                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        January 24, 2006
                            FOR THE TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                          Clerk of Court

    STACEY SANDERS,

          Plaintiff-Appellant,

    v.                                                   No. 05-4024
                                                  (D.C. No. 1:03-CV-49-DB)
    JOHN THOMAS; DARIUS                                   (D. Utah)
    JIMERSON; OGDEN POLICE
    DEPARTMENT,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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. 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.
      Stacey Sanders, an inmate at the Utah State Prison, appeals from the district

court’s order dismissing his pro se 42 U.S.C. § 1983 complaint for failure to state

a claim on which relief may be granted. We affirm.

                                THE COMPLAINT

      According to the allegations in Sanders’ amended complaint, shortly before

midnight on November 22, 2002, the defendant police officers, John Thomas and

Darius Jimerson, observed him driving erratically and activated their emergency

lights. Instead of stopping, Sanders attempted to evade the officers.

      Following a brief pursuit during which Sanders steered his vehicle into

oncoming traffic, he stopped his vehicle and attempted to flee on foot. When the

police officers caught up with Sanders, they subdued him by hitting him in the

face and kicking him. After he was restrained, Sanders admitted to the officers

that he had swallowed some drugs. Because of his injuries, Sanders was

transported to the hospital where a urine sample was obtained during the course

of his treatment.

                    THE DISTRICT COURT PROCEEDINGS

      Sanders’ amended complaint alleged two separate Fourth Amendment

violations: (1) that the police officers used excessive force to subdue and place

him under arrest, and (2) that the officers conducted an illegal search when they




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obtained the urine sample. 1 Following service of the amended complaint, the

defendants raised failure to state a claim for relief and qualified immunity as

defenses. Sanders filed a response to the answer, which the district court

considered as a further amendment to his complaint. 2

      The district court found that it would be futile to allow Sanders further

opportunity to amend his complaint and dismissed the case pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim. Specifically, the court concluded

that the force used by the police officers was objectively reasonable and that the

urine sample was legally obtained under the doctrine of exigent circumstances.

                            STANDARD OF REVIEW

      We review a decision to dismiss for failure to state a claim under

§ 1915(e)(2)(B)(ii) de novo, and “[d]ismissal of a pro se complaint . . . is proper

only where it is obvious that the plaintiff cannot prevail on the facts he has

alleged and it would be futile to give him an opportunity to amend.”

Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002) (quotation omitted). In

addition to construing a pro se complaint liberally, we “must accept the [well


1
      Sanders also claimed Eighth and Fourteenth Amendment violations.
Neither are implicated here; instead, his claims of excessive force and an
unlawful search are properly considered under the Fourth Amendment. See
Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1242-43 (10th Cir. 2003); Taylor
v. Meacham, 82 F.3d 1556, 1560 (10th Cir. 1996).
2
     Sanders agreed in this response that he could not state a claim against the
Ogden Police Department.

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pled] allegations of the complaint as true and construe those allegations, and any

reasonable inferences that might be drawn from them, in the light most favorable

to the plaintiff.” Id. (citation omitted).

                           THE FOURTH AMENDMENT

      Sanders’ Fourth Amendment right not to have excessive force used against

him during his arrest was not violated if the officers’ actions were objectively

reasonable. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1313-14 (10th Cir. 2002)

(quotation omitted). In turn, the reasonableness of the force used depends upon

several factors, including the severity of the crime alleged, the degree of potential

threat that the suspect poses to the safety of the arresting officer and others, and

the suspect’s efforts to resist or evade arrest. Id. at 1314. Moreover, the

reasonableness of the force used is judged from the perspective of a reasonable

officer on the scene. Id. (quotation omitted).

      The facts alleged in Saunders’ amended complaint demonstrate that the

force used by the police officers was objectively reasonable. Based on his erratic

driving, the officers believed that Sanders was under the influence of either drugs

or alcohol. When they attempted to stop him, Sanders turned his vehicle into

oncoming traffic and tried to evade them. Finally, he fled on foot to avoid

capture. These allegations lead to the conclusion that the officers used an

objectively reasonable amount of force under the circumstances.



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      We reach the same conclusion concerning Sanders’ Fourth Amendment

claim of an illegal search. The doctrine of exigent circumstances recognizes that

a warrantless search incident to an arrest based on probable cause is justified

where an officer reasonably believes that he is confronted with an emergency and

the delay associated with obtaining a search warrant may result in the destruction

of evidence. Schmerber v. California, 384 U.S. 757, 770-71 (1966). 3

      Here, it is unclear whether the urine sample was taken by hospital

personnel for diagnostic purposes or requested by the police officers for

investigatory purposes. Assuming for argument that the test was requested by the

officers for investigatory purposes, Sanders’ admission that he had swallowed

drugs coupled with his erratic behavior justified the warrantless search under the

doctrine of exigent circumstances.

      The judgment of the district court is AFFIRMED. Sanders’ motion to

proceed in forma pauperis is GRANTED and he is reminded of his continuing

obligation to make partial payments until he has paid the filing fee in its entirety.




3
       Once an intrusion is found to be justified, the inquiry shifts to the manner
of the intrusion, including the risk, trauma or pain. Schmerber, 384 U.S. at 771.
Sanders has never alleged or argued that the manner of the intrusion (urine test)
was unreasonable.

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His reply brief was filed out of time and without leave. It is therefore

STRICKEN.

                                                     Entered for the Court


                                                     John C. Porfilio
                                                     Circuit Judge




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