                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2394
                                    ___________

Jason J. Ross,                          *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Sgt. Dale Buck; K. Stewart; City of W. *     [UNPUBLISHED]
Des Moines; Bill Jess, Officer; A.      *
Kooiker, Officer; Vesey, Officer; James *
Wade, Officer,                          *
                                        *
            Appellees.                  *
                                   ___________

                              Submitted: May 30, 2006
                                 Filed: June 23, 2006
                                  ___________

Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
                         ___________

PER CURIAM.

      Jason J. Ross appeals from the district court’s adverse grant of summary
judgment and adverse judgment entered after a bench trial in his 42 U.S.C. § 1983
action. We affirm in part and reverse and remand in part.

       Ross brought this civil rights action against the City of West Des Moines,
Iowa, and six of its police officers, alleging that the officers used excessive force in
arresting and detaining him on December 29 and 30, 2000, and in arresting him again
on February 3, 2001. The district court granted summary judgment to Officers Keith
Stewart and Christopher Vesey for their roles in the December 29 arrest, to Officer
Aaron Kooiker for his role in the December 29-30 detention, and to Officer William
Jess for his role in the February 3 arrest. After a bench trial, the district court entered
judgment for Officers Dale Buck, Dan Wade, and Vesey for their roles in the
February 3 arrest. On appeal, Ross argues only that the district court should have
granted his motions to amend his complaint and for appointment of counsel, and that
the district court erred in granting summary judgment to Officer Jess.

        We conclude the district court did not abuse its discretion in denying Ross’s
motion to amend his complaint to add Officer Luiza Fritz as a defendant. The motion
was untimely, as it came sixteen months after Ross received information that Fritz
was the jailer who had checked on him in detention and thus had been the one to
whom Ross had directed his complaints about his restraints being too tight. The
amendment was also futile, given the district court’s ruling that the claim failed for
lack of evidence of long-term or permanent injury from the restraints. See
Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989) (standard of review; good
reasons to deny leave to amend include undue delay, undue prejudice to non-moving
party, or futility of amendment); see also Foster v. Metro. Airports Comm’n, 914 F.2d
1076, 1077-78, 1082 (8th Cir. 1990) (without medical records indicating arrestee
suffered long-term injury, allegations of pain and nerve damage as result of being
handcuffed too tightly for two hours were insufficient to support excessive-force
claim). We also conclude the district court did not abuse its discretion in denying
Ross’s motion for appointment of counsel, as Ross appeared capable throughout this
litigation of representing himself. See Phillips v. Jasper County Jail, 437 F.3d 791,
794 (8th Cir. 2006) (standard of review and relevant factors).

       We review de novo the grant of summary judgment for Officer Jess, viewing
the facts in the light most favorable to Ross. See Peter v. Wedl, 155 F.3d 992, 996
(8th Cir. 1998) (standard of review). In deciding that Jess was entitled to qualified

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immunity, the district court was required to consider whether the officer’s conduct
violated a constitutional right, and whether that right was clearly established. See
Saucier v. Katz, 533 U.S. 194, 201-02 (2001). Under the Fourth Amendment, the
constitutionality of the force used during an arrest depends upon the facts and
circumstances, including the severity of the crime at issue, whether the suspect posed
an immediate safety threat to the officers or others, and whether the suspect actively
resisted arrest or attempted to evade arrest by flight. See Graham v. Connor, 490 U.S.
386, 395-96 (1989).

       The undisputed evidence showed that when officers responded to a call about
a disturbance in an apartment, they encountered a naked Ross, who resisted orders to
get on the ground in the bedroom and instead grabbed his female companion around
the neck and kicked at the officers. Once restrained, Ross was escorted to the living
room and was placed lying face up on the couch. Officer Jess assisted in controlling
Ross, and when Ross’s foot came into contact with Jess’s head, Jess sprayed Ross
with pepper foam. What happened next is disputed, but believing Ross’s version of
the facts, as we must, Officer Jess sprayed Ross with pepper foam a second time when
Ross turned his face into the couch to wipe off the foam from the first spray. Then,
while Ross’s feet were being held, some of the officers--including Jess--punched,
choked, and sprayed Ross a third time with pepper foam. The district court did not
discuss whether Jess’s second and perhaps third use of pepper foam was reasonable,
or whether Jess participated in any conduct besides the macing that could have been
deemed excessive force. Because a reasonable jury could conclude that Jess’s use of
the pepper foam and other conduct was gratuitous and therefore unreasonable, see
Henderson v. Munn, 439 F.3d 497, 502-03 (8th Cir. 2006) (use of mace on prostrate,
restrained arrestee who posed little or no threat to safety of officers or others was not
objectively reasonable), and because the unreasonableness of the alleged conduct was
clearly established at the time of the incident, Ross is entitled to proceed on these
claims against Officer Jess.



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       The grant of summary judgment in favor of Officer Jess is reversed, and the
case is remanded to the district court for a trial on Ross’s claims against him. The
judgment in favor of the other officers is affirmed in all respects.
                       ______________________________




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