                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       June 12, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    D ELA RIC K H U N TER , also known
    as Delarick Evans,

                Plaintiff-Appellant,

    v.                                                  No. 06-3371
                                                (D.C. No. 05-CV-3074-M LB)
    JOEL M . YOUNG, in his official and                   (D . Kan.)
    individual capacity as a Sergeant of
    the W yandotte County Detention
    Center,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.




         Delarick Hunter, formerly a detainee at the W yandotte County Detention

Center in Kansas City and currently a prisoner in the Lansing Correctional

Facility, appeals the district court’s dismissal of his 42 U.S.C. § 1983 claim for




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
monetary damages against Sergeant Joel M . Young, a sheriff’s officer at the

detention center, in his official and individual capacities. W e exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

                                             I.

       On February 15, 2004, M r. Hunter was held in the W yandotte County

Detention Center pending sentencing, in lockdown status for disciplinary reasons.

W hile receiving his daily medication in his cell, he was involved in a physical

altercation with deputies not named as defendants in this case. The deputies used

force to subdue and handcuff him. M r. Hunter, who sustained a cut on his upper

lip during the incident, was briefly left in his cell. 1

       Shortly afterwards, Sgt. Young arrived to assist the other deputies, who

needed to re-enter the cell to retrieve dropped keys. M r. Hunter was standing and

looking out of his cell window. Sgt. Young ordered M r. Hunter to sit on his

bunk. W hen M r. Hunter did not heed the order, Sgt. Young warned that he would

use a taser gun. In the face of further noncompliance, Sgt. Young opened the cell

and fired the taser twice at M r. Hunter, hitting him in the upper and lower back.

Sgt. Young then recovered the keys and a nurse entered the cell to examine, wash,




1
      In connection w ith this incident, M r. Hunter was later convicted of two
counts of battery on a law enforcement officer and sentenced to a term of 152
months of confinement in the Kansas Department of Corrections.

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and bandage the minor wounds M r. Hunter received in the earlier fracas with the

deputies and from the taser hits.

      In the wake of the taser deployment, M r. Hunter filed suit against the

Sheriff of W yandotte County, alleging the use of excessive force and also delay

or denial of appropriate medication for his HIV-positive condition. The Sheriff

prepared and filed a report detailing the factual record, pursuant to M artinez v.

Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978). M r. Hunter filed a response to the

report, admitting only that the initial altercation took place and that he had been

shot with the taser gun.

      Through later filings, M r. Hunter amended his complaint to modify the

claims against the Sheriff and add an excessive-force claim against Sgt. Young.

The Sheriff was dismissed from the case and Sgt. Young moved for summary

judgment on qualified-immunity grounds. The district court granted the motion,

determining that the Eleventh Amendment barred the official-capacity claim and

that qualified immunity shielded Sgt. Young from liability on the

individual-capacity claim. M r. Hunter now appeals the district court’s decision.

                                          II.

      “W e review the district court’s holding on summary judgment and the

Eleventh Amendment de novo.” Callahan v. Poppell, 471 F.3d 1155, 1158

(10th Cir. 2006). “Summary judgment is appropriate ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.’” Cooperman v.

David, 214 F.3d 1162, 1164 (10th Cir. 2000) (quoting Fed. R. Civ. P. 56(c)).

“[A] mere factual dispute will not preclude summary judgment; instead, there

must be a genuine issue of material fact.” Id. “[T]he substantive law will

identify which facts are material,” and “[o]nly disputes over facts that might

affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment.” Id. M r. Hunter is representing himself on appeal

so his pleadings will be construed liberally. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972).

                              O fficial-capacity claim

      It is well-settled that a request for money damages against a state defendant

in his official capacity is generally barred by the Eleventh Amendment to the

Constitution. See White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996).

Although the “state may waive its Eleventh Amendment immunity,” the waiver

“must be unequivocal . . . stated by the most express language or by such

overwhelming implication from the text of a state statutory or constitutional

provision as will leave no room for any other reasonable construction.” Johns v.

Stewart, 57 F.3d 1544, 1553 (10th Cir. 1995) (quotations and alterations omitted).




                                          -4-
      M r. Hunter asserts that Kansas w aived its immunity by enacting Kan. Stat.

§ 19-811, which provides that a county sheriff has “charge and custody of the jail

of his county” and that the sheriff and “his sureties shall be liable” for the acts of

“his deput[ies] or jailer[s].” This general language cannot be reasonably

construed as a waiver of Kansas’s immunity against § 1983 prisoner claims in the

federal courts. Because M r. Hunter’s requested relief is for only monetary

damages, sovereign immunity bars his claim against Sgt. Young in his official

capacity.

                             Individual-capacity claim

      The district court also determined that Sgt. Young was entitled to qualified

immunity on M r. Hunter’s claim that the use of the taser gun amounted to

excessive force in violation of the Eighth Amendment’s prohibition against cruel

and unusual punishment. W hen a defendant invokes the defense of qualified

immunity, a plaintiff must “satisfy a heavy two-part burden to avoid summary

judgment: (1) that the defendant’s actions violated a constitutional or statutory

right and (2) that the right was clearly established at the time of the defendant’s

unlawful conduct.” Serna v. Colo. Dep’t of Corrs., 455 F.3d 1146, 1150

(10th Cir. 2006) (quotation omitted). The district court resolved the matter at the

first step, holding that M r. Hunter had not demonstrated any constitutionally

prohibited conduct.




                                          -5-
      W hether force is constitutionally excessive depends upon the circumstances

confronting the officer and the nature and amount of force applied by the officer.

See W hitley v. Albers, 475 U.S. 312, 321 (1986). W hether an officer’s conduct

was reasonable is evaluated from the viewpoint of a reasonable officer at the

scene. M edina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001). As the district

court noted, “[t]he ‘core inquiry’ . . . is ‘whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically

to cause harm.’” Serna, 455 F.3d at 1152 (quoting Hudson v. M cM illian, 503 U.S.

1, 7 (1992)). “W e can infer malicious, sadistic intent from the conduct itself

where ‘there can be no legitimate purpose’ for the officers’ conduct.” Id.

(quoting Smith v. Cochran, 339 F.3d 1205, 1213 (10th Cir. 2003)).

      Federal courts have held that the use of a taser or similar stun gun is not

per se unconstitutional when used to compel obedience by inmates. See Draper v.

Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (holding that a “single use of the

taser gun causing a one-time shocking” against a “hostile, belligerent, and

uncooperative” arrestee in order to effectuate the arrest w as not excessive force in

the totality of the circumstances); Jasper v. Thalacker, 999 F.2d 353, 354

(8th Cir. 1993) (using stun gun to subdue an unruly inmate did not violate Eighth

Amendment where plaintiff failed to prove that the officers used the stun gun

“sadistically or maliciously” to cause harm); Caldwell v. M oore, 968 F.2d 595,

602 (6th Cir. 1992) (use of stun gun against disruptive prisoner to restore

                                          -6-
discipline and order does not violate Eighth Amendment); M ichenfelder v.

Sumner, 860 F.2d 328, 336 (9th Cir. 1988) (policy of allowing use of taser guns

on inmate who refuses to submit to a strip search does not constitute cruel and

unusual punishment). And “this is so whether the inmate is locked in his prison

cell or is in handcuffs.” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984)

(discussing use of “mace, tear gas, or other chemical agents” against inmates).

Courts “should . . . be extremely cautious before attempting to prohibit or limit

the necessary means” prison officials use to carry out their responsibilities. Id.

      The evaluation of M r. Hunter’s excessive-force claim, as considered from

Sgt. Young’s vantage point, is not dependent upon a resolution of disputed facts. 2

Both M r. Hunter’s submissions and the M artinez report indicate that Sgt. Young

sought to enter M r. Hunter’s cell with an awareness that a physical altercation had

just taken place and that M r. Hunter was in lockdown. Sgt. Young ordered

M r. H unter to go to his bunk and M r. H unter did not comply.

      M r. Hunter alleges that the other officers were responsible for the initial

altercation, that he was asking for a jail supervisor, and that his physical

condition prevented him from following Sgt. Young’s orders. He does not allege,

however, that Sgt. Young was aware of M r. Hunter’s version of the preceding




2
       For this reason, we need not reach M r. Hunter’s argument that the district
court improperly relied on the version of the facts presented in the M artinez
report.

                                         -7-
incident or that he perceived M r. H unter’s allegedly impaired physical condition.

Instead, M r. Hunter suggests that Sgt. Young should “have asked [him] why [he]

didn’t sit, once [Sgt. Young] opened the door,” so that he “could have told him

the pains [he] w as having in [his] hip and legs.” Reply Br. at 5.

      W e decline to second guess Sgt. Young’s “split-second judgments” about

the necessary amount of force made in these “tense, uncertain, and rapidly

evolving” circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989).

M r. Hunter has not demonstrated that use of the taser was objectively

unreasonable and therefore violated his constitutional right under the Eighth

Amendment. As a result, qualified immunity shields Sgt. Young from

M r. Hunter’s pursuit of an excessive-force claim.

                                          III.

      The district court’s judgment is AFFIRM ED. M r. Hunter is reminded that

he is obligated to continue making partial payments toward the balance of his

assessed fees and costs until they are paid in full.


                                                       Entered for the Court


                                                       M ichael W . M cConnell
                                                       Circuit Judge




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