APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:08-CV-00333-R).
The opinion of the court was delivered by: Baldock, Circuit Judge.
Before TYMKOVICH, SEYMOUR, and BALDOCK, Circuit Judges.
Plaintiff Thomas Carl Dodds, Jr. brought this 42 U.S.C. § 1983 suit, alleging Defendant former Logan County, Oklahoma Sheriff Randy Richardson violated his Fourteenth Amendment due process rights by depriving him of his protected liberty interest in posting bail. The district court denied Defendant's claim to qualified immunity in the context of summary judgment, and Defendant appealed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
Logan County, Oklahoma sheriff's deputies arrested Plaintiff pursuant to a felony arrest warrant and placed him in the Logan County Jail on Friday, April 6, 2007. An Oklahoma state district court judge set bond for Plaintiff in the arrest warrant in the amount of $5,000. Plaintiff alleges Logan County Jail employees told two individuals who inquired about posting bond on his behalf that he could not post the preset bail until after he was arraigned by a judge. Plaintiff was not arraigned until Monday, April 9. At that time, another state district judge reset bail at $10,000. Plaintiff did not post bail. Later that week, the district court nevertheless released Plaintiff on a personal recognizance bond. The charges against Plaintiff underlying the arrest warrant were eventually dismissed in September 2007. Subsequently, Plaintiff filed suit under 42 U.S.C. § 1983 against, among others, Defendant in his individual capacity. Plaintiff asserted in his complaint he "had a liberty interest in the pre-set bond under the Fourteenth Amendment," but Defendant denied him "such, without explanation, in violation of the [United States] Constitution."
Defendant filed a motion for summary judgment claiming he was entitled to qualified immunity because the policy of the Logan County court clerk or district judges prevented individuals charged with a felony from posting bond after hours. According to Defendant, this policy rather than any action taken by him personally caused the alleged deprivation of Plaintiff's liberty. Dodds v. Logan County Sheriff's Dep't., No. 08-CV-00333-R, Order at *2 (W.D. Okla. Aug. 3, 2009) (Doc. #75). In an affidavit submitted to the district court and incorporated into Defendant's motion, the Logan County court clerk stated that for "at least the past eighteen years" "Logan County has [had] a local rule preventing individuals charged with a felony from posting bond until they have gone before a judge and been arraigned." Aplt's App. at 138. The clerk also confirmed that "[i]t is the policy of the Court Clerk's office not to permit the Sheriff's office to accept bonds after hours on felony warrants." Id. Evidently, however, no one submitted to the district court or this Court a copy of these local policies or stated definitively who promulgated them. See Dodds, Order at *2 (Aug. 3, 2009).
In response to Defendant's summary judgment motion, Plaintiff did not allege Defendant was one of the jail employees who told him or the individuals who inquired about posting bail on his behalf that he may not post the preset bail until he had been arraigned by a judge. Instead, Plaintiff responded that an Oklahoma sheriff is responsible for his county jail and has a duty to allow an arrestee such as Plaintiff to post bond. Id. (citing 57 Okla. Stat. § 47 ("The sheriff . . . shall have charge of the county jail of his county and of all persons by law confined therein, and such sheriff . . . is hereby required to conform, in all respects, to the rules and directions promulgated pursuant to [74 Okla. Stat. § 192] and of the district judge and communicated to him by the proper authority."); 22 Okla. Stat. § 1101(A) ("Except as otherwise provided by law, bail . . . shall be admitted upon all arrests in criminal cases where the offense is not punishable by death and in such cases it may be taken by and of the persons . . . authorized by law to arrest, [and] to imprison offenders . . . ."); Okla. Att'y. Gen. No. 69-138 (1969) ("In criminal cases except cases punishable by death . . . a sheriff is required to accept bail, under the terms of [22 Okla. Stat. § 1101 (1961)], for those persons jailed at times other than the normal working hours of the Court, provided proper bail has been set as provided by law.")). Plaintiff further asserted that the court clerk had no authority to create or maintain its policies at the jail or to dictate bail policy to the sheriff. Id. Therefore, according to Plaintiff, by acquiescing in the operation of the clerk's non-binding policies at the jail, Defendant breached the duties imposed by Oklahoma law to accept bail and to maintain the jail himself, and deprived Plaintiff of his liberty interest in posting the preset bail, in violation of the Fourteenth Amendment. Id.
The district court denied Defendant's motion for summary judgment, concluding:
By accepting or acquiescing in a policy set by the Logan County Court Clerk or district court judges purportedly prohibiting individuals who have been arrested from posting bond until they have appeared before a judge and have been arraigned and or prohibiting the sheriff's office from accepting bond, Defendant Richardson knew or should have known that Logan County deputies and jailers would violate the constitutional rights of arrestees like Plaintiff whose bail had been preset in his arrest warrant by refusing to allow them to post bail in the amount set or accept bail, because under Oklahoma law, a sheriff is required to accept bail which has already been set for persons jailed at times other than the normal working hours, and individuals have a liberty interest in being freed of detention once the amount of their bail is set. See Gaylor v. Does, 105 F.3d 572, 576 (10th Cir. 1997). It may reasonably be inferred that Defendant Richardson, who was the supervisor of the deputies and jailers for Logan County, exhibited deliberate indifference to the due process rights of arrestees whose bail had been pre-set to be free of detention by acquiescing in the Logan County policy and that his acquiescence caused or contributed in causing the deprivation of Plaintiff's due process rights by another or others. Accordingly, Defendant Richardson has failed to show that he cannot be liable for participating or acquiescing in the deprivation of Plaintiff's Fourteenth Amendment rights. See e.g., Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1151--52 (10th Cir. 2006).
Id. at *3--*4. The district court had previously concluded in another order that when Plaintiff was prevented from paying the bond set in his arrest warrant pursuant to these aforementioned policies, he "was unnecessarily detained without a legitimate goal (none is asserted) in violation of his due process rights." Dodds v. Logan County Sheriff's Dep't., No. 08-CV-00333-R, Order at *4, (W.D. Okla. July 9, 2009) (Doc. #61) (denying the motion for summary judgment by Defendant Sheriff of Logan County in his official capacity).
Defendant appeals, challenging the district court's denial of qualified immunity. First, in his opening brief he maintains Plaintiff has failed to show that he was personally involved in preventing Plaintiff from posting bail. Second, he asserts Plaintiff has not demonstrated that he acted with the state of mind ("knowingly or with 'deliberate indifference' that a constitutional violation would occur") required to impose § 1983 supervisory liability upon him. Third, Defendant argues our decision in Gaylor v. Does, 105 F.3d 572 (10th Cir. 1997), does not clearly establish that his compliance with a policy that prevents an arrestee from posting preset bail subjects him to liability in his individual capacity.
The Supreme Court has recognized a number of immunities from § 1983 suit and liability, including qualified immunity. Lawrence v. Reed, 406 F.3d 1224, 1229 (10th Cir. 2005). "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a defendant asserts qualified immunity, the plaintiff bears the burden of satisfying a "'strict two-part test.'" McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)). "The plaintiff must establish '(1) that the defendant violated a constitutional or statutory right, and (2) that this right was clearly established at the time of the defendant's conduct. . . .'" Id. (quoting Bowling, 584 F.3d at 964).
We possess "'interlocutory jurisdiction over denials of qualified immunity at the summary judgment stage to the extent that they turn on an issue of law.'" Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1152 (10th Cir. 2010) (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008)). Therefore, we usually only "examine the facts presented on summary judgment in the light most favorable to the plaintiff, to determine whether they amount to a violation of a clearly-established right." Walker v. City of Orem, 451 F.3d 1139, 1155 (10th Cir. 2006); Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) ("At the summary judgment stage . . ., it is generally the district court's exclusive job to determine which facts a jury could reasonably find from the evidence presented to it by the litigants. After doing so, the district court and we may then consider the 'abstract' legal questions whether those facts suffice to show a violation of law and whether that law was clearly established at the time of the alleged violation." (internal citations omitted)). Generally, we may not "'review a district court's factual conclusions, such as the existence of a genuine issue of material fact for a jury to decide, or that a plaintiff's evidence is sufficient to support a particular factual inference.'" Zia Trust Co., 523 F.3d at 1153 (quoting Fogarty, 523 F.3d at 1154). Within this limited jurisdiction, "'[w]e review de novo the district court's denial of a summary judgment motion asserting qualified immunity.'" McBeth, 598 F.3d at 715 (quoting Bowling, 584 F.3d at 963).
Although we are now at liberty to embark upon the two-part qualified immunity analysis in any order we choose, we begin in this case at the beginning: Has Defendant violated Plaintiff's federally protected rights? See Pearson, 129 S.Ct. at 818 (deciding that courts may undertake the qualified immunity analysis in any order they choose). In doing so, we "consider whether the facts taken in the light most favorable to the plaintiff show that the defendant's conduct violated a constitutional right" cognizable under § 1983. Poolaw v. Marcantel, 565 F.3d 721, 728 (10th Cir. 2009).
Plaintiff's claim falls into a category of claims which unfortunately have become so common that they have acquired their own term of art: "'overdetention,'" i.e., when "the plaintiff has been imprisoned by the defendant for longer than legally authorized, whether because the plaintiff's incarcerative sentence has expired or otherwise." Holder v. Town of Newton, 638 F. Supp. 2d 150, 153 (D.N.H. 2009) (citing Davis v. Hall, 375 F.3d 703, 714 (8th Cir. 2004) and Barnes v. District of Columbia, 242 F.R.D. 113, 117 (D.D.C. 2007)). "[T]he right of an accused to freedom pending trial is inherent in the concept of a liberty interest protected by the due process clause of the Fourteenth Amendment." Meechaicum v. Fountain, 696 F.2d 790, 791--92 (10th Cir. 1983). Consequently, the denial of bail must comport with the requirements of due process. See id. at 792 ("[S]tate statutes restricting bail must be rational, reasonable, and nondiscriminatory. . . . [B]ail may not be denied 'without the application of a reasonably clear legal standard and the statement of a rational basis for the denial.'" (quoting Atkins v. Michigan, 644 F.2d 543, 549 (6th Cir. 1981))). In Gaylor v. Does, 105 F.3d 572 (10th Cir. 1997), we further clarified the due process protections involving bail. We declared that an arrestee obtains a liberty interest in being freed of detention once his bail is set because the setting of bail accepts the security of the bond for the arrestee's appearance at trial and "hence the state's justification for detaining him fade[s]." Id. at 576. To avoid depriving an arrestee of due process, the government may only interfere with this protected liberty interest, for instance by refusing to accept lawfully set bail from the arrestee and detaining him until some later time, if its actions reasonably relate "to a legitimate goal." Id. Otherwise, the detention of such an arrestee would constitute punishment prior to trial, in violation of due process. Id. Other courts have similarly concluded that arrestees whose bail have been set have a protected liberty interest in posting bail and being freed from detention and, thus, depriving such arrestees of that liberty interest may violate due process. See e.g., Campbell v. Johnson, 586 F.3d 835, 586 (11th Cir. 2009) (explaining that a county sheriff may be held liable for violating the due process rights of an arrestee if he acts with deliberate indifference in personally refusing to accept the arrestee's court-set bail or if his actions were causally connected to his subordinates' refusal of the arrestee's bail); Doyle v. Elsea, 658 F.2d 512, 516--17 n.6 (7th Cir. 1981) ("For due process purposes, the constitutional liberty interest in release on bail arises after a magistrate has determined that an accused may be released upon deposit of whatever sum of money will ensure the accused's appearance for trial.").
The district court concluded in this case that when Plaintiff was prevented from paying the bond set in his arrest warrant pursuant to these above-mentioned policies, he "was unnecessarily detained without a legitimate goal (none is asserted) in violation of his due process rights." Dodds, Order at *4, (July 9, 2009). For the following reasons, we agree. Defendant has yet to proffer any reason, let alone a "legitimate goal," for refusing to allow Plaintiff to post bail and detaining Plaintiff for three days, other than the assertion that the longstanding policies or customs at the jail, allegedly set by either the court clerk or the district judges, prohibited individuals charged with a felony from posting bond until they had been arraigned by a judge and from posting bond after hours. Gaylor teaches that Plaintiff's liberty interest in being freed from pretrial detention once his bail had been set may not be denied just because an official says it has been his practice to do so for a long time and the practice of his predecessors for an even longer time. Gaylor, 572 F.2d at 576--77 (explaining that due process dictates that government officials may only interfere with an arrestee's liberty interest in being freed from detention in a manner reasonably related "to a legitimate [governmental] goal, such as insuring his appearance for trial or protecting others from him"). We note Defendant's counsel essentially conceded at oral argument the unconstitutionality of the policies that prevented Plaintiff from posting bail. When asked "[d]oesn't Gaylor make it clear that where bail has been set that it is a violation of due process not to grant it?" Defendant's counsel responded "Yes, I believe Gaylor does." We therefore conclude Plaintiff has set forth facts that, if proven to be true, state a violation of his constitutional rights. Of course, that conclusion alone does not merit denying Defendant qualified immunity.
We must now determine whether this Defendant deprived Plaintiff of that right and whether he may be held liable for that deprivation. See McBeth, 598 F.3d at 716 (providing that to overcome an official's assertion of qualified immunity and thereby subject her to suit and liability "[t]he plaintiff must establish '. . . that the defendant violated a constitutional or statutory right'" (quoting Bowling, 584 F.3d at 964)). To recover under § 1983, a plaintiff must establish "the violation of a right secured by the Constitution and laws of the United States. . . ." West v. Atkins, 487 U.S. 42, 48 (1988).*fn1 Because a plaintiff can neither recover under § 1983 from a government official nor overcome the official's assertion of qualified immunity without demonstrating that official violated his constitutional or statutory rights, the legal analysis required to surmount these separate obstacles is often related, if not identical. As Justice Thomas explained:
In conducting qualified immunity analysis . . ., courts do not merely ask whether, taking the plaintiff's allegations as true, the plaintiff's clearly established rights were violated. Rather, courts must consider as well whether each defendant's alleged conduct violated the plaintiff's clearly established rights. For instance, an allegation that Defendant A violated a plaintiff's clearly established rights does nothing to overcome Defendant B's assertion of qualified immunity, absent some allegation that Defendant B was responsible for Defendant A's conduct.
Hope v. Pelzer, 536 U.S. 730, 751 n.9 (2002) (Thomas, J., dissenting). In particular, as will become apparent from our discussion, determining whether a plaintiff has demonstrated a defendant-supervisor violated his constitutional rights and whether § 1983 allows a plaintiff to hold a defendant-supervisor liable for that violation may depend on whether that defendant-supervisor, rather than only his subordinates, violated the plaintiff's constitutional rights. For this reason, we properly address this question of supervisory liability now as part of the qualified immunity analysis. See al-Kidd v. Ashcroft, 580 F.3d 949, 964--65 (9th Cir. 2009) ...