F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 5 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CLARENCE MICHAEL PAUL,
Plaintiff-Appellant,
v. No. 96-6376
(D.C. No. 95-CV-1469)
THE CITY OF ALTUS; TODD (W.D. Okla.)
GILPATRICK; RANDALL
HOWLAND; RONALD MYERS;
CHARLES DIGIACOMO; MIKE
WHITE; JOHN DOE POLICE
OFFICERS; JACKSON COUNTY
MEMORIAL HOSPITAL,
Defendants-Appellees,
DR. GEORGE ANDREWS,
Defendant.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Clarence Michael Paul brought this action pursuant to
42 U.S.C. § 1983, alleging that the defendants violated his civil rights. The
district court granted summary judgment in favor of the City of Altus (City) and
Officers Myers, Digiacomo and White. Claims against Officers Gilpatrick and
Howland proceeded to trial, where the jury reached verdicts in favor of the
defendants. Plaintiff now appeals from the district court’s order of summary
judgment on his claims against the City and the individual officers, and from
various orders and rulings concerning the trial of his other claims. We affirm
in part, reverse in part, and remand for further proceedings.
I.
Plaintiff is a partial quadriplegic. On the evening of October 11, 1993, he
was riding as a passenger in an automobile driven by Lloyd Gildon. Mr. Gildon’s
wife had reported the automobile stolen. Officer Gilpatrick of the Altus,
Oklahoma, police department saw the Gildon vehicle and called in a request to
run the tag number, which came back showing that the vehicle was stolen.
Officer Gilpatrick stopped the Gildon vehicle.
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According to plaintiff, the following events occurred after Officer
Gilpatrick stopped the vehicle. After the driver and another passenger were
removed, Officer Gilpatrick ordered plaintiff out of the vehicle. Plaintiff told
Officer Gilpatrick that he could not get out because he was paralyzed. Gilpatrick
and Howland yelled at plaintiff to get out of the car. Gilpatrick chambered his
shotgun and told plaintiff “I’ve been waiting to pop you.” Plaintiff finally was
able to roll down the window whereupon he informed Gilpatrick that he was
paralyzed and could not get out of the car on his own.
Plaintiff says Officers Gilpatrick and Howland then grabbed him by his
neck and throat, jerked him out of the vehicle, and threw him to the ground.
While he was lying on the ground, one or more of the officers kicked him.
Officer Gilpatrick placed his knees on plaintiff’s neck and back while
handcuffing him. During this ordeal, plaintiff became unconscious and urinated
on himself. He requested an ambulance, telling Officer Howland that his neck
and hip were hurt. Officer Howland allegedly responded with a joke concerning
plaintiff’s sexual vulnerability in the penitentiary. Plaintiff says he heard the
other officers laughing at him after this joke. Eventually, an ambulance arrived,
and plaintiff was transported to Jackson County Memorial Hospital. Plaintiff was
subsequently treated at a VA hospital, where he was informed that his neck was
fractured and that he had a strained hip.
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II.
Summary judgment on City’s failure to train
We review summary judgment rulings de novo, applying the same
standard as the district court. Summary judgment is proper when
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
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 a moving party makes a properly supported summary
judgment motion, the nonmoving party has the burden of showing
a genuine issue for trial, by any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings themselves.
Pietrowski v. Town of Dibble, ___ F.3d ___, No. 97-6012, 1998 WL 19862, at *1
(10th Cir. Jan. 21, 1998) (further citations and quotations omitted).
We consider first plaintiff’s argument that the district court improperly
granted summary judgment to the City on his “failure to train” claim.
To establish a city’s liability under 42 U.S.C. § 1983 for inadequate
training of police officers in the use of force, a plaintiff must show
(1) the officers exceeded constitutional limitations on the use of
force; (2) the use of force arose under circumstances that constitute
a usual and recurring situation with which police officers must deal;
(3) the inadequate training demonstrates a deliberate indifference on
the part of the city toward persons with whom the police officers
come into contact, and (4) there is a direct causal link between the
constitutional deprivation and the inadequate training.
Allen v. Muskogee, Okla., 119 F.3d 837, 841 (10th Cir. 1997), cert. denied, 66
U.S.L.W. 3428, 3434 (1998).
A civil rights plaintiff ordinarily cannot rely on a single incident of
unusually excessive force to prove failure to train. See id. at 844. However, the
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city’s liability may arise from a single incident where there is other evidence of
inadequate training. See id. at 844-45.
Plaintiff asserts that the City improperly trained Officer Gilpatrick to place
his knee on plaintiff’s neck while handcuffing him. In support of its motion for
summary judgment, the City presented materials from the Council of Law
Enforcement Educational Training (CLEET). The CLEET materials specifically
included instructions not to apply pressure in the neck area while handcuffing
a suspect, “for obvious medical reasons.” Appellant’s App. Vol. II at 208-09.
The City also presented records showing that Officer Gilpatrick had received the
CLEET training. Thus, the City argued, if Officer Gilpatrick placed his knee on
plaintiff’s neck, it was in violation of his training.
If this were all that was presented, summary judgment for the City would
have been appropriate. However, the City also presented an incident report from
Officer Howland, who was on the scene during the handcuffing. Officer
Howland’s statement reads in part as follows: “Gilpatrick then brought the
subjects [sic] right arm around to the middle of his back and had his knee on the
subject’s neck. The way we’re instructed to handcuff from the felony prone
position.” Id. Vol. II at 148 (emphasis added). Officer Howland’s statement
creates a material issue of fact concerning whether the City, or CLEET itself,
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instructed its officers to place their knees on suspects’ necks while arresting
them, even though the CLEET manual instructs them to do otherwise.
Given Officer Howland’s statement, the summary judgment materials
demonstrated a genuine issue of material fact concerning each of the four criteria
required for a failure to train claim. Placing a knee on the vulnerable area of an
arrestee’s neck could be considered excessive force. Police officers obviously
must handcuff people as a regular part of their duties. Training officers to place
their knees on an arrestee’s neck shows deliberate indifference to public safety.
Plaintiff’s neck injuries could have been the result of this improper training.
We must therefore reverse summary judgment against the City on the failure to
train claim, and remand for further proceedings as to this claim. 1
1
The remand we now order does not necessarily entail a further trial on
plaintiff’s claim against the City. A failure to train claim cannot go forward
unless the plaintiff can show that he actually suffered a constitutional injury at the
hands of the police. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
That issue may already have been decided against plaintiff, by virtue of the jury
verdict against him. We cannot determine if this issue has been resolved because
the record before us does not contain the jury instructions or the verdict form.
The jury’s verdict in favor of Officers Gilpatrick and Howland could mean that it
decided plaintiff suffered no constitutional injury in connection with their actions.
In that case, plaintiff’s claim against the City could not go forward. On the other
hand, the jury could have decided that plaintiff’s constitutional rights were
violated, but that the officers were entitled to qualified immunity because the law
was not so clearly established as to hold them liable. In that case, plaintiff would
still have a claim against the City, even though the individual officers were not
liable. See id. at 798-99. On remand, if it is clear from the instructions and the
verdict form that the jury found no constitutional violation, the claim against the
(continued...)
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Summary judgment on officers’ failure to intervene
Plaintiff next argues that the district court erred in granting summary
judgment for the individual officers. His claim is that Officers Digiacomo, White
and Myers failed to intervene to prevent Officers Gilpatrick and Howland from
employing excessive force against him. The jury returned a verdict in favor of
Officers Gilpatrick and Howland on plaintiff’s excessive force claims against
them. Having failed to establish a case of excessive force against Officers
Gilpatrick and Howland, plaintiff has no claim against the remaining officers
for “failure to intervene” to prevent the use of such force. See generally Mick v.
Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (defining scope of failure to
intervene claim). 2
Bifurcation of trial
Plaintiff next raises several claims concerning the trial against Officers
Gilpatrick and Howland. He claims that the district court improperly bifurcated
(...continued)
1
City should be dismissed. If not, the claim against the City should go forward.
2
This is true regardless of whether plaintiff’s claims against Officers
Gilpatrick and Howland failed because the jury found there was no constitutional
violation, or because it believed that Officers Gilpatrick and Howland were
entitled to qualified immunity. In either case, plaintiff would not have a claim
against officers who failed to intervene. This differentiates this claim from
plaintiff’s claim against the City, which could go forward if the jury found in
favor of the officers on the basis of qualified immunity.
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his trial, by requiring him to try his claims against the police officers and the
hospital separately, and by requiring separate trials on the issues of liability
and damages.
The trial court has considerable discretion in determining how a trial
is to be conducted. We therefore will not disturb the trial court’s
bifurcation order absent an abuse of discretion.
A court may order a separate trial of any claim or separate
issue in furtherance of convenience or to avoid prejudice, or when
separate trials will be conducive to expedition and economy.
Bifurcation is not an abuse of discretion if such interests favor
separation of issues and the issues are clearly separable. Regardless
of efficiency and separability, however, bifurcation is an abuse of
discretion if it is unfair or prejudicial to a party.
Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 964 (10th Cir. 1993)
(further citations, quotations, and footnote omitted).
Plaintiff does not argue that the bifurcation was inefficient, or that the
matters bifurcated were inseparable. Rather, his claim is based solely on the
prejudice he claims resulted from the bifurcation.
The district court’s order requiring bifurcation was entered on the day of
trial. Plaintiff asserts that the majority of his witnesses were from out of town,
and that he was forced to make unspecified “major last minutes [sic] changes
which adversely affected his case.” Appellant’s Br. at 9. These generalized and
conclusory assertions of prejudice are insufficient to show that the district court’s
bifurcation order prejudiced plaintiff’s presentation of his case to such an extent
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as to require reversal of the jury’s verdict. We therefore reject plaintiff’s
bifurcation argument.
Motion for mistrial/trial objections/evidence to support verdict
Plaintiff’s remaining contentions are not adequately supported for purposes
of review. He argues that the district court should have granted his motion for
mistrial. He has not included the transcript of the motion argument or the district
court’s ruling, nor any record citations to the events causing counsel to move for
mistrial. It is plaintiff’s responsibility to order and provide those portions of the
transcript necessary for our review. See 10th Cir. R. 10.1.1. If the evidentiary
record is insufficient to permit us to assess an appellant’s claims of error, we
must affirm. See Deines v. Vermeer Mfg. Co., 969 F.2d 977, 979-80 (10th Cir.
1992). Moreover, plaintiff’s argument fails to persuade us that reversal on this
issue was proper in any event.
Plaintiff also contends that the district court should have sustained his
objections and that the jury verdict was not supported by the evidence. Plaintiff
is counseled on this appeal. His entire appellate argument on these issues consists
of the following statements:
The plaintiff made his objections about the questioning of
Plaintiff and his mother about the nolo contendere plea, and him
about the prior use of drugs. Many other objections were made but
not sustained.
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The evidence presented in this case did not support jury’s
verdict, see Plaintiff argument of evidence Transcript Addendum
“E”.
Plaintiff’s Br. at 10.
Plaintiff’s comment about the nolo contendere plea and the prior use of
drugs presumably is intended as an argument that this evidence was improperly
admitted at this trial. Plaintiff offers no record citation, an incomplete record,
and no argument with reference to pertinent authorities.
Plaintiff’s cryptic complaint that “[m]any other objections were made but
not sustained” also provides us with no basis for review. Perfunctory complaints
which fail to frame and develop an issue are insufficient to invoke appellate
review. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).
Plaintiff’s argument concerning sufficiency of the evidence is equally
unsupported by any record citation--other than a reference to his own closing
argument at trial. Challenges to the sufficiency of the evidence to support a
jury’s verdict ordinarily require submission of the entire trial transcript for our
review. See Scheufler v. General Host Corp., 126 F.3d 1261, 1268 (10th Cir.
1997). Plaintiff has provided us with only bits and pieces of the trial transcript,
and no specific indication of why he believes the verdict is unsupported by the
evidence. Accordingly, we affirm as to this issue as well.
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The judgment of the district court is AFFIRMED, with the exception
of the district court’s order granting summary judgment to the City, which
is REVERSED and REMANDED for further proceedings.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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