having these policies in place
would lead to detectives failing to investigate exculpatory evidence.
Plaintiff does not present any evidence that specific, written child
abuse investigation policies were ubiquitous in police departments at
the time. Cf. id. (“[A]lthough the record reflects that most forensic
laboratories began adopting better training and management practices
in the 1970s and early 1980s, such practices were by no means
universal in 1983, further militating against the conclusion that it
was highly predicable or plainly obvious in 1983 that the training and
supervision practices employed by the City and other jurisdictions

                                  -6-
       would result in the violation of federal rights.”). And considering
       that failure to investigate exculpatory evidence is not a problem
       specific to child abuse cases, it is unclear why a specific policy on
       investigating exculpatory evidence for this type of case would be
       obvious. Given the undisputed evidence of Berry’s training on the
       job and at specific child abuse investigation seminars, and plaintiff’s
       failure to show that a written policy on child abuse investigations
       was obviously necessary at the time to prevent officers from ignoring
       exculpatory evidence, the Court finds that plaintiff has failed to show
       deliberate indifference. Because plaintiff has not presented
       sufficient evidence to support a finding of a custom or policy that
       caused his constitutional deprivation, defendant’s motion for
       summary judgment will be granted.

District Ct. Order at 7-9 (citations omitted).

       On appeal, Parker asserts the evidence in the record is sufficient to send to

the jury his policy-or-custom and failure-to-train claims. This court reviews a

district court’s grant of summary judgment de novo, viewing the evidence in the

light most favorable to the non-moving party. Milne v. USA Cycling Inc., 575

F.3d 1120, 1129 (10th Cir. 2009). “Where the record, taken as a whole, could not

lead a rational trier of fact to find for plaintiff, there is no genuine issue for trial.”

Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)

(quotation omitted). Upon de novo review of the district court’s order and a

meticulous review of the record, this court affirms for substantially those reasons

stated by the district court in its order granting summary judgment in favor of

Tulsa. That is, given the record before this court, no reasonable juror could

conclude Tulsa had a policy, practice, or custom of conducting investigations


                                            -7-
generally, or child sex abuse investigations specifically, in such a way as to avoid

discovering potentially exculpatory evidence. Likewise, no jury could conclude,

especially given the complete absence of evidence indicating a pattern of tortious

conduct, that Tulsa failed to adequately train or supervise Berry. 2

      For those reasons set out above, the order of the United States District

Court for the Northern District of Oklahoma granting summary judgment in favor

of Tulsa is hereby AFFIRMED.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




      2
        In his brief on appeal, Parker asserts that it is not only Berry’s deposition
upon which he relies to create a fact question for the jury. In so arguing, he relies
on allegations in his complaint; lists of potential witnesses; and materials relating
to prosecutions initiated via TPD investigations which, according to Parker “were
the subject of lively (and evidentiarily speaking, unresolved) debate below.”
Parker’s arguments in this regard are entirely misplaced. Allegations in an
unverified complaint are not evidence for purposes of determining whether there
is sufficient evidence to send a fact question to the jury. Instead, to create a fact
question, Parker needed to secure affidavits or schedule depositions of the
identified individuals. The failure to do so results in a failure of proof.
Furthermore, Parker does not appeal from any order of the district court refusing
to force Tulsa to turn over to him documents he asserts are relevant to this claim.
Absent such an appeal, Parker is simply wrong to assert there is any ongoing
dispute about those records. Finally, there is no indication Parker filed a Fed. R.
Civ. P. 56(f) motion, seeking additional time to develop the kind of evidence he
references in his brief.

                                         -8-
