FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 7, 2013
Elisabeth A. Shumaker
Clerk of Court
EVERETT THOMAS,
Plaintiff-Appellee,
v. No. 13-6003
(D.C. No. 5:11-CV-00721-L)
THOMAS P. ADRAHTAS, in his (W.D. Okla.)
individual capacity as a police officer for
the City of Medicine Park,
Defendant-Appellant,
and
ROD MCKEE, in his official capacity as
Chief of Police for the City of Medicine
Park; CITY OF MEDICINE PARK,
Defendants.
ORDER AND JUDGMENT*
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit
Judge.
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
In this interlocutory appeal, defendant Thomas P. Adrahtas challenges the
district court’s denial of his motion for summary judgment seeking qualified
immunity on plaintiff Everett Thomas’s excessive-force claim under
42 U.S.C. § 1983. After reviewing the record, we affirm.
Plaintiff filed a complaint alleging that Defendant used excessive force before
and after handcuffing and arresting him. Defendant moved for summary judgment,
asserting that he used only an appropriate and necessary amount of force to arrest
Plaintiff and was entitled to qualified immunity. The district court ruled that there
were genuinely disputed issues of material fact, precluding summary judgment.
Ordinarily we lack jurisdiction to review a denial of summary judgment sought
on the ground of qualified immunity if the denial is based on the district court’s
determination that there is sufficient evidence (albeit disputed) to support the
Plaintiff’s claim. See Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010). But
there is an exception when the district court fails to “set forth with specificity the
facts – the who, what, when, where, and why” supporting the claim. Id. at 1226. The
district court’s order does not provide such specificity, so we have jurisdiction to
determine the propriety of the denial of summary judgment.
Our decision can be brief. The record contains sworn statements and medical
records to the effect that after Plaintiff was handcuffed, Defendant stepped on his
back, rendering him unconscious, drop-kicked him, kicked him in the head and neck
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and repeatedly slammed the patrol car door on his leg, and that Plaintiff suffered
significant injuries, including a concussion, wrist and knee injuries, and long-term
vision problems. Defendant’s brief on appeal does not adequately confront this
evidence. See Buck v. City of Albuquerque, 549 F.3d 1269, 1275, 1290 (10th Cir.
2008) (despite district court’s determination that any injury was de minimis, a jury
could find excessive force when plaintiff was pushed face down onto the pavement,
kneed in the small of his back, pinned to the ground, handcuffed, and exposed to tear
gas); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001)
(stating that “[p]hysical injury may be the most obvious injury that flows from the
use of excessive force,” but “declin[ing] to adopt a ‘bright-line’ standard dictating
that force cannot be ‘excessive’ unless it leaves visible cuts, bruises, abrasions or
scars”).
The district court’s order denying Defendant’s motion for summary judgment
is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
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