                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 21 2004
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 MICHAEL TAPIA,

          Plaintiff-Appellant,
 v.

 CITY OF ALBUQUERQUE, and
 CORRECTIONS OFFICER JASON                             No. 03-2133
 GARCIA AND CORRECTIONS                           (D.C. No. CIV-02-695)
 OFFICER JIMMY PINON, in their                       (D. New Mexico)
 individual and official capacities as
 employees of the CITY OF
 ALBUQUERQUE,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
PORFILIO, Senior Circuit Judge.


      On March 19, 2003, Michael Tapia (“Tapia”) filed a first amended

complaint in the United States District Court for the District of New Mexico

against the City of Albuquerque (“City”) and Jason Garcia (“Garcia”) and Jimmy



      *
        This order and judgment is not binding precedent, except under the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.
Pinon (“Pinon”), the latter two in their individual and official capacities as guards

at the Bernalillo County Detention Center (“BCDC”). Tapia claimed that, as a

result of Garcia’s and Pinon’s negligence, battery and excessive use of force, he

sustained damages caused by injuries inflicted upon him by the two of them while

booking him into the BCDC. After setting forth the “facts” out of which this

litigation arises, Tapia alleged two claims based on the New Mexico Tort Claims

Act. Count 1 was against the City and Garcia and Pinon for “Tort-Battery.”

Count 2 was also under the New Mexico Tort Claims Act and was against the City

only. It was based on the City’s “Negligent Operation” of the BCDC. Count 3,

the only count we are concerned with in this appeal, was against Garcia and Pinon

only for using excessive force in violation of the Fourth Amendment and 42

U.S.C. §§ 1983 and 1988.

      Tapia’s original complaint was filed on June 17, 2002, naming the City and

John Does I through VI as defendants. On March 14, 2003, the district court

granted Tapia’s unopposed motion to file an amended complaint.       On March 13,

2003, counsel for the City, Garcia and Pinon filed a motion for summary

judgment, apparently in anticipation of the claims to be later presented in Tapia’s

first amended complaint, which, as of that date, had not been filed. Be that as it

may, six days later, on March 19, 2003, Tapia filed his first amended complaint,

naming as defendants the City, Garcia and Pinon. Tapia filed a response to


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defendants’ motion for summary judgment on March 31, 2003. On June 9, 2003,

the district court granted Garcia and Pinon’s motion for summary judgment on the

grounds that on the showing made there was no objectively unreasonable search

or seizure because of a use of “excessive” force. Accordingly, the district court

dismissed Tapia’s § 1983 claim (Count 3), against Garcia and Pinon, and entered

judgment “dismissing plaintiff’s federal claims with prejudice.” Tapia appeals.

As to Tapia’s state claims set forth in Counts 1 and 2, the district court dismissed

those claims, without prejudice, and they are not involved in this appeal.

      There was considerable evidentiary matter before the district court when it

granted defendants’ motion for summary judgment on Count 3, which apparently

included the depositions of virtually all interested persons. Additionally, there

were videotapes of the events occurring at the BCDC when Tapia was “booked

in.” The government included in their motion for summary judgment a video (no

audio), referred to as “video 1.” On April 4, 2003, the government delivered to

Tapia a second video (no audio), referred to as “video 2,” which was supposedly a

“clearer version” of video 1 and taken from a different angle. Tapia immediately

filed with the district court video 2, as a part of his response to defendants’

motion for summary judgment. As indicated, the district court thereafter granted

the motion for summary judgment on June 9, 2003.

      Although the amended complaint does not, itself, mention the Fourth


                                           3
Amendment, and does mention the Fourteenth Amendment, it is apparently agreed

that the first amended complaint is based on 42 U.S.C. § 1983, alleging a

violation of Tapia’s Fourth Amendment rights. The Fourth Amendment provides

that “the right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated . . . .”

(Emphasis added.) In turn, 42 U.S.C. § 1983 reads, in part, as follows:

             § 1983. Civil action for deprivation of rights

                    Every person who, under color of any statute,
             ordinance, regulation, custom, or usage, of any State or
             Territory or the District of Columbia, subjects, or causes
             to be subjected, any citizen of the United States or other
             person within the jurisdiction thereof to the deprivation
             of any rights, privileges, or immunities secured by the
             Constitution and laws, shall be liable to the party injured
             in an action at law, suit in equity, or other proper
             proceeding for redress, . . . .

      As indicated, as to Count 3 the defendants pleaded qualified immunity, and

the district court ultimately held that the defendants were entitled to qualified

immunity. In this general connection the Supreme Court, in Harlow v. Fitzgerald,

457 U.S. 800, 815 (1982) held that a claim of “qualified immunity would be

defeated if an official ‘knew or reasonably should have known that the action he

took within his sphere of official responsibility would violate the constitutional

rights of the . . . [plaintiff], or if he took the action with the malicious intention to

cause a deprivation of constitutional rights or other injury . . .’.” As we


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understand it, there is no contention here that either Garcia’s or Pinon’s actions

were with a malicious intent, but counsel does complain that they “knew” or

“should have known” that their actions in booking Tapia into the BCDC and

placing him in a protective custody cell, violated Tapia’s Fourth Amendment right

to be free of an “unreasonable” search and seizure by virtue of their use of

“excessive force.”

      Tapia had a history of mental problems and had threatened to commit

suicide on more than one occasion. On November 29, 2001, Tapia, while at

home, pretended to stab himself in the abdomen with a kitchen knife. His wife

witnessed this incident and promptly called 911. While still on the phone and

after summoning help, she realized that her husband was feigning, and she tried to

cancel the call. However, by that time the paramedics were on their way. Tapia

informed the responding officers, which included an Officer Kraemer of the

Albuquerque police department, that he would like to hurt himself and that he

wanted to die. For his own safety, the officers placed Tapia into protective

custody, as permitted by local law, and took him to the University of New Mexico

Mental Health Center. Tapia submitted to a blood-alcohol test which established

his blood-alcohol level to be .096%. In this regard, Tapia admitted that he had

consumed “a few beers.” He was then informed by the hospital authorities that

he could not be admitted or evaluated in their facility until his blood alcohol level


                                          5
dropped below .05%. Accordingly, he was then taken by the officers, Kraemer

and another, to the BCDC with the intent to place him in the BCDC until he

sobered up.

        Under jail policy, all persons brought to the jail must, under local law, be

searched for weapons and contraband. Accordingly, Tapia was asked to come

forward and place his hands on the “booking counter,” spread his legs so he could

be “frisked,” and not to move until the process was completed.

        Surveillance cameras recorded the events that occurred at the booking

counter. The videotapes reveal that Tapia apparently began to argue with BCDC

personnel almost immediately upon arrival at the booking counter. Tapia, in his

deposition, admits that he “started getting arrogant” with the booking officers

because he was angry. Tapia admitted that he told the officers to “shut up” and

said “you guys are going to respect me” and that he “made more money than all of

you guys,” and other similar statements. The videotapes show that Tapia took his

hands off the counter, while the pat-down search was still going on. While

Officer Garcia was standing behind Tapia trying to perform a pat-down search,

Tapia suddenly pushed backward from the counter towards Garcia. Garcia, in

response, pushed Tapia forward and held him face down on the counter. Video 2

depicts Officer Thomas holding Tapia’s head down on the counter during the pat

down.


                                            6
      In the meantime, Officer Pinon got a set of leg irons, and he and another

officer placed the leg irons on Tapia. Once the leg irons were secured and the pat

down search completed, Garcia and Pinon led Tapia to a holding cell several feet

away from the booking counter. While being escorted to cell, Tapia appeared to

either trip, or “dropped his feet” (possibly caused by the leg irons), and Garcia

and Pinon literally carried Tapia by his arms into the cell. Tapia’s testimony was

that the officers threw him onto the floor of the cell, called him a “Spic,” and

warned him “not to ever talk that way again.” Garcia and Pinon in their

depositions denied making any such comments, and stated that they placed Tapia

on a bench in the cell and left. Video indicates that Garcia and Pinon were inside

the cell for only a brief time, a matter of seconds only.

      Tapia was later given a breathalyzer test and permitted to talk with a

counselor and make a telephone call. Also, Tapia was evaluated by a mental

health worker, who determined that Tapia was no longer a suicide risk, and he

was released about four hours after he had arrived at the BCDC.

      As a result of these events, Tapia sustained some bruises on his neck and,

according to Tapia, he was “sore” for two weeks. Although Tapia sought medical

attention the day after the incident, his personal doctor did not recommend either

x-ray or any other form of medical treatment.

      The district court granted defendants’ motion for summary judgment based


                                           7
on qualified immunity on the ground that Tapia had not sustained his burden of

showing that Garcia’s and Pinon’s actions constituted the use of “excessive

force,” either at the “booking counter” or in their escorting Tapia from the

booking counter to his cell and placing him therein, as such is proscribed by the

Fourth Amendment. In this regard, the district court spoke as follows:

                    Defendant Garcia’s use of force in this case began
             in the context of positioning Plaintiff for a pat down
             search while Plaintiff was lawfully detained in the intake
             area of BCDC. Given the uncertain, stressful nature of
             this environment, in combination with the admitted and
             observable behavior of Plaintiff that could reasonably
             (albeit mistakenly) be interpreted as an attempt to fight
             back or resist the search, the Court concludes that
             Defendant Garcia is entitled to qualified immunity with
             respect to the force he used in pushing Plaintiff’s head
             onto the booking counter, securing plaintiff’s hands, and
             holding Plaintiff in that position for approximately two
             minutes while Plaintiff was placed in handcuffs and leg
             irons.
                                  .........

                    “Finally, the Court concludes that Defendants
             Garcia and Pinon are both entitled to qualified immunity
             with respect to the force they used in moving Plaintiff
             from the booking counter and placing him in the holding
             cell. While it is possible that Plaintiff simply lost his
             footing by accident as the officers escorted him to the
             holding cell, the officers could reasonably (albeit
             mistakenly) have interpreted this behavior as an attempt
             at resistance. Further, the videotape evidence shows
             that, after he lost his footing, Plaintiff was carried into
             the holding cell by his arms in a manner that is
             analogous to the procedure employed in Saucier, 533
             U.S. at 198. Recognizing that “‘[n]ot every push or
             shove, even if it may later seem unnecessary in the peace

                                          8
             of a judge’s chambers, violates the Fourth
             Amendment,’” the Supreme Court determined that
             officers utilizing this procedure in similar circumstances
             were entitled to qualified immunity. Id. at 209 (quoting
             Graham, 490 U.S. at 396). Accordingly, the Court
             reaches the same conclusion in this case.”

      Gross v. Pirtle, 245 F.3d 1151 (10th Cir. 2001) sheds light on the present

controversy. In that case we acknowledged that 42 U.S.C. § 1983 provides an

“important remedy for individuals injured by governmental officials’ abuse of

authority.” Id. at 1155. At the same time, we also recognized that “such actions

sometimes subject officials to costly and harassing litigation and potentially

inhibit officials in performing their official duties.” Id. In order to “balance” the

two, we stated that “courts recognize the affirmative defense of qualified

immunity, which protects all but the plainly incompetent, or those who knowingly

violate the law.” We also stated therein that the “Supreme Court has emphasized

the broad protection qualified immunity affords, giving officials a right, not

merely to avoid standing trial, but also to avoid the burdens of such pretrial

matters as discovery.” Id.

      Having said that by way of background, we went on to say in Gross that our

review of either the denial or granting of summary judgment is de novo. We then

declared that we review a summary judgment order based on qualified immunity



“differently from other summary judgment decisions,” and that when a defendant

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in a 1983 action raises the defense of qualified immunity, the “burden” shifts to

the plaintiff, explaining that there is then a “heavy two-part burden” on the

plaintiff to show: (1) that the “defendants’ actions violated a constitutional or

statutory right of the plaintiff, and (2) that the right “was clearly established at the

time of the defendant’s conduct.” Id. at 1155 - 56. As indicated, the district

court in the instant case granted summary judgment on the first ground, i.e., in

booking Tapia into the BCDC and placing him in a cell for a few hours because

of his suicidal tendencies and actions, the defendants did not violate plaintiff’s

constitutional right to be free of excessive force. To the same effect, see, for

example, Scull v. New Mexico, 236 F.3d 588 (10th Cir. 2000) and Latta v. Keryte,

118 F.3d 693 (10th Cir. 1997).

      In Graham v. Connor, 490 U.S. 386 (1989) the Supreme Court stated that

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 when there is a claim of ‘excessive force.’” Id. at 396. The Court

also stated that “not very push or shove, even if it may later seem unnecessary in

the peace of a judge’s chambers . . . violates the Fourth Amendment.” In this

regard, see also Saucier v. Katz, 533 U.S. 194 (2001), where the police officers

removed a protester from a public function by “half-walking, half-dragging him,

‘with his feet barely touching the ground’.” Id. at 198.


                                           10
      The district court in the instant case issued a detailed order, setting forth at

length her evaluation of the record before her, and concluded that Tapia had

failed to show that the defendants’ actions were objectively “excessive” and

therefore “unreasonable” under the Fourth Amendment. We agree. Our

conclusion is supported by the fact that Tapia’s injuries were de minimis. See

Saucier at 209. This is not the case of “excessive force” coming “out of the

blue,” so to speak. At the very outset, Tapia verbally confronted the defendants

and pulled back from the booking counter while they were trying to frisk him to

determine whether he had any weapons concealed on his person. In short, we

believe that this case is controlled by the principle of Graham and Saucier that

“not every push or shove . . . violates the Fourth Amendment.” We agree with the

district court that any “push or shove” in the instant case did not violate the

Fourth Amendment.

      Additionally, Tapia in his brief asked, in the alternative, that we remand the

case to the district court with directions that it allow Tapia to further amend his

complaint to add Officer Thomas as a party defendant, who allegedly “held down

Tapia’s head on the booking counter.” At oral argument counsel withdrew this

request, stating that they “could deal with that in another venue.”




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Judgment affirmed.



                     Entered for the Court



                     Robert H. McWilliams
                     Senior Circuit Judge




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