Pippin v. Elbert County, Colorado , 604 F. App'x 636 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
March 2, 2015
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
DONALD T. PIPPIN, SR.,
Plaintiff-Appellant,
v.
No. 14-1082
(D.C. No. 1:12-CV-01768-WYD-
ELBERT COUNTY, COLORADO;
MJW)
DEL SCHWAB; KURT C.
(D. Colo.)
SCHLEGEL; JOHN SHIPPER, Elbert
County Commissioners in their official
and individual capacities,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.
Donald Pippin suspected that Elbert County officials were squandering
taxpayer money. So he started using Colorado’s Open Records Act (CORA),
Colo. Rev. Stat. § 24–72–204, to see if his hunch was true. Over the course of
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. 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judgment is not binding precedent, except under the doctrines of law of the case,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.
five months Mr. Pippin submitted around a dozen CORA requests to the County
seeking financial information including payroll records, County vehicle mileage
data, and employee credit card statements. Mr. Pippin also sent County
employees a slew of emails and voice messages expressing dissatisfaction with
the handling of his requests. He aired his grievances in person, too, on several
occasions complaining to officials at the County administration building.
Some County employees grew worried by Mr. Pippin’s actions. As they
saw it, he was growing more and more agitated — leaving threatening messages,
filing reiterative records requests, and raising his voice during visits to the
County building. Most troubling of all, they say, he was spotted “casing” the
building and taking pictures of newly installed security cameras. Worried that
Mr. Pippin’s actions evinced a sinister design, County Commissioner Kurt
Schlegel sought a civil protective order in state court. The court entered a
temporary order restraining Mr. Pippin from coming near the County building.
See Colo. Rev. Stat. § 13-14-104.5(7)(a) (allowing for temporary civil protective
orders when “the issuing judge . . . finds that an imminent danger exists to the
person or persons seeking protection”). But the order was dissolved a week later
when, at a subsequent hearing on the County’s attempt to make the order
permanent, the court concluded there was insufficient evidence Mr. Pippin
presented an imminent danger.
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Soon afterward, Mr. Pippin sued three County commissioners for damages
under 42 U.S.C. § 1983, alleging — among other things — that they had
retaliated against him for exercising his First Amendment rights. In the end,
however, the district court found the commissioners were entitled to qualified
immunity. It is this ruling Mr. Pippin asks us to reverse.
To win that relief, Mr. Pippin must carry the “heavy burden” of showing
both that (1) the defendants violated one of his constitutional or statutory rights,
and (2) “the infringed right at issue was clearly established at the time of the
allegedly unlawful activity such that ‘every reasonable official would have
understood that what he [was] doing’ violated the law.” Kerns v. Bader, 663 F.3d
1173, 1180 (10th Cir. 2011) (alteration in original) (quoting Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083 (2011)).
We don’t have to revisit the district court’s ruling on the first of these
questions because it’s clear enough that he hasn’t carried his burden on the
second. Mr. Pippin points to cases that establish the cardinal principle that public
officials may not retaliate against citizens for exercising their First Amendment
rights. See, e.g., Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000); Lackey v.
County of Bernalillo, 166 F.3d 1221 (10th Cir. 1999) (unpublished table
decision). But none of these authorities clearly indicates that public officials are
disabled from seeking civil protective relief from a neutral magistrate against
seemingly legitimate threats to the safety of their persons. And Mr. Pippin
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himself doesn’t dispute that the defendants had a reasonable basis for seeking the
temporary protective order. Indeed, he acknowledges that taking pictures of
surveillance systems can be a sign of a threat. Mr. Pippin disputes only whether
the defendants’ actions in seeking the permanent protective order offended his
clearly established rights. He says the defendants should’ve known better than to
seek that relief because, between the first order and the second, he told them he
was photographing the County offices not with plans to hurt anyone but only
because he was intent on investigating whether officials had spent too much
money on new security cameras. It’s unclear to us, though, why reasonable
officials would have had to accept Mr. Pippin’s protestations about the innocence
of his intentions at this point when a neutral magistrate had just verified the
defendants’ safety concerns by issuing a temporary restraining order. Certainly
Mr. Pippin does not identify any clearly established law compelling such a
conclusion.
A different problem confronts the remaining claims Mr. Pippin pursued and
lost in district court. In his opening brief on appeal he spends most of his time
advancing the highly generalized complaint that the district court failed to
construe disputed factual issues in his favor. This is insufficient to permit us to
review, let alone reverse, the district court with any confidence on any of the
remaining claims. See, e.g., Utah Lighthouse Ministry v. Found. for Apologetic
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Info. & Research, 527 F.3d 1045, 1049 n.1 (10th Cir. 2008) (“Arguments
inadequately briefed in the opening brief are waived.”).
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Affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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