LINDON R. WELLS, Plaintiff-Appellant, v. STATE OF OKLAHOMA ex rel. Department of Public Safety; KENNETH VAN HOY, individually and in his official capacity as Commissioner of Department of Public Safety; BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF OKLAHOMA; J.D. SHARP, individually and in his official capacity as Oklahoma County Sheriff, and RUSSELL MAPLES, individually and in his official capacity as Oklahoma Highway Patrol Trooper, Defendants-Appellees, and UNKNOWN PERSONNEL AT THE OKLAHOMA COUNTY SHERIFF‘S DEPARTMENT, individually and in their official capacities.
No. 95-6429
United States Court of Appeals, Tenth Circuit
Filed 9/30/96
(D.C. No. CIV-95-93-A) (W.D. Okla.)
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
I.
Wells was arrested in the late evening hours of July 11, 1994, for being in actual physical control of a motor vehicle while he was intoxicated,
Maples handcuffed Wells and Childers in a way that the handcuffs would not clamp down on their wrists. Wells claimed that before he was handcuffed, he told Maples “that [my arm] was full of plates and screws, and I had limited movement and it would not go behind my back,” Appellees’ append. at 167, and that it was hurting. Wells claimed Maples took his arms and forcefully pulled them behind his back. Maples placed Wells in the front seat and Childers in the back seat of the patrol car. Wells testified that he heard a “pop” and felt intense pain in his arm when he was placed in the car. Wells complained that his arm hurt and requested that he be handcuffed with his hands in front. According to Wells, Maples seemed unconcerned with his reported pain. Maples testified that he used the least aggressive method of handcuffing Wells and that his complaints were typical of persons placed in handcuffs.
Maples took Childers to a detox center before taking Wells to the jail. Maples
Wells repeatedly complained about his injury and requested pain medication while he was in jail. He was evaluated by a nurse the morning following his arrest, about nine hours after being taken into custody. The nurse testified that, although the tip of one screw had pierced Wells’ skin at some point and another was visible beneath the skin, he was not bleeding. She did not think the injury required immediate attention and was only concerned with the long-term risk of infection. She determined that twice-daily wound care would be sufficient. Wells was released from jail about eleven hours after his arrest, but he did not seek medical assistance until July 23, 1994. The treating physician determined that the hardware in Wells’ arm should be removed, and surgery was scheduled for September 2, 1994.
II.
The standards relating to the disposition of a case on a motion for summary judgment are well established.
Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Upon a motion for summary judgment, the moving party bears the burden of showing the absence of a genuine issue of material fact. The burden then shifts to the non-moving party to produce evidence creating a genuine issue of material fact to be resolved at trial. To avoid summary judgment, the non-moving party must present more than “a mere scintilla of evidence.” There must be enough evidence to allow a reasonable jury to find for the non-moving party. The non-movant “may not rest upon mere allegations or denials” of the pleadings, but must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”
As a preliminary matter, we conclude the district court was correct in granting judgment in favor of Maples and Kenneth Van Hoy in their official capacities and the State of Oklahoma. Under the
A. Excessive force
Wells’ remaining claims against Maples and Van Hoy in their individual capacities arise solely from Maples’ alleged use of excessive force during the arrest. The basis for Wells’ claim is the infliction of the injury and not any allegation that Maples was deliberately indifferent to treatment of that injury or any medical need during the arrest. Compare Howard v. Dickerson, 34 F.3d 978 (10th Cir. 1994) (liability for injury arising from handcuffing arrestee with known medical restriction could be based on claim of deliberate indifference to medical need, in violation of
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. . . . With respect to a claim of excessive force, the . . . standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge‘s chambers,” violates the
As in other
Graham v. Connor, 490 U.S. 386, 396-97 (1989) (citations omitted). Relevant factors in determining the reasonableness of force used by a police officer in making an arrest include the severity of the crime, whether the subject posed an immediate threat to the safety of the officer, and whether the subject was resisting arrest. Wilson, 52 F.3d at 1553. In addition, an assessment of the degree of force actually used is critical to the balancing test used to determine if the force was excessive. See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
It is undisputed that Wells was cooperative and non-threatening when he was arrested. The crime with which Wells was charged is a misdemeanor for a first offense, punishable by ten days to one year in jail and a fine of no more than $1,000. Subsequent offenses are felonies with punishment ranging from one to ten years in prison and fines of no more than $5,000.
Although handcuffed, the degree of force used to restrain Wells was minimal. Maples testified that the handcuff technique he used was the least forceful and restrictive of the three he considered. We noted in Wilson, 52 F.3d at 1556, that “the first duty of a police officer is to ensure the safety of the officers and the public. Handcuffing is a necessary expedient to this end.” We have also held that “the right to arrest an individual carries with it the right to use some physical coercion to effect the arrest.” Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1516 (10th Cir. 1995).
Maples’ decision at the scene of the arrest was reasonable and within the legitimate exercise of his authority. Wells cites Hansen v. Black, 885 F.2d 642 (9th Cir. 1989), which held that abnormally forceful application of handcuffs can violate an arrestee‘s constitutional rights. However, Hansen did not address the issue presented here--whether putting handcuffs on a potentially fragile arrestee without use of abnormal force is similarly unlawful. Under the facts presented in this case, we conclude it is not.
Because we decide Maples did not use excessive force, Wells’ claim against Van Hoy, Maples’ supervisor, must also fail. See Thompson, 58 F.3d at 1517.
B. Deliberate indifference to serious medical needs
Wells’ claims against J.D. Sharp and the Oklahoma County Commissioners are based on the theory that Wells was not provided adequate medical attention after he was taken into custody. Wells sued Sharp in his individual and official capacity. Wells’ claim against the County Commissioners clearly fails because they have no statutory duty to hire, train, supervise, or discipline county sheriffs or deputies, and cannot be held
Under the
As defendants argue, Wells has failed to present sufficient evidence to establish the first prong of the Estelle analysis--the existence of a serious medical need. While he suffered an obvious injury to his elbow, it was sufficiently minor that no immediate medical attention was required. Wells was kept in jail less than twelve hours and, upon his release, he did not seek medical attention for eleven days. Even then, his condition was not deemed sufficiently serious to require immediate treatment and was not treated until more than a month later. The testimony of the nurse further illustrates Wells’ injury was not serious. She was concerned with wound care to prevent infection and decided that attention twice each day was adequate. She testified that, although there was a break in the skin from which a screw was protruding, there were no fluids or blood and it did not require immediate attention.
Absent a showing of a serious medical need, the district court properly entered summary judgment on Wells’ inadequate medical attention claims.
Entered for the Court
Mary Beck Briscoe
Circuit Judge