                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          NOV 18 2003
                           FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JOSEPH BARBOA, also known as
    Joseph Sandoval,

               Plaintiff-Appellant,

    v.                                                 No. 03-2028
                                             (D.C. No. CIV-01-210 WPJ/LFG)
    SCOTT BAIRD, Deputy, Bernalillo                     (D. N.M.)
    County Sheriff’s Office; VAN
    ELDREDGE, Deputy, Bernalillo
    County Sheriff’s Office; A.N.
    ESCALANTE, Deputy, Bernalillo
    County Sheriff’s Office;
    BERNALILLO COUNTY,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before O’BRIEN and BALDOCK , Circuit Judges, and            BRORBY , Senior Circuit
Judge.




*
      This order and judgment is not binding precedent, except under the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.
       Joseph Barboa, proceeding pro se, appeals from the district court’s grant of

summary judgment in favor of defendants.          1
                                                      Barboa’s complaint under 42 U.S.C.

§ 1983 alleged that the defendant police officers used excessive force during his

arrest. Barboa also sought to hold Bernalillo County liable for creating customs

and policies that encourage the use of excessive force against arrestees. The

district court found that the undisputed facts demonstrated that Barboa’s actions

gave Defendant Baird probable cause to believe that Barboa posed a threat of

serious physical harm to Baird, as well as to other officers at the scene and the

public at large, and that deadly force was necessary to prevent his escape.      2



Because the district court found no liability on the part of the individual officers,

the court did not reach the issue of municipal liability. We affirm.

                                             I.

       On the morning of March 17, 1998, police dispatchers received a call that

an alarm had gone off at Jerry’s Market and that a white pick-up truck had been


1
       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.
2
       Defendants argued also that Heck v. Humphrey , 512 U.S. 477 (1994) bars
Barboa’s lawsuit. The district court briefly discussed the Heck argument, but did
not ultimately resolve the issue because it found that Barboa failed to rebut
defendants’ showing on summary judgment. We will not address the       Heck
argument on appeal because we agree with the district court that summary
judgment on the merits was appropriate.

                                            -2-
seen leaving the area. R. Vol. I, Doc. 38, Ex. A at ¶ 3.     3
                                                                 Defendant Eldredge saw

a white pick-up truck in the vicinity matching the description from dispatch so he

turned on his emergency lights and he began pursuing it. R. Vol. I, Doc. 38, Ex.

D at 6. 4 Barboa was driving that morning on his way to a methadone clinic when

he noticed a police car coming up behind him at a high rate of speed. R. Vol. II,

Doc. 43 at 2-4.   5
                      He slowed down to see if the police car would pass.     Id. at 4.

When the police car slowed down behind him, Barboa remembered that he had a

misdemeanor warrant for his arrest.        Id. After continuing to drive a bit further,

Barboa did pull over.       Id. Barboa got out of the car and started walking towards

the police car.   Id. at 5. Eldredge ordered Barboa back into his vehicle.       Id. at 6.

       At that point, Barboa figured that he was going to jail and that he would be

sick without his methadone dose.        Id. Barboa got back into his truck and

attempted to drive away around the police car.         Id. His truck crashed into a utility

pole, but he kept going.      Id. He drove to get on the ditch bank and he hoped that

Eldredge would not follow him.         Id. at 6-7. As soon as he got away from

Eldredge, he planned to leave the truck on the ditch and run on foot.         Id. at 7.

With Eldredge in pursuit, Barboa lost control of the truck and it slid into the



3
       Document 38, Exhibit A is Baird’s affidavit.
4
       Document 38, Exhibit D is Eldredge’s taped statement.
5
       Document 43 is Barboa’s affidavit.

                                              -3-
ditch. Id. Barboa climbed out of the truck and he heard the officers yell for him

to stop or they would shoot.    6
                                    Id. Barboa jumped out of the ditch and started

running. Id. at 8.

       Barboa ran across some alfalfa fields and then he ended up on another road.

Id. He noticed a red truck running with the parking lights on so he jumped into

the truck and he asked the driver to drive him away from there.        Id. at 8-9. The

driver jumped out of the car when the officers approached.         Id. at 9. Barboa slid

over onto the driver’s side of the truck and he tried to put the truck into reverse.

Id. He started going in reverse and he saw Eldredge trying to grab onto the truck

so he made the truck go faster.       Id. at 9-10.

       The truck got stuck and Barboa saw Eldredge trying to get on the bumper

of the truck and put his leg over the tailgate.      Id. at 10-11. Barboa got the truck

started again and Eldredge fell off the back bumper.        Id. at 11. Baird saw

Eldredge dragged by the car and then thrown from the vehicle. R. Vol. I,

Doc. 38, Ex. A. at ¶ 11. Another police car arrived on the scene and tried to

block Barboa’s truck from moving. R. Vol. II, Doc. 43 at 11. Barboa avoided

the other police car and then he saw Baird standing in front of the truck pointing

a gun at him.   Id. at 12. Barboa began driving towards Baird. R. Vol. I, Doc. 38,



6
      By that time Defendant Baird had arrived at the scene to assist Defendant
Eldredge.

                                              -4-
Ex. A at ¶ 12. Fearing for his life, Baird fired one shot through the windshield.

Id. at ¶ 13. Barboa slumped down in his seat and the car rolled to a stop.          Id.

       Barboa’s gunshot wound caused him to lose vision in his left eye. R. Vol.

I, Doc. 1, Ex. 2B at ¶ 1. Eldredge suffered a broken rib and a head laceration

from being thrown from Barboa’s car. R. Vol. I, Doc. 38, Ex. A at ¶ 11. Barboa

was arrested and charged with, among other things, aggravated battery upon a

peace officer (great bodily harm) or in the alternative, aggravated battery upon a

peace officer (deadly weapon) based on the harm to Eldredge, and aggravated

assault upon a peace officer (deadly weapon) based on the assault upon Baird.

Aplees. Br. at 12-13.

                                             II.

       We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court.       See Simms v. Okla. ex rel. Dep’t

of Mental Health & Substance Abuse Servs.          , 165 F.3d 1321, 1326 (10th Cir.

1999). Summary judgment is appropriate “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When

applying this standard, “we examine the factual record and reasonable inferences

therefrom in the light most favorable to the party opposing the motion.”


                                             -5-
McKnight v. Kimberly Clark Corp.     , 149 F.3d 1125, 1128 (10th Cir. 1998)

(quotation omitted).

      Barboa asserts that the individual defendants used excessive force in

effecting his arrest on March 17, 1998. Defendants do not dispute that they used

deadly force when they were attempting to arrest Barboa, but they argue that the

use of deadly force was justified. “[D]eadly force [is] justified under the Fourth

Amendment if a reasonable officer in [defendants’] position would have had

probable cause to believe that there was a threat of serious physical harm to

themselves or to others.”   Sevier v. City of Lawrence , 60 F.3d 695, 699 (10th Cir.

1995). The district court properly found that defendants met their burden on

summary judgment.

      The undisputed facts, construed in favor of Barboa, show that a reasonable

officer would have probable cause to believe that Barboa posed a threat of serious

physical harm to himself or to others. Barboa concedes that he was purposely

fleeing the police because he did not want to go to jail. Barboa admits that during

the pursuit, he attempted to get away from Eldredge after he was initially pulled

over, even though Eldredge told him to stay where he was. He acknowledges that

in his attempt to flee he struck a utility pole, but that he kept driving. In his

affidavit, he explained that he drove up on the ditch bank and hoped that Eldredge

would not follow him. Eldredge did follow him and during the pursuit, Barboa


                                           -6-
lost control of his car and it slid into a ditch. At that point, Barboa climbed out

of the car and started fleeing on foot, even though he heard the officers yell for

him to stop. Barboa then admits that he jumped into a truck on the street and

attempted to drive it away after the driver exited the vehicle. Barboa concedes

also that he saw Eldredge trying to grab onto the truck while Barboa was

reversing so he made the truck go faster. He then saw Eldredge fall off the back

bumper. Barboa acknowledges that he saw another police car arrive and try to

block his car, but that he accelerated again attempting to flee. As Barboa

accelerated, Barboa saw Baird standing right in front of him and he drove towards

Baird.

         The use of deadly force under these circumstances was justified, and no

reasonable jury could find otherwise. Indeed, Barboa’s conduct in driving the

truck towards Baird posed a threat of serious physical harm to him, and the

officers could also reasonably have concluded that, if they did not employ deadly

force, and had Barboa left the scene and continued to operate a vehicle in the

same desperate manner he had been doing all morning, other persons would have

been put in danger. Summary judgment is therefore appropriate on Barboa’s

claim of excessive force.

         Barboa also named Bernalillo County as a defendant, alleging a custom and

policy of encouraging the use of excessive force, and further alleging failure to


                                          -7-
supervise. The district court properly determined that it did not need to reach the

issue of municipal liability because it found no individual liability against the

police officers.   See Wilson v. Meeks , 98 F.3d 1247, 1255 (10th Cir. 1996).

       This court reminds Barboa that he must continue making partial payments

until the entire balance of his appellate filing fee is paid. All outstanding motions

are denied. The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge




                                          -8-
