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

                            FOR THE TENTH CIRCUIT                        March 28, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JAMES TOOLEY,

             Plaintiff-Appellant,

v.                                                         No. 12-7050
                                                 (D.C. No. 6:11-CV-00110-KEW)
DAVID S. YOUNG,                                            (E.D. Okla.)

             Defendant-Appellee,

and

CITY OF KONAWA, OKLAHOMA,

             Defendant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.


      This is a false-arrest and excessive-force civil-rights case. James Tooley

appeals from a summary judgment entered in favor of Officer David S. Young and

denying reconsideration.1 We affirm.

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                     BACKGROUND

         On September 4, 2009, Young was working as a reserve police officer for the

City of Konawa, Oklahoma, when he “over heard officers Gary Whitson and David

K[naggs] advise central dispatch . . . they where [sic] on a traffic stop.” Aplt. App.,

Vol. 2 at 301. Young “could hear some type of distress in Officer Knaggs[’] voice.”

Id.

         Young responded to the scene, where Whitson and Knaggs were speaking with

74 year old Tooley, who was seated in the rear seat of Whitson’s patrol car with his

hands handcuffed behind his back. Young was informed of the reason for Tooley’s

arrest: During the stop, Tooley had left his vehicle, approached Whitson, and despite

Whitson’s warning to get back into his vehicle or be arrested remained outside his

vehicle and responded, “Arrest me.” Id. at 367 (internal quotation marks omitted).

While Whitson was attempting to handcuff Tooley, Knaggs perceived Tooley as

resisting arrest and joined Whitson in securing Tooley in handcuffs.

         At his deposition, Tooley testified to having been handcuffed for “[p]robably

five or ten minutes” when Young arrived. He was “holler[ing] at” the officers

because he had “lost circulation off of both arms.” Id., Vol. 1 at 142. Young took

Tooley out of the car. In the process Tooley hit his elbow on the car’s door jam.

Young then removed the handcuffs, asked for Tooley’s identification, and re-

handcuffed Tooley, this time with hands in front of his body. According to Tooley’s
1
    Our jurisdiction derives from 28 U.S.C. § 1291.


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testimony “[Young] tried to be a gentleman when it come to that,” id. at 155, and

“[h]e was decent about that,” id. at 156. Tooley was then put back in Whitson’s

vehicle, but he gave conflicting testimony about which officer(s) were involved and

the amount of force used. At one point in his deposition, Tooley claimed he did not

recall which officer was involved “because it wasn’t eventful getting in that second

time.” Id., Vol. 2 at 383. But he also testified Young “wanted it done faster than

[his] body would want to react to it,” id., Vol. at 1 at 156, and Young “helped [him]

get bent up and shoved into the back seat,” id. at 162.

         Tooley was taken to jail, charged with disobeying a lawful order and resisting

arrest, and treated for cuts on his wrists. After about an hour, he was released.

         In March 2011, Tooley filed suit in state court against the City of Konawa,

Knaggs and Young.2 As a result of the defendants’ actions, he allegedly “suffered

painful and permanent injuries to his legs, hands, neck and back, for which he has

had, and continues to have medical treatment.” Id. at 84. The complaint contained

state law claims under the Oklahoma Government Tort Claims Act against the City of

Konawa and both federal claims under the Fourth Amendment and state law claims

against Knaggs and Young. The case was removed to federal court where Knaggs

was dismissed as a defendant because he was not served. Both the City of Konawa

and Young moved for summary judgment.



2
    At the time of the lawsuit, Officer Whitson was deceased.


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      The district judge entered summary judgment in favor of Young. He

concluded the federal claims against him were limited to unlawful arrest and

excessive force. As to the unlawful arrest claim, the judge determined Young did not

personally participate in the arrest and was justified in relying on the allegations of

resisting arrest made by Knaggs and Whitson. Regarding the excessive force claim,

the judge concluded Young did not use greater force than necessary and even if he

did, no reasonable officer in Young’s position would have known his acts might

amount to a violation of Tooley’s constitutional rights.

      As all of the federal claims were resolved by summary judgment, the judge

declined to exercise supplemental jurisdiction over the remaining state law claims

against Young and the City of Konawa; he remanded those claims to state court and

declared the City’s summary judgment motion to be moot. Tooley unsuccessfully

sought reconsideration and then appealed for relief from this court.

                                      DISCUSSION

                                I. Standards of Review

      We review a grant of summary judgment on qualified immunity grounds de

novo, applying the same standard as the district court. Becker v. Bateman, 709 F.3d

1019, 1022 (10th Cir. 2013). Summary judgment is appropriate “if the movant shows

. . . there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). When a defendant raises

qualified immunity at summary judgment, the burden shifts to the plaintiff to show:


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“(1) the defendant violated a constitutional right and (2) the constitutional right was

clearly established.” Becker, 709 F.3d at 1022 (quotation omitted). The court has

discretion to address either prong first. Pearson v. Callahan, 555 U.S. 223, 236

(2009). In determining whether the plaintiff has met his burden of establishing a

clearly established constitutional violation, “we will construe the facts in the light

most favorable to the plaintiff as the nonmoving party.” Thomson v. Salt Lake Cnty.,

584 F.3d 1304, 1312 (10th Cir. 2009).

                                    II. False Arrest

      Tooley argues there was no justification for stopping his automobile or

arresting him following the stop. That argument is irrelevant because Young had

nothing to do with either the traffic stop or Tooley’s arrest. At his deposition Tooley

claimed Young “set [him] up” to be stopped, Aplt. App., Vol. 1 at 166, but the source

of the set-up claim was “local gossips,” and Tooley conceded he “can’t prove” the

set-up claim, id., Vol. 2 at 416. Tooley’s assertion that Young became involved in

the arrest simply by repositioning the handcuffs, taking his identification, and

returning him to the backseat of Whitson’s vehicle has no traction. An arrest occurs

“when, by means of physical force or a show of authority, an individual’s freedom of

movement is restrained.” Fogarty v. Gallegos, 523 F.3d 1147, 1155-56 (10th Cir.

2008) (brackets and internal quotation marks omitted). Tooley was arrested by

Whitson and Knaggs, not Young. Those officers restrained Tooley’s freedom of

movement by handcuffing him and placing him in the back of Whitson’s patrol car.


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      An argument that Young is liable by having a hand in continuing the arrest,

needs more than Tooley has supplied. Young had been informed of the reason for the

arrest, and “[p]olice officers are entitled to rely upon information relayed to them by

other officers in determining whether there is reasonable suspicion to justify an

investigative detention or probable cause to arrest, as long as such reliance is

objectively reasonable,” Koch v. City of Del City, 660 F.3d 1228, 1240 (10th Cir.

2011) (internal quotation marks omitted). Tooley fails to identify any evidence

showing why Young should have disbelieved the reasons Whitson and Knaggs gave

for the arrest, and we have found none.

      Young’s involvement in Tooley’s stop or arrest does not support Tooley’s

false arrest claim. He is entitled to the summary judgment entered in his favor. See

Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“[P]ersonal participation in

the specific constitutional violation complained of is essential.”).

                                 III. Excessive Force

      Tooley’s excessive force arguments are less than clear. He seems to be saying

any force employed by Young was necessarily excessive because his arrest was

unlawful. We’re not going for that. As we just explained, Tooley has no claim for

false arrest against Young. And even when an arrest is unlawful, a “court may not

automatically find any force used in effecting the unlawful arrest to be excessive.”

Romero v. Story, 672 F.3d 880, 890 (10th Cir. 2012). Moreover, the inquiry must be

defendant specific except when “all Defendants actively and jointly participated in


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the use of force” or the facts support “a failure-to-intervene theory.” Estate of

Booker v. Gomez, No. 12-1496, 2014 WL 929157, at *11 (10th Cir. Mar. 11, 2014).

Those exceptions do not apply here.3 Thus, we focus our inquiry on “the force used

[by Young] . . . [measured] against the force reasonably necessary to effect a lawful

arrest or detention under the circumstances of the case.” Id. (internal quotation

marks omitted). Further, to succeed on an excessive force claim, the plaintiff must

show an actual, non-de minimis injury. Koch, 660 F.3d at 1247-48.

      Young’s acts were focused on relieving Tooley of discomfort, not imposing it.

Young did nothing more than remove Tooley from Whitson’s vehicle, reposition the

handcuffs to make them more tolerable, and put him back in the vehicle. According

to Tooley, Young was both a “gentleman” and “decent” when re-handcuffing him.

At most, Young bumped Tooley’s elbow while removing him from Whitson’s vehicle
3
  Tooley’s rather undisciplined briefing indiscriminately mixes arguments and
theories. His brief touches on, but does not thoroughly analyze an oblique reference
to a state tort of failure-to-intervene. In §1983 law the doctrine imposes liability on
an officer who is aware of excessive force being used by other officers, is in a
position to intervene and does nothing. See Krout v. Goemmer, 583 F.3d 557, 565
(8th Cir. 2009); Torres-Rivera v. O’Neill-Cancel, 406 F.3d 43, 51-52 (1st Cir. 2005);
see, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1164 (10th Cir. 2008) (concluding that
supervising police officer had a “realistic opportunity” to prevent fellow officers’ use
of excessive force where the supervisor was present for the arrest, which “last[ed]
between three and five minutes,” and failed to intervene). Tooley’s near singular
focus is upon Young’s participation in his continued custody, which, as we have
explained, does not, alone, amount to excessive force. The only exception has to do
with Young’s conduct in repositioning the handcuffs to make it easier on Tooley and
then placing him back in the police vehicle. Tooley claims Young and another officer
jointly “stuffed” him back in the patrol vehicle. But he fails to detail evidence of
how the “stuffing” (regardless of who did it) amounts to excessive force or resulted
in sufficiently cognizable injuries to him.


                                          -7-
and then placed him back in the vehicle too rapidly. But Tooley offers neither an

argument regarding the reasonableness of Young’s force in removing him from

Whitson’s vehicle nor evidence of any injury to his elbow.

      As for Tooley’s reinsertion into the vehicle, his account of the event is murky.

He testified both (1) getting back into Whitson’s vehicle “wasn’t eventful” and he

was not sure who put him there; and (2) Young bent him and shoved him into the

vehicle. Placing a detainee or arrestee in a patrol vehicle is necessarily incident to

most detentions and arrests. We will not infer a constitutional violation from routine

police activity. Cf. Graham v. Connor, 490 U.S. 386, 396 (1989) (“[T]he right to

make an arrest or investigatory stop necessarily carries with it the right to use some

degree of physical coercion or threat thereof to effect it.”); Becker, 709 F.3d at 1022

(noting plaintiffs bear the burden of showing a constitutional violation at the

qualified immunity stage of summary judgment). Probative evidence of unreasonable

force and resulting injury is required. Tooley offers nothing to show the extent of his

injuries upon being returned to the back seat of Whitson’s vehicle or the

unreasonableness of the force used to get him there.

      Young did not violate Tooley’s right to be free from excessive force. Summary

judgment was appropriate.

IV. Reconsideration

The district judge denied reconsideration of the summary judgment because Tooley

merely reiterated his earlier arguments. He does not address the denial in his briefs;


                                          -8-
we deem the issue waived. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231

(10th Cir. 1990). In any event it was not an abuse of discretion. Muskrat v. Deer

Creek Pub. Sch., 715 F.3d 775, 789 (10th Cir. 2013).

AFFIRMED.



                                       Entered for the Court:

                                       Terrence L. O’Brien
                                       Circuit Judge




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