UNITED STATES of America, Plaintiff-Appellant, v. Alfredo ARAGONES, Defendant-Appellee.
No. 11-2142.
United States Court of Appeals, Tenth Circuit.
May 18, 2012.
Deliberate indifference to a prisoner‘s serious illness involves an objective and a subjective element. Sealock, 218 F.3d at 1209. The objective element is fulfilled if a medical need “has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would easily recognize the necessity for a doctor‘s attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999) (internal quotation marks omitted). “The subjective [element] is met if a prison official ‘knows of and disregards an excessive risk to inmate health or safety.‘” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).
In recommending summary judgment in favor of Dr. Krebs, the magistrate judge determined that Mr. Allen had not adduced any evidence to satisfy the subjective component. The magistrate judge further concluded that Mr. Allen‘s allegations of delay in medical care did not rise to the level of a constitutional violation. As to Warden Zavaras, the magistrate judge recommended summary judgment in his favor because Mr. Allen failed to establish that he was entitled to any relief under the Eighth Amendment and, furthermore, could not hold the warden liable under
We have reviewed the record, the parties’ briefs, and the applicable law. We affirm the summary judgment for substantially the same reasons given by the magistrate judge and the district court.
C. Judicial Bias and Amendment of Complaint
Mr. Allen also contends that the magistrate judge was biased against him and failed to allow him to amend his complaint. His bias argument is based solely on adverse rulings. “Adverse rulings alone do not demonstrate judicial bias.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir.2010). As for amendment of the complaint, Mr. Allen does not assert that he requested leave to amend. We find no abuse of discretion in the district court‘s lack of an invitation to file an amended complaint. Cf. Hall v. Witteman, 584 F.3d 859, 868 (10th Cir.2009) (finding no abuse of discretion in refusing to allow amended complaint where plaintiff did not explain how amendment would cure deficiencies in his complaint).
III. CONCLUSION
The judgment of the district court is AFFIRMED. Although we grant Mr. Allen‘s motion to proceed IFP on appeal, we remind him of his obligation to continue making partial fee payments until the filing fee has been paid in full.
Todd Farkas, Jaffe Law Firm, Albuquerque, NM, for Defendant-Appellee.
Before GORSUCH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.
ORDER AND JUDGMENT*
PER CURIAM.
After a police officer found Alfredo Aragones with a sawed-off rifle, he was arrested for being a felon unlawfully in possession of a firearm. In response to the charge, Mr. Aragones moved to suppress evidence of the gun, claiming it was discovered during an unconstitutional seizure. The district court agreed and granted the motion. The government now appeals that decision, and we reverse.
Many details are disputed, but on appeal the parties have agreed to the following essential facts as found by the district court and they suffice to resolve this matter.
As Mr. Aragones was walking along a street in a high crime neighborhood of Albuquerque one day, a police officer approached in a patrol car. The officer noticed Mr. Aragones had a large tattoo on the back of his head, one “consistent with gang affiliation.” D. Ct. Op. at 2. As soon as Mr. Aragones saw the officer, he turned abruptly away and approached the back door of a nearby house. The outer wrought iron door was closed, but the interior door was open, allowing Mr. Aragones to see into the home. Mr. Aragones didn‘t verbally communicate with the residents of the house, though they could see
In approaching the motion to suppress, the district court began by holding that for purposes of the Fourth Amendment the officer “seized” Mr. Aragones at the moment he ordered Mr. Aragones to remove his hand from his pocket. The court reasoned that the seizure began then because by then a reasonable person would not have believed he was “free to leave.” See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). As the Supreme Court has explained, however, the “not free to leave” test “states a necessary, but not a sufficient, condition for seizure.” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (emphasis in original). In the absence of actual physical restraint, an assertion of authority, like the oral direction the officer gave here, cannot constitute a seizure unless the suspect actually submits to it. See id. at 629; see also United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir.2010). Because Mr. Aragones didn‘t submit to the officer‘s order to remove his hand from his pocket, he was not seized at that moment. See United States v. Harris, 313 F.3d 1228, 1234-35 (10th Cir.2002) (a suspect who failed to submit to an officer‘s assertion of authority—including an order to remove his hands from his pockets—was not seized until the officer used physical force); United States v. Martin, 613 F.3d 1295, 1300-01 (10th Cir.2010). This is not to question Mr. Aragones was soon “seized” for Fourth Amendment purposes, only to say it didn‘t occur at the moment he disregarded the officer‘s direction, as the district court held.
Even overlooking this problem, however, a larger one exists. An Albuquerque public nuisance ordinance prohibits “[e]ntering upon any private property and looking into any occupied dwelling without the consent of the occupant or owner of the dwelling.”
This conclusion is compelled by the Supreme Court‘s leading cases on investigatory detentions. In Illinois v. Wardlow, 528 U.S. 119, 120, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the defendant fled when he saw officers in a police car look in his direction. The Court held that, while this behavior wasn‘t “necessarily indicative of wrongdoing,” it was “certainly suggestive of such” and its ambiguity permitted the officers to stop the defendant briefly to investigate. Id. at 124. In Terry, two men met on a street corner and then repeatedly paced up and down the street looking into a particular store window. Although they did nothing illegal, because a reasonable officer could have suspected them of “casing” the store for “a stick-up,” “further investigation” by means of a brief detention was legally permissible. 392 U.S. at 6, 22. Precisely the same must be said in this case. Whether or not Mr. Aragones had actually done anything illegal, a reasonable officer could have suspected him of violating the law, and this is enough to justify an investigative detention. The most fundamental rule of law is that like cases should be decided alike, and this one is materially indistinguishable from Wardlow and Terry.
In reaching its contrary holding, the district court emphasized that Mr. Aragones‘s conduct was consistent with innocent behavior. Mr. Aragones‘s abrupt turn could have arisen from “a simple interest in avoiding contact with the police.” D. Ct. Op. at 17. And his conduct at the door was “consistent with the most benign of conduct, including a visit to a friend‘s house or calling upon a neighbor for assistance.” Id. at 19. Because of this, the district court held, the officer should have waited longer to rule out the possibility that Mr. Aragones was a welcome guest at the home before seizing him. Id.
The problem is that conduct giving rise to reasonable suspicion sufficient to support an investigative detention can be—and often is—consistent with innocent behavior. An officer is not required by the Fourth Amendment to “rule out the possibility of innocent conduct” before performing a brief stop to investigate the situation. United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir.2011). Even in Wardlow and Terry, “the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.” Wardlow, 528 U.S. at 125. All that is required for an investigative detention consistent with the Fourth Amendment is “some minimal level of objective justification,” based on the totality of the circumstances, for suspecting that criminal activity “may be afoot.” United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quotations omitted). This standard “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Wardlow, 528 U.S. at 123 (emphasis added). And that standard was met here no less than it was in Wardlow and Terry.
The district court‘s order granting Mr. Aragones‘s motion to suppress is reversed and the case is remanded for further proceedings consistent with this order and judgment.