                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                             MAR 2 2004
                         FOR THE TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                   Clerk

STEPHANIE KAY PHILLIPS;
ROBERT PHILLIPS, as Guardian
for Jennifer Sue Phillips, a Minor;
STEPHANIE KAY PHILLIPS, as
Personal Legal Representative of the           No. 02-6306
Estate of Donna Kaye Frenzen             (D.C. No. 00-CV-1089-F)
Phillips; DUSTIN ROBERT                        (W.D. Okla.)
PHILLIPS; SAM C. BINGAMAN,
III, as Personal and Legal
Representative of Andrew Dane
Phillips,

            Plaintiffs-Appellants,

v.

GRADY COUNTY BOARD OF
COUNTY COMMISSIONERS;
CITY OF CHICKASHA; CITY OF
TUTTLE; JASON CARPENTER,
Chickasha Police Department;
BRAD CRAWFORD, Chickasha
Police Department; DUSTIN
DOWDLE, Chickasha Police
Department; STAN FLORENCE,
Grady County Sheriff’s Office;
RANDY JOHNSON, Tuttle Police
Department, EARL PETTIT, Grady
County Sheriff’s Office;

            Defendants-Appellees,

and

TERRY ALEXANDER, Grady
County Sheriff’s Office; KEITH
CLEGHORN, Grady County Sheriff’s
Office; ROBERT JOLLEY, Grady
County Sheriff’s Office; JEFF
MCCONNELL, Grady County
Sheriff’s Office; JENNY MOYER,
Grady County Sheriff’s Office;
TONY WILLIS, Grady County
Sheriff’s Department; and JOHN
DOES 1-20,

             Defendants.


                           ORDER AND JUDGMENT            *




Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.



      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.

      Donna Kaye Phillips was murdered after she served as a confidential

informant for the District Six Task Force, a multi-jurisdictional narcotics task

force. On behalf of Ms. Phillips’ children and estate, her relatives brought civil



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                         -2-
rights claims, under 42 U.S.C. § 1983, and wrongful death claims, under state

law, against Grady County, the cities of Chickasha and Tuttle, and numerous

county and city law-enforcement officers. The district court entered summary

judgment in favor of all defendants. In this appeal, plaintiffs pursue only their

claims against the Grady County Board of County Commissioners, Stan Florence

(the Sheriff of Grady County), and Earl Pettit (a deputy with the Grady County

Sheriff’s Office and senior member of the task force).   1
                                                             We affirm.


                                   BACKGROUND

      In a cascading series of events, Ms. Phillips was arrested on an outstanding

warrant by a Chickasha police officer, detained in the county jail, recruited as

a confidential informant for the task force by Chickasha and Tuttle police

officers, and, the next day, utilized in two undercover drug buys from a dealer,

Rodney Cheadle. As the county sheriff, defendant Florence was notified of the

prospective task force operation. Defendant Pettit and the municipal officers



1
      In district court, plaintiffs confessed the summary judgment motions of
defendants Terry Alexander, Jason Carpenter, Keith Cleghorn, Robert Jolley,
Jeff McConnell, Jenny Moyer, and Tony Willis. The district court granted these
defendants summary judgment by an order dated April 29, 2002. John Does 1
through 20 were never served. District Court Order of Aug. 27, 2002 at 1, n.1
(provided as an attachment to appellants’ brief). In addition, pursuant to
Fed. R. App. P. 42(b), the parties filed a stipulated dismissal of the appeal with
regard to defendants Jason Carpenter, Brad Crawford, Dustin Dowdle, Randy
Johnson, City of Chickasha, and City of Tuttle on October 31, 2003.

                                           -3-
orchestrated the drug buys, obtained and executed a search warrant shortly after

the second buy, and arrested Cheadle during the search. Three months later,

Ms. Phillips was stabbed to death. Cheadle was convicted of soliciting the

murder from his jail cell.

      Plaintiffs alleged in district court that the municipalities, the county, and

the individual municipal and county law enforcement officers should all be held

liable for Ms. Phillips’ death, for a multiplicity of reasons. They asserted that

Ms. Phillips was not a voluntary confidential informant: the municipal officers

threatened to take away her children unless she cooperated with them, she was

intoxicated and in pain at the time she signed a cooperating agreement, and she

was not informed of the potential consequences. Further, they claimed that

improper handling of the buy operation and Cheadle’s arrest compromised her

confidentiality and that jail routines which allowed Cheadle to arrange her murder

endangered her security.

      Based on this version of the facts, they laid out their legal claims. They

alleged that: (1) Ms. Phillips’ initial arrest and detention and her coerced

performance as a confidential informant amounted to false arrest and

imprisonment, in violation of her Fourth Amendment right to be free from illegal

search and seizure; (2) defendants’ threats to deprive Ms. Phillips of her children

interfered with the children’s right of intimate and familial association with her,


                                         -4-
protected by the Fourteenth Amendment; (3) defendants’ conduct violated

Ms. Phillips’ Fourteenth Amendment substantive due process rights; and

(4) defendants were liable to plaintiffs under state-law wrongful death theories.

      Groupings of defendants filed summary judgment motions, in which they

challenged most of plaintiffs’ factual contentions and all their legal arguments.

Factually, defendants’ briefs and supporting materials maintained that

Ms. Phillips was properly arrested and detained, that she had volunteered her

services as a confidential informant and knowingly signed a cooperating

agreement, and that Ms. Phillips herself had breached her confidentiality by

telling family members, friends, and Cheadle’s wife of her role in Cheadle’s

arrest. Additionally, a month after the undercover operation, Ms. Phillips was

arrested for public intoxication and booked into the county jail (where Cheadle

continued to be held). A task force member was called to the jail to make her

stop screaming that she had worked for the district attorney. Defendants’ legal

arguments were specific to their varying circumstances.

      After plaintiffs submitted briefs in opposition and a separate statement of

the case and counter-statement of facts, the district court was faced with the

herculean task of sorting through the facts and analyzing the law applicable to




                                         -5-
each defendant.   2
                      In a fifty-one page order, the district court excluded some of

plaintiffs’ supporting evidence as hearsay and determined that plaintiffs did not

present admissible evidence showing that any of the defendants violated

Ms. Phillips’ Fourth Amendment rights or Fourteenth Amendment substantive due

process rights, under either a special relationship or state-created danger theory.

Further, it found there was no violation of plaintiffs’ Fourteenth Amendment right

to intimate and familial association. Finally, the district court held that plaintiffs

had failed to show liability under state law.

      On appeal, plaintiffs first argue that the district court erred in excluding

the statements of family members repeating Ms. Phillips’ accounts of law

enforcement officers’ threatening to take her children away. Plaintiffs contend



2
       Plaintiffs apparently submitted affidavits and transcripts supporting their
position in district court. The appendix filed in this court, however, includes only
plaintiffs’ statement of the case and counter-statement of facts, without the
supporting materials. It is the appellants’ responsibility to submit an appendix
which contains the “parts of the record to which [a party] wish[es] to direct the
court’s attention.” Fed. R. App. P. 30(a)(1)(D). This court is not obliged to
“remedy any failure of counsel to provide an adequate appendix.” 10th Cir. R.
30.1(A)(3).

       The district court’s order provides quotations from some of plaintiffs’
supporting material. Further, defendants have filed supplemental appendices.
We have considered plaintiffs’ citations to the district court record only to the
extent that the referenced material can be found in either the court order or the
supplemental appendices. In the absence of a complete appendix, this court
cannot conduct the “fresh analysis of the entire record of the case” urged by
plaintiffs. Aplt. Reply Br. at 15.

                                            -6-
that, if all their evidence is considered, they have shown disputed issues of fact

material to their constitutional and state-law claims against defendants. In their

briefs, they consistently refer to defendants as a group, without acknowledging

the dissimilar roles played by the different defendants.


                                      DISCUSSION

       We review a district court’s ruling on the admissibility of evidence for an

abuse of discretion,   Christiansen v. City of Tulsa,   332 F.3d 1270, 1283 (10th Cir.

2003), and review a summary judgment ruling de novo, applying the same

standard as the district court,   Nelson v. Holmes Freight Lines, Inc   ., 37 F.3d 591,

594 (10th Cir. 1994). Due to the parties’ stipulated dismissal, our task on appeal

is much less complex than that of the district court. We need evaluate only the

evidence relating to the remaining defendants, the Grady County Board of County

Commissioners, Sheriff Florence, and Deputy Pettit.


                                  Evidentiary Rulings

       Plaintiffs’ primary challenge to the district court’s evidentiary rulings

concerns the exclusion of their relatives’ testimony on coercion in the recruitment

of Ms. Phillips as a confidential informant, but admission of the law enforcement

officers’ testimony describing a voluntary agreement. They assert that their

submissions should be admitted or, alternatively, all testimony on the issue should


                                            -7-
be excluded as hearsay. This argument does not appear to relate to any of the

defendants remaining in the appeal. However, to the extent plaintiffs claim that

Deputy Pettit engaged in coercive behavior, we briefly analyze the underlying

hearsay issues.

       Plaintiffs’ only evidence of coercion and lack of knowing consent arises

from Ms. Phillips’ statements to her stepmother and sister, quoted in the district

court’s order at 17. The relatives’ testimony relays what Ms. Phillips said that the

officers told her and also states that Ms. Phillips said that the officers allowed her

to become intoxicated. The district court excluded this evidence as inadmissible

hearsay. See Fed. R. Evid. 801(c), 802.

       There is a double hearsay problem with the testimony about the officers’

alleged coercion. The first level of hearsay is the officers’ statements to

Ms. Phillips; the second is Ms. Phillips’ statements to her relatives.   See

Fed. R. Evid. 805 (“Hearsay included within hearsay is not excluded under the

hearsay rule if each part of the combined statements conforms with an exception

to the hearsay rule. . . .”). Though the officers’ statements to Ms. Phillips are

nonhearsay admissions of a party-opponents,        see Fed. R. Evid. 801(d)(2)(A), Ms.

Phillips’ report of the statements to the relatives are not.

       Plaintiffs incorrectly argue that this second level of hearsay is admissible

under the state-of-mind exception to the hearsay rule. Federal Rule of Evidence


                                             -8-
803(3) allows a declarant’s out of court statement “not to prove the truth of the

matter asserted, but to show a future intent of the declarant to perform an act.”

United States v. Freeman , 514 F.2d 1184, 1190 (10th Cir. 1975). In other words,

statements of intent are admissible to provide a foundation for the declarant’s

subsequent actions.   Id. at 1190-91. The relatives’ testimony concerns

Ms. Phillips’ retrospective justification for her serving as a confidential

informant. Because it concerns her past, not future, intentions, it does not fall

within the state-of-mind exception. The evidence is clearly offered to prove the

truth of the matter asserted, and is inadmissible.

      A similar analysis leads to the exclusion of relatives’ testimony that

Ms. Phillips said that she was intoxicated during at least one of the undercover

drug buys. Plaintiffs identify no recognized hearsay exception which would apply

to this testimony.

      In contrast, the law enforcement officers’ testimony about Ms. Phillips’

statements may be classified as non-hearsay admissions of a party-opponent.

The testimony is therefore admissible under Fed. R. Evid. 801(d)(2)(A).         See

Estate of Shafer v. Commissioner   , 749 F.2d 1216, 1220 (6th Cir. 1984) (stating

that a decedent, “through his estate, is a party to [an] action,” so that the

decedent’s statements “are a classic example of an admission”). The district court




                                           -9-
properly applied the rules of evidence and certainly did not abuse its discretion

in making its evidentiary rulings.


                                 Summary Judgment

       Plaintiffs assert a litany of complaints about the district court’s summary

judgment determinations. Summary judgment is appropriate if “there is no

genuine issue as to any material fact and . . . the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c);       Anderson v. Liberty Lobby ,

Inc. , 477 U.S. 242, 250-52, 256 (1986).

       First, we note that plaintiffs have failed to provide significant factual

citations or legal argument concerning the district court’s grant of summary

judgment in favor of the Board and Sheriff Florence in his official capacity.      3



A civil-rights suit against a county or a county official in his official capacity

requires a showing that a “policy or custom was the moving force behind the

constitutional deprivation.”   Myers v. Okla. County Bd. of County Comm’rs,

151 F.3d 1313, 1316 (10th Cir. 1998). Accordingly, we decline to disturb the

district court’s ruling on the liabilities of these defendants.


3
       On plaintiffs’ state-law wrongful-death and survivors’ actions, their
opening brief states that “[t]he District Court   ignored evidence of Florence’s
custom of failing to train, supervise and discipline” and provides a footnote citing
to a document that is not in an appendix. Aplt. Br. at 58;    see also Reply Br. at 22
(repeating the assertion). Needless to say, plaintiffs’ unsupported contentions do
not create a disputed material fact.

                                           -10-
      Concerning the individual defendants, Sheriff Florence and Deputy Pettit,

we must determine whether any factual issues exist as to their personal

participation in the alleged wrongdoing.    See Foote v. Spiegel , 118 F.3d 1416,

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

personal involvement in the alleged constitutional violation.”). We discern no

evidence showing that either Sheriff Florence or Deputy Pettit participated

in Ms. Phillips’ arrest and detention. Additionally, plaintiffs’ supporting

materials do not demonstrate that Ms. Phillips was in custody while serving as

a confidential informant. As a result, these defendants did not participate in

false arrest or false imprisonment activities and are not liable for Fourth

Amendment violations.

      Plaintiffs have also asserted a Fourteenth Amendment substantive due

process claim, based on the theory that defendants created the danger which led to

Ms. Phillips’ death. “‘[T]his court has held that ‘state officials can be liable for

the acts of third parties where those officials ‘created the danger’ that caused the

harm.’” Currier v. Doran, 242 F.3d 905, 917-18 (10th Cir. 2001) (quoting

Seamons v. Snow , 84 F.3d 1226, 1236 (10th Cir. 1996)) (further quotation

omitted).

      To make out a proper danger creation claim, 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

                                           -11-
       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.

Id. at 918. “[T]he Due Process Clause is not a guarantee against incorrect or

ill-advised [government] decisions.”       Christiansen, 332 F.3d at 1282 (quotations

omitted). Defendants’ conduct must “demonstrate a degree of outrageousness . . .

that is truly conscience shocking.”      Id. (quotations omitted). “[N]egligence does

not shock the conscience, and . . . even permitting unreasonable risks to continue

is not necessarily conscience shocking.”      Ruiz v. McDonnell, 299 F.3d 1173, 1184

(10th Cir. 2002) (quotations omitted),     cert. denied , 123 S. Ct. 1908 (2003).

       When evaluating the evidence, this court carefully examines the conduct

of each individual defendant, not the aggregate effect of defendants’ actions.

See Currier, 242 F.3d at 919-23. As to Sheriff Florence and Deputy Pettit, it is

arguable that plaintiffs have made a sufficient showing on the first three of the six

factors. They were involved in the use of Ms. Phillips as a member of a limited

group consisting of confidential informants. Thus, there is an inference that they

increased her vulnerability to danger and put her at substantial risk of harm.

       There is no evidence, however, on the remaining three factors. Plaintiffs

have not shown that the risk of Ms. Phillips’ death was obvious to these

defendants or that they knew of a specific threat on her life. The only


                                             -12-
relevant evidence on notice of Cheadle’s murder solicitation efforts is the

self-contradictory testimony of Jackie Lee Melvin, a jail inmate. If one version of

his account is credited, he told the jail administrator that Cheadle was “back there

trying to talk people into doing favors for him from keeping this girl named

Donna from showing up at court.” County Comm’rs Supp. App., at 331. Despite

plaintiffs’ argument to the contrary, there is no evidence that Sheriff Florence or

Deputy Pettit were informed of this allegation.   4
                                                      Additionally, Mr. Melvin’s

testimony that Sheriff Florence placed Cheadle in solitary after he returned from

the site of the murder scene does not lead to an inference that the Sheriff was

aware of a death threat prior to Ms. Phillips’ murder.

       There is no evidence that these defendants recklessly disregarded a risk that

Cheadle would have Ms. Phillips killed. Consequently, their conduct does not

demonstrate the degree of outrageousness “that is truly conscience shocking.”

Ruiz, 299 F.3d at 1184 (quotation omitted). Because plaintiffs have not satisfied



4
       In plaintiffs’ statement of the case and counter-statement of facts, they
state, without citation, that Sheriff Florence was informed of Cheadle’s death
threat and sheriff’s department officers were asked to protect Ms. Phillips. Aplt.
App. at 17. We have found no evidence supporting these statements. They further
assert that the jail administrator testified that if he heard that an inmate threatened
the well-being of “someone outside the jail,” he would bring it to the attention of
“‘the proper authorities.’”   Id. at 55, n.81. This testimony is not included in the
appendices and we will not consider it on appeal. In any event, the statement
does not establish a disputed issue of fact concerning knowledge on the part of
either Sheriff Florence and Deputy Pettit.

                                           -13-
the requisite factors, their danger-creation claim does not survive summary

judgment.

      The remaining constitutional claim is that defendants violated the right of

Ms. Phillips’ children to have an intimate and familial association with their

mother. “[A]n ‘allegation of intent to interfere with a particular relationship

protected by the freedom of intimate association is required to state a claim under

section 1983.’”   Christiansen, 332 F.3d at 1283 (quoting   Trujillo v. Bd. of County

Comm’rs , 768 F.2d 1186, 1190 (10th Cir. 1985)). As evidence of intent,

plaintiffs point only to the hearsay statements that law enforcement officers

threatened to take Ms. Phillips’ children from her unless she became a

confidential informant. Without these inadmissible statements, plaintiffs have not

identified any facts presenting a genuine issue of material fact on this claim.

      As to plaintiffs’ state claims, the only evidence relevant to Sheriff Florence

and Deputy Pettit demonstrates actions taken within the scope of their

employment. Consequently, they are shielded by the Oklahoma Tort Claims Act,

which provides that “[i]n no instance shall an employee of the state or political

subdivision acting within the scope of his employment be named as defendant.”




                                         -14-
Okla. Stat. tit. 51, § 163(C).   5
                                     The district court correctly entered summary

judgment on these claims.


                                        CONCLUSION

       Ms. Phillips’ death is truly regrettable, and we recognize that it has

significant consequences to plaintiffs.      6
                                                 Nevertheless, plaintiffs have not come

forward with evidence creating genuine issues of disputed material fact on any

5
     Section 163(C) contains an inapplicable exception to blanket employee
immunity relating to resident physicians and interns.
6
       As a final matter, we register our disapproval of the approach plaintiffs’
counsel has taken to this appeal. The appellate briefs mischaracterize the district
court’s rulings. One example is counsel’s assertion that the district court made an
erroneous finding of fact that Cheadle learned that Ms. Phillips was an informant
through her admission to Cheadle’s wife. Aplt. Br. at 34. The court’s order,
however, states that Ms. Phillips’ identity could have become known to Cheadle
“by deduction or from Donna’s outburst in the Grady County Jail . . .    and/or from
her telephone call and admission to Cheadle’s wife.” Order at 37 (emphasis
added). In a similar vein, counsel states that the district court ignored a disputed
issue of fact by concluding that “Ms. Phillips was ‘eager to assist the officers and
volunteered to serve as a confidential informant.’” Aplt. Reply Br. at 6 (quoting
Order at 8). In fact, that portion of the order prefaced the remark with
“[a]ccording to [defendant] Johnson.” Later, the court did conclude that, with the
exclusion of the hearsay evidence, there was no issue of material fact about the
voluntariness of Ms. Phillips’ consent.   See Order at 33. As we have stated in the
text, the district court correctly excluded the hearsay evidence.

       In addition to shading the district court’s rulings, plaintiffs have made
disorganized arguments obscured by overblown language, treated defendants as a
generic group, and failed to provide an adequate appendix. These defects made it
difficult to analyze plaintiffs’ appellate position. After independently examining
the applicable law and reviewing the parties’ submissions, we find no basis for
reversing the district court’s entry of summary judgment. We caution counsel
against repeating this type of conduct in future appeals.

                                                 -15-
of their claims. Consequently, the judgment of the district court is AFFIRMED.

Based on the parties’ stipulated notice of dismissal, the appeal is DISMISSED

as to defendants Jason Carpenter, Brad Crawford, Dustin Dowdle, Randy Johnson,

City of Chickasha, and City of Tuttle.


                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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