F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

DEC 17 1998

PATRICK FISHER
Clerk

PAUL WAYNE ELLIS,

Plaintiff-Appellant,
v.
CITY OF LINDSAY, a Municipal
Corporation; MIKE BLAIR, Officer
and individually; JACK HOLLOWAY,
Officer and individually; GENE
JONES, individually and as Chief of
Police of the City of Lindsay,

No. 98-6153
(D.C. No. 97-CV-994)
(W.D. Okla.)

Defendants-Appellees.
ORDER AND JUDGMENT

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.

Plaintiff Paul Wayne Ellis filed a civil rights action pursuant to 42 U.S.C.
1983 against defendants City of Lindsay, Police Chief Gene Jones, and Officers
Mike Blair and Jack Holloway, alleging violations of his Fifth, Eighth, and

This order and judgment is not binding precedent, except under the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.

Fourteenth Amendment rights. Plaintiff alleged that Officer Blair used excessive
force against him, that Officer Holloway failed to intervene to prevent Officer
Blair from using excessive force, and that the City and Police Chief Jones failed
to train and supervise police officers. The district court granted defendants
motion for summary judgment and entered judgment in their favor. After the
district court denied plaintiffs timely motion to reconsider, plaintiff appealed.
We have jurisdiction under 28 U.S.C. 1291, and we affirm.

BACKGROUND
This action arises from a dispute between two factions of the Lindsay
Christian Fellowship Church. The dispute concerns plaintiffs continued
employment as pastor of the church. The group that did not want plaintiff as
pastor sent him a certified letter to this effect. They then padlocked the church to
keep him out.
In June of 1995, plaintiff and twenty or thirty supporting church members
gathered for a meeting in the church parking lot. At the same time, the opposing
faction was in front of the church. Officers Blair and Holloway were dispatched
to the church to respond to a possible disturbance report made by the opposing
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
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faction. At the time of the officers arrival, there was no actual disturbance.
A member of the opposing faction gave the officers a copy of the letter indicating
that plaintiff had been relieved of his duties as pastor.
Thereafter, Officers Blair and Holloway approached plaintiff with the
letter. At this point, the parties versions of the facts differ.
According to plaintiff, Officer Blair repeatedly shouted at him that he was
fired, that he must leave the property, and that if he refused to leave he would be
jailed. Also, according to plaintiff, Officer Blair raised his forearm to plaintiffs
ribcage and forced him backward into a parked car until his daughter distracted
the officer. At that time, plaintiff stepped away, but Officer Blair again raised his
forearm and elbow to plaintiffs ribcage and forced him against another car.
Plaintiff contends that Officer Blair used this force even though plaintiff never
touched or threatened to touch him and even though plaintiff violated no law.
Plaintiff believes that Officer Holloway could have prevented this use of force,
but instead was yelling at plaintiffs wife. This use of force allegedly caused
emotional injury and a bruise on plaintiffs ribcage, for which he went to the
hospital emergency room the next day. His treatment consisted of x-rays, a rib
brace, and pain pills.
According to defendants, as the officers approached, plaintiff immediately
began yelling that the letter terminating his employment was not legal and that he
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was not leaving the property. He accused Officer Holloway of changing the locks
on the church. During this time, plaintiff allegedly was poking Officer Blair in
the chest with his finger. Officer Blair told plaintiff that he would be arrested if
he did not stop the poking. Defendants deny that Officer Blair used any physical
force against plaintiff. They maintain that Officer Holloway was engaged in a
separate conversation with plaintiffs wife at the time the exchange occurred
between plaintiff and Officer Blair.
Two photographs taken during the incident by a church member supporting
plaintiff do not show any use of force by Officer Blair or any physical contact
between plaintiff and Officer Blair.

During his deposition testimony, plaintiff

was unable to provide any explanation why these photographs failed to show any
force or physical contact.
When Assistant Chief of Police Jim Holley arrived at the church, he
informed the officers that the opposing faction would need to obtain a court order
to have plaintiff removed from the church property. Thereafter, the opposing
faction and the officers left. Plaintiff did not complain to Assistant Chief Holley
about any use of force or that he had sustained any injury.

We note that the record before this court contains only photocopies of the
photographs. See Appellants App. Vol. I at 116. Although the photocopies are
of poor quality, they still do not evidence any use of force or physical contact.
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Plaintiff did, however, complain of unnecessary use of force to the Garvin

County district attorneys office. After investigation by the Garvin County
Sheriffs Department, the district attorneys office found the complaint to be
unsubstantiated.

See Appellants App. Vol. I at 138. The Federal Bureau of

Investigation also investigated the matter for possible criminal violation of civil
rights statutes. After reviewing the FBIs report, the United States Justice
Department recommended that the matter be closed.

See id. at 139.

Thereafter, plaintiff commenced this civil rights action. Defendants filed

a motion for summary judgment. The district court granted summary judgment
for the reasons stated in the defendants briefs, concluding (1) the officers did not
violate plaintiffs substantive due process rights; (2) the officers did not arrest or
seize plaintiff; (3) plaintiff did not assert a Fourth Amendment excessive force
claim; (4) even if he had, the officers did not use unreasonable or excessive force;
(5) the officers are entitled to qualified immunity; (6) the City is entitled to
summary judgment because there is no constitutional violation; and (7) even if
there had been a constitutional violation, there was no evidence the City failed to
adequately train its police officers.
Plaintiff filed a timely motion to reconsider. In the motion, he requested
that the district court allow him an opportunity to amend his complaint to include
a cause of action for violation of his Fourth Amendment rights. In support of the
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request, plaintiff maintained that he had not had sufficient time to conduct
discovery. Plaintiff also submitted additional evidence not presented at the time
the district court decided the summary judgment motion. The district court denied
the motion to reconsider. Plaintiff appealed.
DISCUSSION
This court reviews the grant of summary judgment de novo and applies the
same legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c).
See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary judgment is
appropriate if the pleadings, depositions, answers to interrogatories, and
. . . affidavits . . . show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.
Fed. R. Civ. P. 56(c). A disputed fact is material if it might affect the outcome
of the suit under the governing law, and the dispute is genuine if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.
v. Muskogee, Okla. , 119 F.3d 837, 839 (10th Cir. 1997) (citing
Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)),

Allen

Anderson v.

cert. denied , 118 S. Ct. 1165

(1998) . We construe the factual record and reasonable inferences therefrom in

the light most favorable to the nonmovant.

Id. at 839-40. Summary judgment

is appropriate if the plaintiff[ has] failed to present evidence sufficient to support

a reasonable inference that the [defendants] violated the relevant constitutional
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standards. Myers v. Oklahoma County Bd. of County Commrs

, 151 F.3d 1313,

1316 (10th Cir. 1998).

I. REQUEST TO AMEND COMPLAINT
We consider first whether the district court should have allowed plaintiff to
amend his complaint to set forth a cause of action for violation of his Fourth
Amendment rights. Plaintiff disputes the district courts finding in the order
granting summary judgment that he was not seized and the resulting conclusion
the Fourth Amendment was not implicated. According to plaintiff, the facts show
that he was seized within the meaning of the Fourth Amendment when Officer
Blair pinned him against the two cars and restrained him from walking away.
Several reasons justify the district courts denial of plaintiffs request to
amend. First, even though plaintiff did not argue a Fourth Amendment violation
in his complaint, the district court considered the possibility of a Fourth
Amendment violation in granting summary judgment for defendants. Plaintiff
does not indicate what Fourth Amendment argument he would make in an
amended complaint, different from that addressed by the district court.
Second, in his objections to defendants motion for summary judgment,
plaintiff argued that his claims should be analyzed under the Fourth Amendment,
but did not move to amend the complaint.

See Appellants App. Vol. II at

183-84. Plaintiffs later request to amend his complaint was untimely.

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See Las

Vegas Ice & Cold Storage Co. v. Far West Bank

, 893 F.2d 1182, 1185 (10th Cir.

1990) (Untimeliness alone may be a sufficient basis for denial of leave to

amend.); Diersen v. Chicago Car Exch. , 110 F.3d 481, 489 (7th Cir.) (delay
in presenting post-judgment amendment when moving party had opportunity to
present amendment earlier is valid reason for refusal to permit amendment),
cert. denied , 118 S. Ct. 178 (1997);

cf. Franks v. Nimmo , 796 F.2d 1230, 1238 n.4

(10th Cir. 1986) (holding motion to amend complaint made two years after case
was filed, after discovery was completed, and after partial summary judgment was
granted was untimely).
Third, to the extent plaintiffs request to amend the complaint was based
on his assertion that he did not have adequate time to conduct discovery, he
previously had failed to file the required affidavit under Fed. R. Civ. P. 56(f)
explaining why he could not respond to the summary judgment motion without
discovery. See Committee for First Amend. v. Campbell

, 962 F.2d 1517, 1522-23

(10th Cir. 1992). Because plaintiff failed to take advantage of the shelter
provided by Rule 56(f) by filing an affidavit, there [was] no abuse of discretion in
granting summary judgment since, as is discussed below, summary judgment was
otherwise appropriate.

Pasternak v. Lear Petroleum Exploration, Inc.

828, 832-33 (10th Cir. 1986).

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, 790 F.2d

Finally, in opposing the motion to reconsider and request for amendment,

defendants argued, and plaintiff did not deny, that most discovery was completed
before the district court ruled on the summary judgment motion, yet plaintiff did
not move to file a supplemental response to the motion.

See Appellants App.

Vol. IV at 521. Accordingly, we conclude the district court did not abuse its
discretion in refusing permission to amend.

See Viernow v. Euripides Dev.

Corp. , 157 F.3d 785, 800 (10th Cir. 1998);

see also Cannon v. City & County of

Denver , 998 F.2d 867, 879 (10th Cir. 1993) (denial of motion to amend after final
judgment entered not abuse of discretion).
II. EXCESSIVE FORCE
Plaintiff argues that the district court improperly analyzed his claims under
a substantive due process standard rather than under the Fourth Amendment
standard of objective reasonableness set forth in

Graham v. Connor , 490 U.S. 386

(1989). This argument is without merit. The district court analyzed his claims
under both standards.
Furthermore, plaintiff recognizes that the district court analyzed his claims
under the Fourth Amendment because he argues that the district court erroneously
concluded that no seizure occurred. Plaintiff contends that he was seized because
he was precluded from leaving the church property due to an investigatory stop or
seizure and brief detention.
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Graham held that claims of excessive force in the course of making an

arrest, investigatory stop, or other seizure of a citizen are properly analyzed
under the Fourth Amendments objective reasonableness standard, rather than
under a substantive due process standard.

Graham , 490 U.S. at 388; see also id.

at 395. Not all police-citizen encounters[, however,] implicate the Fourth

Amendment. Latta v. Keryte , 118 F.3d 693, 698 (10th Cir. 1997) (quotation
omitted). A seizure triggering the Fourth Amendments protections occurs
only when government actors have, by means of physical force or show of
authority . . . in some way restrained the liberty of a citizen.

Graham , 490 U.S.

at 395 n.10 (quotation omitted). Thus, a person has been seized within the
meaning of the Fourth Amendment only if, considering all of the circumstances,
a reasonable person would have believed that he was not free to leave.

See Latta ,

118 F.3d at 698. A mere approach by an officer does not amount to a seizure of
an individual implicating the Fourth Amendment.

See id.

The following factors could lead a reasonable innocent person to believe

that he is not free to leave: the threatening presence of several officers; the
brandishing of a weapon by an officer; some physical touching by an officer;
an officers aggressive language or tone of voice indicating that the person must
comply with the officer; interaction in a non-public place; and the absence of
other members of the public.

See id. at 699 (quotation omitted). The overall

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relevant inquiry is how a reasonable citizen in the plaintiffs position would have
understood his situation.

See United States v. Pena , 920 F.2d 1509, 1516 (10th

Cir. 1990).
Under the circumstances of this case, we conclude a reasonable citizen
would not believe his liberty had been restrained. Although plaintiff alleges
physical touching and verbal mandates by Officer Blair in a nonpublic place, the
record in this case shows that plaintiff was free to leave at any time during the
encounter with the officers. The fact that he was able to step away from Officer
Blair after Officer Blair had pinned him against the first car suggests that the
alleged force was minimal at most. Officer Blairs request that he leave also
suggests that he was free to leave. Contrary to plaintiffs belief, the facts viewed
in the light most favorable to him do not establish either an investigatory stop or
a seizure within the meaning of the Fourth Amendment.
Even assuming that plaintiff was seized, we do not agree with plaintiff that
Officer Blairs use of force--even in light of plaintiffs allegations that he did not
physically threaten or touch either officer and had committed no crime--was
excessive and not objectively reasonable.

In applying the objective

Plaintiff argues that by granting summary judgment for the reasons stated in
the defendants briefs, the district court improperly granted summary judgment to
Officer Blair based upon defendants version of the facts. According to plaintiff,
the district court failed to take the record in the light most favorable to him. We
(continued...)

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reasonableness standard, the facts and circumstances of the case must be

considered. See Graham , 490 U.S. at 396. Not every push or shove violates the
Fourth Amendment.

See id.

The facts and circumstances in this case show that the alleged force was
objectively reasonable. The force was minimal and was not abusive, as indicated
by the minimal physical injury alleged. Under the circumstances, this de minimis
force is not repugnant to the conscience of mankind and therefore is not
constitutionally prohibited.

Goodman v. Town of Golden Beach

1450, 1457 (S.D. Fla. 1997) (quoting

, 988 F. Supp.

Whitley v. Albers , 475 U.S. 312, 327

(1986), prison riot case alleging claim under Eighth Amendment).

Plaintiff insists that the district court erred in granting summary judgment
even if Officer Blairs alleged excessive force conduct is viewed under the
Fourteenth Amendment substantive due process standard. We assume, without
deciding, that the substantive due process standard applies to claims of excessive
force arising outside of the context of a seizure.

See Latta , 118 F.3d at 701-02.

See generally County of Sacramento v. Lewis , 118 S. Ct. 1708, 1714-16 (1998)

(...continued)
agree that the district court should not have granted summary judgment based on
defendants version of the facts and should have taken the record in the light most
favorable to plaintiff. Even if the district court had done so, as we discuss, the
district court still would have properly granted summary judgment in defendants
favor.
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(where there is no seizure under Fourth Amendment, substantive due process

standard applies); United States v. Lanier , 520 U.S. 259, 272 n.7 (1997) ( Graham
requires that excessive force claim covered by specific constitutional provision,
such as Fourth or Eighth Amendment, be analyzed under that amendment rather
than substantive due process).
Under the due process standard, the factors relevant to whether the
use of force is excessive are: (1) the relationship between the
amount of force used and the need presented; (2) the extent of the
injury inflicted; and (3) the motives of the . . . officer. Force
inspired by malice or by unwise, excessive zeal amounting to an
abuse of official power that shocks the conscience . . . may be
redressed by [the Fourteenth Amendment].
Latta , 118 F.3d at 702 (quotations and citation omitted).
The record, viewed in the light most favorable to plaintiff, does not reach
this high threshold.

See id. ; see also Butler v. City of Norman , 992 F.2d 1053,

1054 (10th Cir. 1993) (substantive due process standard is more onerous than
Fourth Amendment standard). The evidence does not present a genuine issue of
material fact whether Officer Blairs conduct shocks the conscience. Although
plaintiff alleged that he offered no force against Officer Blair and was not
committing any crime, Officer Blairs pushing of plaintiff with his forearm and
the bruise to plaintiff are not force sufficient to shock the conscience. Nothing
indicates that the force was substantial. Rather, because plaintiffs injury was
minimal, it is likely that the force also was minimal.
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See Hannula v. City of

Lakewood , 907 F.2d 129, 132 (10th Cir. 1990). Plaintiffs deposition testimony,
as well as that of his wife and other supporters, that Officer Blairs words were
hostile, that he shook papers in plaintiffs face, and that he was shouting may be
probative of malice, but alone they do not establish malice.

See id. There is no

other evidence in the record indicating that Officer Blair acted with malice toward
plaintiff, and, as we indicated above, Officer Blairs conduct was objectively
reasonable under the circumstances. Accordingly, we conclude the district court
did not err in granting summary judgment on the substantive due process claim.
We hold that plaintiff has failed to establish that Officer Blair violated his
Fourth or Fourteenth Amendment rights by using excessive force. The district
court correctly granted summary judgment in Officer Blairs favor on these
issues.
III. QUALIFIED IMMUNITY
We consider whether Officer Blair and Officer Holloway were entitled to
qualified immunity because they violated clearly established law. Plaintiff
believes that it was clearly established at the time of the encounter that Officer
Blair could use force only if plaintiff confronted him with force.
Government officials are entitled to qualified immunity when their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.
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Harlow v. Fitzgerald , 457 U.S.

800, 818 (1982). To analyze a claim of qualified immunity, we use a two-part

framework: first we determine whether the plaintiff has asserted a violation of
a constitutional or statutory right, and then we decide whether that right was
clearly established such that a reasonable person in the defendants position
Garramone v. Romo ,

would have known that [his] conduct violated the right.

94 F.3d 1446, 1449 (10th Cir. 1996) (citing

Siegert v. Gilley , 500 U.S. 226, 231

(1991)). If the plaintiff fails to show with particularity the facts and law
establishing an inference that the defendants violated a constitutional right,

see

Walter v. Morton , 33 F.3d 1240, 1242 (10th Cir. 1994), this court need not reach
the issue of whether the law was clearly established.

See Gehl Group v. Koby ,

63 F.3d 1528, 1533 (10th Cir. 1995).

Because plaintiff did not prove that Officer Blair violated any
constitutional right,

cf. Quezada v. County of Bernalillo

, 944 F.2d 710, 718

(10th Cir. 1991) (using excessive force establishes both constitutional violation
and absence of qualified immunity), we need not reach the second issue of
whether the law was clearly established. Accordingly, we conclude that Officer
Blair is entitled to qualified immunity, and the district court correctly granted
summary judgment on this issue.
With respect to Officer Holloway, plaintiff believes that it was clearly
established that his failure to intervene was a constitutional violation. Our
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conclusion that Officer Blair did not use excessive force forecloses any claim that
plaintiff may have that Officer Holloway could be liable for failing to intervene
on plaintiffs behalf.

See Mick v. Brewer , 76 F.3d, 1127, 1136 (10th Cir. 1996)

(a law enforcement official who fails to intervene to prevent another law

enforcement officials use of excessive force may be liable under 1983).
We conclude the district court correctly granted summary judgment to Officer
Holloway on the qualified immunity issue.
IV. FAILURE TO TRAIN AND SUPERVISE
The final issue is did the district court err in granting summary judgment in
favor of the City and Police Chief Jones considering plaintiffs contention that
there was a constitutional violation and evidence of a policy or custom of
violating a citizens constitutional rights and of failure to train. A plaintiff suing
a municipality under section 1983 for the acts of one of its employees must prove:
(1) that a municipal employee committed a constitutional violation, and (2) that a
municipal policy or custom was the moving force behind the constitutional
deprivation. Myers , 151 F.3d at 1316; see Allen , 119 F.3d at 841-42; see also
Webber v. Mefford , 43 F.3d 1340, 1344-45 (10th Cir. 1994) (claims of inadequate
training, supervision, and policies cannot be made out against a supervisory
authority absent a finding of a constitutional violation by the person supervised).

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Our conclusion that the use of force was not excessive and therefore no
constitutional violation occurred stands. Even if the force was unreasonable or
conscience shocking, plaintiff failed to set forth any facts establishing either a

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custom of inadequate training or supervision. We do not fault the district courts

grant of summary judgment in favor of the City and Police Chief Jones.
AFFIRMED.

Entered for the Court

Carlos F. Lucero
Circuit Judge

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