FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 6, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MURTAZA ALI,
Plaintiff - Appellant,
v. No. 17-5128
(D.C. No. 4:16-CV-00027-CVE-HE)
DUSTIN DUBOISE, Dep. Sheriff, Tulsa (N.D. Okla.)
County Jail; TRAVIS LAMBERT, Det.
Officer, Tulsa Cty, Jail; GARY KAISER,
Sgt., Tulsa, County Jail; JOHN DOE, Det.
Officer at Tulsa County Jail; ARMOR
CORRECTIONAL HEALTH SERVICES,
INC., Medical Provider, Tulsa County Jail,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before EID, KELLY, and O’BRIEN, Circuit Judges.
_________________________________
Murtaza Ali, proceeding pro se, appeals the district court’s dismissal of claims
he brought under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), against jail officials and a jail
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
health-care provider. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in
part, reverse in part, and remand for further proceedings.
BACKGROUND
At the time of the events forming the basis of his complaint, Ali was detained
as a federal prisoner at the Tulsa County Jail. In his Third Amended Civil Rights
Complaint he asserted claims against defendant Dustin Duboise for alleged violations
of his First Amendment right to freely exercise his religion; against defendants Travis
Lambert, Gary Kaiser, and Duboise for the alleged use of excessive force; and
against defendant Armor Correctional Health Services, Inc. (Armor) for alleged
deliberate indifference to his serious medical needs. The district court dismissed
without prejudice the deliberate-indifference claim against Armor, all
official-capacity claims asserted against the defendants, and the excessive-force
claims against Kaiser and Duboise. It dismissed the free-exercise claim against
Duboise and the excessive-force claim against Lambert with prejudice, based on
qualified immunity. In this appeal, Ali challenges the district court’s dismissal of his
excessive-force claims against Duboise, Kaiser, and Lambert, and the dismissal of his
First Amendment free-exercise claim against Duboise.
1. Facts Supporting Free-Exercise Claim
In Count I of the Complaint Ali alleged facts underlying both his free-exercise
and excessive-force claims against Duboise. The Complaint alleges that on the
afternoon of October 17, 2015, as part of his Islamic religious obligation to pray five
times each day, Ali was getting ready to pray in his cell with a fellow federal
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detainee. Duboise opened the cell door and asked him what they were doing. Ali
said they were getting ready to pray in the cell because a Christian service was being
conducted in the multi-purpose room. Duboise told them they could not both
perform their prayers in Ali’s cell, and would have to pray outside. Ali asked him to
state a place where they could conduct their prayers. Duboise did not respond to this
request, but became angry and stated, “I will lock you up!” R., Vol. 2 at 335
(Compl. at 4).1
Ali responded that there was no legitimate reason to lock him up, because he
had not violated any rule. Duboise then “pushed Ali’s chest with his left arm,
causing [his] back to be slammed into the cell wall.” Id.2 Ali told Duboise he
wanted a supervisor called so that he could report the assault and file criminal
charges against Duboise. In response, Duboise yelled, “Look at the badge . . . It
states Deputy Sheriff, back up, or I will f--- you up and place you under arrest!” Id.
Duboise then shut the cell door and locked Ali in the cell until later that afternoon.
2. Facts Supporting Excessive-Force Claim
Later that same day, Ali told an officer at the jail that he wanted to speak with
a shift supervisor regarding Duboise’s alleged violation of his civil rights and to
1
In quoting the Complaint, we have modified Ali’s occasional use of all-caps
style. We have also modified the expletives used in the Complaint.
2
We note that in attachments to the Complaint, which are dated closer to the
events in question than the Complaint, Ali twice described Duboise’s actions as
“causing [him] to back up into the wall,” rather than “slamming” him into the wall.
R., Vol. 2 at 353 (Compl., Ex. 5 at 1); id. at 356 (Compl., Ex. 6 at 2).
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press criminal charges against Duboise. Approximately fifteen minutes later,
defendant Lambert and another officer arrived in the sally port in Ali’s unit. Ali
entered the sally port when its door opened. Noticing him there, Lambert “pointed a
taser at Ali’s back side and shouted, ‘Put your f---ing hands up!’” Id. at 337 (Compl.
at 6). He also told Ali to turn around. Ali raised his hands and turned to face
Lambert as ordered.
The Complaint alleges Lambert “then approached Ali and violently grabbed
Ali by his left arm and jerked Ali back onto the unit and vigorously pushed Ali’s face
first on the . . . control desk, while simultaneously twisting Ali’s left arm behind his
back.” Id. Ali offered no resistance, but protested Lambert was using excessive
force on him. Lambert responded, “I haven’t used excessive force yet mother f---er,
I will show you excessive force.” Id. Lambert allegedly then “continued to violently
jerk Ali towards the stairs by his arms hand-cuffed behind his back . . . causing him
to [lose] balance and fall on the stairs head first.” Id. Lambert “dragg[ed] Ali’s
prone body up the stairs by violently jerking [him],” despite Ali’s shouting that he
was hurt. Id.
Lambert continued to drag Ali up the stairs, “while Ali lay flat, prone on his
face and chest.” Id. at 338 (Compl. at 7). When Ali had been dragged approximately
half-way up the stairs, another officer told Lambert to stop, saying they needed to
take Ali to medical because he was hurt. Lambert and the other officer then dragged
Ali back down the stairs while he lay prone and was held by his arms, which were
handcuffed behind his back.
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At the bottom of the stairs defendant Kaiser took over for Lambert. Kaiser and
the other officer dragged Ali to the exit gate of the Unit, not allowing him to regain
his footing. Ali was shouting in pain but offered no resistance. When the Unit gate
opened the officers “made Ali stand up and forcefully pushed Ali’s handcuffed arms
that were behind his back, in a way to hyperextend them above his head, while Ali’s
neck was being pushed by [the other officer] and Kaiser, causing excruciating pain to
Ali’s handcuffed wrist, elbows and shoulders.” Id. at 338 (Compl. at 7). Kaiser and
the other officer then dragged Ali to the medical unit. When they arrived at the
medical unit Ali told them they would not get away with assaulting him and warned
them to stop hurting him. In response, Kaiser “deliberately with malicious intent to
cause pain and injury pushed Ali’s left wrist upwards, in order to be crushed by the
handcuffs, causing excruciating pain and shock to Ali from wrist to left shoulder.”
Id. Kaiser asked him, “How you like that[?]” Id. at 339 (Compl. at 8).
In the medical unit, Ali was diagnosed with “apparent injuries to left shoulder
i.e. redness,” and “deformity to left shoulder blade.” Id. He was given ibuprofen for
his pain. Kaiser then escorted him, handcuffed, to segregation, saying he should be
kept there for three weeks and “should heal up from his injuries by then.” Id. at 340
(Compl. at 9). Ali claims that as the result of the alleged assault he suffered from
“physical injury to left shoulder, laceration to right foot, contusion and bruising to
right elbow and both wrists, swelling of left knee, numbness to both wrists and
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ongoing pain to left shoulder and shoulder blade, and ongoing numbness to left
wrist.” Id.3
3. District Court’s Decision
The district court determined Ali had plausibly alleged that Duboise
intentionally interfered with and substantially burdened his First Amendment rights.
But it granted qualified immunity for Duboise, reasoning Ali failed to show that it
was clearly established that Duboise’s actions violated the First Amendment.
The district court further determined Ali’s allegations against Duboise and
Kaiser did not plausibly allege an excessive-force claim, but he had sufficiently
alleged an excessive-force claim against Lambert. It then granted qualified immunity
for Lambert, reasoning Ali had failed to identify a case that would have placed
Lambert on notice that his actions were unlawful.4
3
At the district court’s direction the defendants filed a Special Report.
See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). The Martinez report presents
a different account of events than that provided in the Complaint. See R., Vol. 1
at 121-23. But as the district court recognized, a Martinez report cannot be used to
resolve factual disputes at the motion-to-dismiss stage. See Gee v. Pacheco,
627 F.3d 1178, 1186 (10th Cir. 2010).
4
The district court also determined that Ali failed to state any
official-capacity claims against the defendants, any due process claims against Kaiser
and Duboise, or any valid claim under RLUIPA. Those determinations are not
challenged in this appeal.
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ANALYSIS
1. Standard of Review
We review de novo a district court’s dismissal of a claim under Fed. R. Civ. P.
12(b)(6). See Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). The court’s
function is “to assess whether the plaintiff’s amended complaint alone is legally
sufficient to state a claim for which relief may be granted.” Id. (internal quotation
marks omitted). In doing so, we accept all well-pleaded allegations as true and
construe them in the light most favorable to Ali. See id. And because Ali is
proceeding pro se, we liberally construe both his amended complaint and his
arguments on appeal. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(recognizing pro se litigant’s pleadings are “held to a less stringent standard”).
Our broad reading of his complaint, however, does not relieve Ali of “the
burden of alleging sufficient facts on which a recognized legal claim could be based.”
Id. To avoid dismissal, his amended complaint must contain enough facts to state a
claim for relief that is “plausible on its face.” Peterson, 594 F.3d at 727 (internal
quotation marks omitted). In reviewing a dismissal based on qualified immunity, we
consider “(1) whether the facts that a plaintiff has alleged make out a violation of a
constitutional right, and (2) whether the right at issue was clearly established.” Keith
v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (internal quotation marks omitted).
2. First Amendment Claim
The district court dismissed Ali’s First Amendment claim against Duboise,
reasoning that his actions did not violate clearly established law. Ali argues it was
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clearly established that Duboise’s actions—telling him to pray outside his cell and
responding to his request for a more specific location to pray with threats, expletives,
a “push,” and a temporary lock down—violated his First Amendment rights.
“A plaintiff may show clearly established law by pointing to either a Supreme Court
or Tenth Circuit decision, or the weight of authority from other courts, existing at the
time of the alleged violation.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017),
cert. denied, 138 S. Ct. 1270 (2018). Although Ali cited Supreme Court and Tenth
Circuit cases, the district court concluded these merely “establish[ed] the general
proposition that the government cannot substantially burden an inmate’s religious
exercise absent a legitimate penological interest.” R., Vol. 2 at 492 (Order at 23).
The court concluded that the cases did not put Duboise on notice that his conduct
would violate the First Amendment.
The Supreme Court has stated on numerous occasions that “clearly established
law should not be defined at a high level of generality” but must be “particularized to
the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)
(internal quotation marks omitted). Although a plaintiff need not identify “a case
directly on point, . . . existing precedent must have placed the statutory or
constitutional question beyond debate.” Mullinex v. Luna, 136 S. Ct. 305, 308 (2015)
(per curiam). The Supreme Court and Tenth Circuit cases Ali cites, see Aplt.
Opening Br. at 8-10, do not clearly establish a constitutional violation on facts even
remotely similar to Duboise’s alleged conduct. Nor was it “obvious” from prior case
law establishing the contours of the right that Duboise’s actions would violate Ali’s
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First Amendment rights. See White, 137 S. Ct. at 552. We therefore affirm the
dismissal of the free-exercise claim, based on qualified immunity.
3. Excessive-Force Claims
“The core inquiry for an Eighth Amendment excessive force claim is whether
force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Serna v. Colo. Dep’t of Corrs., 455 F.3d
1146, 1152 (10th Cir. 2006) (internal quotation marks omitted). “The Tenth Circuit
has articulated two ‘prongs’ that a plaintiff must show to prevail on [an Eighth
Amendment excessive-force] claim: (1) that the alleged wrongdoing was objectively
harmful enough to establish a constitutional violation, and (2) that the officials acted
with a sufficiently culpable state of mind.” Id. (internal quotation marks omitted).
A. Duboise
Ali argues that because Duboise acted maliciously and sadistically to cause
harm, and responded to an inquiry about prayers with physical force, the fact that the
force he used may have been de minimis does not allow him to escape liability. The
Supreme Court has suggested that even a de minimis use of physical force may
violate the Eighth Amendment if it is “of a sort repugnant to the conscience of
mankind.” Hudson v. McMillian, 503 U.S. 1, 10 (1992). But the quantum of force
Duboise allegedly used here is not the sort that is repugnant to the conscience of
mankind. See id. at 9 (“[N]ot . . . every malevolent touch by a prison guard gives rise
to a federal cause of action,” and “[n]ot every push or shove . . . violates a prisoner’s
constitutional rights” (internal quotation marks omitted)); see also Wilkins v. Gaddy,
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559 U.S. 34, 38 (2010) (“An inmate who complains of a push or shove that causes no
discernable injury almost certainly fails to state a valid excessive force claim.”
(internal quotation marks omitted)). We therefore affirm the dismissal of the
excessive-force claim against Duboise.
B. Kaiser
The district court determined that “the force used by Kaiser was minimal even
if unnecessary and employed with a sufficiently culpable state of mind.” R., Vol. 2
at 489 (Order at 20). As the district court recognized, and we agree, the facts alleged
show a sufficiently culpable state of mind to survive a motion to dismiss. As for
objective harmfulness, Ali does not merely allege that Kaiser handcuffed him, contra
Tulsa Cty. Aplee. Br. at 17, but that he twice deliberately and unnecessarily
manipulated Ali’s arms or shoulders, while he was handcuffed, in a way that caused
excruciating pain.5 This is more than a de minimis use of physical force, and
represents sufficient harm to state a constitutional claim. Ali’s allegations against
Kaiser sufficiently state a claim for violation of Eighth Amendment law prohibiting
the use of excessive force, and we therefore reverse the dismissal of this claim.6
5
We thus distinguish handcuffing-only excessive force claims arising in the
Fourth Amendment context, which require the plaintiff to show more than de minimis
injury from the application of handcuffs. See, e.g., United States v. Rodella,
804 F.3d 1317, 1326-27 (10th Cir. 2015).
6
We express no opinion concerning whether Kaiser’s actions violated clearly
established law. That issue is not presented in this appeal.
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C. Lambert
The district court determined the allegations against Lambert were sufficient to
plausibly allege an excessive-force claim. See R., Vol. 2 at 488 (Order at 19). We
agree. But the district court further determined Ali had failed to identify a “case that
would have put Lambert on notice that his conduct . . . would violate the Eighth
Amendment’s prohibition on the use of excessive force.” Id. at 492 (Order at 23).
We conclude, however, that clearly established law made it clear Lambert’s alleged
conduct was unlawful.
In Wilkins, for example, the prisoner plaintiff alleged that a corrections officer,
apparently angered by his request for a grievance form, had snatched him off the
ground and slammed him onto the concrete floor, then proceeded to “punch, kick,
knee and choke him” until restrained by another officer. Wilkins, 559 U.S. at 35.
The federal district court dismissed the prisoner’s excessive-force claim, reasoning
that he had failed to allege more than a de minimis injury, and the Court of Appeals
affirmed. See id. at 35-36. But the Supreme Court, stating that “[t]he core judicial
inquiry . . . was not whether a certain quantum of injury was sustained, but rather
whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm,” reversed. Wilkins, 559 U.S. at 37
(internal quotation marks omitted).
Although the facts involving Lambert’s alleged conduct are not identical to
those in Wilkins, there are significant similarities. In both cases, the plaintiff
allegedly was thrown or caused to fall, either onto the floor or stairs. After the
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plaintiff fell, the physical abuse continued. In Ali’s case, he further alleges that he
was not resisting the officer’s actions, the officer used abusive language, and the
officer’s conduct resulted in significant injuries to him. We conclude the alleged
conduct, which must be taken as true at this stage, states a claim for violation of Ali’s
clearly established Eighth Amendment rights. We therefore reverse the dismissal of
Ali’s excessive-force claim against Lambert.
CONCLUSION
We reverse the district court’s dismissal of Ali’s excessive-force claims
against defendants Kaiser and Lambert, and remand for further proceedings
concerning those claims. We affirm the remainder of the district court’s judgment.
Entered for the Court
Allison H. Eid
Circuit Judge
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