The Honorable H. Franklin Waters, Chief Judge, United States

District Court for the Western District of Arkansas, adopting the

report and recommendation of the Honorable Beverly R. Stites,

United States Magistrate Judge for the Western District of

Arkansas.

___________

No. 95-2103

___________

Robert Neil Joos, Jr., *

also known as David Dean, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Western

* District of Arkansas.

Deputy Ratliff, Benton County; *

Deputy Spann, Benton County; * [PUBLISHED]

Sheriff Andy Lee; Unknown *

Deputies, of Benton County Jail, *

*

Appellees. *

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 Submitted: March 18, 1996

 Filed: October 11, 1996

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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

PER CURIAM.

Robert Joos appeals from the district court's judgment in favor of 1

defendants following an evidentiary hearing in his 42 U.S.C. § 1983 action.

We conclude the force employed against Joos in connection with his arrest

was both de minimis and a reasonable response when Joos resisted officers'

attempts to effect his arrest and booking. We further conclude that the

district court properly denied the remainder of Joos's claims and that an

extended discussion is unwarranted. Accordingly, we affirm.
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MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

The truncated statement of facts in the court's per curiam

opinion conceals from view what is important about this case.

Mr. Joos claimed, among other things, that Mr. Ratliff used

excessive force against him in order to secure his fingerprints.

Mr. Ratliff testified that Mr. Joos would not allow himself to be

fingerprinted and that Mr. Joos had made a fist with his thumb

tucked inside in order to prevent it. According to his own

account, Mr. Ratliff then seized Mr. Joos, pressed his thumb

against Mr. Joos's mandibular nerve junction below his jaw, and

repeatedly pushed his thumb forward toward Mr. Joos's nose in an

effort to compel him to open his hand. Indeed, Mr. Ratliff felt

obliged to repeat this maneuver two or three times the next day

before Mr. Joos finally relented. The magistrate judge, as she had

to, accepted Mr. Ratliff's testimony as true, but concluded that

Mr. Joos was a pre-trial detainee and that Mr. Ratliff's actions

were "reasonably related to goals of obtaining plaintiff's

identity..."

Though the matter is not entirely free from doubt, my own

evaluation of the undisputed facts in this case leads me to the

conclusion that, at the time of the incidents of which Mr. Joos

complains, he was an arrestee, not a pre-trial detainee, and

that his allegations are therefore to be judged against the

reasonableness requirements of the fourth amendment. See Graham v.

Connor, 440 U.S. 386, 395 (1989). Whether the force exerted on

Mr. Joos in this case was constitutional, therefore, depends on

whether it appears to have been reasonable in the circumstances in

which it was resorted to.

Because determining reasonableness requires a comparison of

ends and means, I take it that it is proper to evaluate the
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importance of the object that the force was employed to achieve.

Preventing the escape of a dangerous felon, for instance, or
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preventing an assault on an officer, would be objects that would

legitimate a large amount of force indeed. But here, the

fingerprinting of Mr. Joos was collateral to the core objects of a

criminal proceeding. There is no finding that Mr. Joos's identity

was not known, or, even if it was not, that that would have

interfered with prosecuting him for the offense with which he was

charged. So the object of the force, namely, to secure Mr. Joos's

fingerprints, seems not to have been essential to the achievement

of a compelling government objective. At the means end of the

inquiry, it seems evident that the amount of force used against

Mr. Joos was not de minimis, that it was resorted to repeatedly,

and that it caused Mr. Joos not inconsiderable pain -- enough

indeed to cause him to do something that he very much did not want

to do.

Under these circumstances, I cannot say that the force applied

to Mr. Joos was reasonable. In fact, using force to extract

information from the bodies of persons accused of crime can rarely

be reasonable. I would therefore reverse the district court's

judgment and remand the case for an inquiry into Mr. Joos's damages

on this aspect of his complaint.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.