                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     April 21, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    DAVID M. FIENHOLD,

                Plaintiff-Appellant,

    v.                                                   No. 07-8058
                                                   (D.C. No. 05-CV-311-B)
    UNITED STATES OF AMERICA,                             (D. Wyo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.



         David M. Fienhold brought this action under the Federal Tort Claims Act,

28 U.S.C. §§ 1346(b)(1), 2671-2680, alleging that officers from the Wind River

Police Department, Bureau of Indian Affairs (BIA), used excessive force during a

warrantless arrest. He further alleged that he sustained a number of injuries,

including a torn rotator cuff and severe emotional distress, and asserted two



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
claims, (1) assault and battery and (2) negligence in the performance of the

officers’ official duties. After a three-day bench trial, the district court entered

judgment in favor of the United States. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                    B ACKGROUND

      We provide only a brief summary of the most pertinent facts and

allegations. In March 2004, Mr. Fienhold and his companion, Lynda Tillman, had

a domestic dispute at the house they share on the Wind River Indian Reservation

in Fort Washakie, Wyoming. Ms. Tillman and her three daughters left the house

and went to her mother’s house, where Ms. Tillman called the Wind River Police

Department, stating that she wanted to file a complaint against Mr. Fienhold. An

officer arrived and, based on the Tillmans’ account of Mr. Fienhold’s behavior,

informed Ms. Tillman that she could file a complaint for spousal and child abuse.

She elected to do so.

      The officer then accompanied Ms. Tillman and at least one of her daughters

back to their house so they could retrieve some belongings. Other officers arrived

as backup and together proceeded to place Mr. Fienhold under arrest. According

to Mr. Feinhold, he verbally resisted, and five officers pulled him from his chair,

piled on top of him, forcefully handcuffed him behind his back, and carried him

by the handcuffs to a patrol car. The officers, however, presented a materially

different version of the incident, one that was largely corroborated by one of

                                          -2-
Ms. Tillman’s daughters: There were only three officers present, and, after one

officer placed a handcuff on Mr. Fienhold’s right wrist, Mr. Fienhold rose and

physically resisted attempts to handcuff the other wrist. Two officers then placed

him on the floor, where he held his arms underneath his body. They instructed

him repeatedly to stop resisting the arrest and to permit them to cuff his left wrist.

After a prolonged struggle, Mr. Fienhold eventually acceded. The officers helped

him to his feet and walked him to the patrol car.

      At the outset of trial, the parties stipulated that the arrest was lawful and

that the only disputed issue was whether the officers used an unreasonable amount

of force. In its written findings of fact and conclusions of law, the court rejected

Mr. Fienhold’s version of events, finding that he “had a tendency to overstate,

exaggerate and embellish,” and that his “demeanor on the witness stand was

evasive, non-responsive, and at times, combative.” R., Doc. 39 at 8. The court

accepted the officers’ version of events and further found, among other things,

that the evidence did not link Mr. Fienhold’s torn rotator cuff to the officers’

actions. Applying Wyoming law, the court concluded that the amount of force

used by the officers was justified, that any injuries attributable to the officers’

conduct were incidental to the use of reasonable force, and that there was no

proof of negligence. Thus, the court held that the United States was entitled to

the common-law privilege defense, which protects from liability a public officer

who uses reasonable force when making a lawful arrest. See id. at 14 (citing

                                           -3-
W. Page Keeton et al., Prosser and Keeton on the Law of Torts §§ 25-26

(W. Page Keeton gen. ed., 5th ed. 1984)), 16. In the alternative, the court

determined that even if the amount of force was unreasonable, Mr. Fienhold’s

“comparative fault in resisting a lawful arrest would be greater than 50% of the

total fault attributable to all actors and any recovery would be barred under Wyo.

Stat. [Ann.] § 1-1-109.” R., Doc. 39 at 16-17. Mr. Fienhold appealed.

                                    D ISCUSSION

      Although he was represented by counsel in the district court, Mr. Fienhold

appears pro se on appeal. We therefore treat his appellate filings liberally but we

do not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). His opening brief appears to raise three issues. First, he challenges the

district court’s factual findings. 1 Our review is limited to determining if the

court’s factual findings were clearly erroneous. See Fed. R. Civ. P. 52(a)(6).

This standard of review is highly deferential:

      If the district court’s account of the evidence is plausible in light of
      the record viewed in its entirety, the court of appeals may not reverse
      it even though convinced that had it been sitting as the trier of fact, it
      would have weighed the evidence differently. Where there are two
      permissible views of the evidence, the factfinder’s choice between
      them cannot be clearly erroneous.




1
       Despite a conclusory assertion that the district court’s conclusions of law
were flawed, Mr. Fienhold has not identified for our review any particular legal
error in the conduct of the bench trial or the court’s written order.

                                          -4-
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (citation

omitted). Thus, “the question for this court under Rule 52(a) is not whether it

would have made the findings the trial court did, but whether on the entire

evidence [we are] left with the definite and firm conviction that a mistake has

been committed.” N.L.R.B. v. Viola Indus.-Elevator Div., Inc., 979 F.2d 1384,

1387 (10th Cir. 1992) (en banc) (quotations and alteration omitted).

      Mr. Fienhold points to evidence, including his own testimony, that the

district court either rejected or found not credible. Essentially, he asks this court

to reweigh the evidence, which we may not do. See Anderson, 470 U.S. at 574.

Having considered the entirety of the trial transcript, we conclude that the district

court’s account of the evidence is more than plausible, see id., and we are not left

with a “definite and firm conviction” that the district court erred in its factual

findings, see N.L.R.B., 979 F.2d at 1387.

      Mr. Fienhold’s next contention, that the arrest was unlawful, is contrary to

his attorney’s express agreement that he was making no such claim. See Supp.

R., Vol. I at 5-6 (Mr. Fienhold’s counsel stipulating he was not raising unlawful

arrest in this case); id., Vol. III at 111:1-4, 119:21 (Mr. Fienhold’s counsel

offering no rebuttal to defense counsel’s reiteration of that stipulation during

closing argument). We see no reason to disregard the general rule that a party is

bound by the acts of his attorney. See Gripe v. City of Enid, 312 F.3d 1184, 1189

(10th Cir. 2002).

                                          -5-
      Mr. Fienhold’s final argument is that the judge fell asleep during the trial.

However, he has not pointed to anything in the transcript to support his

allegation, and our review has uncovered nothing that would substantiate it.

Further, even assuming that the judge missed some testimony due to an

inattentiveness, Mr. Fienhold has not explained how he was prejudiced, and we

have uncovered nothing to undermine our confidence in the court’s disposition. 2

      Mr. Fienhold has moved to supplement the record with (1) six deposition

transcripts and (2) portions of the tribal code and BIA Law Enforcement

Handbook that pertain to the officers’ power to make a warrantless arrest. As to

the transcripts, the general rule is that in determining an appeal, “we may not

properly consider depositions not filed in the district court.” Daiflon, Inc. v.

Allied Chem. Corp., 534 F.2d 221, 226-27 (10th Cir. 1976). Two of the

transcripts are from videotaped depositions of medical experts, Drs. Whipp and

Cardinal, that were played for, and filed with, the district court. Accordingly, we

grant the motion as to those two transcripts. However, Mr. Fienhold has not

explained how these transcripts might affect our disposition of this appeal, and

2
      In his reply brief, Mr. Fienhold summarily argues that several eyewitnesses,
apparently two of Ms. Tillman’s daughters, her mother, and her mother’s
boyfriend, were not permitted to testify. Generally, arguments raised for the first
time in a reply brief are waived, see Stump v. Gates, 211 F.3d 527, 533 (10th Cir.
2000), as are insufficiently-developed arguments, see Murrell v. Shalala, 43 F.3d
1388, 1389 n.2 (10th Cir. 1994). We see no reason to depart from these rules
here. In any event, the record does not support this argument, as these witnesses
were not included in Mr. Fienhold’s final list of witnesses, see R., Doc. 24 at 1-2,
and he made no effort to call them as witnesses-in-rebuttal at trial.

                                         -6-
our review of them has uncovered nothing suggesting district court error. The

other four deposition transcripts were not filed with the district court, so we deny

that portion of the motion to supplement the record. Further, we grant

Mr. Fienhold’s motion to supplement the record with provisions of the tribal code

and BIA Law Enforcement Handbook, which appear to have been admitted as

exhibits at trial. But we see no relevance in those exhibits based on our holding

that Mr. Fienhold is bound by his attorney’s stipulation regarding the legality of

the arrest.

       The judgment of the district court is AFFIRMED. Mr. Fienhold’s motion

to supplement the record is granted in part and denied in part, as explained above.


                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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