At the panel’s conference on March 14, 1997, following oral argument of the 1

case, Judge Floyd R. Gibson concurred in the result reached in this opinion. Judge

Gibson has been disabled by illness from reviewing the opinion, which is being filed

in the interest of avoiding undue delay.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________

No. 96-3094

___________

Frederick Darnell Moore, *

*

Appellant, *

*

v. * Appeal from the United

States

* District Court for the

Mitchell Novak, Correctional Officer; *

Dist

rict

o f

Nebr

aska

Craig Schmidt, Correctional Officer, *

*

Appellees. *

___________

 Submitted: March 14,

1997

 Filed: May 22,

1998

___________

Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit

1

Judges.

___________
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McMILLIAN, Circuit Judge.
The Honorable David L. Piester, United States Magistrate Judge for the District 1

of Nebraska. The parties consented to trial of the case before a magistrate judge

pursuant to 28 U.S.C. § 636(c). 

-3-

Frederick Darnell Moore appeals from a final judgment

entered in the District Court for the District of

2

Nebraska, following a bench trial, in favor of defendants

Mitchel Novak and Craig Schmidt, in his 42 U.S.C. § 1983

civil rights action. Moore v. Novak, No. 4:CV94-3328 (D.

Neb. June 27, 1996) (memorandum of decision). For

reversal, Moore argues the district judge’s findings of

fact are clearly erroneous. For the reasons discussed

below, we affirm the judgment of the district court. 

The district court had subject matter jurisdiction

over this civil rights action under 28 U.S.C. § 1343; the

notice of appeal was timely filed as required by Fed. R.

App. P. 4(a), and this court has appellate jurisdiction

under 28 U.S.C. § 1291. 

This case was tried before a magistrate judge

pursuant to the consent of the parties under 28 U.S.C. §

636(c). Jury trial was waived. The trial took two days.

The following statement of facts is taken in large part

from the memorandum opinion of the magistrate judge. 

In the early morning hours of September 10, 1993,

Lincoln police officer Terri Lobdell arrested Moore in

connection with a burglary investigation. Lobdell

handcuffed Moore and transported him to the Lancaster

County jail. Moore was intoxicated and loudly asked

Lobdell about personal property he claimed had been taken
-4-

from him. Upon arriving at the jail, Lobdell drove to

the garage door. Novak, a jail correctional officer, saw

Lobdell’s patrol car approach on a surveillance video

monitor and pressed a switch to open the garage door.

Once inside the garage, Lobdell got out of the patrol

car, picked up Moore’s personal property, and removed

Moore from the rear seat. Lobdell walked Moore to the

jail entrance door. Moore continued
-5-

to ask Lobdell about his personal property. Novak saw

Lobdell and Moore on the surveillance video monitor and

pressed a switch to open the jail entrance door. Lobdell

and Moore went through the door and into the elevator.

When they got off the elevator, Lobdell was slightly

behind Moore and to his right. Moore’s hands were

handcuffed behind his back. Lobdell held Moore’s

personal property in her right hand and Moore’s upper

right arm in her left hand. They walked down a hallway

to one of the doors to the jail booking area. As they

approached the door, Moore began to shout at Lobdell.

Novak could see Moore and Lobdell through the glass

windows next to the door to booking area. Novak pressed

a switch to open the door. Lobdell released Moore’s arm,

shifted Moore’s personal property to her left hand, and

opened the door with her right hand. Moore and Lobdell

walked through the door.

Novak picked up a Polaroid camera and walked toward

the door. He was preparing to take a photograph of Moore

as part of the booking process. Lobdell told Moore to

stand on a square painted on the floor so Novak could

take his photograph. Moore shouted an obscenity at

Lobdell and kicked her in the leg, knocking her

backwards. Novak grabbed Moore from behind and told him

to calm down. Moore continued to shout and struggle.

Schmidt, a jail correctional officer, was working at a

computer in the booking area. He heard shouting and went

to help Novak and Lobdell. Schmidt grabbed Moore’s right

arm; Novak held Moore’s left arm. They turned him toward

the booking counter and told him to drop to his knees.

Moore refused and continued to struggle. Schmidt removed

his “stun” gun, displayed it to Moore and warned Moore
-6-

that he would use it if Moore did not comply with their

commands. Moore shouted more obscenities and continued

to struggle and attempt to break free. Schmidt then

applied the stun gun to Moore’s lower back for three to

five seconds. Moore bent over and Schmidt withdrew the

stun gun. Novak and Schmidt forced Moore to the floor.

By this time, another jail correctional officer,

Jason Hellmuth, had come to help Novak and Schmidt.

Moore was on the floor. Another jail correctional

officer,
-7-

Margaret Vaske, performed a pat down search and removed

more personal property. The four correctional officers

placed Moore in a safety cell; Novak removed the

handcuffs and asked Moore if he needed medical

assistance. Moore did not respond. Novak repeated the

question; Moore told Novak that he was fine and refused

medical assistance. Moore remained conscious throughout

the entire incident. Novak and Schmidt reported the

incident to shift supervisor Shauna Baird. Baird had

seen the four correctional officers holding Moore down on

the floor. Baird told Novak and Schmidt to write reports

about the incident. 

A surveillance video camera in the booking area had

recorded the incident. Baird stopped the video cassette

recorder (VCR), rewound the videotape, and played back

the videotape on the video monitor. Baird testified that

Novak was standing beside her when she played back the

videotape and that she assumed he watched it at the same

time. Baird concluded that the officers had complied

with department policy regarding the use of force and

stun guns. Baird testified that the videotape did not

show the actual use of the stun gun or defendants’

“body-slamming” Moore to the floor. Baird then rewound

the videotape, removed it from the VCR and then either

handed it to investigating officer Ann Lubow (her name

was Foster at the time of trial) or placed the videotape

on the booking counter for Lubow to use in her

investigation. Novak testified that he never viewed the

videotape. Lubow wrote a report about the incident based

on statements from Lobdell and Novak. Lubow testified

that she did not take the videotape. The videotape
-8-

disappeared and, despite repeated attempts to locate it,

was still missing at the time of trial. 

Moore was charged and convicted in state court with

assaulting a police officer. His conviction was affirmed

by the state court of appeals; further review by the

state supreme court was denied. 

Moore then filed this 42 U.S.C. § 1983 civil rights

action in federal district court, alleging Novak and

Schmidt used excessive force in restraining him, Novak

was
-9-

motivated by racial animus in violation of the equal

protection clause, and Novak either destroyed or secreted

the surveillance videotape of the incident, thus making

it unavailable for use in his state criminal trial, in

violation of the due process clause. Moore did not

challenge his arrest and admitted that he was intoxicated

and verbally abusive. However, he denied that he had

intentionally kicked Lobdell. He alleged that, even

though he is a medium-sized person and his hands were

handcuffed behind his back, Novak shouted a racial slur

at him, grabbed him by the handcuffs and one arm, lifted

him up, and then threw him to the floor. He alleged that

Schmidt wrongfully used the stun gun against his neck,

when he was handcuffed and being held down on the floor,

until he lost consciousness. He sought compensatory and

punitive damages, costs and expenses, and attorney’s

fees. 

Following a bench trial, the district court found

that Novak and Schmidt did not use excessive force in

restraining Moore. Slip op. at 10-12. The district

court specifically found that both the decision to use

force and the amount or degree of force used-- physical

restraint and use of the stun gun-- were objectively

reasonable because Moore was not under control, even

though he was handcuffed, and represented a continuing

threat to his physical safety and that of the officers.

Moore was intoxicated, agitated, verbally abusive, had

kicked a police officer, repeatedly refused to comply

with officers’ legitimate commands, continued to

struggle, and attempted to break free. Id. The district

court expressly credited the testimony of the officers

and expressly rejected Moore’s version of the incident,
-10-

including his allegations that Novak threw him to the

floor, Novak used racially derogatory language, and

Schmidt wrongfully used the stun gun. Id. at 4 & nn.4-5,

5-6 & n.7, 8 & n.9, 12 & n.12 (jail policy bars use of

stun gun when inmate is “restrained and controlled” and

lists “handcuffed” as example of when inmate could be

considered “restrained and controlled”; however, officers

testified that Moore was not “controlled” despite being

handcuffed). The district court also found there was no

evidence of racial discrimination, id. at 13, and that

Moore’s due process claim was barred because a finding

that Novak had destroyed or secreted the videotape would

necessarily imply the invalidity of Moore’s criminal
-11-

conviction, which had not been reversed, expunged,

invalidated, or otherwise called into question. Id. at

14-15, citing Heck v. Humphrey, 512 U.S. 477 (1994).

This appeal followed. 

For reversal, Moore argues the district court’s

findings of fact are clearly erroneous. He argues we

should not defer to the district court’s credibility

determinations because defendants’ version of the

incident was so internally inconsistent and implausible

on its face that a reasonable factfinder would not have

credited it. He also argues that the unexplained absence

of the surveillance videotape raised a clear inference

that it would have supported his version of the incident.

We review the district court’s findings of fact under

the clear error standard of review set forth in Fed. R.

Civ. P. 52(a) and clarified by the Supreme Court in

Anderson v. City of Bessemer City, 470 U.S. 564 (1985)

(Anderson). “A finding is ‘clearly erroneous’ when,

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”

United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948).

 

If the district court’s account of the evidence

is plausible in light of the record viewed in

its entirety, the court of appeals may not

reverse it even though convinced that had it

been sitting as the trier of fact, it would have

weighed the evidence differently. Where there

are two permissible views of the evidence, the
-12-

factfinder’s choice between them cannot be

clearly erroneous. 

. . . . 

When findings are based on determinations

regarding the credibility of witnesses, Rule

52(a) demands even greater deference to the

trial court’s findings; for only the trial judge

can be aware of the variations in demeanor and

tone of voice that bear so heavily on the

listener’s
-13-

understanding of and belief in what is said.

This is not to suggest that the trial judge may

insulate his [or her] findings from review by

denominating them credibility determinations,

for factors other than demeanor and inflection

go into the decision whether or not to believe a

witness. Documents or objective evidence may

contradict the witness’ story; or the story

itself may be so internally inconsistent or

implausible on its face that a reasonable

factfinder would not credit it. Where such

factors are present, the court of appeals may

well find clear error even in a finding

purportedly based on a credibility

determination. But when a trial judge’s finding

is based on his [or her] decision to credit the

testimony of one of two or more witnesses, each

of whom has told a coherent and facially

plausible story that is not contradicted by

extrinsic evidence, that finding, if not

internally inconsistent, can virtually never be

clear error. 

Anderson, 470 U.S. at 574-75 (citations omitted); see,

e.g., FDIC v. Lee, 988 F.2d 838, 841-42 (8th Cir. 1993).

In the present case the district court correctly

applied the Fourth Amendment “objective reasonableness”

test to Moore’s excessive force claim. Slip op. at 9 &

n.11; see, e.g., Graham v. Connor, 490 U.S. 386, 394-95

(1989) (holding all claims that law enforcement officers

used excessive force in course of arrest, investigatory

stop or other seizure of a free citizen should be

analyzed under Fourth Amendment standard of objective

reasonableness rather than substantive due process).

“The question for the [factfinder] is whether, judging
-14-

from the perspective of a reasonable officer at the scene

of the arrest, the totality of the circumstances

justifies the use of the force used.” Foster v.

Metropolitan Airports Comm’n, 914 F.2d 1076, 1081 (8th

Cir. 1990) (plaintiff claimed officers used excessive

force in making arrest). “Circumstances such as the

severity of the crime, whether the suspect posed a threat

to the safety of the officers or others, and whether the

suspect was resisting arrest are all relevant to the

reasonableness of the officer’s conduct.” Id.
-15-

Applying the above standard, the district court found

that defendants’ decisions to use force and the amount of

force used under the circumstances were objectively

reasonable. The district court found that Moore was

intoxicated, agitated, refused to comply with commands,

kicked the arresting officer, continued to struggle and

attempt to get away, and posed an immediate threat to his

own safety and to the safety of the officers. The

district court specifically rejected Moore’s claims that

Novak threw him to the floor by the handcuffs and that

Schmidt used the stun gun improperly or in a manner

inconsistent with department policy. But for the missing

videotape, our review of the district court’s findings of

fact would be straightforward. Each party presented a

different story of the incident, primarily through the

testimony of witnesses; the stories were in sharp

conflict; the district court made credibility

determinations and believed defendants’ version of the

incident. Their testimony told a coherent and facially

plausible story. Ordinarily, such a finding based on

credibility determinations can “virtually never be clear

error.” Anderson, 470 U.S. at 575. However, Moore argues

that defendants’ story would have been contradicted by

extrinsic evidence-- the missing videotape. Moore argues

the fact that the videotape is missing raised an inference

that the videotape would have supported his version of the

incident. 

The circumstances surrounding the disappearance of the

videotape are suspicious but not necessarily sinister.

The most the record shows is that the personnel at the

jail had control of the videotape and that the videotape

has been misplaced or lost. Even if we assume for
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purposes of analysis that the fact that the videotape is

missing raised an inference in favor of Moore’s version of

the incident, Baird’s testimony about the videotape

sufficiently rebutted this inference. According to

Baird’s testimony, the videotape did not contradict

defendants’ version of the incident. Baird testified that

the videotape showed Moore making a movement toward

Lobdell as they walked through the door and showed Novak

and Schmidt restraining Moore and “taking him to the

ground to control him.” She also testified that she did

not recall that the videotape showed either defendants’

“body-slamming” Moore to the floor or using the stun gun

and that she would have remembered such conduct had it

appeared on the videotape. 
-17-

Baird also testified that, after reviewing the videotape,

she had concluded that the officers had complied with

department policy regarding both the use of force and the

use of the stun gun. Under these circumstances, we cannot

conclude that the district court’s findings of fact are

clearly erroneous. 

Finally, Moore argues that the destruction or

secreting of the videotape violated his right to due

process during his state criminal trial. Brief for

Appellant at 21. We agree with the district court that,

because Moore did not prove that his state conviction had

been independently invalidated, his § 1983 claim for

damages is barred by Heck v. Humphrey, 512 U.S. at 484-87.

Slip op. at 13-15, citing Hamilton v. Lyons, 74 F.3d 99,

103 (5th Cir. 1996) (holding judgment in favor of

plaintiff based on finding that defendant violated

plaintiff’s constitutional rights by altering and

destroying evidence relevant to charges against him would

necessary imply invalidity of subsequent convictions and

would be barred by Heck v. Humphrey unless plaintiff

proves his convictions or sentences have been reversed,

expunged, invalidated, or otherwise called into question).

The district court did not err in dismissing Moore’s due

process claim. 

Accordingly, the judgment of the district court is

affirmed.

A true copy.

Attest:
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 CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.