                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ____________

                                 No. 96-3094
                                 ___________

Frederick Darnell Moore,       *
                               *
            Appellant,         *
                               *
      v.                       * Appeal from the United
                                  States
                               * District Court for the
M i t c h e l l Novak, Correctional Officer;          *
                                                      Dist
                                                      rict
                                                      o f
                                                      Nebr
                                                      aska
Craig Schmidt, Correctional Officer,                  *
                               *
            Appellees.         *
                          ___________

                                                  Submitted:          March 14,
1997

                                                          Filed:         May 22,
1998
                                 ___________

Before McMILLIAN, FLOYD R. GIBSON,1 and HANSEN, Circuit
    Judges.
                      ___________


       1
        At the panel’s conference on March 14, 1997, following oral argument of the
case, Judge Floyd R. Gibson concurred in the result reached in this opinion. Judge
Gibson has been disabled by illness from reviewing the opinion, which is being filed
in the interest of avoiding undue delay.
McMILLIAN, Circuit Judge.




                            -2-
    Frederick Darnell Moore appeals from a final judgment
entered in the District Court2 for the District of
Nebraska, following a bench trial, in favor of defendants
Mitchel Novak and Craig Schmidt, in his 42 U.S.C. § 1983
civil rights action. Moore v. Novak, No. 4:CV94-3328 (D.
Neb. June 27, 1996) (memorandum of decision).         For
reversal, Moore argues the district judge’s findings of
fact are clearly erroneous. For the reasons discussed
below, we affirm the judgment of the district court.

    The district court had subject matter jurisdiction
over this civil rights action under 28 U.S.C. § 1343; the
notice of appeal was timely filed as required by Fed. R.
App. P. 4(a), and this court has appellate jurisdiction
under 28 U.S.C. § 1291.

    This case was tried before a magistrate judge
pursuant to the consent of the parties under 28 U.S.C. §
636(c). Jury trial was waived. The trial took two days.
The following statement of facts is taken in large part
from the memorandum opinion of the magistrate judge.

    In the early morning hours of September 10, 1993,
Lincoln police officer Terri Lobdell arrested Moore in
connection with a burglary investigation.         Lobdell
handcuffed Moore and transported him to the Lancaster
County jail.    Moore was intoxicated and loudly asked
Lobdell about personal property he claimed had been taken


      1
      The Honorable David L. Piester, United States Magistrate Judge for the District
of Nebraska. The parties consented to trial of the case before a magistrate judge
pursuant to 28 U.S.C. § 636(c).


                                         -3-
from him. Upon arriving at the jail, Lobdell drove to
the garage door. Novak, a jail correctional officer, saw
Lobdell’s patrol car approach on a surveillance video
monitor and pressed a switch to open the garage door.
Once inside the garage, Lobdell got out of the patrol
car, picked up Moore’s personal property, and removed
Moore from the rear seat. Lobdell walked Moore to the
jail entrance door. Moore continued




                           -4-
to ask Lobdell about his personal property. Novak saw
Lobdell and Moore on the surveillance video monitor and
pressed a switch to open the jail entrance door. Lobdell
and Moore went through the door and into the elevator.
When they got off the elevator, Lobdell was slightly
behind Moore and to his right.        Moore’s hands were
handcuffed behind his back.        Lobdell held Moore’s
personal property in her right hand and Moore’s upper
right arm in her left hand. They walked down a hallway
to one of the doors to the jail booking area. As they
approached the door, Moore began to shout at Lobdell.
Novak could see Moore and Lobdell through the glass
windows next to the door to booking area. Novak pressed
a switch to open the door. Lobdell released Moore’s arm,
shifted Moore’s personal property to her left hand, and
opened the door with her right hand. Moore and Lobdell
walked through the door.

    Novak picked up a Polaroid camera and walked toward
the door. He was preparing to take a photograph of Moore
as part of the booking process. Lobdell told Moore to
stand on a square painted on the floor so Novak could
take his photograph.     Moore shouted an obscenity at
Lobdell and kicked her in the leg, knocking her
backwards. Novak grabbed Moore from behind and told him
to calm down.    Moore continued to shout and struggle.
Schmidt, a jail correctional officer, was working at a
computer in the booking area. He heard shouting and went
to help Novak and Lobdell. Schmidt grabbed Moore’s right
arm; Novak held Moore’s left arm. They turned him toward
the booking counter and told him to drop to his knees.
Moore refused and continued to struggle. Schmidt removed
his “stun” gun, displayed it to Moore and warned Moore

                           -5-
that he would use it if Moore did not comply with their
commands. Moore shouted more obscenities and continued
to struggle and attempt to break free.     Schmidt then
applied the stun gun to Moore’s lower back for three to
five seconds. Moore bent over and Schmidt withdrew the
stun gun. Novak and Schmidt forced Moore to the floor.


    By this time, another jail correctional officer,
Jason Hellmuth, had come to help Novak and Schmidt.
Moore was on the floor.    Another jail correctional
officer,




                          -6-
Margaret Vaske, performed a pat down search and removed
more personal property. The four correctional officers
placed Moore in a safety cell; Novak removed the
handcuffs and asked Moore if he needed medical
assistance. Moore did not respond. Novak repeated the
question; Moore told Novak that he was fine and refused
medical assistance. Moore remained conscious throughout
the entire incident.     Novak and Schmidt reported the
incident to shift supervisor Shauna Baird.      Baird had
seen the four correctional officers holding Moore down on
the floor. Baird told Novak and Schmidt to write reports
about the incident.

    A surveillance video camera in the booking area had
recorded the incident. Baird stopped the video cassette
recorder (VCR), rewound the videotape, and played back
the videotape on the video monitor. Baird testified that
Novak was standing beside her when she played back the
videotape and that she assumed he watched it at the same
time.   Baird concluded that the officers had complied
with department policy regarding the use of force and
stun guns. Baird testified that the videotape did not
show the actual use of the stun gun or defendants’
“body-slamming” Moore to the floor. Baird then rewound
the videotape, removed it from the VCR and then either
handed it to investigating officer Ann Lubow (her name
was Foster at the time of trial) or placed the videotape
on the booking counter for Lubow to use in her
investigation. Novak testified that he never viewed the
videotape. Lubow wrote a report about the incident based
on statements from Lobdell and Novak. Lubow testified
that she did not take the videotape.      The videotape



                           -7-
disappeared and, despite repeated attempts to locate it,
was still missing at the time of trial.

    Moore was charged and convicted in state court with
assaulting a police officer. His conviction was affirmed
by the state court of appeals; further review by the
state supreme court was denied.

    Moore then filed this 42 U.S.C. § 1983 civil rights
action in federal district court, alleging Novak and
Schmidt used excessive force in restraining him, Novak
was




                           -8-
motivated by racial animus in violation of the equal
protection clause, and Novak either destroyed or secreted
the surveillance videotape of the incident, thus making
it unavailable for use in his state criminal trial, in
violation of the due process clause.       Moore did not
challenge his arrest and admitted that he was intoxicated
and verbally abusive.    However, he denied that he had
intentionally kicked Lobdell.     He alleged that, even
though he is a medium-sized person and his hands were
handcuffed behind his back, Novak shouted a racial slur
at him, grabbed him by the handcuffs and one arm, lifted
him up, and then threw him to the floor. He alleged that
Schmidt wrongfully used the stun gun against his neck,
when he was handcuffed and being held down on the floor,
until he lost consciousness. He sought compensatory and
punitive damages, costs and expenses, and attorney’s
fees.

     Following a bench trial, the district court found
that Novak and Schmidt did not use excessive force in
restraining Moore.    Slip op. at 10-12.   The district
court specifically found that both the decision to use
force and the amount or degree of force used-- physical
restraint and use of the stun gun-- were objectively
reasonable because Moore was not under control, even
though he was handcuffed, and represented a continuing
threat to his physical safety and that of the officers.
Moore was intoxicated, agitated, verbally abusive, had
kicked a police officer, repeatedly refused to comply
with   officers’   legitimate   commands, continued  to
struggle, and attempted to break free. Id. The district
court expressly credited the testimony of the officers
and expressly rejected Moore’s version of the incident,

                           -9-
including his allegations that Novak threw him to the
floor, Novak used racially derogatory language, and
Schmidt wrongfully used the stun gun. Id. at 4 & nn.4-5,
5-6 & n.7, 8 & n.9, 12 & n.12 (jail policy bars use of
stun gun when inmate is “restrained and controlled” and
lists “handcuffed” as example of when inmate could be
considered “restrained and controlled”; however, officers
testified that Moore was not “controlled” despite being
handcuffed). The district court also found there was no
evidence of racial discrimination, id. at 13, and that
Moore’s due process claim was barred because a finding
that Novak had destroyed or secreted the videotape would
necessarily imply the invalidity of Moore’s criminal




                           -10-
conviction, which had not been reversed, expunged,
invalidated, or otherwise called into question. Id. at
14-15, citing Heck v. Humphrey, 512 U.S. 477 (1994).
This appeal followed.

    For reversal, Moore argues the district court’s
findings of fact are clearly erroneous.     He argues we
should not defer to the district court’s credibility
determinations because defendants’ version of the
incident was so internally inconsistent and implausible
on its face that a reasonable factfinder would not have
credited it. He also argues that the unexplained absence
of the surveillance videotape raised a clear inference
that it would have supported his version of the incident.



    We review the district court’s findings of fact under
the clear error standard of review set forth in Fed. R.
Civ. P. 52(a) and clarified by the Supreme Court in
Anderson v. City of Bessemer City, 470 U.S. 564 (1985)
(Anderson).   “A finding is ‘clearly erroneous’ when,
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
United States v. United States Gypsum Co., 333 U.S. 364,
395 (1948).

    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


                           -11-
factfinder’s choice   between   them   cannot   be
clearly erroneous.

    . . . .

    When findings are based on determinations
regarding the credibility of witnesses, Rule
52(a) demands even greater deference to the
trial court’s findings; for only the trial judge
can be aware of the variations in demeanor and
tone of voice that bear so heavily on the
listener’s




                      -12-
    understanding of and belief in what is said.
    This is not to suggest that the trial judge may
    insulate his [or her] findings from review by
    denominating them credibility determinations,
    for factors other than demeanor and inflection
    go into the decision whether or not to believe a
    witness.   Documents or objective evidence may
    contradict the witness’ story; or the story
    itself may be so internally inconsistent or
    implausible on its face that a reasonable
    factfinder would not credit it.       Where such
    factors are present, the court of appeals may
    well find clear error even in a finding
    purportedly     based     on    a    credibility
    determination. But when a trial judge’s finding
    is based on his [or her] decision to credit the
    testimony of one of two or more witnesses, each
    of whom has told a coherent and facially
    plausible story that is not contradicted by
    extrinsic evidence, that finding, if not
    internally inconsistent, can virtually never be
    clear error.


Anderson, 470 U.S. at 574-75 (citations omitted); see,
e.g., FDIC v. Lee, 988 F.2d 838, 841-42 (8th Cir. 1993).


    In the present case the district court correctly
applied the Fourth Amendment “objective reasonableness”
test to Moore’s excessive force claim. Slip op. at 9 &
n.11; see, e.g., Graham v. Connor, 490 U.S. 386, 394-95
(1989) (holding all claims that law enforcement officers
used excessive force in course of arrest, investigatory
stop or other seizure of a free citizen should be
analyzed under Fourth Amendment standard of objective
reasonableness rather than substantive due process).
“The question for the [factfinder] is whether, judging

                          -13-
from the perspective of a reasonable officer at the scene
of the arrest, the totality of the circumstances
justifies the use of the force used.”          Foster v.
Metropolitan Airports Comm’n, 914 F.2d 1076, 1081 (8th
Cir. 1990) (plaintiff claimed officers used excessive
force in making arrest).     “Circumstances such as the
severity of the crime, whether the suspect posed a threat
to the safety of the officers or others, and whether the
suspect was resisting arrest are all relevant to the
reasonableness of the officer’s conduct.” Id.




                           -14-
    Applying the above standard, the district court found
that defendants’ decisions to use force and the amount of
force used under the circumstances were objectively
reasonable.    The district court found that Moore was
intoxicated, agitated, refused to comply with commands,
kicked the arresting officer, continued to struggle and
attempt to get away, and posed an immediate threat to his
own safety and to the safety of the officers.          The
district court specifically rejected Moore’s claims that
Novak threw him to the floor by the handcuffs and that
Schmidt used the stun gun improperly or in a manner
inconsistent with department policy. But for the missing
videotape, our review of the district court’s findings of
fact would be straightforward.     Each party presented a
different story of the incident, primarily through the
testimony of witnesses; the stories were in sharp
conflict;    the   district    court   made    credibility
determinations and believed defendants’ version of the
incident. Their testimony told a coherent and facially
plausible story.    Ordinarily, such a finding based on
credibility determinations can “virtually never be clear
error.” Anderson, 470 U.S. at 575. However, Moore argues
that defendants’ story would have been contradicted by
extrinsic evidence-- the missing videotape. Moore argues
the fact that the videotape is missing raised an inference
that the videotape would have supported his version of the
incident.

    The circumstances surrounding the disappearance of the
videotape are suspicious but not necessarily sinister.
The most the record shows is that the personnel at the
jail had control of the videotape and that the videotape
has been misplaced or lost.       Even if we assume for

                           -15-
purposes of analysis that the fact that the videotape is
missing raised an inference in favor of Moore’s version of
the incident, Baird’s testimony about the videotape
sufficiently rebutted this inference.        According to
Baird’s testimony, the videotape did not contradict
defendants’ version of the incident. Baird testified that
the videotape showed Moore making a movement toward
Lobdell as they walked through the door and showed Novak
and Schmidt restraining Moore and “taking him to the
ground to control him.” She also testified that she did
not recall that the videotape showed either defendants’
“body-slamming” Moore to the floor or using the stun gun
and that she would have remembered such conduct had it
appeared on the videotape.




                           -16-
Baird also testified that, after reviewing the videotape,
she had concluded that the officers had complied with
department policy regarding both the use of force and the
use of the stun gun. Under these circumstances, we cannot
conclude that the district court’s findings of fact are
clearly erroneous.

    Finally, Moore argues that the destruction or
secreting of the videotape violated his right to due
process during his state criminal trial.        Brief for
Appellant at 21. We agree with the district court that,
because Moore did not prove that his state conviction had
been independently invalidated, his § 1983 claim for
damages is barred by Heck v. Humphrey, 512 U.S. at 484-87.
Slip op. at 13-15, citing Hamilton v. Lyons, 74 F.3d 99,
103 (5th Cir. 1996) (holding judgment in favor of
plaintiff based on finding that defendant violated
plaintiff’s   constitutional   rights   by  altering   and
destroying evidence relevant to charges against him would
necessary imply invalidity of subsequent convictions and
would be barred by Heck v. Humphrey unless plaintiff
proves his convictions or sentences have been reversed,
expunged, invalidated, or otherwise called into question).
The district court did not err in dismissing Moore’s due
process claim.
    Accordingly, the judgment of the district court is
affirmed.

    A true copy.

        Attest:




                           -17-
           CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.




                 -18-
