
USCA1 Opinion

	




        February 9, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1693                                  RICHARD O. BROWN,                                Plaintiff, Appellant,                                          v.                              TOWN OF WEYMOUTH, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Reginald C. Lindsay, U.S. District Judge]                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Alexander M. Esteves on brief for appellant.            ____________________            Douglas I. Louison, Stephen C.  Pfaff  and Merrick  and Louison on            __________________  _________________      ____________________        brief for appellees.                                 ____________________                                 ____________________                      Per  Curiam.  In this  suit under 42  U.S.C.   1983                      ___________            alleging use  of  excessive force,1  plaintiff Richard  Brown                                              1            appeals from  the grant  of summary judgment  for defendants,            Officer James Bowen  and Captain James  Thomas, and from  the            denial of his motion  for relief from judgment under  Fed. R.            Civ. P. 60(b).  We affirm for the following reasons.                      1.   We  have no  doubt that  summary  judgment was            proper in  this case,  regardless whether the  district court            misconstrued Brown's  purpose in stating that  his arrest had            occurred  "without  incident,"   and  despite  the   parties'            disagreement on  the  question  whether  Brown  had  resisted            arrest.   Even  if  it were  undisputed  that Brown  had  not                                         __________                   ___            resisted  arrest, Bowen  would have  been justified  in using            some physical  force to  effect Brown's  arrest.   The police            report,  which both  parties  submitted in  support of  their            positions at  summary  judgment, indicated  that Bowen  knew,            when  he  arrested  Brown,  that  Brown  had  just  assaulted            Elizabeth Gordon while on bail for a different crime and that            Brown  was  intoxicated.   In  addition, Brown  had  fled the            premises, knowing that  Bowen was a police officer  who would            have  had  cause  to arrest  him  for  that  assault.   Bowen            therefore had the clear right to use necessary physical force            in arresting Brown.  See Graham v. Connor, 490  U.S. 386, 396                                 ___ ______    ______                                            ____________________               1Bowen asserted  other  claims as  well,  but he  has  not               1            appealed the dismissal of those claims.                                         -2-            (1989); Dean v.  City of  Worcester, 924 F.2d  364, 368  (1st                    ____     __________________            Cir. 1991).                      The critical question  before the court, therefore,            concerned the  nature and degree of force  used by Bowen.  In            his affidavit  in support  of summary judgment,  Bowen denied            forcing Brown's arm up  over his head or forcing his  arm and            shoulder  into an  anatomically wrong  position.   Given that            affidavit,  the  contrary  allegations  in the  complaint  no            longer sufficed to establish a genuine issue as to the degree            of  force used  by  Bowen.   Brown  was required  to  present            "definite,  competent evidence" that Bowen had used excessive            force in order  to rebut  the summary judgment  motion.   See                                                                      ___            Mesnick  v. General Electric Co., 950 F.2d 816, 822 (1st Cir.            _______     ____________________            1991), cert. denied, 504 U.S. 985 (1992).  That is, he had to                   ____________            submit "significantly  probative" evidence, not  simply "some            evidence" that Bowen had used excessive force.  See Frohmader                                                            ___ _________            v. Wayne, 958 F.2d 1024, 1028-29 (10th Cir. 1992).               _____                      Brown failed to submit any affidavit describing the            nature and amount of  force used by Bowen  in support of  his            opposition to summary judgment.  He submitted medical records            reflecting  Brown's treatment  at  South  Shore Hospital  the            night of the arrest.   Evidence of injury suffered  during an            arrest  is  relevant  in  determining  whether the  arresting            officer  used excessive or reasonable force.   See Wardlaw v.                                                           ___ _______            Pickett,  1 F.3d  1297, 1304  & n.7  (D.C. Cir.  1993), cert.            _______                                                 _____                                         -3-            denied,  114 S. Ct. 2672 (1994).  Here, however, the hospital            ______            records showed  only muscle tenderness and  strain in Brown's            right  shoulder.   Those are  relatively mild  injuries which            could have  been completely consistent with  a reasonable use                                                           __________            of  force  by Bowen.   Thus,  the  hospital records  were not            sufficiently probative  and created  no trialworthy  issue of            fact on the  question whether Bowen had used excessive force.            See Foster  v. Metropolitan  Airports Comm'n, 914  F.2d 1076,            ___ ______     _____________________________            1082 &  n.5 (8th  Cir. 1990)  (summary  judgment granted  for            police officer in part because the medical records reportedly            showed  only that  the plaintiff  had suffered  mild shoulder            strain); cf. Dean,  supra, 924 F.2d at  369 (summary judgment                     ___ ____   _____            granted for  police officer  in part because  the plaintiff's            minor  physical injuries  -- cuts,  scratches and  bruises --            were  insufficient  to  support  an   inference  that  police            officers had used inordinate  force in arresting plaintiff).                       We  have considered  Brown's other claims  of error            relating  to  the grant  of summary  judgment, but  find them            meritless.                        2.  The district  court properly denied relief from            judgment under Fed. R.  Civ. P. 60(b).  As  defendants argue,            Brown and his counsel could have obtained the medical records            from Massachusetts  General Hospital  in a timely  fashion if            they had exercised due diligence.  Brown obviously knew those                                         -4-            records existed before he retained counsel, but he apparently            never told  counsel about  them until after  summary judgment            had been  granted.   Counsel filed  an amended  complaint and            Brown's  opposition  to summary  judgment  on  the same  day.            Because  the amended  complaint asserted  that Brown  had had            shoulder surgery -- a medical procedure not documented in the                                                    ___            South  Shore  Hospital  records submitted  in  opposition  to            summary  judgment, counsel had  reason to  know at  that time            that  different  records  reflecting  the  surgery must  have            existed.  He  apparently never asked  his client about  them,            and he  made no  effort to  obtain them  until nearly  a year            later, by which time the court had granted summary judgment.                      3.    Because summary  judgment  for  Bowen on  the            excessive  force  claim  was   proper,  the  court  correctly            dismissed the  claim against  Thomas, which had  asserted the            failure to stop  or report Bowen's  alleged use of  excessive            force.  See Hinton v. City of Elwood, 997 F.2d 774, 783 (10th                    ___ ______    ______________            Cir. 1993).                      Affirmed.  See Loc. R. 27.1.                      ____________________________                                         -5-
