                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           AUG 3 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CARLOS HERRERA,

                Plaintiff-Appellant,

    v.                                                   No. 03-2267
                                                (D.C. No. CIV-01-992 WD/BB)
    BOARD OF THE BERNALILLO                               (D. N.M.)
    COUNTY COMMISSIONERS; JOE
    BOWDICH, Sheriff, in his official
    capacity; ANDREW M. ORTIZ,
    Deputy Sheriff, in his individual and
    official capacities,

                Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, MURPHY , Circuit Judge, and         CAUTHRON , **
Chief District Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of


*
      This order and judgment is not binding precedent, except under the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.
**
       The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
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.

       Plaintiff Carlos Herrera brought this action under 42 U.S.C. § 1983 to

recover damages for injuries sustained when, as he was attempting to elude arrest

on foot, his leg was pinned between a car driven by defendant deputy Ortiz and

his own parked vehicle. The case was tried to a jury, which returned a verdict in

favor of defendants. Plaintiff moved for a judgment notwithstanding the verdict

or a new trial, challenging the sufficiency of the evidence–i.e., asserting that he

had established defendants’ liability as a matter of law. The district court denied

the motion and plaintiff appealed. We affirm for the reasons stated below.

       We review the denial of a motion for judgment as a matter of law based on

evidentiary insufficiency de novo, using the same standard as the district court.

Johnson v. Unified Gov’t of Wyandotte County/Kansas City, Kan.            , 371 F.3d 723,

728 (10 th Cir. 2004). The Supreme Court has made it clear that the ruling

necessarily extends to the entire trial record.       Reeves v. Sanderson Plumbing

Prods., Inc. , 530 U.S. 133, 149-50 (2000);         see Stewart v. Adolph Coors Co.     ,

217 F.3d 1285, 1288 (10 th Cir. 2000). Plaintiff, however, has provided just a few

pages of testimony from the trial for our review. This deficiency alone warrants

affirmance.   See Dilley v. SuperValu, Inc. , 296 F.3d 958, 963 n.2 (10       th Cir.

2002); Deines v. Vermeer Mfg. Co.       , 969 F.2d 977, 979-80 (10     th Cir. 1992).


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      In any event, even on the materials selectively included in our record,

plaintiff has not legally undercut the jury’s finding that his arrest involved the use

of constitutionally permissible force. “Judgment as a matter of law is appropriate

only if the evidence points but one way,” and in our assessment of the record

“[a]ll reasonable inferences are drawn in favor of the nonmoving party and this

court does not make credibility determinations or weigh the evidence.”       Stewart ,

217 F.3d at 1288 (quotations omitted). Deputy Ortiz testified that as he drove

behind plaintiff to make a traffic stop, plaintiff slowed his car to a standstill,

jumped out, and ran toward the front of the car. As plaintiff did this, Ortiz drove

around plaintiff’s car and stopped his vehicle ahead and to one side, hoping to

prompt plaintiff to run in the other direction, where Ortiz expected backup

assistance to be arriving. Instead, plaintiff tried to run through the space between

the two vehicles and, as his idling car rolled forward, his leg was pinned. A

reasonable jury, accepting this account as credible, could properly find that

Ortiz’s vehicle was not used as an instrument of deadly force against plaintiff

and, with that theory of the case rejected, then conclude that plaintiff’s arrest did

not involve constitutionally excessive force.

      In the course of his argument regarding evidentiary insufficiency, plaintiff

asserts that the district court improperly instructed the jury on excessive force. It

is questionable whether this passing assertion even “frame[s] and develop[s] an


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issue sufficient to invoke appellate review.”      Murrell v. Shalala , 43 F.3d 1388,

1389 n.2 (10 th Cir. 1994) (refusing to consider perfunctory complaints about

ruling not distinctly designated as issue for review). In any event, our review is

limited to plain error in light of plaintiff’s failure to preserve an objection to the

district court’s instructions at trial.   Veile v. Martinson , 258 F.3d 1180, 1186-87

(10 th Cir. 2001). We are not persuaded that the district court erred in this regard,

much less instructed the jury in a manner shown to be “patently, plainly erroneous

and prejudicial.”     Id. at 1187 (stating standard for plain error).

       Plaintiff claims that the jury was told he could prevail only if “Defendant

Ortiz intentionally used his . . . car to injure [p]laintiff,” Aplt. App. Vol. 1 at 58

(instruction paraphrased in Aplt. Br. at 3 n.1), contrary to    Graham v. Connor ,

490 U.S. 386, 397 (1989), which held that the inquiry under the Fourth

Amendment “is an objective one: the question is whether the officers’ actions are

‘objectively reasonable’ in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation.”       See also Kerman v. City

of N.Y. , 261 F.3d 229, 244 (2d Cir. 2001) (noting       Graham formulation excludes

“intent to cause bodily harm” element). But the cited “Statement of Claims and

Defenses” instruction merely summarized the “allegations” that “[p]laintiff’s

claims are based on,” Aplt. App. Vol. 1 at 58; it did not purport to specify the

legal standard governing the jury’s application of the Fourth Amendment to the


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evidence at trial. A subsequent instruction set out the actual elements of the

excessive force claim and required only a general showing of intentional action,

not a specific intention to inflict injury.   Id. at 62 (stating plaintiff must prove

“[t]hat Defendant Ortiz intentionally committed acts that violated [p]laintiff’s

federal constitutional right not to be subjected to excessive or unreasonable

force”). Moreover, the immediately following instruction elaborated on the

nature of excessive force and specifically explained (effectively quoting        Graham )

that “[t]he reasonableness inquiry is an objective one; an officer’s evil intentions

will not make a Fourth Amendment violation out of an objectively reasonable use

of force, nor will an officer’s good intentions make an objectively unreasonable

use of force constitutional.”     Id. at 63-64; see Graham , 490 U.S. at 397.

       In sum, plaintiff’s objection to the jury charge is meritless. And, as already

explained, the evidence justified the verdict reached in accordance therewith.

       The judgment of the district court is AFFIRMED.



                                                         Entered for the Court



                                                         Deanell Reece Tacha
                                                         Chief Judge




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