                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 7, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                  Elisabeth A. Shumaker
                                  TENTH CIRCUIT                       Clerk of Court



 ALTO N RA YM OND AM ES,

          Plaintiff-Appellant,
 v.
                                                       No. 05-6389
                                                (D.C. No. CIV-02-1368-HE)
 REX BRO W N, KEN NETH DA LE
                                                       (W .D. Okla.)
 H IG G IN S, M IC HA EL D EA N
 M ETC ALF, and M A RK BR UN ING,

          Defendants-Appellees.



                             OR DER AND JUDGM ENT *


Before HA RTZ, EBEL and TYM K O VICH , Circuit Judges.




      Plaintiff-Appellant Alton Raymond Ames appeals the district court’s grant

of summary judgment in favor of Defendants-A ppellees Rex Brown, the Deputy

Chief of Police for the City of Guthrie; M ark Bruning, a Guthrie police

department officer; and Kenneth Dale Higgins and M ichael Dean M etcalf,


      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Stillwater police department officers. Ames alleges that these Defendants are

liable for punitive damages for violating his Fourth Amendment rights w hile

executing a search warrant. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we affirm in part, reverse in part, and remand.

                                 BACKGROUND

I. Factual Background 1

      On O ctober 3, 2000, Ames spent the night at the mobile home of friends,

Todd and Connie Jester. Early the next morning, officers of the Guthrie and

Stillwater police departments and the Logan County Sheriff’s office executed a

valid search warrant at the Jesters’ residence, looking for methamphetamine and

equipment to manufacture methamphetamine. During the search, officers patted

Ames down for w eapons, handcuffed him, and brought him outside of the trailer.

Officers then removed A mes’s pants and underwear 2 so that he was naked from

the waist down, and Ames was forced to stand outside the trailer partially nude as



      1
        By failing to timely respond to D efendants’ summary judgment motions,
Ames “waive[d] the right . . . to controvert the facts asserted in the [D efendants’]
summary judgment motion[s].” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.
2002). W e therefore “accept as true all material facts asserted and properly
supported in the [D efendants’] summary judgment motion[s],” id., and disregard
Ames’s attempt on appeal to put these facts into dispute. W e note, however, that
Ames’s recitation of the facts on appeal would ultimately not affect our analysis.
      2
       Although there is some dispute about whether Ames was wearing
underwear, his affidavit so states and it was included in the Defendants’ motion
for summary judgment. Review ing the evidence in the light most favorable to
Ames, we accept his affidavit in this regard.

                                         -2-
officers entered and exited the trailer until the search was complete. 3 Ames

claims that, both when his clothes were removed and during the subsequent search

of the Jesters’ property, officers taunted and teased him. Eventually, Ames, who

was still partially naked, was transported to the Logan County Jail, forced to walk

from the patrol car into the jail, and shackled to a bench in a cell until his

booking was complete when he was finally put into jail clothing.

      Although there were numerous officers who engaged in this search, Ames

has sued only Defendants Higgins, Brown, M etcalf, and Bruning.

      A.     Defendant H iggins

      Defendant Higgins, along w ith D efendant Bruning and other officers,

entered the Jesters’ residence and immediately noticed a strong chemical odor,

which the officers associated with methamphetamine. Inside the residence were a

female; a small child; and three males, one of which was Ames. Defendant

Higgins “covered” the four adults while other officers patted them dow n for

weapons and handcuffed them. Defendant Bruning had the four adults taken

outside because he was “unsure of the chemical condition inside the house.”



      3
         The identity of the officers w ho actually removed Ames’s clothing is
unknown because Ames’s glasses were broken during the arrest and he was
therefore unable to see subsequent events clearly. Ames testified that his
information as to which officers violated his constitutional rights was based
solely on the evidence presented at his criminal trial. Because of his inability to
see, Ames admitted that it was possible that the defendants he had sued were not
involved in the actual stripping of his clothing. The record indicates, however,
that Defendant Bruning made the decision to remove A mes’s clothing.

                                         -3-
      Defendant Higgins testified that, after covering the occupants of the trailer

while they were patted down by other officers, he had no further contact with

Ames. Once the occupants were removed from the residence, Defendant Higgins

retrieved processing equipment from his patrol car and began assisting Defendant

M etcalf in logging evidence removed from the trailer and securing samples.

Defendant Higgins did not arrest Ames or transport him to jail. He did not

remove Ames’s clothing and was not present when the other officers did. 4

      B.     Defendants B row n and M etcalf

      Defendants Brown and M etcalf were assigned to cover the perimeter of the

residence during the execution of the warrant. After the occupants had been

removed from the trailer, Defendant M etcalf put on protective gear in order to

retrieve evidence from inside the trailer. On one of his trips out of the trailer, he

noticed that Ames’s clothing had been removed and asked why. He was told by

another officer that Ames’s clothes were contaminated with chemicals.

Defendant M etcalf then asked if there were extra clothes or a blanket for A mes to

wear, but he was informed there were not any available. 5 After the residence was

secured, Defendant Brown spent the entire rest of the search inspecting the




      4
        Defendant Higgins acknowledges that Defendant Bruning at some point
told him that Ames’s clothes had been removed because they were contaminated.
      5
        Defendant Bruning testified that the officers could not go back in the
house to get clothes for A mes.

                                         -4-
surrounding woods and a travel trailer parked on the property. Neither of these

Defendants had any contact with A mes.

      C.     Defendant Bruning

      Defendant Bruning was in charge of execution of the warrant on the

Jesters’ residence. In that role, he gave the officers their assignments regarding

execution of the warrant and continued to give the officers orders during the

search. After the occupants of the trailer were patted down and handcuffed,

Defendant Bruning, who had entered the trailer with Defendant Higgins, had the

occupants taken outside. Either at Defendant Bruning’s suggestion or w ith his

approval, officers removed each of the male occupants’ clothing. Defendant

Bruning testified that Ames’s clothing was visibly stained, and the officers w ere

unsure whether the stains were from dirt or dangerous chemicals. Defendant

Bruning claimed that the officers were concerned that Ames (and others) might be

at risk if Ames were permitted to wear contaminated clothing and that any

contaminants on Ames’s pants could be transmitted to the back seat of the police

car, endangering the officers or other prisoners. Defendant Bruning then

reentered the trailer to assist in the search and allegedly had no further contact

with Ames.

II. Procedural Background

      Following a jury trial, Ames was convicted of trafficking illegal drugs and

conspiring to manufacture/possess a controlled dangerous substance. On

                                         -5-
September 30, 2002, Ames filed a pro se state prisoner civil rights action against

the Defendants pursuant to 42 U.S.C. § 1983, claiming that his Fourth

Amendment rights against unreasonable searches and seizure were violated in

connection with his arrest when his clothes were taken away unnecessarily upon

his arrest and he was forced to remain partially naked throughout the arrest and

booking procedure. Ames sought declaratory relief and compensatory and

punitive damages. The district court first dismissed all but Ames’s punitive

damages claim, for which the court appointed counsel. 6 The court ultimately

awarded summary judgment in favor of the Defendants on that claim. Ames filed

a motion to reconsider, which the district court denied, and this pro se appeal

followed.




                                  D ISC USSIO N




      6
        The court dismissed Ames’s claims for declaratory judgment, ruling that
Ames lacked standing to obtain such relief. It dismissed Ames’s compensatory
damages claims because Ames did not allege any physical injuries as required by
42 U.S.C. § 1997e(e) for plaintiffs in prison. Finally, it dismissed Ames’s
conspiracy claims as deficiently pled.

                                        -6-
      In his brief, Ames asserts that the district court erred in 1) granting

summary judgment in favor of Defendants on his punitive damages claim; and 2)

denying his motion for reconsideration. 7

                                            I.

      W e construe Ames’s appeal as first asserting that the district court erred in

granting summary judgment pursuant to his counsel’s failure to respond to the

Defendants’ motions for summary judgment. In this case, however, the district

court did not rely solely on W .D. Okla. LCvR7.2(f) to award summary judgment

as a sanction for Ames’s failure to respond, but rather properly deemed the facts

asserted in D efendants’ motions for sum mary judgment confessed and based entry

of summary judgment in favor of the Defendants upon its evaluation of the merits

under Fed. R. Civ. P. 56. 8 W e therefore turn to deciding, de novo, see


      7
        As a preliminary matter, we note that many of Ames’s arguments on
appeal rest, in part, on his claim that his court-appointed counsel was ineffective.
W e cannot grant relief on this basis in a civil case. Beaudry v. Corr. Corp. of
Am., 331 F.3d 1164, 1169 (10th Cir. 2003).
      8
         Deeming facts admitted under LCvR 7.2(f), which provides that “[a]ny
motion that is not opposed . . . may, in the discretion of the Court, be deemed
confessed,” is not inconsistent with Rule 56 of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 83 (requiring district courts to construe and apply
local rules in manner consistent with federal rules); Reed, 312 F.3d at 1195
(explaining that, in accordance w ith Rule 56, “[b]y failing to file a response
within the time specified by the local rule, the nonmoving party waives the right
to respond or to controvert the facts asserted in the summary judgment motion”).
In this case, we cannot say that deeming the facts alleged in D efendants’
summary judgment motion, which included Ames’s deposition in which he
asserted many of the facts he urges us to reconsider on appeal, was “an arbitrary,
                                                                         (continued...)

                                         -7-
Fuerschbach v. Southw est Airlines, Co., 439 F.3d 1197, 1207 (10th Cir. 2006),

whether the Defendants met their Rule 56 burden. 9 Because Ames is asserting a

punitive damages claim based on an underlying Fourth Amendment claim that the

manner in w hich he w as detained was unreasonable, the D efendants must



      8
        (...continued)
capricious, whimsical or manifestly unreasonable judgment.” FDIC v. Oldenburg,
34 F.3d 1529, 1555 (10th Cir. 1994) (quotations omitted). Cf. Sports Racing
Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 894 (10th Cir. 1997)
(reviewing exclusion of evidence at summary judgment stage of proceedings for
abuse of discretion).
      9
          Pursuant to Rule 56(c), the moving party “always bears the initial
burden of informing the district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with any affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323 (quoting Fed. R. Civ. P. 56(c)). Rule 56(e) provides that:

      W hen a m otion for summary judgment is made and supported as
      provided in this rule, an adverse party may not rest upon the mere
      allegations or denials of the adverse party’s pleadings, but the adverse
      party’s response, by affidavits or as otherwise provided by this rule,
      must set forth specific facts showing that there is a genuine issue for
      trial. If the party does not so respond, summary judgment, if
      appropriate, shall be entered against the adverse party.

Fed. R. Civ. P. 56(e). Thus,

      [i]f the nonmoving party fails to respond, the district court may not
      grant the motion [for sum mary judgment] without first examining the
      moving party’s submission to determine if it has met its initial burden
      of demonstrating that no material issues of fact remain for trial and the
      m oving party is entitled to judgment as a matter of law.

Reed, 312 F.3d at 1195 (emphasis added); see also Adickes v. S.H. Kress & Co.,
398 U.S. 144, 160-61 (1970).

                                        -8-
demonstrate both that no triable issue exists regarding either Ames’s underlying

Fourth Amendment claim or his punitive damages claim and that Defendants are

entitled to judgment as a matter of law. 10

      A seizure violates the Fourth Amendment if the officer’s actions were

“‘objectively [un]reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.” See Graham v.

Connor, 490 U.S. 386, 395, 397 (1989). “A detention conducted in connection

with a search may be unreasonable if it is unnecessarily painful, degrading, or

prolonged, or if it involves an undue invasion of privacy.” Franklin, 31 F.3d at

876. W here, as here, a suspect’s constitutional right to bodily privacy is

implicated, the reasonableness of the seizure or search receives special scrutiny.

See, e.g., Cottrell v. Kaysville City, 994 F.2d 730, 734 (10th Cir. 1993) (weighing

the need for a strip search against the “grave invasion of privacy it entails”).



      10
           Despite initially asserting an Eighth Amendment claim, Ames later
acknowledged that his claims were governed by the Fourth Amendment. See
Tennessee v. Garner, 471 U.S. 1, 7-8 (1985) (indicating that a seizure or search
may be held unreasonable . . . if the officer carried out the seizure and/or search
in an unreasonable manner). Specifically, Ames has alleged that it was
unreasonable to strip him of his clothes and then, while he was still partially
naked, force him to stand in front of the Jester’s trailer w here he was publicly
exposed until the search was completed, transport him to the Logan County Jail,
walk him several yards from the parking lot to the jail, shackle his leg to a bench
in the holding cell, and hold him until the booking process was complete. See
Franklin v. Foxworth, 31 F.3d 873, 876-77 (9th Cir. 1994) (concluding that a
detention was unreasonable where officer removed a gravely ill man, who was not
a suspect, from his bed, and required him to sit handcuffed for two hours, w ith his
genitals exposed to twenty-three armed officers).

                                          -9-
      Assuming Ames’s Fourth Amendment rights were violated, then punitive

damages may be awarded only if the challenged conduct “is shown to be

motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.” Searles v. Van Bebber,

251 F.3d 869, 879 (10th Cir. 2001) (quotations omitted). Punitive damages are

therefore available only if the violator knew or recklessly disregarded whether his

conduct was prohibited by federal law. See W ulf v. City of W ichita, 883 F.2d

842, 867 (10th Cir. 1989). Applying these standards, the district court awarded

summary judgment in favor of Defendants. W e affirm in part and reverse in part.

      W e agree that there is no evidence that Defendants Brown, Higgins, or

M etcalf personally participated in the alleged constitutional violation. None of

these individuals arrested Ames, removed his pants, transported him to jail,

detained him at jail, or booked him. Additionally, there is no evidence that they

supervised the execution of the warrant or supervised the officers who removed

Ames’s pants, transported him to jail, and booked him. See W orrell v. Henry,

219 F.3d 1197, 1214 (10th Cir. 2000) (“[T]o establish supervisory liability, a

plaintiff must show an affirmative link exists between the constitutional

deprivation and either the supervisor’s personal participation, his exercise of

control or direction, or his failure to supervise.”) (quotations, alterations omitted).

Thus, we affirm summary judgment in favor of Defendants Brown, Higgins, and

M etcalf.

                                         - 10 -
      However, we cannot similarly conclude that summary judgment was proper

with regard to D efendant Bruning, who did personally participate in A mes’s arrest

and the decision to remove A mes’s pants. Defendant Bruning maintains that he

made that decision based on safety concerns that the clothing may be

contaminated with dangerous chemicals. The district court ruled that no

reasonable jury could conclude that Defendant Bruning acted with malice in

removing Ames’s clothing because 1) the warrant was obtained based on probable

cause to believe that methamphetamine w as being produced at the Jesters’

residence; 2) officers detected a strong chemical odor upon entering the trailer; 3)

Ames’s clothing appeared stained and thus possibly contaminated; and 4)

methamphetamine manufacturing materials were seized.

      Certainly a reasonable jury might conclude that Defendant Bruning’s

decision to remove A mes’s pants was reasonable and not motivated by evil intent

or done w ith callous indifference to Ames’s Fourth Amendment rights. But we

disagree with the district court’s conclusion that there was no basis in the record

to suspect that Defendant Bruning’s proffered reason for the decision to remove

Ames’s pants w as false. View ing the evidence in the light most favorable to

Ames, a reasonable jury could conclude that Defendant Bruning was not

motivated by safety concerns but instead acted objectively unreasonably and with




                                        - 11 -
the subjective intent necessary to subject him to punitive damages liability. 11

      The following material facts, viewed collectively, raise triable issues

regarding whether Defendant Bruning may be liable for punitive damages in this

case: There is no evidence in the summary judgment record to suggest that the

clothing of each of the men removed from the trailer appeared equally

contaminated, and yet Defendant Bruning made the decision to strip all three of

them of their clothing. Additionally, according to Ames, the officers removed

Ames’s pants but did not remove his tee-shirt. Defendant Bruning asserts that he

made the decision to remove A mes’s clothes based on the dangers to the officers

and arrestees posed by the contaminated clothing. If a jury believed that Ames

was permitted to continue wearing his tee-shirt (and that the tee-shirt was

similarly contaminated), it would undercut Defendant Bruning’s assertion.

      Additionally, Ames claims that his removed clothing was not bagged up

and taken from the scene with the other lab items. This evidence is supported by

Jeffery Ames’s testimony that he retrieved his father’s pants from the Jesters’

trailer the next day. According to Defendant Bruning, a person’s contact with

contaminated clothing could be lethal, and yet the officers left the clothing they

believed to be potentially lethally contaminated at the Jesters’ residence. If a jury

      11
         Defendant Bruning did not participate in or supervise Ames’s transport
to and detention at the Logan County jail. He therefore is not liable for anything
that may have occurred when Ames was in the Logan County officers’ control.
However, we reiterate the district court’s concern about Ames’s treatment while
he was in the custody of the Logan County Sheriff’s office.

                                         - 12 -
believed Jeffery Ames’s testimony, it could reasonably infer that Defendant

Bruning’s stated motive in removing Ames’s clothing was pretext.

      M ost compelling is the fact that Ames w as not provided with any extra

clothing or covering. Jeffrey Ames found a duffle bag of Ames’s clothing in the

Jesters’ trailer the day after Ames’s arrest. Although Defendant Bruning testified

that no clothes from inside the trailer could be made available to A mes because

the officers could not go back in the house, officers in proper protective gear

entered and exited the trailer throughout the search while A mes stood naked in

front of it. Nothing in the summary judgment record indicates that the clothing in

the trailer appeared similarly stained or dirty.

      Finally, in an affidavit, Ames asserts that:

      Once I made it to the front steps [of the Jesters’ residence] I was taken
      over to and by the drivers [sic] side of Todd’s pickup truck where one
      of the cops stated to another one in a smartelicky [sic] intimidating and
      proovoking [sic] marner [sic] “W hy do those clothes look centaminated
      [sic]?” W hile another officer laughed and said “Yes w e better strip
      them!”

Ames further contends that he was teased and taunted while his clothing was

removed and once he was partially nude. The evidence suggests Defendant

Bruning was present during this taunting, which both casts doubt on his stated

motive for removing Ames’s clothing and suggests a causal link between the

constitutional violation and Defendant Bruning’s failure to supervise the officers

he instructed to strip and detain Ames. See W orrell, 219 F.3d at 1214.



                                         - 13 -
      A reasonable jury could thus conclude that Defendant Bruning’s decision to

remove A mes’s pants or the manner in which he subsequently detained Ames was

objectively unreasonable. A reasonable jury could also conclude that Defendant

Bruning acted with an evil intent or callous indifference to Ames’s Fourth

Amendment rights. W e therefore reverse this part of the district court’s summary

judgment order.

                                        II.

      Ames also asserts that the district court erred in denying his motion for

reconsideration. W e review such a denial for an abuse of discretion. Price v.

Philpot, 420 F.3d 1158, 1167 (10th Cir. 2005). “G rounds w arranting a motion to

reconsider include (1) an intervening change in the controlling law, (2) new

evidence previously unavailable, and (3) the need to correct clear error or prevent

manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th

Cir. 2000). Because none of these grounds exist here, we affirm the district

court’s denial of Ames’s motion for reconsideration.

                                        III.

      Ames also contends that: 1) the trial court erred in granting Defendants

Brown and Bruning’s motion to be excused from the settlement conference; 2) the

district court erred in denying Ames’s motion to amend his complaint to allege

physical injury; and 3) the district court erred in dismissing his compensatory

damages claims. W hen an appellant designates only certain issues or orders as

                                       - 14 -
the “part thereof being appealed,” Fed. R. App. P. 3(c)(1)(B), we construe the

notice of appeal strictly. See Cunico v. Pueblo. Sch. Dist. No. 60, 917 F.2d 431,

444 (10th Cir. 1990). Ames’s notice of appeal specifically designates only the

district court’s October 24 summary judgment order and its November 18 order

denying Ames’s motion for reconsideration of the court’s October 24 order. Our

jurisdiction thus does not extend to the other matters Ames wishes to appeal. Id.

      In any event, we would affirm the district court’s orders. See Soma

M edical Intern v. Standard Chartered Bank, 196 F.3d 1292, 1300 (10th Cir.

1999). First, Defendants Brown and Bruning’s motion to be excused from the

settlement conference was not granted; instead, it was denied as moot because the

court had already granted summary judgment. Second, in light of the

untimeliness of Ames’s attempt to assert physical injuries and the considerable

time and resources spent addressing Ames’s claims in the context initially

presented, we would conclude that the district court did not abuse its discretion in

denying his motion to amend. 12 Duncan v. M anager, Dept. of Safety, City and

      12
          Ames’s original complaint did not include claims for physical injuries.
Defendants’ motions to dismiss specifically pointed out this defect. In A mes’s
responses, he did not contradict Defendants’ statements and instead admitted that
he was only alleging claims for mental or emotional injuries. A magistrate judge
recommended that Defendants’ motions to dismiss be granted in part based
explicitly upon Ames’s lack of alleged physical injuries. In his objections to that
report, Ames did not contradict the finding that he did not allege physical injuries
and instead argued that he was not subject to the physical injury requirements of
42 U.S.C. § 1997e(e). The district court adopted the magistrate judge’s
recommendations and dismissed all claims, except Ames’s punitive damages
                                                                      (continued...)

                                        - 15 -
County of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005) (“[U]ntimeliness alone

is an adequate reason to refuse leave to amend.”). Finally, we would agree that

Ames is subject to the physical injury requirement of § 1997e(e) and thus

conclude that Ames may not recover compensatory damages for his § 1983

claim. 13 See Robbins v. Chronister, 435 F.3d 1238, 1239, 1244 (10th Cir. 2006)

(en banc) (holding that an attorney’s fees provision of PLRA, which contains the

same “by a prisoner who is confined to jail, prison, or other correctional facility”

language, applied to a § 1983 action instituted by a prisoner based on an incident

predating his incarceration). See 42 U.S.C. § 1997e(d)&(e).



                                  C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the district court’s grant of

sum mary judgment in favor of Defendants Brown, M etcalf, and Higgins; we

REVERSE the district court’s grant of summary judgment in favor of Defendant

Bruning; and we REM AND for further proceedings consistent with this order and

judgment.


      12
         (...continued)
claim, based in part on the lack of physical injury. Only then, nearly a year after
filing his initial complaint, did Ames file his motion to amend.
      13
         Although Ames may not recover compensatory damages, we have
previously held that Congress did not intend § 1997e(e) to restrict punitive
damages recovery. Searles, 251 F.3d at 881 (“[T]he salient fact is that Congress
simply did not choose [in the PLRA] to provide a restriction on punitive
damages.”) (emphasis added).

                                        - 16 -
ENTERED FOR THE COURT



David M . Ebel
Circuit Judge




- 17 -
