Gros, et al v. Grand Prairie TX

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-10232
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DANETTE HOPE GROS; ET AL.,
Plaintiffs,
DANETTE HOPE GROS; EDITH D. SIKES,
Plaintiffs-Appellees-
Cross-Appellants,
VERSUS
THE CITY OF GRAND PRAIRIE, TEXAS, ET AL.,
Defendants,
HARRY L. CRUM,
Defendant-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________
April 25, 2000
Before DAVIS, CYNTHIA HOLCOMB
HALL,* and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Harry Crum appeals the denial of summary
judgment on his qualified immunity defense in
a 42 U.S.C. § 1983 suit brought by Danette
Gros and Edith Sikes, who are cross-appealing
those portions of the order that granted Crum
summary judgment on qualified immunity
grounds. Plaintiffs alleged that Crum, as Chief
of Police of Grand Prairie, Texas, violated * Circuit Judge of the Ninth Circuit, sitting by
designation.

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their constitutional rights by hiring and failing
properly to train and supervise an officer
(“Rogers”) who allegedly sexually assaulted
them, and by having a hiring policy that
allowed persons with a propensity toward
violent behavior into the Grand Prairie Police
Department (“GPPD”). Concluding that there
was no genuine issue of material fact as to
Crum’s deliberate indifference to plaintiffs’
constitutional rights, we reverse the denial of
summary judgment and remand for further
proceedings. We also decline to exercise pen-
dent appellate jurisdiction over plaintiffs’
cross-appeals, so we dismiss those cross-
appeals.
I.
Gros and Sikes allege that Rogers, a former
GPPD officer, physically, sexually, and
verbally abused them. Gros contends that
during a routine traffic stop, Rogers used
excessive force against her. While on routine
patrol, Rogers pulled Gros over for driving
without wearing a seatbelt. After being
stopped for about twenty minutes, Gros exited
her vehicle and inquired of Rogers how much
longer the stop would take. Rogers ordered
Gros back into the car, at which point Gros
stated that she had an appointment and needed
to leave as soon as possible.
Rogers then allegedly grabbed Gros’s arm,
twisted it behind her back, threw her on top of
her car, and reached into her blouse and
grabbed her breast. He then handcuffed her
and placed her under arrest without a
recitation of Miranda warnings, putting her in
his squad car on a hot day with the windows
closed. Eventually he rolled down his window
a little to aerate the inside, but then turned the
volume on the radio up very high, allegedly to
prevent passers-by from hearing Gros’s
requests for help.
At the police station, Gros immediately
complained of her treatment to Rogers’s su-
pervisors. As a result, an investigation of
Rogers’s conduct with respect to this incident
was conducted in which the internal
investigative unit of the GPPD determined that
Gros’s claim was “not sustained.”
Sikes contends that in February 1996, while
responding to a call, Rogers sexually abused
her. Sikes had been stopped by Rogers and
advised that there was an outstanding warrant
for her arrest for not paying traffic tickets.
Sikes asked Rogers not to take her to jail, and
while telling her that he would not, Rogers be-
gan to fondle her. As Sikes retreated, Rogers
told her that she would have to make it up to
him. Rogers grabbed her breasts and asked
Sikes whether she was wearing any
underwear.
Before Sikes could answer, Rogers lifted
Sikes’s top, pulled out her pants, and stuck his
hand inside. As he was touching her, he stated
that he wanted her “on his finger” so he could
taste her on his way home. After he pulled out
his hand from inside her pants, he licked his
finger and told Sikes that she tasted sweet.
The following day, Rogers called Sikes and
told her he was coming to her dormitory room
before beginning work. Sikes immediately
called and went to the GPPD station to report
the incident and was informed that Rogers had
had three other complaints lodged against him.
Rogers went to Sikes’s dormitory room that
night.
When compiling his report on the Sikes in-
cident, Rogers denied ever having touched her.
After an internal investigation, however, he
admitted to Sikes’s charges. He was thereby
placed on indefinite suspension and charged

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with criminal official oppression, to which he
pleaded guilty.
II.
Plaintiffs filed their § 1983 claims against
the city, Crum, and Lieutenant Bender, the
officer in charge of the Department of Internal
Affairs at GPPD. The district court granted
summary judgment for the City on qualified
immunity grounds. We vacated and remanded
on the ground that the district court had
applied incorrect legal standards to the
evidence submitted by the plaintiffs. See Gros
v. City of Grand Prairie, 181 F.3d 613, 615-
16 (5th Cir. 1999).
Crum and Bender moved for summary
judgment on qualified immunity grounds. The
district court granted Bender’s motion as to all
claims asserted against him; these rulings are
not being appealed. The court granted Crum’s
motion with respect to the claims that he main-
tained an improper hiring policy and that he
improperly trained and supervised Rogers.
The court denied Crum’s motion as to his act
of hiring Rogers.
All the losing parties with respect to the
claims against Crum appeal these rulings. Al-
though they recognize that the grant of sum-
mary judgment on two of their three claims is
an interlocutory order that is typically not im-
mediately appealable, plaintiffs urge us to
exercise our pendent appellate jurisdiction
over those claims that they allege are
“inextricably intertwined” with the deliberate-
indifference-in-hiring claim.
III.
On the issue of qualified immunity, Crum
asserts that plaintiffs presented insufficient evi-
dence that he was deliberately indifferent to
their constitutional rights in hiring Rogers.
Plaintiffs respond by pointing to evidence that
the district court concluded created an issue of
material fact properly presented to the jury.
We first must determine whether plaintiffs
have alleged a violation of a clearly established
constitutional right, before we reach the
narrower issue of qualified immunity. Siegert
v. Gilley, 500 U.S. 226, 232 (1991). Here,
plaintiffs allege that Crum was deliberately in-
different to their constitutional rights to be free
from false arrest, illegal search and seizure,
excessive force, sexual harassment, and sexual
assault.
Under Board of County Comm’rs v. Brown,
520 U.S. 397, 407 (1997), “deliberate
indifference” to the “known or obvious conse-
quences” of a hiring decision can amount to a
constitutional violation on the part of the deci-
sion maker, but “[a] showing of simple or even
heightened negligence will not suffice.” Thus,
“deliberate indifference” exists where adequate
scrutiny of an applicant’s background would
lead a reasonable supervisor to conclude that
the plainly obvious consequences of the
decision to hire would be the deprivation of a
third party’s constitutional rights. Snyder v.
Trepagnier, 142 F.3d 791, 797 (5th Cir.
1998), cert. granted, 525 U.S. 1097, and cert.
dismissed, 119 S. Ct. 1493 (1999). There
must be a strong connection between the
background of the particular applicant and the
specific violation alleged. Brown, 520 U.S.
at 412. Accordingly, plaintiffs cannot succeed
in defeating summary judgment merely
because there was a probability that a poorly-
screened officer would violate their protected
rights; instead, they must show that the hired

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officer was highly likely to inflict the particular
type of injury suffered by them. Id.
Because the district court denied summary
judgment on this claim, we are limited to a re-
view of whether the factual issues on which
the district court based its decision were
material, and we are precluded from reviewing
the district court’s determination that the
issues of fact in question are genuine.1 As
evidentiary support for their contention that
there was a material issue of fact whether
Crum was deliberately indifferent to their
constitutional rights in hiring Rogers, plaintiffs
rely primarily on the contents of Rogers’s pre-
employment personnel file. They point to (1)
reports from his previous employment as a
police officer for the University of Texas at
Arlington (“UTA”) that indicated that Rogers
went to a psychologist after being involved in
back-to-back incidents where force was used;
(2) statements from a UTA supervisor that if
the GPPD hired Rogers, they would have to
“monitor his activities and guide him in the
direction [they] want to go”; (3) a
psychological test done for entry into UTA
that indicated Rogers was inflexible, too
defensive, and unwilling to take direction
conflicting with his own desire; (4) a letter of
reprimand issued to Rogers for losing another
officer’s location; (5) a letter of reprimand for
insubordination for refusing to sign a report;
(6) a complaint against Rogers for being ha-
rassing and overbearing during a traffic stop
(The overbearing complaint was sustained, but
the harassment complaint was not.); (7) an
unsustained complaint that Rogers was
threatening and unprofessional and improperly
drew his weapon during a traffic stop; (8) an
evaluation that Rogers was “unable to take
criticism, he disregarded supervision and
didn’t adhere to dept policies”; (9) statements
by another officer that Rogers was “a little
rash in his demeanor and his personality tended
to aggravate a situation” and “was almost to
the point of being badge heavy;” (10)
comments that Rogers “needs to know the
difference between escalating and when not
to,” that “he is at times [too] quick to draw his
weapon,” that “when he reacts too fast he
usually reacts in an aggressive manner,” and
that “with his take-charge attitude, sometimes
Rogers overdoes it”; and (11) information that
during high school, the principal suspended
Rogers for continuing to talk to a girl who had
rebuffed his advances.
To defeat summary judgment, the proffered
evidence must be sufficient to create an issue
of material fact whether a reasonable officer
would conclude that the obvious consequence
of hiring Rogers would be that he would sex-
ually harass, sexually assault, falsely arrest, use
excessive force, or illegally search or seize a
third person. In other words, the evidence
must demonstrate that Crum was deliberately
indifferent to this obvious consequence.
This court has recently noted that Brown is
instructive as to the quantum and quality of
evidence of deliberate indifference that is
necessary:
There, Reserve Deputy Stacy Burns
(“Burns”) stood convicted of using ex-
cessive force when he wrested a woman
from a car, badly damaging her knees in
the process. Burns, who was the great-
nephew of Sheriff Moore, Bryan Coun-
ty’s Sheriff and policy-maker, had a
criminal record that included arrests for
driving while intoxicated, driving with a
1 See Colston v. Barnhart, 146 F.3d 282, 284
(5th Cir.) (on suggestion for rehearing en banc),
cert. denied, 525 U.S. 1054 (1998).

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suspended license, resisting arrest,
public drunkenness, and a conviction for
assault and battery. Looking at this
record, the Supreme Court held that
Sheriff Moore’s failure to examine
Burns’s criminal record did not
“reflect[] a conscious disregard for a
high risk that Burns would use excessive
force in violation of respondent’s
federally protected right.”
Aguillard v. McGowen, 2000 U.S. App.
LEXIS 3884, at *10 (5th Cir. Mar. 15, 2000)
(quoting Brown, 520 U.S. at 415-16). In
Aguillard, the deputy officer, Joseph Mc-
Gowen, was convicted of murder for a
shooting committed while he was on duty.
McGowen’s record showed, among other
things, that he had previously threatened the
mother of a juvenile with arrest, that he
meddled in this mother’s supervision of the
child while he was off duty, that colleagues at
the police department reported that he wanted
to “ride where the women were,” that a female
colleague stated that she did not want to ride
with him under any circumstances, and, most
importantly, that there was a report that he had
assaulted and pistol-whipped a teenage boy
who was driving his car around McGowen’s
apartment complex, though McGowen was
neither arrested nor convicted of the alleged
assault. McGowen’s informal disciplinary rec-
ord included infractions for using police radio
for broadcasting personal messages and for
refusing to convey information to one party in
a vehicular accident.
Presented with this evidence in support of
the denial of the county’s motion for judgment
as a matter of law, the Aguillard court
nevertheless reversed, reasoning that “Mc-
Gowen had never wrongfully shot anyone
before, nor did his record reveal him to be
likely to use excessive force in general or
possess a trigger-happy nature in particular.”
Aguillard, 2000 U.S. App. LEXIS 3884, at
*12. Thus, the court concluded that “[w]hile
the County may have been negligent in its
employment decision, the magnitude of its
error does not reach constitutional cogni-
zance.” Id.
Likewise, in the instant case, the evidence
presented by plaintiffs does not rise to the level
of a constitutional violation. To be sure, there
are scattered statements in Rogers’s pre-
employment file that suggest he was
sometimes too aggressive for UTA’s campus
police department. There are also letters of
reprimand and sustained complaints for being
overbearing and abusive during a traffic stop.
But while these facts suggest that Crum, like
the county in Aguillard, might have been
negligent in failing adequately to review Rog-
ers’s records and in ultimately deciding to hire
him, they do not provide sufficient evidence of
a deliberate indifference to constitutional
rights.
Rogers had never sexually assaulted,
sexually harassed, falsely arrested, improperly
searched or seized, or used excessive force
against any third party. Indeed, the record
reflects that he never committed a serious
crime. Just as in Aguillard, the incident in
Rogers’s past that was potentially most
damaging to his recordSSthe complaint for an
alleged improper drawing of his weapon
during a traffic stopSSwas not sustained by
UTA. And the reprimands and complaints that
were sustained do not meet Brown’s
requirement of a “strong” causal connection
between Rogers’s background and the specific
constitutional violations alleged. See Brown,
520 U.S. at 412. Instead, those reprimands
related to insubordination for refusing to sign

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a report and for losing track of an officer on
patrol.
Moreover, in reviewing the record we con-
sider the context of Rogers’s colleagues’
statements about the need further to “monitor”
him and to the effect that he might be too “ag-
gressive,” “almost badge heavy,” and “a little
rash in his demeanor.” Without exception, the
UTA officers who made these statements also
had positive things to say about Rogers and ul-
timately recommended him as a good hire.
For instance, the officer who noted Rog-
ers’s problems with being aggressive, reacting
too fast under stress, and that he was “too
quick to draw his weapon,” also concluded
that he “would be a good officer, but the
above problems need to be addressed,” and
characterized Rogers as “a real aggressive,
professional officer, a real go-getter, who gets
the job done.” Significantly, this officer’s per-
sonal reference for Rogers was the worst one.
Another officerSSthe one who suggested
that Rogers would have to be monitored by
GPPD, and who brought to light Rogers’s in-
terview with a psychologist after he was in-
volved in “back to back incidents” of
forceSSnoted that Rogers voluntarily went to
the psychologist because it was department
policy that anyone involved in a couple of
incidents of force must do so. The officer
concluded, however, that “Rogers is a good
cop,” “the kind that any department would
want.”
Several of the officers who noted Rogers’s
aggressiveness merely thought it was
inappropriate for the campus environment in
which he worked. Those officers felt that
Rogers would benefit from being placed in a
larger police department, and they too
recommended him as a good officer. In
addition, Rogers’s personnel file reflected that
he had received good evaluations since
becoming a UTA police officer, and three of
those evaluations placed him above average.
Two other officers who served as Rogers’s
personal references had only positive things to
say about him.
In the end, the evidence in Rogers’s
personnel file was, at worst, mixed. If mere
negligence were enough to sustain a claim
against Crum, we might be presented with a
closer case, though the positive feedback still
seems to outweigh the negative. That
evidence is insufficient, however, to
demonstrate constitutional deliberate
indifference on Crum’s part, because it does
not establish a strong causal connection
between Rogers’s background and the
particular constitutional violations asserted.
With the benefit of hindsight, it is apparent
that Rogers was a bad hire, but there is
insufficient evidence to show that Crum was
deliberately indifferent to plaint iffs
constitutional rights when he made his hiring
decision. Consequently, there are no issues of
fact that warrant a jury determination, because
the evidence presented is not material in light
of Brown and Aguillard, and the district court
should have granted Crum summary judgment
on this claim.
IV.
Plaintiffs also asserted claims against Crum
for failure adequately to train and supervise
Rogers and for having a hiring policy that al-
lowed persons with a propensity toward
violent behavior into the GPPD. Because the
district court granted summary judgment to
Crum based on his qualified immunity on both
of these claims, and because the court denied

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summary judgment on plaintiffs’ deliberate-
indifference-in-hiring claim, plaintiffs properly
recognize that the appeal of summary
judgment on these two claims is an
interlocutory appeal not typically immediately
reviewable by this court.
Nevertheless, plaintiffs urge us to assert jur-
isdiction for these cross-appeals using pendent
appellate jurisdiction. They argue that such
jurisdiction is justified because the facts and
legal issues of these two claims are
“inextricably intertwined” with those of the
appealable order denying summary judgment.
They also assert that our exercise of pendent
appellate jurisdiction would promote judicial
economy by providing both parties with a
speedy resolution of the entire case.
Pendent appellate jurisdiction should be ex-
ercised only in “rare and unique” circumstanc-
es. Woods v. Smith, 60 F.3d 1161, 1166 n.29
(5th Cir. 1995). Plaintiffs assert that these are
such circumstances, because all three of their
claims are inextricably intertwinedSSthey arise
from the set of facts, and all concern the
employment practices operated by Crum at
different levels of specificity. For instance,
plaintiffs’ claim against Crum for failure
adequately to train and supervise Rogers flows
from Crum’s alleged disregard for the same
information in Rogers’s pre-employment file
that gave rise to the deliberate-indifference
claim. Also, plaintiffs’ claim challenging
Crum’s hiring policy merely recasts the delib-
erate-indifference-in-hiring claim at a higher
level of generality; that is, it challenges all
hiring decisions made pursuant to the policy,
rather than the individual decision to hire
Rogers.
But despite the fact that these claims do
overlap, they were treated separately by the
district court; each has unique elements and
relevant facts. The claim for inadequate
training and supervision, for example, relies
heavily on a GPPD psychologist’s evaluation
that Rogers “has a tendency to be
apprehensive and may be tense and driven
which may require further [scrutiny] by his
field training officer.” This evidence was not
in Rogers’s pre-employment file from UTA
and is not relevant to Crum’s initial decision to
hire Rogers. Similarly, the claim challenging
Crum’s general hiring policy requires much
more evidence of systemic problems, beyond
the single decision to hire Rogers.
Consequently, much of the evidence necessary
for the hiring-policy claim is not relevant to the
denial of summary judgment on the deliberate-
indifference-in-hiring claim.
As their closest relevant case, plaintiffs’ rely
on Morin v. Caire, 77 F.3d 116 (5th Cir.
1996), in which we exercised pendent
appellate jurisdiction in a qualified immunity
case, noting that “[i]n the interest of judicial
economy, this court may exercise its discretion
to consider under pendent appellate
jurisdiction claims that are closely related to
this [denial of summary judgment] issue
properly before us.” Id. at 119. Morin does
not support the exercise of that discretion
here.
In Morin, the court properly had before it
the appeal of the denial of a qualified immunity
defense on plaintiffs’ § 1983 claims. Plaintiffs
also asserted related state law claims that were
not subject to the “exception” allowing
immediate appeal of the denial of qualified
immunity. In justifying its decision to exercise
pendent appellate jurisdiction over these state
law claims, the court noted:
Although we generally exercise this

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power with caution, it is appropriate for
us to do so in this situation, for if we
were to refuse to exercise jurisdiction
over the state law claims, our refusal
would defeat the principal purpose of
allowing an appeal of immunity issues
before a government employee is forced
to go to trial.
Id. at 119-20 (emphasis added) (footnotes
omitted).
Here, unlike the circumstance in Morin,
declining pendent appellate jurisdiction over
the claims for which summary judgment was
granted in favor of Crum would not defeat the
purposes of qualified immunity. Instead, as
the public employee who prevailed on his qual-
ified immunity defense, Crum is not being
forced to trial on those claims. Consequently,
we are not presented with the “rare and
unique” circumstances in which we might ex-
ercise our pendent appellate jurisdiction, and
we decline to do so.
The order denying summary judgment is
REVERSED, the cross-appeal is DISMISSED
for want of jurisdiction, and this matter is
REMANDED.

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