                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         October 12, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JAMES THOR KIRK,

      Plaintiff - Appellant,

v.                                                            No. 17-2031
                                                  (D.C. No. 1:12-CV-01157-JAP-WPL)
OFFICER JEFFREY BURKE,                                         (D. N.M.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                  _________________________________

       Plaintiff James Kirk brought claims against Defendant, New Mexico State Police

Sergeant Jeffrey Burke, alleging that he violated Plaintiff’s constitutional rights. The

United States District Court for the District of New Mexico granted Defendant’s motion

for summary judgment based on qualified immunity. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

       This suit arises out of the aftermath of a vehicle chase of Plaintiff by New Mexico

police officers in the early afternoon of October 26, 2010. The chase ended when

*
   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 This order and judgment is not binding precedent,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.
Plaintiff lost control of his vehicle while traveling about 90 miles per hour. The car

overturned, and he was ejected. Remarkably, the medical evidence in the record

indicates that he was only minimally injured—his worst injury apparently a fracture of

his right hand. The orthopedic consult note from the hospital on October 26 states:

       The patient is quiet and uncooperative but does answer some questions. He
       is handcuffed to the bed in the emergency room.
       HEENT: Normocephalic with abrasions diffusely on his face.
       Chest: _____ chest rise. Tender to palpation on the chest.
       Abdomen is soft, nontender, nondistended.
       Right upper extremity was examined. He had tenderness to palpation and
       edema on the dorsum of the right hand. He had decreased range of motion
       of the fingers secondary to pain. His sensation is intact to light touch
       diffusely on the index finger and the rest of the median, ulnar and radial
       nerve distributions. Motor is intact to the median, ulnar, radial, anterior
       interosseous and posterior interosseous nerves. Brisk capillary refill in all
       five digits. Abrasions diffusely on the hand and one small twig was
       protruding from the skin approximately 3–4 mm., which I pulled out during
       the examination. It did not appear to have any joint involvement. The left
       upper extremity and right lower extremity were examined and they were
       neurovascularly intact with no gross deformities. The left lower extremity
       was examined about the knee as he had complained of some knee pain and
       he is tender to the medial and lateral jointlines. He has laxity to valgus
       stress and anterior drawer and Lachman’s have no firm end point and are
       lax compared to the contralateral side.
       STUDIES:
       Radiographs of the left knee were reviewed with no osseous abnormalities.
       Radiographs of the right hand reveals second metacarpal shaft fracture.

R. Vol. I at 120. He was provided a splint for his hand and a brace for his left leg,

and was told he could use crutches if needed. Follow-up was scheduled for a hand

clinic on November 1 and a sports clinic on November 26.

       The only disputed evidence regards what happened in the period after Plaintiff was

ejected from his car but before he arrived at the hospital. Defendant describes that period

as follows: After the crash he “immediately called for an ambulance and paramedics,”


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R. Vol. II at 289 ¶ 3, and then tended to the passenger in Plaintiff’s vehicle. Plaintiff,

although initially unresponsive after being ejected from the vehicle, became responsive

and “instantly combative” about the time another officer arrived on scene. Id. at ¶ 6. The

two officers restrained Plaintiff, with Defendant assisting as the other officer handcuffed

him. His “aggressive behavior . . . . prevented [the officers] from administering any first

aid.” Id. at ¶ 9. After being handcuffed, Plaintiff was not moved until the ambulance

arrived, at which point he was transported by ambulance to a hospital.

        This account is corroborated by the dashcam recording in Defendant’s vehicle,

which shows that he requested an ambulance immediately after the crash and shows no

movement of Plaintiff from where he landed (although the recording ends before the

ambulance arrived). Further corroboration appears in the report of the ambulance

service, which states that the call for assistance was received at 1:02 PM, the ambulance

arrived at the scene at 1:24 PM, Plaintiff was lying on the ground in handcuffs, and

Plaintiff was taken to the hospital in the ambulance.1 A time stamp in the hospital record


1
    The ambulance narrative report provides a fuller description of the scene as follows:

        Found multiple officers out with pt’s and next to vehicle. Found SUV on
        it’s topside. . . . Found male pt lying on his left side approx. 30 ft to the
        south of the vehicle. Noted that pt had an open airway with multiple
        abrasions and lacerations with no severe bleeding noted. No resp distress
        or labored breathing noted. Pt was talking when answered questions. Pt
        was in handcuffs, but released due to our request No step offs or
        deformities noted to neck or back. Skin w/p/d. Initially pt A&Ox1, but en
        route became A&Ox3. Laceration noted to right posterior scalp with slow
        oozing blood, but unable to get a good visualization due to hair. Approx 3–
        4 cm laceration noted to chin and between eyebrows, both of which had
        slow oozing blood. Dirt noted to face. Eyes perrl. No blood or fluid noted
        from mouth or ears. No tracheal deviation or JVD noted. =chest rise/all.

                                              3
shows that Plaintiff had received medical care by 2:20 PM. The hospital records also

show that Plaintiff was treated at the hospital and discharged at 3:27 AM the next

morning to police custody.

       Plaintiff has a different story. He asserts that shortly after he regained

consciousness, as he lay on the ground, he felt an officer’s knee on the back of his head

while he was being handcuffed. He was then carried to the back of a patrol car (where he

waited for an unknown amount of time) and transported to a hospital in the police car, not

an ambulance. Plaintiff claims that as a result of Defendant’s actions, he suffered “[p]ain

and suffering and [migraine] headaches, [and] vertebral damage.” R. Vol. II at 73 (Tr.

68:18–19).

       We review the district court’s grant of summary judgment de novo, drawing all

reasonable factual inferences in favor of the nonmovant. See Applied Genetics Int’l, Inc.

v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). When, however, we

review a summary-judgment order granting qualified immunity, the plaintiff must point

to evidence showing that “(1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088

(10th Cir. 2009).


       Entire chest wall tender upon palpation. No deformities or crepitis noted.
       Rating 10/10 sharp non-radiating pain. Reproducible with inspiration. No
       bruising or abrasions noted. Abd soft non-tender. Pelvis stable. Approx
       10 cm laceration noted to lower left lateral extremity. Bleeding self
       controlled. Right lower extremity unremarkable. Small lacerations and
       abrasions to both upper extremities. Pt denied SOB, blurred vision, N/V/D.

R. Vol. I at 265.

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       It appears that the only claim before us is an indifference-to-medical-needs claim

under the Fourteenth Amendment’s Due Process Clause. Although Plaintiff’s brief on

appeal once mentions the alleged use of excessive force by Defendant, the district court

stated in its decision below that Plaintiff had not raised an excessive-force claim in that

court, and he does not challenge that statement on appeal. We therefore will not address

that potential claim. See United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004)

(“The well-settled law of this circuit is that issues not raised in district court may not be

raised for the first time on appeal.”).

       To establish a due-process medical-needs claim, the plaintiff must prove both an

objective and a subjective component. The objective component is that “the harm

suffered rises to a level sufficiently serious to be cognizable under the Cruel and Unusual

Punishment Clause of the Eighth Amendment.” Martinez, 563 F.3d at 1088 (internal

quotation marks omitted). The subjective component is that “the defendants knew [the

plaintiff] faced a substantial risk of harm and disregarded that risk, by failing to take

reasonable measures to abate it.” Id. at 1089 (internal quotation marks omitted).

       Under Defendant’s corroborated account of the incident, officers promptly called

for medical help after the accident and did not touch Plaintiff before the ambulance

arrived, other than to restrain him after he refused to comply with commands to stop

resisting and remain on the ground. If this account is correct, the subjective component

could hardly be sustained. Plaintiff has asserted other facts, but we are skeptical that any

reasonable jury could believe him in light of the contrary evidence in the record. In any

event, Plaintiff’s claim fails on the objective prong. There is no medical evidence that his


                                               5
treatment at the scene of the accident (or lack thereof) caused any significant medical

problems. Given the nature of Plaintiff’s accident—being ejected from a car traveling 90

miles per hour—no lay person could properly opine that the limited damage described in

the medical reports could be traced to Defendant’s acts. See Sealock v. Colorado, 218

F.3d 1205, 1210 (10th Cir. 2000) (“Delay in medical care only constitutes

[a constitutional] violation where the plaintiff can show that the delay resulted in

substantial harm.”). And Plaintiff has provided no medical evidence that he suffered any

injury, much less a significant one, as the result of his treatment after the accident.

Because Plaintiff cannot establish a constitutional violation, Defendant is entitled to

qualified immunity.

       We AFFIRM the entry of summary judgment. We DENY all Plaintiff’s pending

motions, including the motions to proceed in forma pauperis and for appointment of an

attorney.

                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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