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

                             FOR THE TENTH CIRCUIT                         May 11, 2018
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
WILLIAM R. STEVENSON,

      Plaintiff - Appellant,

v.                                                        No. 17-1053
                                                 (D.C. No. 1:14-CV-00649-CBS)
R. CORDOVA, in his individual and                           (D. Colo.)
official capacities; D. NUNEZ, in his
individual and official capacities; M.
HOLLOWAY, in his individual and
official capacities; K. TOPLISS, in his
individual and official capacities; C.
WILLIAMS, in his individual and official
capacities; K. CLINKINBEARD, in his
individual and official capacities; J.
ESPINOZA, in his individual and official
capacities; J. BUFMACK, in his individual
and official capacities; M. BENAVIDEZ,
in his individual and official capacities; A.
BELL, in his individual and official
capacities; G. SULLIVAN, in his
individual and official capacities,

      Defendants - Appellees,

and

V. WOLFE; J. HANSON,

      Defendants.
                         _________________________________

                               ORDER AND JUDGMENT*

       *
        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
                                                                           (continued)
                         _________________________________

Before BRISCOE, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

      William R. Stevenson, a Colorado prisoner, filed a pro se civil rights action

under 42 U.S.C. § 1983 alleging that correctional officers violated the Eighth

Amendment by using excessive force to restrain him. He challenges the district

court’s grant of summary judgment in favor of three defendants, a directed verdict in

favor of one defendant, and the jury instructions in the trial on his claims against the

remaining two defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

the district court’s judgment.

I.    Background1

      On February 29, 2012, Stevenson was approached by two female officers,

including Sergeant Clinkinbeard, in an area of the prison referred to as the upper

vestibule. His interaction with these two officers and the subsequent events was

recorded by a security camera.2 The security video shows other inmates walking

through the upper vestibule as Stevenson spoke to the two officers. Clinkinbeard

ultimately ordered Stevenson to submit to being handcuffed. There is no dispute that

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
        The factual summary is based on the summary judgment record viewed in the
light most favorable to Mr. Stevenson.
      2
          The resulting security video does not include an audio recording.

                                            2
he refused to do so. He first raised both of his arms above his head. Then as the two

officers attempted to force him to submit, he dropped to his knees and ultimately lay

down on the floor with his arms beneath his body.

      Two more correctional officers entered the upper vestibule and joined the

struggle to handcuff Stevenson, including Sergeant Espinoza, who shot Stevenson in

the back with a taser gun several times, the number of which is disputed. Additional

officers entered the upper vestibule as the struggle with Stevenson continued.

Ultimately, at least twelve officers arrived on the scene, including Sergeant

Benavidez, Lieutenant Holloway, Lieutenant Williams, and the shift commander,

Captain Cordova.

      At some point (the exact timing is unclear in the security video), Espinoza was

able to handcuff Stevenson’s arms behind his back. Stevenson felt Espinoza slam the

handcuffs on, squeezing them forcefully, and he asserts that the handcuffs cut deep

into his skin, touching bone and quickly cutting off his circulation. Stevenson

immediately complained that the handcuffs were too tight, but no officer took action

to loosen them. When Stevenson’s arms and legs were restrained, Espinoza ordered

him to stand and walk. He agreed to walk only if the officers would loosen the

handcuffs. When several officers tried to lift him to his feet, he made his body limp

and ended up back on the ground, where Captain Cordova knelt and spoke with him

for several minutes and Stevenson continued to complain that the handcuffs were too

tight. At one point he cried out in pain when an officer pulled on his arm.



                                           3
      Because Stevenson still refused to walk, several officers lifted and carried him

to the stairs at the far end of the upper vestibule, where they secured him to a

backboard on his stomach with his hands still restrained behind his back.3 He asserts

that, while he was lying on the backboard, Sergeant Benavidez bent his wrists, let go

when he cried out in pain, but then pulled on his elbow. He again asked that the

handcuffs be loosened. The officers carried Stevenson down several flights of stairs

where they secured the backboard to a gurney, then wheeled him across a yard to

another building. In the medical unit, Stevenson again complained about the

handcuffs being too tight, and they still were not loosened. The officers ultimately

wheeled Stevenson into the segregation unit, where they removed and replaced the

first set of handcuffs. Still refusing to walk, officers carried Stevenson to a

segregation cell. The entire incident lasted approximately 60 minutes.

      Stevenson filed this pro se action4 alleging that defendants used excessive

force in violation of the Eighth Amendment by tasing him, applying the handcuffs

too tightly, manipulating his wrists and arms while he was handcuffed to cause him

additional pain, and refusing to loosen the handcuffs. As relevant here, the district

court granted summary judgment based on qualified immunity in favor of Williams,


      3
         At about this point one of the officers activated his body camera, and the rest
of the incident was recorded with both video and audio.
      4
        Stevenson was represented by appointed counsel during the summary
judgment and trial proceedings in the district court, but he proceeds pro se again on
appeal.


                                            4
Clinkinbeard, and Espinoza, but concluded that some excessive force claims against

Cordova, Holloway, and Benavidez should proceed to trial. At the close of

Stevenson’s evidence, the district court granted Benavidez judgment as a matter of

law under Fed. R. Civ. P. 50(a). The jury then returned a verdict in favor of Cordova

and Holloway, finding that Stevenson had not proven his excessive force claims

against them. On appeal, Stevenson challenges the district court’s summary

judgment and directed verdict rulings. He also asserts errors in the jury instructions.

II.   Discussion

      A.     Excessive Force Standard

      An Eighth Amendment excessive force claim “involves two prongs: (1) an

objective prong that asks if the alleged wrongdoing was objectively harmful enough

to establish a constitutional violation, and (2) a subjective prong under which the

plaintiff must show that the officials acted with a sufficiently culpable state of mind.”

Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir. 2018) (internal quotation marks

omitted). “An official has a culpable state of mind if he uses force ‘maliciously and

sadistically for the very purpose of causing harm,’ rather than ‘in a good faith effort

to maintain or restore discipline.’” Id. (quoting Whitley v. Albers, 475 U.S. 312,

320-21 (1986)). In applying this standard, we recognize that when faced with a

disruption, prison officials must balance the need to restore discipline with the risk of

injury to inmates when force is used. See Hudson v. McMillian, 503 U.S. 1, 6 (1992).




                                            5
       B.     Summary Judgment Ruling

       We review de novo a district court’s grant of summary judgment based on

qualified immunity. Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir.

2017), cert. denied, 138 S. Ct. 211 (2017). A defendant’s assertion of qualified

immunity triggers a two-part analysis asking (1) whether the plaintiff has

demonstrated a violation of a constitutional right and (2) whether that right was

clearly established at the time of the violation. Id. The plaintiff bears the heavy

burden of making this two-part showing, without which a court must grant qualified

immunity. Id. And a court may address these inquiries in any order. Id.

       The district court first held that the law was clearly established on all of

Stevenson’s excessive force claims. It then divided his claims into two parts, separately

considering the defendants’ use of force before and after Stevenson was restrained. The

court held that he failed to come forward with facts sufficient to establish that any

defendant committed an Eighth Amendment violation by using force to subdue and place

him in handcuffs. But it held that his evidence raised factual disputes as to the use of

force and whether it was excessive after he was restrained in the upper vestibule. The

court concluded that,

       [t]here is some evidence from which a reasonable juror could conclude that
       Mr. Stevenson’s requests [that his handcuffs be loosened] fell on deaf ears,
       not because of any legitimate security concerns, but rather because he
       would not be compliant and insisted that the officers carry him. If believed
       by a jury, Mr. Stevenson’s testimony might suggest that the handcuffs were
       not loosened in a good faith effort to maintain or restore discipline, but
       rather maliciously for the purpose of causing pain.



                                              6
R., Vol. VI at 193. The district court allowed Stevenson’s post-restraint claims

against Cordova, Holloway, and Benavidez to proceed to trial, but granted summary

judgment in favor of Clinkinbeard, Espinoza, and Williams. On appeal, Stevenson

argues there were material facts in dispute whether the latter three defendants used

excessive force.5

             1.     Claim of Excessive Force in Tasing Stevenson

      Stevenson argues that Espinoza’s use of a taser was unnecessary because he

was outnumbered by the correctional officers, he was lying prone, and he was not

resisting with physical force. He also faults Espinoza for using a taser without first

trying lesser forms of force. But to succeed on an Eighth Amendment claim he must

demonstrate more than “a mere dispute over the reasonableness of a particular use of

force or the existence of arguably superior alternatives.” Whitley, 475 U.S. at 322.

The evidence must support an inference that force was applied “maliciously and

sadistically for the very purpose of causing harm.” Id. at 320-21 (internal quotation

marks omitted).

      To that end, Stevenson argues there is a factual dispute whether Espinoza

warned him before using the taser. But the only evidence he points to is the

surveillance video, which has no audio recording. That video appears to show

Espinoza running to the scene with a taser in his hand. But contrary to Stevenson’s

      5
        Stevenson argues that the district court erred in granting summary judgment
in favor of another defendant, Sergeant Sullivan, but he dismissed his claims against
Sullivan with prejudice under Fed. R. Civ. P. 41(a)(1)(A)(i). See Aplee. App. at
16-17.

                                           7
assertion, it does not clearly show that Espinoza began tasing him immediately and

without any warning. Stevenson also argues there is a factual dispute regarding the

number of times he was tased. But it is undisputed that the tasings were not effective

in getting Stevenson to comply with being handcuffed. Given the circumstances that

Espinoza encountered, tasing Mr. Stevenson five (rather than three) times does not

alter our analysis. Espinoza arrived to find Clinkinbeard and another female officer

wrestling with Stevenson on the floor in the upper vestibule, an area of the prison

accessible by other inmates. Espinoza’s choice to use a taser to try to induce

Stevenson to comply with Clinkinbeard’s order does not support an inference that he

acted maliciously and sadistically to cause Stevenson harm.

              2.     The Law was not Clearly Established that Espinoza’s Use of a
                     Taser would Violate Stevenson’s Eighth Amendment Rights

       Even were we to hold that Stevenson demonstrated a constitutional violation based

on the number of times that Espinoza tased him, summary judgment was still proper

because he fails to establish that his Eighth Amendment rights were clearly established

with regard to this claim. “To qualify as clearly established, a constitutional right must

be sufficiently clear that every reasonable official would have understood that what he is

doing violates that right.” Redmond, 882 F.3d at 935 (internal quotation marks omitted).

In determining whether a right is clearly established, we look for a Supreme Court or

Tenth Circuit case that is sufficiently on point, or the clearly established weight of

authority from other courts. Id. Ultimately, “existing precedent must have placed the




                                              8
statutory or constitutional question beyond debate.” Id. (internal quotation marks

omitted).

       The district court held that Stevenson’s Eighth Amendment rights were clearly

established as to all of his excessive force claims. We respectfully disagree.6 Here,

because we conclude that that law was not clearly established, we also affirm summary

judgment on this alternative ground. See Carabajal, 847 F.3d at 1213 (affirming

dismissal of claim on alternate basis that defendant was entitled to qualified immunity

because law was not clearly established).

       Stevenson relies on Casey v. City of Federal Heights, 509 F.3d 1278, 1285-86

(10th Cir. 2007), but that case addressed the use of a taser in the Fourth Amendment

context, see id. at 1281, which applies to force used “leading up to and including an

arrest,” Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010). In light of the

different—and higher—standard for liability under the Eighth Amendment, see id. at

1325-26, our holding in Casey did not provide Espinoza with notice that tasing


       6
         The district court stated only that “[t]he Supreme Court has long-recognized
that the unnecessary infliction of pain on an inmate by a correctional officer violates
the Eighth Amendment.” R., Vol. VI at 173. But this is not a case in which the
constitutional violation was so obvious that the plaintiff’s rights were clearly
established in the absence of a materially similar prior case. See Brosseau v.
Haugen, 543 U.S. 194, 199 (2004). Therefore, the district court erred in defining
clearly established law at such a “high level of generality.” Redmond, 882 F.3d at
935 (internal quotation marks omitted). Rather, “[t]he dispositive question is
whether the violative nature of particular conduct is clearly established. We
therefore must determine whether a right is clearly established in light of the specific
context of the case, not as a broad general proposition.” Id. (citation and internal
quotation marks omitted).


                                             9
Stevenson under the circumstances presented here would violate his constitutional

rights.

          Turning to Eighth Amendment case law, we have not found a Supreme Court

decision or a published Tenth Circuit case that is sufficiently on point.7 Nor have

other circuit court decisions addressed a correctional officer’s use of a taser in

sufficiently analogous circumstances such that the constitutional question is beyond

debate. Compare Martinez v. Stanford, 323 F.3d 1178, 1180, 1183 (9th Cir. 2003)

(holding inmate demonstrated Eighth Amendment violation where, after he refused

an order, officers struck him with plastic bullets, entered his cell, pushed him to a

seated position, tasered him twice “despite his lack of resistance,” beat him with their

fists and with a wooden baton, and then kicked, hit, and dragged him out of the cell

after handcuffing him), and Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir. 1994)

(holding officers violated inmate’s Eighth Amendment rights by using a stun gun on

him in his cell to enforce an order to sweep the cell, where the incident did not

implicate a security concern or the safety of officers or inmates), and Lewis v.

Downey, 581 F.3d 467, 479 (7th Cir. 2009) (denying qualified immunity because a

reasonable officer would understand that tasing an inmate in his cell without warning

when he failed to immediately comply with an order would violate the inmate’s


          7
        In an unpublished case with similar facts, we upheld a judgment in favor of
correctional officers finding that they had not used excessive force by tasing an
inmate after he refused three orders to be handcuffed so officers could remove him
from his cell. See Jolivet v. Cook, 48 F.3d 1232, at *1-2 (10th Cir. March 1, 1995)
(unpublished). Our decision did not indicate the number of times the taser was used.

                                           10
constitutional rights), with Jasper v. Thalacker, 999 F.2d 353, 354 (8th Cir. 1993)

(holding there was no Eighth Amendment violation where officers grabbed inmate

and applied a stun gun to him for several seconds after the inmate refused an order,

threatened an officer, and lunged toward him with clenched fists), and Caldwell v.

Moore, 968 F.2d 595, 596-97, 601-02 (6th Cir. 1992) (holding there was no Eighth

Amendment violation where officers entered an inmate’s isolation cell, shot him with

a stun gun several times, and placed him in a straitjacket after he had refused for

seven hours to comply with an order to cease shouting and kicking his cell door).

      Because Stevenson fails to demonstrate a constitutional violation or that his

Eighth Amendment rights were clearly established with regard to Espinoza’s use of a

taser, we affirm the district court’s grant of summary judgment on that claim.

             3.     Claim of Excessive Force in Applying the Handcuffs

      Stevenson claims that Espinoza used excessive force in slamming the

handcuffs on and forcefully squeezing them closed, causing them to cut deep into his

skin and cut off his circulation. He invokes the so-called “pinky rule,” under which

restraints should be applied loosely enough that a finger can fit between the handcuff

and the person’s wrist. But defendants presented uncontested evidence that this

guidance applies when an inmate is being compliant, not when he is physically

resisting application of the handcuffs. See R., Vol. IV at 264 (Cordova’s testimony

contrasting a “passive” handcuffing to when officers are struggling to get the

handcuffs on an inmate); id., Vol. VI at 97 (Clinkinbeard’s testimony that “[i]n a

tactical situation, where the offender is not compliant [leaving space between the

                                           11
handcuff and wrist] doesn’t always happen”). Here it is undisputed that, at the time

Espinoza applied the handcuffs, Stevenson was resisting the efforts of multiple

officers to physically force him to submit. Under the undisputed circumstances in

which Espinoza acted, Stephenson fails to show that the evidence supports an

inference of malicious and sadistic conduct. We therefore affirm the district court’s

grant of summary judgment on this claim based on his failure to demonstrate a

constitutional violation.

             4.     Claim of Excessive Force in Refusing to Loosen Handcuffs

      Stevenson maintains that, in granting summary judgment in favor of Williams,

Espinoza, and Clinkinbeard, the district court ignored undisputed evidence that these

defendants were present in the upper vestibule and in close proximity to him while he

repeatedly complained that the handcuffs were excessively tight. He argues his

claims against these defendants based on their refusal to loosen his handcuffs should

have proceeded to trial.

      In its summary judgment order, the district court construed Stevenson’s

refusal-to-loosen claims as brought against Cordova and Holloway. See R., Vol. VI

at 194-96. This is consistent with Stevenson’s complaint, in which he alleged that

the supervisor defendants were liable for refusing to check the tightness of the

handcuffs, loosen them, or direct subordinate officers to loosen them. See id., Vol. I

at 59-61; see also id., Vol. VI at 60-61 (defendants’ summary judgment reply brief

quoting complaint and arguing that Stevenson did not allege claims against

Clinkinbeard or Espinoza for refusing to loosen the handcuffs). Accordingly, we see

                                          12
no error in the district court’s failure to consider evidence on claims against

Clinkinbeard and Espinoza that Stevenson did not allege against these defendants in

his complaint.

      But Stevenson did allege a refusal-to-loosen claim against Lieutenant

Williams. In granting Williams summary judgment, the district court held that the

evidence suggested he “remained on the periphery of the incident and played no

active role in restraining Plaintiff.” Id., Vol. VI at 197. Stevenson argues that the

court ignored evidence that Williams was present in the upper vestibule from soon

after he was handcuffed until he was being wheeled into the yard on the gurney. He

contends that—as the district court held with regard to the other supervisors, Cordova

and Holloway—the evidence shows that Williams could hear his complaints about

the too-tight handcuffs but took no action to loosen them.

      We agree that the district court’s reasoning in granting summary judgment in

favor of Williams—that he played no active role in restraining Stevenson—fails to

address his claim based on Williams’s inaction. But we need not decide whether the

evidence demonstrates a constitutional violation because we conclude that Stevenson

fails to show that his Eighth Amendment rights with respect to this claim were

clearly established.

      He again relies on cases addressing the use of force against an arrestee in

circumstances governed by the Fourth rather than the Eighth Amendment. See, e.g.,

Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208-09 (10th Cir. 2008) (holding

police officers were not entitled to qualified immunity on Fourth Amendment

                                           13
excessive force claim where they ignored arrestee’s complaints that handcuffs were

unduly tight, the arrestee suffered a permanent actual injury, and the constitutional

right was clearly established). And we have not found an Eighth Amendment case

with sufficiently analogous facts, in this circuit or otherwise, that would have put

Williams on notice that his inaction amounted to cruel and unusual punishment. Our

cases involving a use of force against a prisoner who was restrained involved

significantly greater force than the refusal to loosen handcuffs alleged here. See

Mitchell v. Maynard, 80 F.3d 1433, 1439, 1440-41 (10th Cir. 1996) (holding jury

could find prison guards acted maliciously and sadistically by stripping an inmate,

placing him in wrist, ankle, and belly chains, picking him up by his elbows and

forcing him to run across a gravel yard, then kicking him when he fell while yelling

racial epithets); Miller v. Glanz, 948 F.2d 1562, 1564, 1567 (10th Cir. 1991) (holding

allegations sufficient to state an Eighth Amendment claim where officers kicked,

beat, and choked a prisoner who was handcuffed behind his back and whose ankles

were also restrained).

      Thus, Williams was entitled to qualified immunity on Stevenson’s

refusal-to-loosen claim because the law with respect to his Eighth Amendment rights

was not clearly established. We therefore affirm the district court’s grant of

summary judgment on that claim.




                                           14
       Stevenson has not shown any error in the district court’s summary judgment

ruling.8

       C.     Directed verdict

       Stevenson’s post-restraint excessive force claims against Benavidez,

Holloway, and Cordova proceeded to trial. At the close of Stevenson’s evidence, the

district court granted Benavidez’s motion for judgment as a matter of law under Fed.

R. Civ. P. 50(a), which provides: “If a party has been fully heard on an issue during

a jury trial and the court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the party on that issue, the court may . . .

resolve the issue against the party.” The court reviewed the evidence related to

Benavidez’s use of force. As seen in the security video, Benavidez lay across

Stevenson’s legs after he was handcuffed in the upper vestibule, then he stood on the

sidelines. The court credited Stevenson’s testimony that when he was strapped to the

backboard Benavidez bent his wrist and pulled on his elbow, but let go each time

when Stevenson called out in pain. The district court also noted the undisputed

testimony that the officers had difficulty carrying the backboard by its hand-holds

with Stevenson strapped to it, and therefore some contact with his body occurred.

Finally, the evidence also showed that Benavidez put his hand on Stevenson when he


       8
       Stevenson also argues that the district court erred in failing to address in its
summary judgment order his claim that Cordova’s practices, policies, directives,
customs, or procedures caused him to be subjected to excessive force by Cordova’s
subordinates. But neither the defendants’ summary judgment motion nor his
response addressed that specific claim.

                                            15
was lying on the narrow gurney, this time out of concern that the gurney could tip.

The court held that a reasonable jury could not conclude from this evidence that

Benavidez’s conduct was malicious and sadistic.

       We review de novo the district court’s ruling on a motion for directed verdict,

applying the same standard as the district court. West v. Keef, 479 F.3d 757, 758

(10th Cir. 2007). Stevenson argues the evidence supports an inference that

Benavidez intended to injure him because there was no penological purpose for his

conduct when Stevenson was strapped to a backboard and incapable of posing any

threat. We see no error. An excessive force claim should not go to the jury unless

the evidence “will support a reliable inference of wantonness in the infliction of

pain.” Whitley, 475 U.S. at 322. Here, the evidence regarding Benavidez’s conduct

falls far short of a showing that the force he used amounted to cruel and unusual

punishment. We affirm the entry of judgment as a matter of law in favor of

Benavidez.

       D.     Jury Instructions

       The district court instructed the jury on the elements of Stevenson’s claims

against Cordova and Holloway in Instruction Nos. 10 and 11. The jury was required

to find that: (1) each defendant used force against him by not loosening the

handcuffs; (2) the force used was excessive; and (3) Stevenson suffered harm. The

court further instructed the jury that

       [w]hether a use of force against a prison inmate is excessive depends on
       whether the force was applied in a good-faith effort to maintain or restore
       discipline, or whether it was done maliciously and sadistically to cause

                                            16
      harm. If the force was used maliciously and sadistically for the purpose of
      harming Plaintiff Stevenson, then it was excessive.
R., Vol. VI at 270, 272. These instructions also defined the terms “maliciously” and

“sadistically,” and advised the jury of several non-exclusive factors it could consider

in deciding whether the force used was excessive, including the extent of Stevenson’s

injury, the need for applying force, the relationship between the need to apply force

and the amount of force used, the threat reasonably perceived by the officers, and

efforts made to temper the severity of a forceful response. The jury returned a

verdict finding that Stevenson failed to prove his excessive force claims against

Cordova and Holloway.

      Stevenson raises numerous claims of error in the jury instructions. He first

contends that the court erred in failing to give instructions on two other theories of

liability: (1) bystander liability and (2) liability based on Cordova’s practices,

policies, directives, customs, or procedures that caused him to be subjected to

excessive force by Cordova’s subordinates. Stevenson also raises several contentions

of error in Instruction Nos. 10 and 11. He argues these instructions erroneously

omitted (1) that the jury could infer malicious and sadistic intent based on the

defendants’ refusal to loosen the handcuffs in the absence of a legitimate penological

purpose, and (2) that the defendants were required to balance the need to maintain or

restore order against the risk of injury, as stated in Hudson, 503 U.S. at 6. He further

contends that the court erred in instructing the jury that his claims against Cordova




                                           17
and Holloway required evidence of their malicious and sadistic intent rather than

their deliberate indifference.

       Stevenson did not preserve his claims of error in the jury instructions by

objecting at the trial. See Fed. R. Civ. P. 51(c)(1) (“A party who objects to an

instruction or the failure to give an instruction must do so on the record, stating

distinctly the matter objected to and the grounds for the objection.”). We therefore

review his contentions only for plain error. Fed. R. Civ. P. 51(d)(2) (“A court may

consider a plain error in the instructions that has not been preserved . . . if the error

affects substantial rights.”).

              To obtain reversal on plain-error review, the appellant must satisfy a
       four-prong test. It must show (1) an error (2) that is plain, meaning clear or
       obvious under current law, and (3) affecting substantial rights. If these
       elements are satisfied, we may exercise discretion to correct the error if it
       seriously affects the fairness, integrity, or public reputation of judicial
       proceedings.
Therrien v. Target Corp., 617 F.3d 1242, 1253 (10th Cir. 2010) (internal quotation marks

omitted).

       Stevenson fails to show plain error in the district court’s failure to give

instructions on two other theories of liability. After the district court dismissed

Benavidez from the case, it declined to instruct the jury on any claim against

Cordova and Holloway predicated on a theory of supervisory liability because there

was no evidence of a constitutional violation by any subordinate. See Dodds v.

Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). That same lack of evidence also

precluded Stevenson’s claim against Cordova based on the theory that his policies,


                                            18
procedures, etc., caused his subordinates to use excessive force against Stevenson.

Moreover, Stevenson never proposed an instruction on that claim, and he fails to

point to any evidence at trial supporting that theory of liability.

       Stevenson did propose an instruction that the defendants had a duty to

intervene when they witnessed other correctional officers violating a prisoner’s

constitutional rights. He argues his proposed instruction correctly stated the law on

bystander liability. But when Cordova and Holloway were the only remaining

defendants, the district court ruled that the claims against them were limited to

whether they had used excessive force in refusing to loosen the handcuffs. If it was

error not to also instruct the jury on bystander liability as between Cordova and

Holloway, the error was not plain and Stevenson’s substantial rights were not

affected. He has not shown any error with respect to the district court’s failure to

give either of these instructions on alternate theories of liability.

       Regarding Instruction Nos. 10 and 11, Stevenson raised one of his appeal

contentions in his motion for new trial under Fed. R. Civ. P. 59(a). He argued that

the district court erroneously omitted an instruction that the defendants’ requisite

intent—using force against him maliciously and sadistically—could be inferred from

the absence of evidence of a legitimate penological purpose. The district court held

that Stevenson waived this argument under the invited-error doctrine because he had

stipulated to the pertinent portions of Instruction Nos. 10 and 11. See United States

v. Fields, 516 F.3d 923, 939 (10th Cir. 2008) (“[T]he invited-error doctrine precludes

a party from arguing that the district court erred in adopting a proposition that the

                                            19
party had urged the district court to adopt.” (internal quotation marks omitted)). The

court also held that Stevenson failed to demonstrate error because the instructions

directed the jury to decide whether the use of force was a “good faith effort to

maintain or restore discipline,” which the court equated with “a legitimate

penological purpose.” Stevenson does not show that the district court abused its

discretion in denying this claim of error on either basis. See Cavanaugh v. Woods

Cross City, 718 F.3d 1244, 1250 (10th Cir. 2013) (reviewing denial of Rule 59

motion for abuse of discretion).

      The same reasoning applies to Stevenson’s claim that the court failed to

instruct the jury that the defendants were required to balance the need to maintain or

restore order against the risk of injury. He waived this argument by stipulating to

Instructions 10 and 11, and he also fails to show plain error in light of the inclusion

in these instructions of a list of non-exclusive factors that the jury was to consider in

deciding whether the force used was excessive.

      Finally, Stevenson also fails to show plain error in the district court’s

instruction on the state of mind necessary to find that Cordova and Holloway used

excessive force.9 He argues the standard should have been deliberate indifference.

We have applied that standard to a supervisor’s liability for a subordinate’s use of


      9
         Stevenson asserts that he raised this objection during the jury instruction
conference, but he objected to the use of “malicious and sadistic” in the instructions
rather than “malicious or sadistic.” That objection did not preserve his argument that
the proper state of mind for liability is deliberate indifference. See Therrien,
617 F.3d at 1252.

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excessive force against a prisoner. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146,

1151-52 (10th Cir. 2006). But it remains an open question whether that standard still

applies in the wake of the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S.

662 (2009). See Dodds, 614 F.3d at 1197-99 (discussing Iqbal and concluding that a

claim against a supervisory defendant must allege that he acted with the state of mind

necessary to establish the alleged constitutional violation). To the extent that

Stevenson is challenging the district court’s decision not to give an instruction on

supervisory liability based upon the defendants’ deliberate indifference, the lack of

evidence of any constitutional violation by a subordinate precluded that theory of

liability. And he otherwise fails to demonstrate that Instruction Nos. 10 and 11

erroneously required the jury to find that Cordova and Holloway acted maliciously

and sadistically in refusing to loosen the handcuffs, as is required for liability on an

Eighth Amendment claim of excessive use of force. See Hudson, 503 U.S. at 6-7.

      E.     Pending Motions

      We dispose of Stevenson’s pending motions as follows: We grant Stevenson’s

motion to proceed on appeal without prepayment of costs and fees. We deny his

motion for free transcripts pursuant to 28 U.S.C. § 753(f) as unnecessary. The record

on appeal now includes the complete trial transcript, which was included in the

district court docket. This court has reviewed the trial transcript in ruling on

Stevenson’s appellate issues. We also deny his motion to include certain deposition

transcripts in the record on appeal because the record includes the deposition

transcripts submitted as exhibits to the parties’ summary judgment filings. We deny

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his motion to file an oversized reply brief. We deny as moot his renewed motion to

appoint counsel and his motion for a mandatory injunction.

III.   Conclusion

       The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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