                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   April 15, 2009
                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court

    THOMAS EUGENE GRASS,

                Plaintiff-Appellant,

    v.                                                    No. 07-5152
                                              (D.C. No. 4:04-cv-00478-TCK-PJC)
    KELLY JOHNSON,                                       (N.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BALDOCK, BRORBY, and EBEL, Circuit Judges.



         Plaintiff Thomas Eugene Grass, proceeding pro se, challenges the district

court’s award of summary judgment to defendant Kelly Johnson on his Fourth

Amendment claim of excessive force brought under 42 U.S.C. § 1983. We have

jurisdiction under 28 U.S.C. § 1291 and we reverse.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      On the evening of May 15, 2004, Johnson, a police officer for the City of

Jay, Oklahoma, arrested Grass for driving under the influence of alcohol and took

him to the Delaware County Jail. It is undisputed that Johnson handcuffed Grass

and strapped him into the patrol car without incident. What happened next lies at

the heart of this lawsuit. Grass, in a verified complaint filed June 14, 2004,

claimed Johnson mistreated him during the course of the arrest because Grass is

Native American. Specifically, he alleged that after he was handcuffed and

seat-belted in the patrol car, Johnson punched him in the face, giving him a black

eye. Johnson denies harboring prejudice towards Native Americans and

specifically denies striking Grass. He claims to have made the arrest without

using any force except what was necessary to guide Grass to his patrol car.

      The Martinez report submitted by the City of Jay reveals that Grass did

sustain an injury to his eye between the time he was pulled over and the next

morning. According to the report, the morning after Grass’s arrest, officer

Branden Barden observed a small area of swelling around his right eye. When

Barden asked Grass about the injury, Grass told him his arresting officer had beat

him up. The injury was also observed by Grass’s arraigning judge, who recalled

that a Native American with some sort of facial injury appeared before him and

inquired into pressing charges against the arresting officer. The booking

documents, however, reflect no injuries to Grass at the time of booking. To the

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contrary, the medical information section of one document indicates Grass had no

injuries or disabilities. And the “Book-In Checklist” likewise contains no

information in the section where visible marks or injuries should be recorded.

Lonnie Hunter, the booking officer, stated he had no recollection of booking

Grass on the night in question. He noted, however, that if Grass had arrived at

the jail with an injury, department policy would have required him to record that

fact in the booking documents. No mug shot was taken of Grass at the time of

booking. According to Hunter, department policy dictates that a mug shot is only

taken if the arrestee does not already have one on file or it is out of date or if the

arrestee arrives at the jail with visible signs of injury.

      Johnson moved for summary judgment on this evidence, arguing it was

uncontroverted Grass arrived at the jail unharmed. In addition to his own

affidavit, he submitted as evidence the book-in documents and affidavits from

Hunter, repeating what he said in the Martinez report, and the Chief of Police,

who testified he had never received any complaints about Johnson’s treatment of

Native Americans. Grass countered with his own affidavit, repeating the

allegations made in his complaint. He also accused Hunter of lying in his

affidavit in order to protect Johnson and stated that Hunter did not even complete

the booking documents until the morning after the arrest. On September 13,

2007, the district court granted Johnson’s motion and dismissed the case,

articulating two bases for its decision. First, it concluded the evidence was

                                           -3-
insufficient to raise a fact issue concerning whether Johnson hit Grass during the

course of the arrest. And second, it reasoned that even if Johnson did hit him,

Grass sustained only a de minimis injury, which cannot support a Fourth

Amendment claim as a matter of law. Consequently, it held the issue of whether

Johnson hit Grass was immaterial, and explained that “[o]nly material factual

disputes preclude summary judgment; immaterial disputes are irrelevant.”

R. Doc. 39 at 5 (emphasis added). This appeal followed.

                                          II.

                                          A.

      “We review a district court’s grant of summary judgment de novo, using

the same standards applied by the district court.” Oliveros v. Mitchell, 449 F.3d

1091, 1095 (10th Cir. 2006) (quotation omitted).

      We review the entire record . . . in the light most favorable to the
      party opposing summary judgment. We must consider factual
      inferences tending to show triable issues in the light most favorable
      to the existence of those issues. Where different ultimate issues may
      properly be drawn, the case is not one for a summary judgment.

Norton v. City of Marietta, 432 F.3d 1145, 1152 (10th Cir. 2005) (quotation

omitted). Nor is resolution by summary judgment appropriate if it requires the

district court to make credibility determinations to reach its decision. See id. at

1154 (“[A] judge may not evaluate the credibility of witnesses in deciding a

motion for summary judgment.”) (quotation omitted). Summary judgment should

be rendered only if the pleadings and evidence “show that there is no genuine

                                          -4-
issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). We have explained that “[a]n issue is

‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact

could resolve the issue either way.” Thom v. Bristol-Myers Squibb Co., 353 F.3d

848, 841 (10th Cir. 2003). A fact issue is “‘material’ if under the substantive law

it is essential to the proper disposition of the claim.” Id.

      Grass’s claim that Johnson used excessive force in the course of arresting

him must be analyzed under the Fourth Amendment and its reasonableness

standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The inquiry is an

objective one. We ask “whether the officers’ actions [were] objectively

reasonable in light of the facts and circumstances confronting them, without

regard to underlying intent or motivation.” Weigel v. Broad, 544 F.3d 1143, 1151

(10th Cir. 2008). The totality of the circumstances must be taken into account in

each particular case, with careful attention paid to the severity of the crime,

whether the suspect posed an immediate threat, and whether he was actively

resisting arrest or attempting to flee. Graham, 490 U.S. at 396. Accordingly,

conduct that passes constitutional muster in one case may constitute a Fourth

Amendment violation in another.

      With this framework in mind, we turn to the facts and circumstances

surrounding Grass’s arrest and ask whether he proffered sufficient evidence such

that a rational juror could conclude Johnson acted unreasonably. See Buck v. City

                                           -5-
of Albuquerque, 549 F.3d 1269, 1288 (10th Cir. 2008) (noting that whether police

used excessive force in a § 1983 case is generally a fact question best answered

by the jury). The first question we must answer is whether the de minimis nature

of Grass’s injury precludes an excessive force claim as a matter of law, because if

the answer to that question is yes, then it is irrelevant whether Grass proffered

sufficient evidence of Johnson’s alleged misconduct. If, however, the answer is

no, we must then go on to evaluate the strength of Grass’s claim in light of the

evidence before the district court.

                                          B.

      In Graham, the Supreme Court cautioned against finding every “push or

shove” by a police officer a Fourth Amendment violation. 490 U.S. at 396.

Heeding that warning, we recently rejected a Fourth Amendment claim premised

on an allegation of unduly tight handcuffing, explaining that “a claim of excessive

force requires some actual injury that is not de minimis, be it physical or

emotional.” Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007). This

language would seem to support the essence of the district court’s ruling – that

because Grass suffered only minor injuries, he could not show the excessiveness

of any force used by Johnson. The problem with this reasoning, however, is that

it implicitly sanctions an officer’s use of force, albeit resulting in only minor

injury, that was wholly unnecessary to carry out the arrest. Our cases, including

Cortez do not support that proposition. The above-quoted language from Cortez

                                          -6-
referred to the plaintiff’s allegations that the defendant police officer ignored his

pleas that his handcuffs were too tight. He claimed the handcuffs left red marks

on his wrists that were visible for days. We rejected his claim because there was

too little evidence of any actual injury. See id. at 1129. Even taking his

allegations as true, we held his injury was “insufficient, as a matter of law, to

support an excessive force claim if the use of handcuffs [was] otherwise

justified.” Id. (emphasis added).

      This holding is of limited value in the present case because Cortez did not

involve allegations of unjustified and actively abusive behavior by the arresting

officer. Moreover, we explicitly acknowledged – and did not overrule – our prior

precedent holding that “proof of physical injury manifested by visible cuts,

bruises, abrasions or scars, is not an essential element of an excessive force

claim.” Id. at 1129 n.24 (citing Holland ex rel. Overdorff v. Harrington, 268 F.3d

1179, 1195 (10th Cir. 2001)). Holland is more instructive here. In that case,

members of a police SWAT team were accused of using excessive force during

the course of an arrest where they held children at gunpoint after gaining control

of the situation. We held the officers’ conduct violated plaintiffs’ Fourth

Amendment rights, explaining that the unwarranted nature of the force, rather

than its potential for physical harm, was what rendered it unconstitutionally

excessive.




                                          -7-
      Where a person has submitted to the officers’ show of force without
      resistance, and where an officer has no reasonable cause to believe
      that person poses a danger to the officer or to others, it may be
      excessive and unreasonable to continue to aim a loaded firearm
      directly at that person, in contrast to simply holding the weapon in a
      fashion ready for immediate use.

Id. at 1193. Regarding the plaintiffs’ lack of physical injuries, we explained that

“the interests protected by the Fourth Amendment are not confined to the right to

be secure against physical harm; they include liberty, property and privacy

interests–a person’s sense of security and individual dignity.” Id. at 1195

(quotation omitted). Moreover, we specifically “decline[d] to adopt a

‘bright-line’ standard dictating that force cannot be ‘excessive’ unless it leaves

visible cuts, bruises, abrasions or scars.” Id. The holding of Holland, which we

reaffirmed in Cortez, is that an excessive force claim is not dependent on physical

injury or even physical contact, but on “patently unreasonable conduct” by the

arresting officer. See Cortez, 478 F.3d at 1131.

      This is not the “push or shove” case warned about in Graham. Grass

indisputably cooperated in the course of being handcuffed and placed in the patrol

car. If we accept his version of the facts as true, Johnson’s use of force came

after Grass was subdued and not posing a threat to anyone. At least one circuit

has held that any force used under those circumstances is excessive as a matter of

law. Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006) (“We have

held repeatedly that the use of force after a suspect has been incapacitated or


                                         -8-
neutralized is excessive as a matter of law.”); see also Fontana v. Haskin,

262 F.3d 871, 880 (9th Cir. 2001) (“Gratuitous and completely unnecessary acts

of violence by the police during a seizure violate the Fourth Amendment.”). We

have not yet issued such a pronouncement. But we have consistently factored

into the totality-of-the-circumstances analysis the level of the plaintiff’s

resistance or cooperation during the course of the arrest. See, e.g., Cortez,

478 F.3d at 1128 (stating there was “no indication . . . [plaintiff] actively resisted

seizure or attempted to evade seizure by flight”); Weigel, 544 F.3d at 1153

(noting that officer subjected plaintiff to force “unnecessary to restrain him”);

Buck, 549 F.3d at 1289-90 (questioning officers’ use of pepper balls on plaintiff

who was neither resisting nor evading arrest). Despite the de minimis nature of

Grass’s injuries, a review of the facts in the light most favorable to him gives rise

to a jury question regarding whether Johnson acted reasonably. The district court

therefore erred in rejecting his claim as a matter of law.

                                          C.

      Grass still had to proffer sufficient evidence to necessitate a trial on the

question of whether Johnson hit him during the arrest. On this score, the district

court concluded Grass had “failed to demonstrate a genuine issue of material fact

for trial as to whether Johnson caused the de minimis injury first observed six

hours after he was booked in to the Delaware County Jail[.]” R. Doc. 39 at 9.

We disagree. The booking documents do support Johnson’s claim that Grass

                                          -9-
arrived at the jail unharmed. But this is not a case where an uninjured suspect

claims the arresting officer beat him up. Grass provided uncontroverted proof

that he was injured at some point between being pulled over by Johnson and the

next morning. He has sworn both in his verified complaint and by affidavit that

Johnson was the culprit. And he claims the booking documents are not reliable

because Hunter recorded false information in order to protect Johnson. Hunter

concedes he has no memory of the events in question so his affidavit adds little.

Hence, the district court was left with Johnson’s word against Grass’s and

documents whose reliability had been questioned. Given the dearth of evidence

in the record, the district court could not have reached the conclusion it did unless

it chose to believe Johnson over Grass. This was not permissible. Norton,

432 F.3d at 1154. On the evidence before the district court, a rational trier of fact

could choose to believe either party on the issue of whether Johnson hit Grass

after handcuffing and strapping him into the patrol car. Accordingly, the issue is

genuine, see Thom, 353 F.3d at 851, and for the reasons explained above, it is

also material. See id.




                                         -10-
                                       III.

      Because we conclude a genuine issue of material fact exists surrounding

Johnson’s use of force in the course of arresting Grass, we REVERSE the district

court’s grant of summary judgment and REMAND this case for further

proceedings. All pending motions are DENIED as moot.

                                              Entered for the Court


                                              Wade Brorby
                                              Circuit Judge




                                       -11-
No. 07-5152, Grass v. Johnson

BALDOCK, Circuit Judge, dissenting:

      I respectfully dissent. I would affirm the trial court for substantially the

same reasons set forth in its Opinion and Order, dated September 13, 2007.




                                        -12-
