UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ERIC R. BROWN; LAURIE A. BROWN; ADELA D. MAXFIELD; STEVEN G. MAXFIELD,

Plaintiffs - Appellants,

v.

MILLARD COUNTY; LERAY JACKSON, individually and in his official capacity as Millard County Attorney; DEXTER ANDERSON, individually and in his official capacity as Deputy County Attorney; EDGAR L. PHILLIPS, individually and in his official capacity as County Sheriff; JOHN KIMBALL, individually and in his official capacity as Deputy County Sheriff; JOE H. PENNY, individually,

Defendants - Appellees.

No. 01-4084

ORDER
October 7, 2002

Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

This matter is before the court on appellants' motion to revise the order and judgment issued in this appeal. The motion is granted. The order and judgment filed on September 20, 2002 is withdrawn, and a revised order and judgment is filed today.

Entered for the Court

PATRICK FISHER, Clerk

Deputy Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ERIC R. BROWN; LAURIE A. BROWN; ADELA D. MAXFIELD; STEVEN G. MAXFIELD,

Plaintiffs-Appellants,

v.

MILLARD COUNTY; LERAY JACKSON, individually and in his official capacity as Millard County Attorney; DEXTER ANDERSON, individually and in his official capacity as Deputy County Attorney; EDGAR L. PHILLIPS, individually and in his official capacity as County Sheriff; JOHN KIMBALL, individually and in his official capacity as Deputy County Sheriff; JOE H. PENNY, individually,

Defendants-Appellees.

No. 01-4084

(D.C. No. 2:99-CV-659-K)

(D. Utah)

ORDER AND JUDGMENT*

Before MURPHY, ANDERSON, and HARTZ, 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.

Plaintiffs-appellants appeal from the district court's order granting summary judgment in favor of defendants-appellees on plaintiffs' complaint brought pursuant to 42 U.S.C. § 1983. We affirm.

FACTS

Many of the facts of this case are hotly disputed. Our review of the record, however, leads us to conclude that none of the factual disputes rises to the level of a genuine issue of material fact that would preclude the entry of summary judgment in favor of the defendants. See Fed. R. Civ. P. 56(c). As required, we have examined the factual record and reasonable inferences therefrom in the light most favorable to plaintiffs, the non-movants. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995).

In December 1996, Joe Penney and his wife Sandy entered into an oral agreement to sell a home located at 145 South Main, Kenosh, Utah (the "property"), to plaintiffs Eric and Laurie Brown.1 This agreement was later memorialized in a short written contract, on or about February 1, 1997.

The Browns began living in the property in January 1997. The parties set a tentative closing date, which was to occur when the Penneys obtained a title insurance commitment. Once a commitment had been obtained, the Browns discovered three liens on the property against Joe Penney in favor of the Department of Human Services, Office of Recovery Services.

Joe Penney and the Browns agreed that $100 of the monthly payment on the property would be paid to the Office of Recovery Services until the liens were paid. They disagreed, however, whether the Browns would pay the $100 directly to the Office of Recovery Services, or whether they would pay the full payment amount to Penney and trust him to make the $100 payment. As a result of this dispute, the Browns did not make the monthly payments due under the contract. In July 1997, Joe Penney sued them in state court, seeking specific performance, damages, and return of the property.2

In early January 1998, while his suit was still pending in state court, Penney was advised by several people that the Browns had abandoned the property. He saw blinds missing from the home that caused him to conclude that this information was correct.3 Penney became concerned about the condition of the home.

On January 12, 1998, Penney called defendant John Kimball, a Millard County deputy sheriff. Penny and Kimball had been friends since childhood. Penny asked Kimball whether he could enter the property and winterize it. He also asked Kimball whether he could take a car that was on the property along with other personal property on the premises to secure the money owed to him. Kimball told Penney he was going to talk to defendant Dexter Anderson, a Millard County deputy attorney, about another matter and that he would mention Penney's questions to Anderson and would get back to Penney.

Later that day, while Kimball was in Anderson's office, Penney again telephoned for Kimball. Kimball talked to Anderson about Penney's questions and relayed the answers to Penney on the telephone. Dexter told Kimball that a landlord4 had the right to winterize the premises and to seize personal property but that he must be careful because he would be responsible for safekeeping and damage of the property.

Penney went to the property and "winterized" it. He turned off the water at the property and drained a fish tank5 and waterbeds. He also seized numerous items of personal property and a 1988 Mercury Sable located at the premises. Plaintiffs allege that he damaged the property during the seizures. Some of the neighbors, observing this activity, called the police. Deputy Rick Carter initially was dispatched to the property, but he was called off after it was discovered that it was Penney who had entered the property.6

Approximately one week later, Laurie Brown's brother, plaintiff Steven Maxfield, noticed some items missing from the outside of the property. He called Laurie Brown, who told him that the items had been taken without her knowledge. Maxfield then called the police to report a theft. Deputy Carter took the call and told Maxfield that Dexter Anderson had said it was a civil matter and that he would not file a report. The Millard County Sheriff's office refused to arrest Penney even though Steven Maxfield and some of the other plaintiffs insisted that he be arrested.

Steven Maxfield and Laurie Brown later spoke with defendant Edgar L. Phillips, the Millard County Sheriff, who told them that if Dexter Anderson said it was a civil matter, his hands were tied. Sheriff Phillips did send a deputy to pick up paperwork concerning the property from plaintiffs, but Penney was never arrested or charged with burglary or robbery resulting from the incident.

On January 18, 1998, Adela Maxfield was driving with her children past the property when she noticed that Penney was in the yard. She stopped and got out of her vehicle. Penney swore at her and threatened her. When Adela Maxfield's father-in-law, Steven K. Maxfield,7 learned of the incident, he telephoned the sheriff's dispatch. The dispatcher informed him that the sheriff's office had already received a call and that they had concluded that this was a civil matter not warranting the dispatch of an officer.

Sheriff Phillips also initially refused to dispatch an officer to the scene.

Sometime later that day, however, he sent Deputy Quarnberg to the property. Brian Kershisnik, a friend of the Maxfields, also went to the property at Steven Maxfield's request. Penney threatened Kershisnik with violence if he stepped onto the property. Deputy Quarnberg told Kershisnik to leave. Plaintiffs allege that Deputy Quarnberg later pressured Adela Maxfield not to file a report concerning the incident.

Plaintiffs went to Anderson's office the following day and expressed their concern about Penney's latest actions. Anderson yelled at Steven Maxfield and told him he had no business being in his office.

On March 20, 1998, after a hearing on the civil action between Penney and the Browns, Penney threatened the Browns with a raised fist and told them they would never get the house because he would burn it first. On July 21, 1998, Steven Maxfield went to Delta, Utah, and attempted to meet with defendant LeRay Jackson, the county attorney. Jackson's secretary would not allow Maxfield to meet with Jackson; she also told him that Jackson would not second-guess Anderson. On November 9, 1998, Steven Maxfield called Anderson to let him know the outcome of the civil action; Anderson continued to refuse to assist Maxfield in getting plaintiffs' property back. Later that month, Penney returned some of the property, including the car.

Plaintiffs thereafter filed this civil rights complaint in federal district court. They alleged that the county officials had denied them due process and equal protection and had violated their Fourth Amendment rights. They brought supplemental state claims for conversion, replevin and trespass against Penney. The district court concluded that the level of involvement by the county officials had been insufficient to result in liability under § 1983, and that the county officials were shielded by either absolute prosecutorial immunity or qualified immunity in any event. It also dismissed the claims against Penney, apparently declining to exercise supplemental jurisdiction over them.

ANALYSIS

"We review a district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Hollins v. Delta Airlines, 238 F.3d 1255, 1257 (10th Cir. 2001). Summary judgment is proper if the moving party shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000) (quotation omitted).

1. Standing

We begin by addressing a threshold issue concerning standing. Defendants contend that plaintiff Adela Maxfield lacks standing to bring this complaint because neither the property nor any of the items of personal property allegedly stolen by Penney belonged to her. Aplt. App. at 56.

The record contains no evidence that Adela Maxfield had any property interest in the property involved in this case.8 She fails to show she has standing to complain about Joe Penney's actions concerning the property. She does, however, have standing to complain about the defendants' alleged failure to protect her from Joe Penney, and may proceed on that basis.

2. State action

Plaintiffs assert that the county defendants may be held responsible under § 1983 for Joe Penney's conduct. Penney is not named as a defendant in any of their § 1983 claims. We are therefore not faced with the typical dilemma faced in a "state action" case: whether Penney's conduct received sufficient imprimatur by the state to make him liable under § 1983 as a "state actor." See Blum v. Yaretsky, 457 U.S. 991, 1003 (1982). Rather, the "state action" issue raised here turns on whether the county defendants can be held responsible for Penney's conduct. See id. at 1004.

"[A] State normally can be held responsible for a private decision [or conduct] only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Id.; see also generally Gallagher v. "Neil Young Freedom Concert", 49 F.3d 1442, 1447 (10th Cir. 1995) (setting out four tests traditionally used to determine whether action taken by private parties is "state action").

In attempting to show that the county defendants should be held responsible here, plaintiffs rely on a "joint participation" theory. They assert that "Penney . . . would not have taken the action he did but for the advice and cooperation of the County officials" and that "the actions of the County Officials [led Penney] to claim he had a right to do what he did." Aplt. Opening Br. at 21.9 We conclude, however, that the county defendants' actions represent at most "[m]ere approval of or acquiescence in the initiatives of a private party" and therefore represent insufficient state action to sustain a cause of action under § 1983. Blum, 457 U.S. at 1004-05. We reach this conclusion for several reasons.

First, a governmental official may not be held liable under § 1983 merely for announcing circumstances under which he will not interfere with a private disposition of property. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-66 (1978). Rather, the state must have compelled the unlawful seizure. See id. at 164. This is true even if, as plaintiffs assert, Penney would not have acted absent the advice he received. See United States v. Coleman, 628 F.2d 961, 964 (6th Cir. 1980) (citing Flagg, determining that private seizure was not state action subject to Fourth Amendment strictures).

Second, plaintiffs fail to demonstrate the existence of joint participation between the county defendants and Penney resulting in the violation of plaintiffs' civil rights. Plaintiffs cite no cases in which joint participation has been predicated simply on an agreement by governmental authorities not to interfere with a private seizure, or by the giving of advice about a private seizure.

Joint participation typically arises when the authorities agree to facilitate unconstitutional acts by a private party through affirmative action, such as agreeing to arrest persons designated by a shopkeeper. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).10 Soldal v. Cook County, 506 U.S. 56, 60 n.4 (1992), cited by plaintiffs, probably represents the bare minimum involvement on which a claim of joint participation can be predicated; in that case, police accompanied the private party while he committed the unlawful seizure, to ensure that the victim did not interfere. Soldal, 506 U.S. at 58. In Soldal, the Supreme Court declined to review a holding by the Seventh Circuit that there was sufficient evidence of joint participation by conspiracy to survive summary judgment, noting that "the police prevented Soldal from using reasonable force to protect his home from private action that the officers knew was illegal." Id. at 60 n.6. No such action by a governmental actor has been demonstrated in this case.11

3. Failure to protect

Plaintiffs' claims also fail under a "failure to protect" theory. Absent circumstances suggesting a violation of the Equal Protection Clause (which we address later in this decision), "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195 (1989); see also Seamons v. Snow, 84 F.3d 1226, 1235-36 (10th Cir. 1996) (rejecting § 1983 claim, based on lack of state action, where school failed to protect student from taunting and hostility by fellow students). A limited exception to this principle has been recognized where the state through affirmative conduct places an individual in a position of danger. See, e.g., Jones v. Union County, 296 F.3d 417, 428 (6th Cir. 2002). Even if we assume that defendants' advice to Penney placed plaintiffs in danger, however, a "failure to protect" claim implicates substantive due process and therefore requires the plaintiff to show that the failure to afford protection "shocks the conscience" of federal judges. Ruiz v. McDonnell, ___ F.3d ___ , No. 01-1010, 2002 WL 1813874, at *7 (10th Cir. Aug. 8, 2002). As a matter of law, the facts of this case do not contain the kind of "exceptional circumstances" that shock the judicial conscience. See id. (discussing "exceptional circumstances" test).

In sum, plaintiffs have failed to demonstrate that the county officials violated their right to due process or their Fourth Amendment rights. Because we resolve the due process and Fourth Amendment claims on this basis, we need not consider whether absolute or qualified immunity apply to defendants' actions.

4. Equal protection claim

Plaintiffs also alleged that the county defendants' actions denied them the equal protection of the laws. They claimed that they were treated less favorably by the county defendants than was Penney.

Plaintiffs' claim of being treated "less favorably" than Penney does not establish an equal protection violation. To establish an equal protection violation under § 1983, plaintiffs must show that they are members of a protected class and that defendants purposefully discriminated against them because of their membership in that class. Jones, 296 F.3d at 426. Plaintiffs have cited no authorities to show that newcomers to a community should be considered members of a protected class, or that Penney's friendship with various state officials somehow makes plaintiffs members of a protected class. Their equal protection claim therefore also fails.

5. Supplemental state claims

The district court evidently declined to exercise supplemental jurisdiction over the state law claims against Penney, though it noted that those claims might have merit. Plaintiffs do not challenge the district court's decision to decline supplemental jurisdiction and we find it unnecessary to discuss this issue further.	The judgment of the United States District Court for the District of Utah is AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge

No. 01-4084 - Brown v. Millard

HARTZ, Circuit Judge, concurring:

I concur in the result and join all of Judge Murphy's opinion except the discussion of the equal-protection claim.

I do not agree that plaintiffs claiming a denial of equal protection "must show that they are members of a protected class and that defendants purposefully discriminated against them because of their membership in that class." Op. at 15. In Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), the Supreme Court wrote, "Our cases have recognized successful equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Thus, plaintiffs here could prevail without showing that newcomers to a community are a "protected class."

Nevertheless, the denial of the equal-protection claim should be affirmed. Plaintiffs waived the issue on appeal. The treatment of the issue in their briefs is perfunctory, with not one citation of authority. In addition, they have failed to refer to any evidence regarding how other "similarly situated" people were treated by the defendants. Defendant Penny was not similarly situated; if anything, his situation was the opposite of plaintiffs'.