F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 21 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL TAPIA,
Plaintiff-Appellant,
v.
CITY OF ALBUQUERQUE, and
CORRECTIONS OFFICER JASON No. 03-2133
GARCIA AND CORRECTIONS (D.C. No. CIV-02-695)
OFFICER JIMMY PINON, in their (D. New Mexico)
individual and official capacities as
employees of the CITY OF
ALBUQUERQUE,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
PORFILIO, Senior Circuit Judge.
On March 19, 2003, Michael Tapia (“Tapia”) filed a first amended
complaint in the United States District Court for the District of New Mexico
against the City of Albuquerque (“City”) and Jason Garcia (“Garcia”) and Jimmy
*
This order and judgment is not binding precedent, except under the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.
Pinon (“Pinon”), the latter two in their individual and official capacities as guards
at the Bernalillo County Detention Center (“BCDC”). Tapia claimed that, as a
result of Garcia’s and Pinon’s negligence, battery and excessive use of force, he
sustained damages caused by injuries inflicted upon him by the two of them while
booking him into the BCDC. After setting forth the “facts” out of which this
litigation arises, Tapia alleged two claims based on the New Mexico Tort Claims
Act. Count 1 was against the City and Garcia and Pinon for “Tort-Battery.”
Count 2 was also under the New Mexico Tort Claims Act and was against the City
only. It was based on the City’s “Negligent Operation” of the BCDC. Count 3,
the only count we are concerned with in this appeal, was against Garcia and Pinon
only for using excessive force in violation of the Fourth Amendment and 42
U.S.C. §§ 1983 and 1988.
Tapia’s original complaint was filed on June 17, 2002, naming the City and
John Does I through VI as defendants. On March 14, 2003, the district court
granted Tapia’s unopposed motion to file an amended complaint. On March 13,
2003, counsel for the City, Garcia and Pinon filed a motion for summary
judgment, apparently in anticipation of the claims to be later presented in Tapia’s
first amended complaint, which, as of that date, had not been filed. Be that as it
may, six days later, on March 19, 2003, Tapia filed his first amended complaint,
naming as defendants the City, Garcia and Pinon. Tapia filed a response to
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defendants’ motion for summary judgment on March 31, 2003. On June 9, 2003,
the district court granted Garcia and Pinon’s motion for summary judgment on the
grounds that on the showing made there was no objectively unreasonable search
or seizure because of a use of “excessive” force. Accordingly, the district court
dismissed Tapia’s § 1983 claim (Count 3), against Garcia and Pinon, and entered
judgment “dismissing plaintiff’s federal claims with prejudice.” Tapia appeals.
As to Tapia’s state claims set forth in Counts 1 and 2, the district court dismissed
those claims, without prejudice, and they are not involved in this appeal.
There was considerable evidentiary matter before the district court when it
granted defendants’ motion for summary judgment on Count 3, which apparently
included the depositions of virtually all interested persons. Additionally, there
were videotapes of the events occurring at the BCDC when Tapia was “booked
in.” The government included in their motion for summary judgment a video (no
audio), referred to as “video 1.” On April 4, 2003, the government delivered to
Tapia a second video (no audio), referred to as “video 2,” which was supposedly a
“clearer version” of video 1 and taken from a different angle. Tapia immediately
filed with the district court video 2, as a part of his response to defendants’
motion for summary judgment. As indicated, the district court thereafter granted
the motion for summary judgment on June 9, 2003.
Although the amended complaint does not, itself, mention the Fourth
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Amendment, and does mention the Fourteenth Amendment, it is apparently agreed
that the first amended complaint is based on 42 U.S.C. § 1983, alleging a
violation of Tapia’s Fourth Amendment rights. The Fourth Amendment provides
that “the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated . . . .”
(Emphasis added.) In turn, 42 U.S.C. § 1983 reads, in part, as follows:
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, . . . .
As indicated, as to Count 3 the defendants pleaded qualified immunity, and
the district court ultimately held that the defendants were entitled to qualified
immunity. In this general connection the Supreme Court, in Harlow v. Fitzgerald,
457 U.S. 800, 815 (1982) held that a claim of “qualified immunity would be
defeated if an official ‘knew or reasonably should have known that the action he
took within his sphere of official responsibility would violate the constitutional
rights of the . . . [plaintiff], or if he took the action with the malicious intention to
cause a deprivation of constitutional rights or other injury . . .’.” As we
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understand it, there is no contention here that either Garcia’s or Pinon’s actions
were with a malicious intent, but counsel does complain that they “knew” or
“should have known” that their actions in booking Tapia into the BCDC and
placing him in a protective custody cell, violated Tapia’s Fourth Amendment right
to be free of an “unreasonable” search and seizure by virtue of their use of
“excessive force.”
Tapia had a history of mental problems and had threatened to commit
suicide on more than one occasion. On November 29, 2001, Tapia, while at
home, pretended to stab himself in the abdomen with a kitchen knife. His wife
witnessed this incident and promptly called 911. While still on the phone and
after summoning help, she realized that her husband was feigning, and she tried to
cancel the call. However, by that time the paramedics were on their way. Tapia
informed the responding officers, which included an Officer Kraemer of the
Albuquerque police department, that he would like to hurt himself and that he
wanted to die. For his own safety, the officers placed Tapia into protective
custody, as permitted by local law, and took him to the University of New Mexico
Mental Health Center. Tapia submitted to a blood-alcohol test which established
his blood-alcohol level to be .096%. In this regard, Tapia admitted that he had
consumed “a few beers.” He was then informed by the hospital authorities that
he could not be admitted or evaluated in their facility until his blood alcohol level
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dropped below .05%. Accordingly, he was then taken by the officers, Kraemer
and another, to the BCDC with the intent to place him in the BCDC until he
sobered up.
Under jail policy, all persons brought to the jail must, under local law, be
searched for weapons and contraband. Accordingly, Tapia was asked to come
forward and place his hands on the “booking counter,” spread his legs so he could
be “frisked,” and not to move until the process was completed.
Surveillance cameras recorded the events that occurred at the booking
counter. The videotapes reveal that Tapia apparently began to argue with BCDC
personnel almost immediately upon arrival at the booking counter. Tapia, in his
deposition, admits that he “started getting arrogant” with the booking officers
because he was angry. Tapia admitted that he told the officers to “shut up” and
said “you guys are going to respect me” and that he “made more money than all of
you guys,” and other similar statements. The videotapes show that Tapia took his
hands off the counter, while the pat-down search was still going on. While
Officer Garcia was standing behind Tapia trying to perform a pat-down search,
Tapia suddenly pushed backward from the counter towards Garcia. Garcia, in
response, pushed Tapia forward and held him face down on the counter. Video 2
depicts Officer Thomas holding Tapia’s head down on the counter during the pat
down.
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In the meantime, Officer Pinon got a set of leg irons, and he and another
officer placed the leg irons on Tapia. Once the leg irons were secured and the pat
down search completed, Garcia and Pinon led Tapia to a holding cell several feet
away from the booking counter. While being escorted to cell, Tapia appeared to
either trip, or “dropped his feet” (possibly caused by the leg irons), and Garcia
and Pinon literally carried Tapia by his arms into the cell. Tapia’s testimony was
that the officers threw him onto the floor of the cell, called him a “Spic,” and
warned him “not to ever talk that way again.” Garcia and Pinon in their
depositions denied making any such comments, and stated that they placed Tapia
on a bench in the cell and left. Video indicates that Garcia and Pinon were inside
the cell for only a brief time, a matter of seconds only.
Tapia was later given a breathalyzer test and permitted to talk with a
counselor and make a telephone call. Also, Tapia was evaluated by a mental
health worker, who determined that Tapia was no longer a suicide risk, and he
was released about four hours after he had arrived at the BCDC.
As a result of these events, Tapia sustained some bruises on his neck and,
according to Tapia, he was “sore” for two weeks. Although Tapia sought medical
attention the day after the incident, his personal doctor did not recommend either
x-ray or any other form of medical treatment.
The district court granted defendants’ motion for summary judgment based
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on qualified immunity on the ground that Tapia had not sustained his burden of
showing that Garcia’s and Pinon’s actions constituted the use of “excessive
force,” either at the “booking counter” or in their escorting Tapia from the
booking counter to his cell and placing him therein, as such is proscribed by the
Fourth Amendment. In this regard, the district court spoke as follows:
Defendant Garcia’s use of force in this case began
in the context of positioning Plaintiff for a pat down
search while Plaintiff was lawfully detained in the intake
area of BCDC. Given the uncertain, stressful nature of
this environment, in combination with the admitted and
observable behavior of Plaintiff that could reasonably
(albeit mistakenly) be interpreted as an attempt to fight
back or resist the search, the Court concludes that
Defendant Garcia is entitled to qualified immunity with
respect to the force he used in pushing Plaintiff’s head
onto the booking counter, securing plaintiff’s hands, and
holding Plaintiff in that position for approximately two
minutes while Plaintiff was placed in handcuffs and leg
irons.
.........
“Finally, the Court concludes that Defendants
Garcia and Pinon are both entitled to qualified immunity
with respect to the force they used in moving Plaintiff
from the booking counter and placing him in the holding
cell. While it is possible that Plaintiff simply lost his
footing by accident as the officers escorted him to the
holding cell, the officers could reasonably (albeit
mistakenly) have interpreted this behavior as an attempt
at resistance. Further, the videotape evidence shows
that, after he lost his footing, Plaintiff was carried into
the holding cell by his arms in a manner that is
analogous to the procedure employed in Saucier, 533
U.S. at 198. Recognizing that “‘[n]ot every push or
shove, even if it may later seem unnecessary in the peace
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of a judge’s chambers, violates the Fourth
Amendment,’” the Supreme Court determined that
officers utilizing this procedure in similar circumstances
were entitled to qualified immunity. Id. at 209 (quoting
Graham, 490 U.S. at 396). Accordingly, the Court
reaches the same conclusion in this case.”
Gross v. Pirtle, 245 F.3d 1151 (10th Cir. 2001) sheds light on the present
controversy. In that case we acknowledged that 42 U.S.C. § 1983 provides an
“important remedy for individuals injured by governmental officials’ abuse of
authority.” Id. at 1155. At the same time, we also recognized that “such actions
sometimes subject officials to costly and harassing litigation and potentially
inhibit officials in performing their official duties.” Id. In order to “balance” the
two, we stated that “courts recognize the affirmative defense of qualified
immunity, which protects all but the plainly incompetent, or those who knowingly
violate the law.” We also stated therein that the “Supreme Court has emphasized
the broad protection qualified immunity affords, giving officials a right, not
merely to avoid standing trial, but also to avoid the burdens of such pretrial
matters as discovery.” Id.
Having said that by way of background, we went on to say in Gross that our
review of either the denial or granting of summary judgment is de novo. We then
declared that we review a summary judgment order based on qualified immunity
“differently from other summary judgment decisions,” and that when a defendant
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in a 1983 action raises the defense of qualified immunity, the “burden” shifts to
the plaintiff, explaining that there is then a “heavy two-part burden” on the
plaintiff to show: (1) that the “defendants’ actions violated a constitutional or
statutory right of the plaintiff, and (2) that the right “was clearly established at the
time of the defendant’s conduct.” Id. at 1155 - 56. As indicated, the district
court in the instant case granted summary judgment on the first ground, i.e., in
booking Tapia into the BCDC and placing him in a cell for a few hours because
of his suicidal tendencies and actions, the defendants did not violate plaintiff’s
constitutional right to be free of excessive force. To the same effect, see, for
example, Scull v. New Mexico, 236 F.3d 588 (10th Cir. 2000) and Latta v. Keryte,
118 F.3d 693 (10th Cir. 1997).
In Graham v. Connor, 490 U.S. 386 (1989) the Supreme Court stated that
the “‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight when there is a claim of ‘excessive force.’” Id. at 396. The Court
also stated that “not very push or shove, even if it may later seem unnecessary in
the peace of a judge’s chambers . . . violates the Fourth Amendment.” In this
regard, see also Saucier v. Katz, 533 U.S. 194 (2001), where the police officers
removed a protester from a public function by “half-walking, half-dragging him,
‘with his feet barely touching the ground’.” Id. at 198.
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The district court in the instant case issued a detailed order, setting forth at
length her evaluation of the record before her, and concluded that Tapia had
failed to show that the defendants’ actions were objectively “excessive” and
therefore “unreasonable” under the Fourth Amendment. We agree. Our
conclusion is supported by the fact that Tapia’s injuries were de minimis. See
Saucier at 209. This is not the case of “excessive force” coming “out of the
blue,” so to speak. At the very outset, Tapia verbally confronted the defendants
and pulled back from the booking counter while they were trying to frisk him to
determine whether he had any weapons concealed on his person. In short, we
believe that this case is controlled by the principle of Graham and Saucier that
“not every push or shove . . . violates the Fourth Amendment.” We agree with the
district court that any “push or shove” in the instant case did not violate the
Fourth Amendment.
Additionally, Tapia in his brief asked, in the alternative, that we remand the
case to the district court with directions that it allow Tapia to further amend his
complaint to add Officer Thomas as a party defendant, who allegedly “held down
Tapia’s head on the booking counter.” At oral argument counsel withdrew this
request, stating that they “could deal with that in another venue.”
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Judgment affirmed.
Entered for the Court
Robert H. McWilliams
Senior Circuit Judge
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