                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 22, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 CHRIS JOHNSON,

               Plaintiff - Appellant,                   No. 10-3170
          v.                                            (D. Kansas)
 DENNIS K. ROBERTS; THE BOARD              (D.C. No. 2:09-CV-02664-JTM-DWB)
 OF COUNTY COMMISSIONERS OF
 MIAMI COUNTY, KANSAS; FRANK
 W. KELLY, Sheriff of Miami County,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Chris Johnson appeals the grant of summary judgment to the Board of

County Commissioners of Miami County, Miami County Sheriff Frank W. Kelly,

and deputy jailer Dennis K. Roberts (collectively, Defendants) on his civil-rights

claims under 42 U.S.C. § 1983. The United States District Court for the District



      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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.
of Kansas ruled that Mr. Johnson, an inmate at the Miami County jail, had not

been subjected to cruel and unusual punishment when deputy jailer Roberts tased

him and used other physical force during an incident in Mr. Johnson’s cell.

      We have jurisdiction under 28 U.S.C. § 1291. The district court’s opinion

thoroughly discusses why the evidence presented at summary judgment could not

support Mr. Johnson’s claim. We affirm for essentially the same reasons stated in

that opinion.

      We add only a few words to clarify an issue and to correct two errors made

in Mr. Johnson’s briefs on appeal. First, Mr. Johnson argues on appeal that

Defendants violated both his Eighth Amendment rights and his due-process rights,

but he never indicates what difference, if any, there was between the two

violations. We assume that he is simply noting that the Eighth Amendment

applies to state conduct (as here) through the Due Process Clause of the

Fourteenth Amendment. See United States v. Georgia, 546 U.S. 151, 157 (2006).

If he means to argue something else, he has waived review of the issue by failing

to develop the argument. See Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir.

1992) (“[I]ssues designated for review are lost if they are not actually argued in

the party’s brief.”).

      Second, Mr. Johnson repeatedly asserts in his briefs that it was not

necessary for him to respond to Defendants’ summary judgment motion with

evidence, but that his allegations alone can suffice. For this proposition, he relies

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on Buchwald v. University of New Mexico School of Medicine, 159 F.3d 487 (10th

Cir. 1998), which states: “To survive summary judgment ‘when a defendant

raises the defense of qualified immunity, plaintiff must show the law was clearly

established when the alleged violation occurred and must come forward with facts

or allegations sufficient to show the official violated the clearly established

law,’” id. at 496 (quoting V-1 Oil Co. v. Means, 94 F.3d 1420, 1422 (10th Cir.

1996) (brackets omitted; emphasis added).

      But Mr. Johnson reads too much into the Buchwald language. That opinion

never states that a plaintiff’s allegations can substitute for evidence in response to

a summary-judgment motion. Buchwald is merely addressing the first hurdle that

a plaintiff must surmount in responding to a motion for summary judgment based

on qualified immunity. If the plaintiff does not make the showing required by

Buchwald, the claim must be dismissed. But if the plaintiff makes the showing,

the usual rules of summary-judgment practice still apply; and if the defendant

presents evidence that contradicts the plaintiff’s allegations, the plaintiff must

overcome a second hurdle—namely, responding with evidence, not just

allegations. It was unnecessary for Buchwald to address the plaintiff’s second

potential hurdle, because the plaintiff had not shown that clearly established law

had been violated on the facts and allegations she had presented. (In fact, it does

not appear that any relevant facts were disputed.). That the showing required by

Buchwald is only enough to bring the usual summary-judgment procedures into

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play is alluded to in V-1 Oil Co., the opinion quoted by Buchwald. In the

sentence immediately after the language quoted by Buchwald, the V-1 Oil Co.

opinion explains: “Defendant bears the normal summary judgment burden of

showing no material facts that would defeat the qualified immunity defense

remain in dispute.” V-1 Oil Co., 94 F.3d 1420, 1422-23; see Powell v. Mikulecky,

891 F.2d 1454, 1457 (10th Cir. 1989) (“Only after plaintiff has shown a violation

of a clearly established right does the defendant assume the normal burden of a

movant for summary judgment of establishing that no material facts remain in

dispute that would defeat her or his claim of qualified immunity.”). And, of

course, when, as in the present case, “a motion for summary judgment is properly

made and supported, an opposing party may not rely merely on allegations or

denials in its own pleading; rather, its response must—by affidavits or as

otherwise provided in this rule—set out specific facts showing a genuine issue for

trial.” Fed. R. Civ. P. 56(e)(2) (2009). Thus, Mr. Johnson could not rely on his

mere allegations to defeat Defendants’ summary-judgment motion.

      Finally, Mr. Johnson’s appellate briefs repeatedly complain that he was

denied discovery that would have produced evidence helpful to his claim. To

preserve that argument, however, he needed to respond to the summary-judgment

motion with an affidavit under Federal Rule of Civil Procedure 56(f) (relabeled as

Rule 56(d), effective December 1, 2010) showing that he needed discovery to

respond fully to the motion. He filed no such affidavit, so he cannot complain on

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appeal that he was denied discovery. See Marquez v. Cable One, Inc., 463 F.3d

1118, 1120–21 (10th Cir. 2006).

      We AFFIRM the district court’s grant of Defendants’ motion for summary

judgment.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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