                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 11, 2013
                       UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                     TENTH CIRCUIT


 GLEN D. YADON,

           Plaintiff - Appellant,

 v.                                                      No. 13-3026
                                               (D.C. No. 5:11-CV-04164-RDR)
 CHRIS HILTON; JASON BACON;                               (D. Kan.)
 SHAWN WAGNER, Council Grove
 Police Officers,

           Defendants - Appellees,

 and

 CITY OF COUNCIL GROVE;
 CYNTHIA ENGLE, Mayor, Council
 Grove; JOHN STONE, Council Grove
 Chief of Police,

           Defendants.


                               ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges. **


       *
        This order and judgment is not binding precedent, except under the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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Plaintiff-Appellant Glen D. Yadon filed this 42 U.S.C. § 1983 action pro se

alleging that Defendants-Appellees, three Council Grove police officers, violated

his Fourth Amendment right to be free from excessive force during an arrest for

disorderly conduct. Defendants moved for summary judgment on the basis of

qualified immunity and improper service of process. The district court agreed

that Defendants were entitled to qualified immunity, finding it unnecessary to

decide whether Defendants were properly served. Yadon v. Hilton, No. 11-4164-

RDR, 2013 WL 160445, at *6 (D. Kan. Jan. 15, 2013). Mr. Yadon timely

appeals, arguing that he was entitled to a trial by jury and that the officers

deprived him of his Fourth Amendment rights and acted outside their jurisdiction.

Aplt. Br. 3–4. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      The parties are familiar with the facts, and we need not repeat them here.

See Yadon, 2013 WL 160445, at *2–3. We review a grant of summary judgment

on qualified immunity grounds de novo, applying the same standard as the district

court. Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). We view the evidence and draw reasonable inferences in

the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).


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      “When a defendant asserts qualified immunity at summary judgment, the

burden shifts to the plaintiff to show that: (1) the defendant violated a

constitutional right and (2) the constitutional right was clearly established.”

Becker, 709 F.3d at 1022 (quotation omitted). The court has discretion to address

either prong first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

      The district court noted that Mr. Yadon was unable to identify “specific

conduct . . . which constitutes excessive force pursuant to the analytical

framework of the Graham decision.” Yadon, 2013 WL 160445, at *6. Under

Graham, we ask “whether the officers’ actions are ‘objectively reasonable’ in

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

underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989).

We consider: (1) the severity of the crime at issue, (2) whether the suspect poses

an immediate threat to the safety of the officers or others, and (3) whether he is

actively resisting arrest or attempting to flee. Id. at 396.

      For similar reasons as the district court, we conclude that the officers’

conduct did not constitute excessive force. Although the first and second Graham

factors weigh in favor of Mr. Yadon, the third factor—whether a defendant is

actively resisting arrest—weighs in favor of the officers. When the officers told

Mr. Yadon that he was under arrest for disorderly conduct, Mr. Yadon refused to

place his hands behind his back and instead hurried to his illegally parked van. R.

45. Once there, Mr. Yadon physically struggled with the officers as they

                                          -3-
attempted to arrest him. Id. This behavior justified the officers’ use of force

which unfortunately resulted in injuries to Mr. Yadon who was diagnosed with

contusions and abrasions about the face and arms, a sprained elbow, and two non-

displaced rib fractures. R. 117–18; see Mecham v. Frazier, 500 F.3d 1200,

1204–05 (10th Cir. 2007); Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir.

1993).

          Finally, to the extent Mr. Yadon argues that he has difficulty hearing and

could not hear the officers’ commands, see R. 46, 64, 96, qualified immunity

views events “from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. At the time

in question, a reasonable officer probably would not have been aware of this

problem, and thus, would be justified in concluding that Mr. Yadon was resisting

arrest.

          AFFIRMED.


                                          Entered for the Court


                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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