FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                             August 1, 2012
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                              Clerk of Court
                              TENTH CIRCUIT



NICHOLL ANDERSON, Personal
Representative for the Estate of Mitchel
Anderson, deceased,

            Plaintiff - Appellee,                     No. 11-1327
      v.                                              D. Colorado
B. WORSTELL, (No. 2172) individually          (D.C. No. 1:11-CV-00488-RPM)
and in his capacity as a paid peace officer
and as an employee and/or agent of the
Colorado Springs Police Department and
the City of Colorado Springs; C.
CALKINS, (No. 2047) individually and in
his capacity as a paid peace officer and as
an employee and/or agent of the Colorado
Springs Police Department and the City
of Colorado Springs; THE CITY OF
COLORADO SPRINGS, in its capacity as
a governmental entity and as the
employer of Officers Worstell and
Calkins and the Colorado Springs Police
Department,

            Defendants - Appellants,
and

COLORADO SPRINGS POLICE
DEPARTMENT, in its capacity as an
agent and/or independent contractor of
the City of Colorado Springs; JOHN
DOES 1-7, whose names and identities
are unknown, individually and in their
capacity as governmental officers or
employees, peace officers, and/or agents
of the Colorado Springs Police
Department and/or the City of Colorado
Springs; LISA PIEL,
              Defendants.


                            ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.



I.    Introduction

      On February 17, 2010, Mitchel Anderson was a passenger in a vehicle

stopped by Officers B. Worstell and C. Calkins of the Colorado Springs Police

Department. According to Anderson’s complaint, after the officers arrested the

driver of the vehicle for driving while intoxicated, and notwithstanding

Anderson’s extreme and apparent level of intoxication, the officers ordered him to

leave the scene, taking no steps to take him into protective custody or otherwise

ensure his safety. Later, while attempting to walk home, Anderson was struck by

a vehicle and sustained serious injuries. 1 Anderson brought suit in the District of

Colorado against Officers Worstell and Calkins, the Colorado Springs Police



      *
        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.

      1
       Anderson died on September 3, 2011, during the pendency of this appeal.
His daughter, Plaintiff-Appellee Nicholl Anderson, was substituted as his
personal representative.

                                         -2-
Department, and the City of Colorado Springs, as well as the driver of the vehicle

which struck him. The complaint asserted violations of 42 U.S.C. § 1983 and

various state tort theories for negligence, negligence per se, and willful and

wanton conduct. The officers moved to dismiss, arguing they were entitled to

qualified immunity for Anderson’s § 1983 claim and that Anderson’s state law

claims were barred under the Colorado Governmental Immunity Act. The district

court denied the motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

this court reverses.

II.   Background

      The following facts are accepted as true for purposes of analyzing

Anderson’s complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Teigen v.

Renfrow, 

, 1078 (10th Cir. 2007). On the night of February 17,

2010, Anderson was one of two passengers in a vehicle driven by Daniel Clayton,

with whom he and the other passenger had been drinking for several hours. The

vehicle was stopped at around 8:50 pm by Officers Worstell and Calkins, who,

after conducting an investigation, arrested Clayton for driving while intoxicated.

At approximately 9:30 pm, the officers ordered Anderson to exit the vehicle and

“take a walk.” The officers thereafter impounded the vehicle. At the time

Anderson was told to leave the scene, he was heavily intoxicated, confused, and

disoriented. Because of his intoxication, while walking in what he believed to be

the direction of his home, Anderson was struck by a vehicle while attempting to



                                         -3-
cross the street. As a result, he sustained serious injuries, including 21 broken

bones, coma, pain, psychosis, and severe mental incapacity. His injuries

necessitated amputation of his left leg.

      Anderson’s complaint asserted ten claims for relief. Count 1 alleged

Officers Worstell and Calkins deprived him of his due process rights under the

Fourteenth Amendment in violation of 42 U.S.C. § 1983. Count 2 alleged the city

and the police department were liable for the officers’ alleged constitutional

violations due to policies regarding the handling of intoxicated individuals and

failure to properly train or supervise. Counts 3 and 4 asserted claims under 42

U.S.C. § 1981 and 1988. Counts 5, 6, and 7 asserted claims against Worstell and

Calkins under state tort law for negligence, negligence per se, and willful and

wanton conduct. Count 8 alleged the city and the police department were liable

for the state law claims against Officers Worstell and Calkins under the theory of

respondeat superior. Counts 9 and 10 asserted claims for negligence and

negligence per se against the driver of the vehicle that struck Anderson.

      The defendants moved to dismiss under Fed. R. Civ. Pro. 12(b)(1) and

12(b)(6), arguing the complaint failed to state a claim upon which relief could be

granted and the officers’ actions were protected by qualified immunity and the

Colorado Governmental Immunity Act (CGIA). The district court granted the

motion as to Counts 2, 3, and 4. The court denied the motion as to Count 1

“because there are factual disputes with respect to the degree of intoxication and



                                           -4-
the plaintiff’s apparent danger to himself which preclude qualified immunity as

the claim has been pleaded.” As to the state law claims, Counts 5 through 8, the

court held an evidentiary hearing to determine whether the plaintiff properly

complied with the CGIA’s notice of claim provisions. At the conclusion of the

hearing, the court denied the motion to dismiss.

III.   Discussion

       A.    Jurisdiction

       Initially, Anderson argues this court lacks jurisdiction over the officers’

appeal because the district court concluded there were unresolved issues of

material fact regarding whether the officers knew or should have known he was

intoxicated and posed a danger to himself or others when he was removed from

the vehicle. This argument is unpersuasive. “[A] district court’s denial of a

claim of qualified immunity, to the extent that it turns on an issue of law, is an

appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 

, 530 (1985). Thus, this court has previously exercised jurisdiction over a

denial of a motion to dismiss when the defendants raised qualified immunity as an

affirmative defense. See Brown v. Montoya, 

, 1161–62 (10th Cir.

2011). “Even when the district court concludes issues of material fact exist, we

have reviewed the legal question of whether a defendant’s conduct, as alleged by

the plaintiff, violates clearly established law.” Medina v. Cram, 

,



                                         -5-
1130 (10th Cir. 2001). Thus, the court has jurisdiction to determine whether

qualified immunity protects the officers from suit based on the facts as pleaded in

Anderson’s complaint.

      B.     Qualified Immunity

      This court reviews the district court’s denial of a motion to dismiss based

on qualified immunity de novo, accepting all well-pleaded factual allegations in

the complaint as true and viewed in the light most favorable to the nonmoving

party. Brown, 662 F.3d at 1162. “To survive a motion to dismiss, a complaint

must contain sufficient factual matter . . . to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 

, 678 (2009) (quotation omitted).

When evaluating a motion to dismiss based on qualified immunity, the court

employs a two part test, considering (1) “whether the facts that a plaintiff has

alleged . . . make out a violation of a constitutional right,” and (2) “whether the

right at issue was clearly established at the time of defendant[s’] alleged

misconduct.” Pearson v. Callahan, 

, 232 (2009) (quotations

omitted). The court has discretion to determine which prong to address first “in

light of the circumstances in the particular case at hand.” Id. at 236. For the law

to be clearly established “there must be a Supreme Court or Tenth Circuit

decision on point, or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains.” Morris v. Noe, 

, 1196 (10th Cir. 2012) (quotation omitted). The plaintiff bears the



                                           -6-
burden to convince the court the law was clearly established. Hilliard v. City &

Cnty. of Denver, 

, 1518 (10th Cir. 1991).

      In DeShaney v. Winnebago County Department of Social Services, 

, 197 (1989), the Supreme Court held “[a]s a general matter . . . a State’s

failure to protect an individual against private violence simply does not constitute

a violation of the Due Process Clause.” This court has subsequently recognized

two exceptions to this general rule, termed the “special relationship” exception

and the “state-created danger” theory, respectively. Gray v. Univ. of Colo. Hosp.

Auth., 

, 923 (10th Cir. 2012). “By definition, the special

relationship theory necessarily only applies where a ‘custodial relationship’ exists

between the victim and the State.” Id. at 923 n.10. For a custodial relationship to

exist “the State’s exercise of control must so restrain an individual’s liberty that it

renders him unable to care for himself, and at the same time fails to provide for

his basic human needs.” Id. (quotation and alteration omitted). Examples of

restraints which rise to this level are arrest, incarceration, institutionalization, or

placement in involuntary foster care. Id. at 923. Thus, “the restraint of liberty

necessary to invoke substantive due process protection under the special

relationship exception requires state action involving force, the threat of force, or

a show of authority, with the intent of exercising dominion and control over the

person.” Id. at 924. In the absence of a special relationship, “[t]he state-created

danger theory is a means by which a state actor might be held liable for an act of



                                           -7-
private violence . . . provided the danger the state actor created, or rendered the

victim more vulnerable to, precipitated a deprivation of life, liberty, or property

in the constitutional sense.” Id. at 922.

      The state-created danger theory is inapplicable, however, if the private

conduct which causes harm is merely negligent. Id. at 928–30. “This is because

the harm associated with a negligent act is never constitutionally cognizable

under the Due Process Clause.” Id. at 928. Thus, to make out a substantive due

process violation under the state-created danger theory, the private party must act,

at a minimum, with some degree of deliberateness. Id. “Reason dictates that if

state actors are not answerable under § 1983 for their own negligent acts, they are

not answerable under § 1983 where a private party’s underlying negligent act is

directly responsible for the harm.” Id. at 929–30 (emphasis omitted).

      A panel of this court has previously addressed a qualified immunity defense

to a § 1983 claim which was substantially similar to Anderson’s. See Hilliard,

930 F.2d at 1517–18. In Hilliard, police officers ejected a heavily intoxicated

passenger from a vehicle which was impounded after its driver was arrested on

suspicion of driving while intoxicated. Id. at 1517. The passenger was later

robbed and sexually assaulted. Id. at 1518. She brought a § 1983 claim against

the officers, alleging their failure to take her into protective custody pursuant to

Colorado’s Emergency Commitment Statute violated her rights to substantive due

process under the Fourteenth Amendment. Id. at 1518. The panel concluded even



                                            -8-
if a constitutional right was violated, it was not clearly established in the law at

the time of the officers’ actions. Id. at 1519.

      Anderson points to no Supreme Court or Tenth Circuit authority subsequent

to Hilliard which would indicate the due process rights he asserts were violated

have become clearly established. To the contrary, Gray indicates it is highly

unlikely the conduct which forms the basis of Anderson’s complaint amounts to a

constitutional violation. Anderson seeks to hold Officers Worstell and Calkins

liable for the injuries he suffered when he was hit by a car driven by a private

party. To do so, he relies on both the special relationship and state-created

danger exception to the general rule that state actors are not liable for failing to

protect a citizen from the acts of a private party. As the foregoing discussion of

Gray makes clear, however, neither of these exceptions are applicable. The

special relationship exception is inapplicable because at the time of his injuries,

Anderson’s liberty was not so restrained that he was unable to care for himself,

nor was he under the dominion and control of the officers through a show of

authority, force, or threat of force. Gray, 672 F.3d at 923–24. Rather, the

gravamen of his complaint is that he was injured due to the officers’ failure to

place sufficient restraints on his liberty. The state-created danger exception is

inapplicable because, as Anderson acknowledges on appeal, the complaint does

not allege he was a victim of private violence. Rather, Anderson alleges he was

injured due to the negligent acts of a third party.



                                          -9-
      Urging a contrary conclusion, Anderson cites language from Colorado’s

Emergency Commitment Statute, Colo. Rev. Stat. § 25-1-310(1)(a) (2009)

(repealed and relocated to § 27-81-111(1)(a) (Apr. 29, 2010)), and regulations

governing the Colorado Springs Police Department which he argues obligated the

officers to take him into protective custody. It is difficult to discern the precise

point Anderson seeks to raise with this argument from his briefing. That is, it is

unclear if Anderson argues the statute somehow illustrates the right he claims was

violated was clearly established or if he seeks to show the statute somehow

created a protected liberty or property interest which was violated by the officers’

conduct. 2 In either case, Anderson’s argument is unpersuasive. The plaintiff in

Hilliard also cited Colorado’s Emergency Commitment Statute in an attempt to

make out a violation of clearly established law. 930 F.2d at 1518. The panel

concluded it was not clearly established at the time of the officers’ conduct that

the statute created a constitutionally protected liberty interest cognizable in a

§ 1983 action. Id. at 1519. Since Hilliard, the text of the Colorado Emergency

Commitment Statute has remained substantially unchanged, compare Colo. Rev.

Stat. § 25-1-310 (1991), with Colo. Rev. Stat. § 25-1-310 (2009), and Anderson

has failed to identify any intervening authority clearly establishing a

constitutional right arising from the statute. Thus, Anderson has failed to



      2
       If the latter, Anderson’s argument is very likely foreclosed by Supreme
Court precedent. See Town of Castle Rock, Colo. v. Gonzales, 

,
761–68 (2005).

                                          -10-
demonstrate that a claimed violation of the Emergency Commitment Statute, by

itself, constitutes a clearly established violation of his substantive due process

rights under the Fourteenth Amendment.

      It is unclear from its order denying the officers’ motion to dismiss what the

precise grounds were for the district court’s ruling. While the court was correct

to conclude there were disputed issues of fact as to Anderson’s apparent level of

intoxication and danger to himself at the time of the stop, it is unclear how such

facts can be considered material in light of Anderson’s burden to show a violation

of clearly established law. As the foregoing discussion illustrates, Anderson has

failed to carry this burden. The district court’s denial of the officers’ motion to

dismiss Count 1 of Anderson’s complaint was therefore error.

IV.   Conclusion

      For the foregoing reasons, the district court’s order denying the motion to

dismiss Count 1 of Anderson’s complaint is reversed. Having thus concluded all

of Anderson’s federal claims should have been dismissed, we decline to address

the officers’ second claim of error concerning Anderson’s state tort claims.

Instead, on remand, the district court should consider whether to dismiss those




                                         -11-
claims without prejudice. See 28 U.S.C. § 1367(c); United Mine Workers of

America v. Gibbs, 

, 726 (1966); Carnegie-Mellon Univ. v. Cohill,

, 349–50 (1988).

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




                                      -12-