                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 JUL 6 2001
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 CAROLYN DOBSON, individually, and
 THE ESTATE OF JOHN ROBERT
 ADAMO, by and through the Personal
 Representative Carolyn Dobson,

          Plaintiffs-Appellants,

 v.

 CITY AND COUNTY OF DENVER;
 REZA KAZEMIAN, in his official and                         No. 99-1594
 individual capacity; LESLIE                           (D.C. No. 98-WM-806)
 GROUSSMAN, in her official and                         (District of Colorado)
 individual capacity; BRUCE
 BAUMGARTNER, in his official and
 individual capacity; RICHARD
 BRASHER, in his official and individual
 capacity; and RICHARD GARY BRADY,

          Defendants-Appellees.




                                   ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and OWEN, Senior


      *
         This order and judgment is not binding precedent, except under the doctrines of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.
District Judge**
______________________

       On January 17, 1997, at about 5:30 a.m., Richard Gary Brady (“Brady”), an

employee of the City and County of Denver (“City and County”) who worked at the

Denver Waste Water Management Division of the Department of Public Works (“the

Plant”), shot and killed John Robert Adamo at the Plant. At the time of the shooting

Adamo was serving as a security guard at the Plant and was employed by a private

security company, C and D Bonded Security Service, Inc. (“C and D”), under contract

with the City and County. On April 10, 1998, Carolyn Dobson, the mother of Adamo,

brought suit in the United States District Court for the District of Colorado, individually

and as the personal representative of Adamo’s estate. Named as defendants were the City

and County, and four of its employees at the Plant, Reza Kazemian, Leslie Groussman,

Bruce Baumgartner and Richard Brasher, each in his or her individual and official

capacity. Also named as a defendant was Brady (who was convicted of murder and is

serving a 40 year sentence) and Adamo’s employer, C and D, the claims against the latter

having thereafter been voluntarily dismissed.




        Honorable Richard Owen, Senior District Judge, United States District Court for
       **

the Southern District of New York, sitting by designation.




                                            -2-
       In her complaint, Dobson, after identifying the parties and setting forth in detail

the facts and circumstances out of which this tragic killing occurred, alleged eight claims

for relief. The first claim for relief was against the City and County and its four

employees, i.e., Kazemian, Groussman, Baumgartner and Brasher, and Dobson alleged

therein that by acting with a “reckless disregard for the physical well-being of Adamo”

they deprived her of the “securities, rights, privileges, liberties and immunities as

guaranteed by the Constitution of the United States of America and protected pursuant to

42 U.S.C. § 1983.” The second claim for relief was against the City and County, and

Dobson alleged therein that by a “failure to train and supervise” the City and County had

acted recklessly and with “deliberate indifference” to Dobson’s constitutional rights in

violation of 42 U.S.C. § 1983. The third claim for relief was against Brady for assault

and battery. The fourth claim for relief was against the City and County and alleged that

“at the time of the individual defendants’ wrongful conduct, they were employed by

defendant Denver . . . and by the doctrine of respondeat superior, Denver is liable for the

wrongful behavior of the individual defendants.” The fifth claim for relief was against

Brady for intentional infliction of emotional distress. The sixth claim for relief was

against all defendants for wrongful death. The seventh claim for relief was against C and

D for “negligence of duty of care.” (As stated, Dobson later dismissed this particular

claim.) The eighth claim was against Brady, and alleged that Brady had unlawfully

interfered with Adamo’s contract with C and D. As indicated, Dobson’s first two claims


                                             -3-
for relief were based on 42 U.S.C. § 1983. Her last six claims were based on state law.

       The City and County and its four employees filed an answer to Dobson’s

complaint wherein they admitted and denied the various allegations in Dobson’s

complaint and then alleged four affirmative defenses. Brady filed a 12(b)(1) motion to

dismiss for lack of jurisdiction.

       On July 20, 1998, the City and County and its four employees filed a motion for

summary judgment on Dobson’s federal claims and for dismissal of her state claims.

Dobson on August 19, 1998 filed a response to defendants’ motion, to which a reply was

filed. By order of the district court, all parties consenting thereto, defendants’ motions

were transferred to the Honorable Patricia A. Coan, a United States Magistrate Judge, for

final determination. 28 U.S.C. § 636(c). After briefing and oral argument, the magistrate

judge on October 25, 1999 by Memorandum Opinion and Order granted all motions for

summary judgment and on November 9, 1999 entered judgment wherein all claims

against the City and County and its four employees were “dismissed with prejudice” and

the claims against Brady were “dismissed without prejudice with leave to refile in state

court.” Thereafter Dobson filed a motion to alter judgment and a request that she be

allowed to file an amended complaint. That motion was later denied, and Dobson now

appeals.

       The magistrate judge’s Memorandum Opinion and Order appears as Dobson v.

City and County of Denver, 81 F. Supp. 2d 1080 (D. Colo. 1999). The facts, which are


                                            -4-
largely undisputed, are fully set forth by the magistrate judge, and will only be recounted

here as necessary.

       On appeal, counsel frames his three grounds for reversal as follows:

                      I. Under the “danger creation” or “special danger”
              doctrine, are city officials personally liable when they take
              affirmative acts to enhance or create a danger of harm to their
              employees by a private actor, including misleading an
              employee as to the grave danger he faced at the hands of a
              dangerous co-worker?
                      II. Even if there is no personal participation by city
              officials in taking an affirmative act to increase the danger to
              a city employee, can the municipality still be liable for failing
              to train or supervise its employees so as to enhance the danger
              to one of its citizens by a private actor?
                      III. Can the Plaintiff amend her complaint after
              judgment is entered if the facts that support the additional
              theory for relief have been previously pled?

       Our review of a grant of summary judgment is de novo, using the same standard

applied by a district court, or, in this case, by the magistrate judge. Universal Money

Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir. 1994) and Thomas v. Wichita Coca-

Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992).

       As indicated, in her first claim for relief Dobson alleged, in effect, that the City

and County and four of its employees by their “reckless” actions or inactions either

created the danger or increased the danger that resulted in Brady killing Adamo. In

Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir. 1995) we said that in order to show a

violation of 42 U.S.C. § 1983 a plaintiff must show, inter alia, that the defendant’s

conduct was reckless to a degree that is “conscience shocking.” Applying the Uhlrig

                                             -5-
standard, the magistrate judge held that Dobson had failed to show that the conduct of the

City and County and its four employees was either “reckless” or “conscience shocking.”1

Our de novo review of the magistrate judge’s analysis of the matter leads us to the same

result. The chronology of events involving Adamo and Brady are fully set forth in the

Memorandum Opinion and Order of the magistrate judge and we agree that such simply

do not add up to “recklessness” and “conscience shocking,” or, we would add,

“calculated indifference.” In hindsight, perhaps some things could have been done

differently, but, at most, such would be only negligence and insufficient to support a

§1983 claim. See Uhlrig at 573 (noting that the Due Process Clause’s protection does not

extend to “merely negligent government conduct.”)

       As concerns his second issue, counsel argues that the City and County may still be

held liable for failure to train or supervise its employees even though there is no personal

participation by city officials in taking an affirmative act to increase the danger to a city

employee. The magistrate judge, in granting summary judgment on Dobson’s second

claim for relief, held that inasmuch as the individual defendants had not violated any of

Adamo’s constitutional rights, Dobson could not state a claim against the City and County

for unconstitutional failure to train, citing Webber v. Mefford, 43 F.3d 1340, 1344-45



       1
        In thus holding, the district court recognized that under Radecki v. Barela, 146
F.3d 1227, 1232 (10th Cir. 1998), we held that where a state actor had “the luxury to truly
deliberate . . . something less than unjustifiable intent to harm, such as calculated
indifference, may suffice to shock the conscience.”

                                             -6-
(10th Cir. 1994) and Watson v. Kansas City, 857 F.2d 690, 697 (10th Cir. 1988).

Counsel’s reliance on Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226,

1239-40 (10th Cir. 1999) is in our view misplaced. That was a case involving “deliberate

indifference,” which is not the present case.

       The third issue raised in this appeal concerns the magistrate judge’s denial of

Dobson’s motion, filed pursuant to Fed. R. Civ. P. 59(e) and 15(c), to alter judgment and

her request for leave to file an amended complaint. The proposed amended complaint,

attached to the motion, was identical to the original complaint except that it added a ninth

and tenth claim for relief, both naming the City and County as the only defendant. The

ninth claim was based on promissory estoppel and the tenth on breach of contract, third

party beneficiary.2 The City and County filed a response to that motion. The magistrate

judge denied the motion to alter judgment and for leave to file an amended complaint,

and, on appeal, counsel argues that in so doing the magistrate judge erred. Counsel agrees

that the magistrate judge’s denial of Dobson’s motion to alter judgment and her request to

file an amended complaint, after her initial complaint had been dismissed on summary

judgment, is reviewed by us under an abuse of discretion standard. Bauchman v. West


       2
         In her order and judgment the magistrate judge, inter alia, dismissed with
prejudice
Dobson’s state tort claims on the basis of Colorado’s Governmental Immunity Act.
COLO. REV. STAT. § 24-10-101, et. seq. In so doing, the magistrate judge indicated
that claims sounding in contract might not be barred by the Governmental Immunity Act.
Hence Dobson’s desire to file a request for leave to amend her complaint and add two
contract claims.

                                            -7-
High Sch., 132 F.3d 542, 559 (10th Cir. 1997). Under the circumstances, we find no

abuse of discretion.3

       Although in appellant’s opening brief there is no mention of qualified immunity in

the “Statement of Issues,” there is some reference thereto in the body of her brief. In this

regard, the magistrate judge in her memorandum order did hold that the individual

defendants were entitled to qualified immunity on Dobson’s constitutional claims

inasmuch as she had previously held that Dobson “failed to state a claim for denial of

substantive due process under the danger creation theory. . .” In any event, we do not see

that the individual defendants violated any “clearly established statutory or constitutional

rights of which a reasonable person would have known.” Hilliard v. City and County of

Denver, 930 F.2d 1516, 1518 (10th Cir. 1991). See generally, Harlow v. Fitzgerald, 457

U.S. 800 (1982).

       Judgment affirmed.

                                                         Entered for the Court



                                                         Robert H. McWilliams
                                                         Senior Circuit Judge



       In Jicarilla Apache Tribe v. Hodel, 821 F.2d 537, 540 (10th Cir. 1987), we
       3

recognized that while motions under Fed. R. Civ. P. 59(e) do not normally raise “new
grounds” for relief, nor new theories of relief, courts did sometimes grant Rule 59(e)
motions to vacate judgments of dismissal to permit amendment of the complaint.
However, in that case, we held that the district court did not abuse its discretion in
denying such motion.

                                            -8-
