* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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 30, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JERALD SHOUSE,

Plaintiff-Appellant,

v.

ROBERT PRICE, Tonkawa City

Police Officer; BILL GROCE,

Kay County Deputy Sheriff; DANA

WILSON, Ponca City Police Officer;

LEWAIN LEARNED, Kay County

Deputy Sheriff,

Defendants-Appellees.

No. 08-6040

(D.C. No. 5:05-CV-00831-HE)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.

Defendants-appellees in this case were part of a group of law enforcement

officers that arrested plaintiff-appellant Jerald Shouse in 2003 at his common-law
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wife’s house. Mr. Shouse was convicted for trafficking methamphetamine and

eventually filed a 42 U.S.C. § 1983 civil rights complaint asserting that the

defendants violated his constitutional rights during his arrest. The district court

granted summary judgment to the defendants-appellees and also denied a motion

filed by Mr. Shouse seeking sanctions against Mr. Price’s attorney. Mr. Shouse

now appeals those decisions.

Mr. Shouse first claimed the defendants’ entry into his wife’s house and his

subsequent arrest constituted an unlawful search and seizure. The magistrate

judge recommended that summary judgment be granted, determining that the

issue had been addressed in state court and Mr. Shouse was therefore barred from

relitigating it in federal court by the fair faith and credit statute, 28 U.S.C.

§ 1738.

Mr. Shouse next claimed the defendants used excessive force in arresting

him. The magistrate judge recommended summary judgment because Mr. Shouse

had not presented evidence showing that the defendants were the officers who had

committed the complained-of actions, noting that Mr. Shouse’s own filings

seemed to show the defendants had not committed those actions.

Finally, Mr. Shouse claimed that his arrest and the removal of his

four-year-old son from the home constituted intentional infliction of emotional

distress in violation of state law and the Fourth, Eighth, and Fourteenth

Amendments. The magistrate judge determined (1) the Eighth Amendment was
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inapplicable because he had not yet been convicted or incarcerated at the time of

the complained-of actions, (2) the Fourteenth Amendment’s right to familial

association was not violated because—even if Mr. Shouse could show that one of

the defendants was responsible for removing his son from the home—there was

no question removal was in the child’s best-interests, and (3) the Fourth

Amendment was not violated in regard to the entry and force used to effectuate

his arrest for the reasons set forth in response to the first two claims. The

magistrate judge also recommended the district court decline to exercise

supplemental jurisdiction over Mr. Shouse’s state law claim and deny as deficient

his sanction motion.

The district court adopted the magistrate judge’s report and

recommendation, entered judgment for defendants on Mr. Shouse’s federal

claims, dismissed his state claim without prejudice, and denied his sanction

motion.

We have jurisdiction over Mr. Shouse’s appeal under 28 U.S.C. § 1291. 

“We review de novo the district court’s summary judgment decision, applying the

same standard as the district court.” Butler v. Compton, 482 F.3d 1277, 1278

(10th Cir. 2007). Summary judgment “should be rendered if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c).
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When applying this standard, we examine the factual record and

reasonable inferences therefrom in the light most favorable to the

party opposing summary judgment. If there is no genuine issue of

material fact in dispute, then we must determine if the substantive

law was correctly applied by the district court.

Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1124-25 (10th Cir. 2000)

(quotation marks and citation omitted). As to the denial of a motion for

sanctions, we review the district court’s decision for abuse of its discretion. Gust

v. Jones, 162 F.3d 587, 598 (10th Cir. 1998). “A court abuses its discretion only

when it makes a clear error of judgment, exceeds the bounds of permissible

choice, or when its decision is arbitrary, capricious or whimsical, or results in a

manifestly unreasonable judgment.” Bradford v. Wiggins, 516 F.3d 1189, 1194

(10th Cir. 2008) (quotation marks omitted).

Having carefully reviewed the briefs and the record on appeal with these

standards in mind, we AFFIRM the district court’s grant of summary judgment

and denial of Mr. Shouse’s sanction motion for the reasons offered by the

magistrate judge in his report and recommendation, as adopted by the district

court in its February 8, 2008, order. Further, because we agree with the district

court that this appeal lacks a good faith basis, we DENY Mr. Shouse’s request to

proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3). Mr. Shouse is

responsible for the immediate payment of the balance of the appellate filing fee.

Entered for the Court

John C. Porfilio

Circuit Judge