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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-10232
_______________
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
Harry Crum appeals the denial of summary
HALL,* and SMITH, Circuit Judges.
judgment on his qualified immunity defense in
a 42 U.S.C. § 1983 suit brought by Danette
JERRY E. SMITH, Circuit Judge:
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
* Circuit Judge of the Ninth Circuit, sitting by
of Police of Grand Prairie, Texas, violated
designation.

their constitutional rights by hiring and failing
At the police station, Gros immediately
properly to train and supervise an officer
complained of her treatment to Rogers's su-
("Rogers") who allegedly sexually assaulted
pervisors. As a result, an investigation of
them, and by having a hiring policy that
Rogers's conduct with respect to this incident
allowed persons with a propensity toward
was conducted in which the internal
violent behavior into the Grand Prairie Police
investigative unit of the GPPD determined that
Department ("GPPD"). Concluding that there
Gros's claim was "not sustained."
was no genuine issue of material fact as to
Crum's deliberate indifference to plaintiffs'
Sikes contends that in February 1996, while
constitutional rights, we reverse the denial of
responding to a call, Rogers sexually abused
summary judgment and remand for further
her. Sikes had been stopped by Rogers and
proceedings. We also decline to exercise pen-
advised that there was an outstanding warrant
dent appellate jurisdiction over plaintiffs'
for her arrest for not paying traffic tickets.
cross-appeals, so we dismiss those cross-
Sikes asked Rogers not to take her to jail, and
appeals.
while telling her that he would not, Rogers be-
gan to fondle her. As Sikes retreated, Rogers
I.
told her that she would have to make it up to
Gros and Sikes allege that Rogers, a former
him. Rogers grabbed her breasts and asked
GPPD officer, physically, sexually, and
Sikes whether she was wearing any
verbally abused them. Gros contends that
underwear.
during a routine traffic stop, Rogers used
excessive force against her. While on routine
Before Sikes could answer, Rogers lifted
patrol, Rogers pulled Gros over for driving
Sikes's top, pulled out her pants, and stuck his
without wearing a seatbelt. After being
hand inside. As he was touching her, he stated
stopped for about twenty minutes, Gros exited
that he wanted her "on his finger" so he could
her vehicle and inquired of Rogers how much
taste her on his way home. After he pulled out
longer the stop would take. Rogers ordered
his hand from inside her pants, he licked his
Gros back into the car, at which point Gros
finger and told Sikes that she tasted sweet.
stated that she had an appointment and needed
to leave as soon as possible.
The following day, Rogers called Sikes and
told her he was coming to her dormitory room
Rogers then allegedly grabbed Gros's arm,
before beginning work. Sikes immediately
twisted it behind her back, threw her on top of
called and went to the GPPD station to report
her car, and reached into her blouse and
the incident and was informed that Rogers had
grabbed her breast. He then handcuffed her
had three other complaints lodged against him.
and placed her under arrest without a
Rogers went to Sikes's dormitory room that
recitation of Miranda warnings, putting her in
night.
his squad car on a hot day with the windows
closed. Eventually he rolled down his window
When compiling his report on the Sikes in-
a little to aerate the inside, but then turned the
cident, Rogers denied ever having touched her.
volume on the radio up very high, allegedly to
After an internal investigation, however, he
prevent passers-by from hearing Gros's
admitted to Sikes's charges. He was thereby
requests for help.
placed on indefinite suspension and charged
2

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

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

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

a report and for losing track of an officer on
recommended him as a good officer. In
patrol.
addition, Rogers's personnel file reflected that
he had received good evaluations since
Moreover, in reviewing the record we con-
becoming a UTA police officer, and three of
sider the context of Rogers's colleagues'
those evaluations placed him above average.
statements about the need further to "monitor"
Two other officers who served as Rogers's
him and to the effect that he might be too "ag-
personal references had only positive things to
gressive," "almost badge heavy," and "a little
say about him.
rash in his demeanor." Without exception, the
UTA officers who made these statements also
In the end, the evidence in Rogers's
had positive things to say about Rogers and ul-
personnel file was, at worst, mixed. If mere
timately recommended him as a good hire.
negligence were enough to sustain a claim
against Crum, we might be presented with a
For instance, the officer who noted Rog-
closer case, though the positive feedback still
ers's problems with being aggressive, reacting
seems to outweigh the negative. That
too fast under stress, and that he was "too
evidence is insufficient, however, to
quick to draw his weapon," also concluded
demonstrate constitutional deliberate
that he "would be a good officer, but the
indifference on Crum's part, because it does
above problems need to be addressed," and
not establish a strong causal connection
characterized Rogers as "a real aggressive,
between Rogers's background and the
professional officer, a real go-getter, who gets
particular constitutional violations asserted.
the job done." Significantly, this officer's per-
sonal reference for Rogers was the worst one.
With the benefit of hindsight, it is apparent
that Rogers was a bad hire, but there is
Another officerSSthe one who suggested
insufficient evidence to show that Crum was
that Rogers would have to be monitored by
deliberately indifferent to plaint iffs
GPPD, and who brought to light Rogers's in-
constitutional rights when he made his hiring
terview with a psychologist after he was in-
decision. Consequently, there are no issues of
volved in "back to back incidents" of
fact that warrant a jury determination, because
forceSSnoted that Rogers voluntarily went to
the evidence presented is not material in light
the psychologist because it was department
of Brown and Aguillard, and the district court
policy that anyone involved in a couple of
should have granted Crum summary judgment
incidents of force must do so. The officer
on this claim.
concluded, however, that "Rogers is a good
cop," "the kind that any department would
IV.
want."
Plaintiffs also asserted claims against Crum
for failure adequately to train and supervise
Several of the officers who noted Rogers's
Rogers and for having a hiring policy that al-
aggressiveness merely thought it was
lowed persons with a propensity toward
inappropriate for the campus environment in
violent behavior into the GPPD. Because the
which he worked. Those officers felt that
district court granted summary judgment to
Rogers would benefit from being placed in a
Crum based on his qualified immunity on both
larger police department, and they too
of these claims, and because the court denied
6

summary judgment on plaintiffs' deliberate-
district court; each has unique elements and
indifference-in-hiring claim, plaintiffs properly
relevant facts. The claim for inadequate
recognize that the appeal of summary
training and supervision, for example, relies
judgment on these two claims is an
heavily on a GPPD psychologist's evaluation
interlocutory appeal not typically immediately
that Rogers "has a tendency to be
reviewable by this court.
apprehensive and may be tense and driven
which may require further [scrutiny] by his
Nevertheless, plaintiffs urge us to assert jur-
field training officer." This evidence was not
isdiction for these cross-appeals using pendent
in Rogers's pre-employment file from UTA
appellate jurisdiction. They argue that such
and is not relevant to Crum's initial decision to
jurisdiction is justified because the facts and
hire Rogers. Similarly, the claim challenging
legal issues of these two claims are
Crum's general hiring policy requires much
"inextricably intertwined" with those of the
more evidence of systemic problems, beyond
appealable order denying summary judgment.
the single decision to hire Rogers.
They also assert that our exercise of pendent
Consequently, much of the evidence necessary
appellate jurisdiction would promote judicial
for the hiring-policy claim is not relevant to the
economy by providing both parties with a
denial of summary judgment on the deliberate-
speedy resolution of the entire case.
indifference-in-hiring claim.
Pendent appellate jurisdiction should be ex-
As their closest relevant case, plaintiffs' rely
ercised only in "rare and unique" circumstanc-
on Morin v. Caire, 77 F.3d 116 (5th Cir.
es. Woods v. Smith, 60 F.3d 1161, 1166 n.29
1996), in which we exercised pendent
(5th Cir. 1995). Plaintiffs assert that these are
appellate jurisdiction in a qualified immunity
such circumstances, because all three of their
case, noting that "[i]n the interest of judicial
claims are inextricably intertwinedSSthey arise
economy, this court may exercise its discretion
from the set of facts, and all concern the
to consider under pendent appellate
employment practices operated by Crum at
jurisdiction claims that are closely related to
different levels of specificity. For instance,
this [denial of summary judgment] issue
plaintiffs' claim against Crum for failure
properly before us." Id. at 119. Morin does
adequately to train and supervise Rogers flows
not support the exercise of that discretion
from Crum's alleged disregard for the same
here.
information in Rogers's pre-employment file
that gave rise to the deliberate-indifference
In Morin, the court properly had before it
claim. Also, plaintiffs' claim challenging
the appeal of the denial of a qualified immunity
Crum's hiring policy merely recasts the delib-
defense on plaintiffs' § 1983 claims. Plaintiffs
erate-indifference-in-hiring claim at a higher
also asserted related state law claims that were
level of generality; that is, it challenges all
not subject to the "exception" allowing
hiring decisions made pursuant to the policy,
immediate appeal of the denial of qualified
rather than the individual decision to hire
immunity. In justifying its decision to exercise
Rogers.
pendent appellate jurisdiction over these state
law claims, the court noted:
But despite the fact that these claims do
overlap, they were treated separately by the
Although we generally exercise this
7

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.
8