                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS October 15, 2010

                           FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                   Clerk of Court



    CHRISTOPHER BORNEMAN,

              Plaintiff-Appellant,

    v.                                                 No. 10-6045
                                                (D.C. No. 5:09-CV-00187-R)
    TIMOTHY ROZIER; CAPTAIN                            (W.D. Okla.)
    MAPLES,

              Defendants-Appellees,

    and

    DERRICK MILLER,

              Defendant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Christopher Borneman, proceeding pro se here as in the district court,

appeals the district court’s grant of summary judgment to defendants Rozier and

Maples on qualified immunity grounds. 1 Mr. Borneman filed suit under 42 U.S.C.

§ 1983 claiming defendants, Oklahoma Highway Patrol Troopers, used excessive

force in arresting him and then unduly delayed his receipt of medical care. He

requests leave to proceed on appeal in forma pauperis (IFP). That request is

granted.

      We exercise jurisdiction under 28 U.S.C. § 1291 and affirm on the merits.

                                   Background

      The undisputed facts established that Mr. Borneman led Oklahoma

Highway Patrol troopers on a fifty-mile high speed chase on the Turner Turnpike

near Oklahoma City, Oklahoma. Defendants Trooper Rozier and Captain Maples

were among the police officers attempting to apprehend Mr. Borneman and his

brother, who was a passenger in the car. The chase concluded when

Mr. Borneman left the highway and turned into a parking lot, where Trooper

Rozier stopped Mr. Borneman’s vehicle. Mr. Borneman asserts that even though

he immediately got out of his car and surrendered by lying down on the

pavement, Trooper Rozier “grabbed [his] hair and lifted [his] head and slammed

1
      Mr. Borneman also named Trooper Miller as a defendant, claiming he had
used excessive force against his brother, who was also in the car. Mr. Borneman
voluntarily dismissed Trooper Miller from the case after the magistrate judge
explained that he could not pursue claims on behalf of another person. See R.
Vol. 1 at 19.

                                        -2-
[his] face on the pavement and used his knees on [his] head to apply his weight to

inflict further unnecessary and wanton pain and suffering.” R. Vol. 1 at 11. He

claims that Captain Maples failed to intervene to stop Trooper Rosier’s use of

excessive force. In addition, he alleges that although he required immediate

medical care, he was required to sit in a police vehicle for 20 or 30 minutes

before he was taken to a hospital. It is undisputed that he received medical

treatment at the scene.

      Trooper Rozier described the apprehension differently, asserting that

Mr. Borneman did not obey his commands to place his hands behind his back. A

struggle ensued until Trooper Rozier was able to handcuff Mr. Borneman. He

denied that he, or anyone else at the scene, grabbed Mr. Borneman by the hair and

slammed his head on the pavement.

      The chase and apprehension were filmed by three cameras, two on the

dashboards of police cars pursuing Mr. Borneman, R. Vol. 2 Exs. 2 & 4, and the

third in a news helicopter that followed the chase and apprehension, id. Ex. 3.

Mr. Borneman maintains that the videotapes substantiate his claims.

      A magistrate judge issued a thorough report and recommendation

concluding that defendants were entitled to qualified immunity because

defendants did not violate Mr. Borneman’s constitutional rights. The district

court adopted the report and recommendation and granted summary judgment in

favor of defendants. Mr. Borneman appeals, arguing (1) the videotapes establish

                                         -3-
his claim of excessive force, (2) defendants unduly delayed medical care, and

(3) disputed facts precluded summary judgment.

                                       Analysis

A. Legal Standards

      “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quotation

omitted). “Qualified immunity is an affirmative defense to a section 1983 action,

providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965,

971 (10th Cir. 2001) (quotation and alteration omitted).

      We construe liberally the pleadings filed by pro se litigants, but we do not

act “as the litigant’s attorney in constructing arguments and searching the record.”

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

“We review a grant of summary judgment on the basis of qualified immunity de

novo.” Harman v. Pollock, 586 F.3d 1254, 1260 (10th Cir. 2009), cert. denied,

78 U.S.L.W. 3590, 79 U.S.L.W. 3014 (U.S. Oct. 4, 2010) (No. 09-1195). To

survive summary judgment after a defendant has claimed qualified immunity, the

plaintiff must demonstrate both: “(1) that the defendant’s actions violated a

constitutional or statutory right and (2) that the right was clearly established at

the time of the defendant’s unlawful conduct.” Serna v. Colo. Dep’t of Corr.,

                                          -4-
455 F.3d 1146, 1150 (10th Cir. 2006) (quotation omitted). The Supreme Court

has held that the federal district and appellate courts have discretion to determine

which of the two prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case. Pearson, 129 S. Ct. at

818.

       In this case, we hold that defendants did not violate Mr. Borneman’s

constitutional rights. Therefore, we need not address whether those rights were

clearly established.

B. Excessive Force

       A claim that law enforcement officers used excessive force in arresting a

free citizen is analyzed under the Fourth Amendment’s “reasonableness” standard.

Graham v. Connor, 490 U.S. 386, 395 (1989). “The ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. Factors

pertinent to the reasonableness 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.

       Not surprisingly, Mr. Borneman’s description of the pertinent events differs

from the police officers’ version. Normally, at the summary judgment stage, the

court “construe[s] the record in the light most favorable to the non-moving party.”

                                          -5-
Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004). “In qualified

immunity cases, this usually means adopting . . . the plaintiff’s version of the

facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). But where, as here, the record

contains videotapes capturing the events in question, the court “view[s] the facts

in the light depicted by the videotape.” Id. at 381.

      Mr. Borneman maintains that the news video shows that “as soon as [his]

vehicle comes to a stop in Chili’s parking lot, the plaintiff immediately exits the

vehicle with [his] hands in the air. . . . Plaintiff dropped to the ground without

being forced.” R. Vol. 1 at 66. He also asserts that the video later shows that

Trooper Rozier “comes over and inflicts one final blow to [his] head. As [he] lay

motionless and injured Trooper Rozier uses his full body weight and drops his

knee on [Mr. Borneman’s] head . . . .” Id. In addition to the news video,

Mr. Borneman relies on the dashboard video from Trooper Rozier’s patrol car, id.

Vol. 2 Ex. 4, to refute the trooper’s statement that he told Mr. Borneman to put

his hands behind his back.

      The videotapes show the following. As soon as the vehicles stopped,

Trooper Rozier quickly approached the driver’s side of Mr. Borneman’s car, gun

drawn, voicing commands to the driver. He drew Mr. Borneman out of the car

and both men struggled on the pavement until a second officer assisted in

subduing Mr. Borneman. The video does not show Trooper Rozier picking up

Mr. Borneman’s head by the hair and slamming it onto the pavement. Shortly

                                          -6-
after Mr. Borneman was handcuffed, Trooper Rozier, who had stood up and

walked a few steps away, returned to Mr. Borneman, and placed his knee on

Mr. Borneman’s back, not his head (apparently preparatory to raising him to a

standing position, although the video camera moved away before Mr. Borneman

stood up). 2

       We conclude that Trooper Rozier’s actions in arresting Mr. Borneman were

objectively reasonable under the circumstances. Not only does the evidence fail

to support Mr. Borneman’s claims that Trooper Rozier “beat a cooperative,

restrained arrestee,” R. Vol. 1 at 11, but Trooper Rozier’s response to the

situation of a fleeing suspect who had tried to elude authorities at extraordinary

speeds over 50 miles of highway, endangering the officers and the public, was

objectively reasonable. Moreover, “[n]ot every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment.” Graham, 490 U.S. at 396 (citation and quotation omitted).

Accordingly, the district court correctly ruled that Trooper Rozier did not violate

Mr. Borneman’s constitutional rights and was therefore entitled to qualified

immunity.


2
       Mr. Borneman asserts that a statement by Captain Maples shows that
Trooper Rozier was beating him. He claims the captain said, “Alright [sic] men
you can stop beating them, here comes [sic] the news cameras.” Aplt. Opening
Br. at 3. But even if Captain Maples made the statement, and even if the
statement was not made in jest, it does not contradict the videotape evidence
negating Mr. Borneman’s excessive-force claim.

                                         -7-
      We turn to Mr. Borneman’s claim that Captain Maples is liable because he

failed to prevent Trooper Rozier from using excessive force. Although “[a]n

officer who fails to intervene to prevent a fellow officer’s excessive use of force

may be liable under § 1983,” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir.

2008), our holding that Trooper Rozier’s actions did not violate Mr. Borneman’s

constitutional rights forecloses this claim against Captain Maples.

C. Delay of Medical Care

      Mr. Borneman claims his constitutional rights were violated because

medical care was delayed following his arrest. He alleged that despite his

bleeding face and head, he was placed in a police vehicle for “about 20 to 30

minutes” before being taken to the hospital. R. Vol. 1 at 12. It is undisputed that

he was treated by paramedics at the scene shortly after he was placed in the police

vehicle.

      Because Mr. Borneman was a detainee at the time, his claim arises under

the due process clause of the Fourteenth Amendment, which provides “the same

degree of protection regarding medical attention as that afforded convicted

inmates under the Eighth Amendment.” Barrie v. Grand Cnty., 119 F.3d 862, 867

(10th Cir. 1997) (quotation omitted). Therefore, we consider whether his Eighth

Amendment rights were violated. “In order to state a cognizable claim, a prisoner

must allege acts or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs. . . . Delay in medical care can only

                                          -8-
constitute an Eighth Amendment violation if there has been deliberate indifference

which results in substantial harm.” Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.

1993) (citation, quotations, and alteration omitted).

      Claiming he was severely injured during the arrest, Mr. Borneman points to

his $3808 medical bill, three missing teeth, 3 and “vertigo symptoms and a loss of

sensation on [his] face.” Aplt. Reply Br. at 3-4. We “look solely to the medical

records that plaintiff submit[ted] in support of his claim of deliberate

indifference.” Olson, 9 F.3d at 1477. The medical records do not indicate that

the few minutes’ delay before he received treatment at the scene or the half-hour

delay before he was transported to a hospital, resulted in substantial harm, such as

“lifelong handicap, permanent loss, or considerable pain,” Garrett v. Stratman,

254 F.3d 946, 950 (10th Cir. 2001).

      Therefore, because Mr. Borneman has failed to demonstrate that defendants

were deliberately indifferent to his serious medical needs that resulted in

substantial harm, they were entitled to qualified immunity.




3
       Mr. Borneman has attempted to satisfy the substantial-harm requirement by
asserting in this court that he is “still missing [his] 3 front teeth.” Aplt. Reply Br.
at 3. But he alleged in the district court that he lost his “‘bridge’ (which consists
of [his] 3 front teeth glued or fused together with 2 metal posts).” R. Vol. 1 at
67. A missing or broken dental appliance ordinarily does not rise to the level of
substantial harm.

                                          -9-
D. Disputed Facts

      Finally, we address Mr. Borneman’s assertion that disputed facts precluded

summary judgment. As discussed above, the videotapes refute his version of his

apprehension and arrest. He also challenges defendants’ characterization of the

high-speed chase as causing crashes and damage to other vehicles. He maintains

that the only crash and vehicle damage occurred when he was apprehended, and

no damage occurred during the chase. But these disputes are not material to the

question of whether his arrest involved excessive force or whether medical care

was unduly delayed. “The mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”

Scott, 550 U.S. at 380 (quotation and alteration omitted). Consequently, these

factual disputes do not preclude summary judgment.

                                    Conclusion

      Mr. Borneman’s motion to proceed IFP on appeal is GRANTED. He is

reminded that he is obligated to continue making partial payments until the entire

fee has been paid. The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Timothy M. Tymkovich
                                                    Circuit Judge

                                        -10-
