Douglas C. Lehman v. BRIAN MCKINNON; JAQUES, Correctional Officer Sgt.; MCCARROLL, Correctional Officer

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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DOUGLAS C. LEHMAN,
Plaintiff - Appellant,
v.
BRIAN MCKINNON; JAQUES,
Correctional Officer Sgt.; MCCARROLL,
Correctional Officer,
Defendants - Appellees.
No. 20-1312
(D.C. No. 1:18-CV-00952-PAB-NRN)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Douglas Lehman, a Colorado inmate representing himself, brought claims
under 42 U.S.C. § 1983 against the defendants, three correctional officers. The
district court granted summary judgment to the defendants, and Lehman now appeals.
We affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
September 10, 2021
Christopher M. Wolpert
Clerk of Court
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I. Background
We describe the events underlying this case in the way most favorable to
Lehman. Many facts are undisputed, and most relevant events were captured by a
video recording.
Lehman was an inmate at Limon Correctional Facility, where the defendants
worked as correctional officers. One day in the dining hall, Lehman threw food trays
and other objects. He received an order from defendant Brian McKinnon to submit
to handcuffs and turned to face a wall as if to comply. Without warning, and with a
cast on one of his forearms, he attacked McKinnon, throwing several punches and
causing McKinnon to fall. Lehman then maneuvered around a table and delivered
several more blows to McKinnon.
Coming to McKinnon’s aid, defendant Ryan Jaques sprayed Lehman in the
face with pepper spray twice. 1 Lehman stopped punching McKinnon and lay prone
on the ground, with McKinnon on his legs. From the ground, McKinnon sprayed
Lehman in the face with pepper spray for three to five seconds. Jaques and defendant
Patrick McCarroll approached Lehman and began restraining him. At some point
after Lehman put his hands behind his back, he lost consciousness. McKinnon stood
up, moved around Jaques toward Lehman’s head, and then backed away as Jaques
and McCarroll continued to restrain Lehman.
1 The spray contained oleoresin capsicum, a substance obtained from the resin
of cayenne and other peppers.
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As a result of Lehman’s assault, McKinnon suffered a facial fracture, a
concussion, and a torn rotator cuff. For his part, Lehman suffered temporary
blindness and excruciating pain from the pepper spray, but he did not experience any
permanent physical symptoms.
Lehman sued the defendants. He claimed McKinnon violated his Eighth
Amendment rights by using excessive force against him and by failing to report the
force. He claimed Jaques and McCarroll violated his Eighth Amendment rights by
failing to intervene against McKinnon’s excessive force and by failing to report it.
These claims centered on Lehman’s allegation that McKinnon sprayed him
with pepper spray twice, once from the ground and a second time after he got up.
The parties disputed whether Lehman could show that McKinnon sprayed him a
second time. No one involved claimed to have witnessed this second spray: Lehman
claimed to have been unconscious, McKinnon claimed not to recall parts of the
struggle, and Jaques and McCarroll denied seeing a second spray from McKinnon.
Without a witness who could establish a second spray from McKinnon, Lehman
relied on video footage from the dining hall, arguing it showed McKinnon sprayed
him in the face at close range after standing up and moving around Jaques.
The magistrate judge rejected Lehman’s interpretation of the video. “Despite
multiple viewings of the video in both real time and slow motion,” the magistrate
judge did not “detect any second spraying by Officer McKinnon.” R. vol. 3 at 395.
For that reason, the magistrate judge found, “no reasonable juror could conclude that
there was a second spray by Officer McKinnon.” Id. at 400. The magistrate judge
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recommended granting summary judgment to the defendants on all claims. The
district court accepted the recommendation and entered judgment for the defendants.
II. Discussion
We construe Lehman’s pro se filings liberally, without going so far that we act
as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Although the parties debate whether Lehman waived appellate review because he did
not timely object to the magistrate judge’s recommendation, we need not address that
issue. A party’s “failure to timely object to a magistrate’s report is not
jurisdictional.” Hicks v. Franklin, 546 F.3d 1279, 1283 n.3 (10th Cir. 2008). And
reviewing de novo the merits of summary judgment, see Lance v. Morris, 985 F.3d
787, 793 (10th Cir. 2021), we readily conclude the judgment is correct.
The defendants’ summary-judgment motion asserted qualified immunity. Our
review of summary-judgment orders in the qualified-immunity context differs from
our review of other summary-judgment orders. Redmond v. Crowther, 882 F.3d 927,
935 (10th Cir. 2018). Summary judgment is ordinarily appropriate if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). But when a defendant asserts qualified
immunity at the summary-judgment stage, the plaintiff must “show (1) a reasonable
jury could find facts supporting a violation of a constitutional right, which (2) was
clearly established at the time of the defendant’s conduct.” Estate of Booker v.
Gomez, 745 F.3d 405, 411 (10th Cir. 2014). At this stage, the plaintiff’s version of
the facts must have support in the record. Redmond, 882 F.3d at 935. We view the
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evidence in the light most favorable to the party opposing summary judgment,
resolving factual disputes and drawing reasonable inferences in that party’s favor.
Estate of Booker, 745 F.3d at 411.
A. Excessive Force
“An excessive force claim involves two prongs: (1) an objective prong that
asks if the alleged wrongdoing was objectively harmful enough to establish a
constitutional violation, and (2) a subjective prong under which the plaintiff must
show that the officials acted with a sufficiently culpable state of mind.” Redmond,
882 F.3d at 936 (brackets and internal quotation marks omitted). An official’s state
of mind is sufficiently culpable “if he uses force maliciously and sadistically for the
very purpose of causing harm, rather than in a good faith effort to maintain or restore
discipline.” Id. (internal quotation marks omitted).
We have long recognized “that a prison guard, to maintain control of inmates,
must often make instantaneous, on-the-spot decisions concerning the need to apply
force without having to second-guess himself.” Sampley v. Ruettgers, 704 F.2d 491,
496 (10th Cir. 1983). So “when prison officials must act to preserve internal order
and discipline, we afford them wide-ranging deference.” Redmond, 882 F.3d at 938
(internal quotation marks omitted). Although this deference does not protect “actions
taken in bad faith and for no legitimate purpose,” it does prevent us from substituting
our “judgment for that of officials who have made a considered choice.” Id. (internal
quotation marks omitted).
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We agree that no reasonable juror could find that McKinnon sprayed Lehman a
second time. Recall that no one, not even Lehman himself, claims to have witnessed
a second spray from McKinnon. Lehman offers only the video. Yet the video does
not depict the second spray. The video shows that McKinnon moved into a position
from which he could have sprayed Lehman in the face a second time. But whether he
in fact did so is anyone’s guess; one can only speculate. That is the problem for
Lehman, for he cannot defeat summary judgment through “mere speculation,
conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.
2004).
Our analysis is not affected by the district court’s earlier assessment that, in
the video, McKinnon “appears to pepper spray plaintiff in the face while the two
officers have plaintiff restrained.” R. vol. 2 at 215. The district court made this
statement while deciding whether the video contradicted Lehman’s claim that he was
unconscious while he lay on the ground, a distinct question from whether a
reasonable juror could conclude that a second spray from McKinnon occurred. So
we reject Lehman’s claim that the district court made a finding that “established
going forward” that the second spray occurred. Aplt. Opening Br. at 29. In any
event, the district court’s statement could not bind our de novo review, an analysis
affording the district court no deference. See Carlile v. Reliance Standard Life Ins.,
988 F.3d 1217, 1221 (10th Cir. 2021).
Contrary to Lehman’s argument, our conclusion does not conflict with Ross v.
Burlington Northern & Santa Fe Railway Co., 528 F. App’x 960 (10th Cir. 2013). In
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Ross we concluded a video submitted by the defendant did not support summary
judgment in the face of the plaintiff’s evidence—expert opinion, for example—
undermining the defendant’s interpretation of the video. 528 F. App’x at 963–65. In
contrast to the plaintiff in Ross, Lehman can point to no evidence other than the video
itself bearing on the relevant fact.
Because no reasonable juror could find that McKinnon sprayed Lehman a
second time, we must decide whether Lehman’s excessive-force claim against
McKinnon can survive summary judgment based on the evidence that McKinnon
sprayed him from the ground. To conclude the claim cannot survive, we need only
consider its subjective component—whether McKinnon used force maliciously and
sadistically for the purpose of causing harm rather than in a good-faith effort to
maintain or restore discipline. See Redmond, 882 F.3d at 936. To evaluate a prison
official’s state of mind, we consider the need for force; the relationship between the
need for force and the amount of force used; the extent of any injuries the force
caused; the threat to the safety of inmates and staff, as reasonably perceived by the
official given the facts known to him; and any efforts to temper the severity of the
force. Whitley v. Albers, 475 U.S. 312, 321 (1986). An official’s “conduct itself”
provides sufficient evidence of a malicious and sadistic motive if we cannot infer a
“legitimate penological purpose” from the conduct. DeSpain v. Uphoff, 264 F.3d
965, 978 (10th Cir. 2001).
Force was surely necessary to overcome Lehman’s assault. And when
McKinnon sprayed him from the ground, Lehman had not yet been fully restrained.
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True, as Lehman highlights, he lay prone at the time. But given that he had launched
an assault after seeming to follow orders just seconds earlier, we cannot fault
McKinnon for distrusting Lehman’s renewed gestures of compliance. Nor can we
conclude that spraying Lehman was disproportionate. Rather, we can easily infer a
legitimate penological purpose for it—subduing Lehman until the officers fully
restrained him. Given the facts known to McKinnon, he had good reason to perceive
that Lehman posed a serious risk to the safety of staff until fully restrained.
The events underlying this case were chaotic and quick. Only about 25
seconds elapsed between Lehman’s first punch and McKinnon’s stepping back from
Jaques and McCarroll as they restrained Lehman. Lehman’s assault forced
McKinnon to make precisely the type of “instantaneous, on-the-spot decisions” that
courts will give deference. See Sampley, 704 F.2d at 496. In short, Lehman has
failed to show that McKinnon acted with a sufficiently culpable state of mind when
he sprayed Lehman from the ground.
Lehman does not convince us otherwise by challenging McKinnon’s claimed
memory loss. Pointing to McKinnon’s medical records and statements after the
assault, Lehman disputes McKinnon’s claim of memory loss. From the premise that
McKinnon did not actually suffer memory loss, Lehman posits that McKinnon
fictitiously claimed memory loss to conceal his use of force. And this cover-up,
Lehman concludes, shows that McKinnon knew his conduct violated the law,
demonstrating his culpable state of mind. This speculative argument does not satisfy
the subjective prong of an excessive-force claim, see Bones, 366 F.3d at 875,
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especially in the face of video evidence clearly showing a legitimate penological
reason for McKinnon to have sprayed Lehman from the ground.
Nor do the cases Lehman relies on suggest that he has shown a constitutional
violation. Giles v. Kearney, for example, involved correctional officers who kicked
and punched an inmate who, unlike Lehman, was “fully restrained.” 571 F.3d 318,
321 (3d Cir. 2009). And Iko v. Shreve, to take another example, involved an inmate
who, unlike Lehman, had not acted in a violent or “confrontational manner.”
535 F.3d 225, 232 (4th Cir. 2008).
B. Failure to Intervene
“[A] law enforcement official who fails to intervene to prevent another law
enforcement official’s use of excessive force may be liable under § 1983.” Estate of
Booker, 745 F.3d at 422 (internal quotation marks omitted). Having failed to show
that McKinnon used excessive force, Lehman necessarily failed to show that the
other defendants are liable for not preventing such force. See Jones v. Norton,
809 F.3d 564, 576 (10th Cir. 2015) (“[F]or there to be a failure to intervene, it
logically follows that there must exist an underlying constitutional violation.”
(internal quotation marks omitted)).
C. Failure to Report
Lehman argues that the defendants tried to “cover up the use of excessive
force” by failing to report it. Aplt. Opening Br. at 52. Yet he fails to explain how
such a cover-up violated his Eighth Amendment rights, and we cannot construct an
argument for him. See Davis v. Clifford, 825 F.3d 1131, 1134 n.1 (10th Cir. 2016).
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Besides, his argument cannot succeed because he has not shown that excessive force
occurred in the first place. See Jones, 809 F.3d at 576.
Lehman also argues that a Colorado statute and Colorado Department of
Corrections regulations required the defendants to report the use of force. But
“violations of state statutes and prison regulations” alone do not support a § 1983
claim. Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002).
III. Conclusion
The judgment is affirmed.
Entered for the Court
Allison H. Eid
Circuit Judge
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