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

                             FOR THE TENTH CIRCUIT                         March 30, 2020
                         _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 WAYNE DUKE KALBAUGH,

       Plaintiff - Appellant,

 v.                                                          No. 18-6205
                                                      (D.C. No. 5:16-CV-01314-R)
 JACOB JONES; BRYAN WRIGHT,                                  (W.D. Okla.)

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before HARTZ, MORITZ, and EID, Circuit Judges.
                  _________________________________

       Wayne Kalbaugh appeals the entry of summary judgment in favor of the

Defendants, Oklahoma City Police Department (OCPD) Officers Jacob Jones and Bryan

Wright, on his claim that they violated his constitutional rights when they used excessive

force in arresting him following a car chase. The district court held that Defendants were

entitled to qualified immunity. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm in part and reverse and remand in part.



       *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                            1
   I.      BACKGROUND

        On November 25, 2014, an OCPD officer initiated a traffic stop of the automobile

in which Plaintiff was a passenger. After the driver bailed out of the moving car, Plaintiff

took the driver’s seat and led officers on a high-speed chase in heavy traffic. Shortly

thereafter, a police helicopter took over the pursuit for safety reasons. A local news

station helicopter also followed the chase and recorded it on video. The video shows

Plaintiff speeding, weaving through traffic, driving on the median and the shoulder, and

running red lights.

        Plaintiff turned up a private road that dead-ended at a chain-link fence. Although

he tried to back up, approaching police cars prevented his escape, so he drove forward

and attempted to crash through the fence. The car knocked over a portion of the fence

and stalled. Plaintiff got out of the car and dropped three handguns. He put his hands in

the air and backed over the downed fence on foot. He then turned and ran toward the

adjacent National Guard parking lot, still with his hands in the air. He heard the officers

yelling at him, but said he thought they were threatening to shoot him.

        When Plaintiff reached the parking lot, he approached Army Reservist Kevin

Deon, who had seen Plaintiff ram the fence and exit the car with a gun. Deon put him on

the ground and straddled Plaintiff for the few seconds it took for Officers Jones and

Wright to reach them. Before they were able to handcuff Plaintiff, the officers

discovered a knife in his pocket.

        Ultimately, Officers Jones and Wright subdued Plaintiff, handcuffed his hands

behind his back, and arrested him. Plaintiff alleged that he did not resist but the officers

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nevertheless struck him repeatedly. He also asserted that he did not reach for his knife.

Thus, he claimed that the blows administered by Defendants were unnecessary and

excessive. Defendants, in contrast, asserted that the force they used to subdue Plaintiff

was reasonable in light of the circumstances that confronted them.

         Plaintiff sued Officers Jones and Wright in their individual and official capacities,

as well as the Oklahoma City Police Department. The district court dismissed the Police

Department and the official-capacity claims against the individual officers. Plaintiff filed

an amended complaint, naming as defendants only Officers Jones and Wright, but again

checking the box indicating they were sued in both their individual and official

capacities.

         Thereafter, both sides filed motions for summary judgment. The district court,

adopting the report and recommendation of a magistrate judge, denied Plaintiff’s motion

and granted Defendants’ motion.

   II.      LEGAL STANDARDS

         “We review the grant of summary judgment de novo. We view the facts in the

light most favorable to the nonmovant and draw all reasonable inferences in the

nonmovant’s favor. Summary judgment is appropriate only if there is no genuine dispute

as to any material fact.” Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015) (citations

and internal quotation marks omitted). If a fact “could have an effect on the outcome of

the lawsuit,” it is material. Id. “A dispute over a material fact is genuine if a rational jury

could find in favor of the nonmoving party on the evidence presented.” Id. (internal

quotation marks omitted). Where, as here, there is video of the events at issue, the court

                                               3
should not adopt a version of the facts that “is blatantly contradicted by the record, so that

no reasonable jury could believe it” when ruling on a motion for summary judgment.

Scott v. Harris, 550 U.S. 372, 380 (2007); accord Carabajal v. City of Cheyenne,

847 F.3d 1203, 1207 (10th Cir. 2017) (“[W]e cannot ignore clear . . . video evidence in

the record depicting the events as they occurred.”).

       We liberally construe Johnson’s pro se complaint and other filings in our review,

but we do not act as his advocate. See Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005). Notwithstanding his pro se status, Johnson must

comply with the same rules of procedure as other litigants. See id.

   III.    DISCUSSION

           A. Excessive Force

       An injured person may seek damages under 42 U.S.C. § 1983 against “an

individual who has violated his or her federal rights while acting under color of state law.

Individual defendants named in a § 1983 action may raise a defense of qualified

immunity, which shields public officials from damages actions unless their conduct was

unreasonable in light of clearly established law.” Estate of Booker v. Gomez, 745 F.3d

405, 411 (10th Cir. 2014) (citations, ellipsis, and internal quotation marks omitted).

When a defendant raises a qualified-immunity defense, “the plaintiff carries the two-part

burden to show: (1) that the defendant’s actions violated a federal constitutional or

statutory right, and, if so, (2) that the right was clearly established at the time of the




                                               4
defendant’s unlawful conduct.” Id. (internal quotation marks omitted). 1

       Plaintiff contends that Defendants violated his federal constitutional rights by

using excessive force. “The reasonableness of a particular use of force must be judged

from the perspective of a reasonable officer at the scene, and not with perfect hindsight.”

Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019) (internal quotation marks

omitted). We evaluate “whether the officers’ actions are objectively reasonable in light

of the facts and circumstances confronting them, without regard to their underlying intent

or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989) (internal quotation marks

omitted). Factors relevant to this inquiry include “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.

       Plaintiff asserts the force used was unreasonable because he did not resist arrest, as

demonstrated by the fact that when he exited his car he dropped his guns and “placed his

hands high up in the air to show everyone he was of no threat, and that he wanted to

peacefully surrender.” Aplt. Opening Br. at 4. He claims he ran from the police because

he thought he heard them yelling to shoot him. He characterizes his contact with Deon as

trying to lie down with his hands out to show he was not resisting. He contends that even

though he was not resisting or struggling when Officers Jones and Wright reached him,



       1
        Plaintiff asserts that his rights under the Fourth, Eighth, and Fourteenth
Amendments were violated. But it is “the Fourth Amendment . . . [that] governs
excessive force claims arising from treatment of an arrestee detained without a
warrant and prior to any probable cause hearing.” Estate of Booker, 745 F.3d at 419
(emphasis, brackets, and internal quotation marks omitted).
                                              5
the officers nevertheless punched him repeatedly. And although he admits he was

carrying a knife in his trousers pocket, he did not remember that he was carrying it and he

would have needed both hands to unsheathe it.

       About 20 seconds elapsed from the time Defendants reached Plaintiff to the time

they clearly had him sitting up and under control. Plaintiff argues that during this period,

if he moved his hands at all, it was only in response to the officers’ order to “cuff up.”

R. Vol. 2, at 24-26. Otherwise, Plaintiff contends that he was subdued and compliant

during his arrest. The district court found that the video blatantly contradicts this

account. We respectfully disagree. The video is inadequate to show the actions of all

parties during the 20-second period. Notably, not only is the video blurry, but one of the

officers obstructs the view of Plaintiff’s torso, making it impossible to determine whether

Plaintiff was, as Defendants alleged, moving his upper body and arms to resist arrest.

Therefore, the district court could not rely on the video as requiring summary judgment.

See Scott, 550 U.S. at 380 (explaining that videos relied on for summary judgment must

“blatantly contradict” the nonmoving party’s version of the facts).

       Taking the facts in the light most favorable to Plaintiff, a reasonable jury could

conclude that Defendants continued to beat Plaintiff after he was effectively subdued.

And under the Graham factors this would be a violation of his constitutional rights.

Although Plaintiff’s crimes were significant (he had led officers on a high-speed chase,

he had weapons on his person, and he ran from arresting officers), under his version of

events — that he was trying to lie down with his hands out to show he was not

resisting—he did not “pose[] an immediate threat to the safety of the officers or others,”

                                              6
Graham, 490 U.S. at 396. Defendants are free to argue to a jury that Plaintiff was not

subdued, but this disputed issue of material fact precludes summary judgment.

       Having concluded that Plaintiff established a constitutional violation, “we next

address whether—at the time of the events of this case—it was clearly established that

[Defendants’] actions constituted excessive force.” Perea v. Baca, 817 F.3d 1198, 1204

(10th Cir. 2016). “It is clearly established that specific conduct violates a constitutional

right when Tenth Circuit or Supreme Court precedent would make it clear to every

reasonable officer that such conduct is prohibited.” Id. But “the qualified immunity

analysis involves more than a scavenger hunt for prior cases with precisely the same

facts.” Id. (internal quotation marks omitted).

       We have held that an officer violated clearly established law by shooting the

victim after the officer had “enough time to recognize and react to the changed

circumstances and cease firing his gun.” Fancher v. Barrientos, 723 F.3d 1191, 1201

(10th Cir. 2013) (ellipsis and internal quotation marks omitted); cf. Dixon v. Richer, 922

F.2d 1456, 1463 (10th Cir. 1991) (officers’ continued use of force after the plaintiff “had

already been frisked, had his hands up against the van with his back to the officers, and

was not making any aggressive moves or threats” was unreasonable). Thus, “it is clearly

established that officers may not continue to use force against a suspect who is effectively

subdued.” Estate of Smart v. City of Wichita, 951 F.3d 1161, 2020 WL 913089, at *10

(10th Cir. Feb. 26, 2020) (ellipsis and internal quotation marks omitted); see id. at *1

(analyzing applicable clearly established law where events at issue occurred on

March 10, 2012); id. at *10 n.14 (explaining that court relied on cases postdating the

                                              7
events at issue because those cases relied on caselaw predating those events). “Force

justified at the beginning of an encounter is not justified even seconds later, if the

justification for the initial force has been eliminated.” Id. at *10 (brackets and internal

quotation marks omitted). Taking the facts in the light most favorable to Plaintiff,

Defendants violated clearly established law if they continued beating Plaintiff after it

would have been clear to a reasonable officer that he had been effectively subdued.

       We reverse the district court’s order granting qualified immunity to Defendants on

Plaintiff’s excessive-force claim and remand for further proceedings.

          B. Appointment of Counsel

       Plaintiff claims the district court erred in denying his three motions for

appointment of counsel. We review the denial of a motion for appointment of counsel in

a civil case for abuse of discretion. See Toevs v. Reid, 685 F.3d 903, 916 (10th Cir.

2012). “Only in those extreme cases where the lack of counsel results in fundamental

unfairness will the district court’s decision be overturned.” Id. (internal quotation marks

omitted). “The burden is on the applicant to convince the court that there is sufficient

merit to his claim to warrant the appointment of counsel.” Hill v. SmithKline Beecham

Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (internal quotation marks omitted). We

reject Plaintiff’s claim. We discern no abuse of discretion in the district court’s denial of

appointment of counsel.




                                              8
           C. Official-Capacity Claims

       Plaintiff assigns error to the order dismissing his official-capacity claims against

Officers Jones and Wright. The district court adopted the magistrate judge’s

recommendation to dismiss these claims for failure to state a claim under

28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B)(ii), a decision we review de novo, see Young

v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (reviewing dismissal under § 1915A);

Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (reviewing dismissal under

§ 1915(e)(2)(B)(ii)).

       “Suing individual defendants in their official capacities under § 1983 . . . is

essentially another way of pleading an action against the county or municipality they

represent.” Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010). To state an official-

capacity claim, Plaintiff was required to “identify a specific deficiency that was obvious

and closely related to his injury, so that it might fairly be said that the official policy or

custom was both deliberately indifferent to his constitutional rights and the moving force

behind his injury.” Id. (citation and internal quotation marks omitted).

       On appeal Plaintiff asserts that he requested through discovery the police policy

and standard operating procedures, but was unable to obtain them via the Internet as

Defendants directed because he did not have Internet access in prison. The record

reflects that Plaintiff requested production of the policies and included Defendants’

failure to produce them in his initial motion to compel discovery. But he did not pursue

this matter in the subsequent proceedings concerning discovery, nor did he invoke

Fed. R. Civ. P. 56(d), which requires a plaintiff to file an affidavit if additional discovery

                                                9
is needed to respond to a summary-judgment motion. Therefore, we affirm the order

dismissing Plaintiff’s official-capacity claims against Officers Jones and Wright.

       Plaintiff also contends that he was entitled to a default judgment against

Defendants in their official capacities because they never answered the magistrate judge’s

order requiring service of a response to the complaint and a special report. He argues that

because he “marked the box for both individual and official capacitys [sic]” on his

amended complaint, Defendants defaulted those claims when they failed to include in

their answer a response to any official-capacity claims. Aplt. Opening Br. at 17. But the

district court had dismissed the official-capacity claims before Plaintiff filed his amended

complaint, and the magistrate judge’s order required a response pertaining to Officers

Jones and Wright only in their individual capacities. The district court did not err in

denying Plaintiff’s motion for a default judgment.

           D. Amendment of Complaint to Add Defendants

       Finally, Plaintiff appeals the order denying his motion to amend his complaint to

add new defendants. 2 He sought to add as defendants Sergeant Deon and Mustang Police

Officer Carpenter, claiming they failed to intervene in the actions of defendants Jones and

Wright. In the proposed amended complaint, Plaintiff asserted that the date of injury was

November 25, 2014. He filed his motion to add defendants on December 22, 2017, over

three years after the date of injury. The district court denied leave to add these



       2
         Plaintiff does not challenge on appeal the district court’s denial of his
proposed amendment to reinstate his claims against Officers Jones and Wright in
their official capacities.
                                             10
defendants because the applicable two-year statute of limitations had expired. See Okla.

Stat. tit. 12, § 95(A)(3) (imposing a two-year limitations period for “an action for injury

to the rights of another, not arising on contract”); see also Meade v. Grubbs, 841 F.2d

1512, 1523 (10th Cir. 1988) (holding two-year statute of limitations applies to § 1983

claims), abrogated in part on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009).

       Plaintiff asserts that he did not discover the facts underlying his claims against the

proposed defendants until he received the special report containing the video and

Defendants’ responses to his discovery requests. Accordingly, he contends that the

limitations period did not begin to run until he learned of the proposed defendants’

violation of his rights. Plaintiff’s proposed new claims were § 1983 claims, so federal

law governs when the action accrues. See Braxton v. Zavaras, 614 F.3d 1156, 1159

(10th Cir. 2010). “A civil rights action accrues when the plaintiff knows or has reason to

know of the injury which is the basis of the action. Indeed, it is not necessary that a

claimant know all of the evidence ultimately relied on for the cause of action to accrue.”

Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (citation and internal quotation

marks omitted). Here, the injury that is the basis for this action is Plaintiff’s November

25, 2014, arrest, which he knew of at the time of the arrest; thus, his claims accrued on

that date. See Johnson v. Johnson Cty. Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir.

1991) (“Claims arising out of police actions toward a criminal suspect, such as arrest,

interrogation, or search and seizure, are presumed to have accrued when the actions

actually occur.”).

                                             11
       Plaintiff relies on Fed. R. Civ. P. 15(c)(1)(B) to argue that his proposed new

claims relate back to the date he filed his original complaint, thus making his new claims

timely. For an amended complaint adding a new party to relate back, Rule 15(c)(1)

requires the following: (1) the claim arose out of the same conduct or occurrence alleged

in the original pleading, Rule 15(c)(1)(B); (2) the proposed new party “received such

notice of the action that it will not be prejudiced in defending on the merits,” id.

15(c)(1)(C)(i); (3) the proposed new party “knew or should have known that the action

would have been brought against it, but for a mistake concerning the proper party’s

identity,” id. 15(c)(1)(C)(ii); (4) the second and third criteria were met within 90 days of

the filing of the original complaint, see id. 15(c)(1)(C); and (5) the original complaint was

filed within the applicable limitations period, see id. 15(c)(1)(A); see also Hogan v.

Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (setting out these requirements for an amended

complaint to relate back); May v. Segovia, 929 F.3d 1223, 1231 (10th Cir. 2019) (noting

stringent restrictions on relation back when adding a new defendant). He has failed to

make the required showing. And he does not argue that he qualified for tolling of the

statute of limitations under Oklahoma’s strict construction of exceptions to a statute of

limitations. See Resolution Tr. Corp. v. Grant, 901 P.2d 807, 813 (Okla. 1995)

(“Exceptions to statutes of limitation are strictly construed and are not enlarged on

consideration of apparent hardship or inconvenience.”); see also Braxton, 614 F.3d at

1159 (equitable tolling is governed by state law). Therefore, we affirm the order denying

leave to amend to add new defendants.



                                              12
  IV.     CONCLUSION

        We grant Plaintiff’s motion for leave to proceed in forma pauperis on appeal, and

we remind him of his obligation to continue making partial payments until the entire

appellate filing fee is paid. We reverse the district court’s order granting qualified

immunity to Defendants on Plaintiff’s excessive-force claim and remand that claim for

further proceedings consistent with this order and judgment. We affirm the district

court’s judgment in all other respects.


                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




                                            13
