Simpson v. Bellah

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 7 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LORETTA SIMPSON,
Plaintiff-Appellee,
v. No. 02-6310
(D.C. No. 01-CV-1167-L)
DENNIE BELLAH; RONNIE (W.D. Okla.)
FOWLER,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.
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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In this 42 U.S.C. § 1983 action, plaintiff Loretta Simpson alleged a Cotton
County, Oklahoma deputy and undersheriff, defendants Ronnie Fowler and Dennie
Bellah, violated Simpson’s Fourth Amendment rights by using false and
misleading information to obtain and then execute a search warrant for Simpson’s
home. The district court denied Bellah’s and Fowler’s summary judgment
motions, in which they asserted, in part, that they were entitled to qualified
immunity. In doing so, the district court held that Simpson’s “response to the
motions raises sufficient factual issues, at the summary judgment stage, to
overcome the assertion of a qualified immunity defense as to actions of the
individual defendants.” District ct. order (July 17, 2002) at 9. The case then
proceeded to trial, where a jury reached a verdict for Simpson against each
defendant.
On appeal, Bellah and Fowler argue the district court should have granted
their summary judgment motions. “[E]ven if summary judgment was erroneously
denied, [however,] the proper redress would not be through appeal of that denial
but through subsequent motions for judgment as a matter of law [at or after
trial,] . . . and appellate review of those motions if they were denied.” Whalen v.
Unit Rig, Inc. , 974 F.2d 1248, 1251 (10th Cir. 1992). The district court’s order
denying summary judgment, therefore, is not appealable. See id. at 1250. While
this court has “limited Whalen ’s application to determinations of genuine issue[s]
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of material fact, . . . [t]hat is precisely what is at issue here.” St. Anthony Hosp. v.
United States Dep’t of Health & Human Servs. , 309 F.3d 680, 707 (10th Cir. 2002)
(further quotation omitted).
Bellah and Fowler make no other arguments on appeal. The judgment of the
United States District Court for the Western District of Oklahoma, therefore, is
AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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