*

 This order and judgment is not binding precedent, except under the doctrines of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

UNITED STATES COURT OF APPEALS

Filed 9/30/96

TENTH CIRCUIT

LINDON R. WELLS,

Plaintiff-Appellant,

 v.

STATE OF OKLAHOMA ex rel.

Department of Public Safety; KENNETH

VAN HOY, individually and in his

official capacity as Commissioner of

Department of Public Safety; BOARD OF

COUNTY COMMISSIONERS OF THE

COUNTY OF OKLAHOMA; J.D.

SHARP, individually and in his official

capacity as Oklahoma County Sheriff, and

RUSSELL MAPLES, individually and in

his official capacity as Oklahoma

Highway Patrol Trooper,

Defendants-Appellees,

 and

UNKNOWN PERSONNEL AT THE

OKLAHOMA COUNTY SHERIFF'S

DEPARTMENT, individually and in their

official capacities.

No. 95-6429

(D.C. No. CIV-95-93-A)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
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Lindon R. Wells appeals the district court's order granting defendants' motions for

summary judgment in a 42 U.S.C. § 1983 action alleging excessive force in the course of

an arrest and inadequate medical treatment following the arrest. We affirm.

I.

Wells was arrested in the late evening hours of July 11, 1994, for being in actual

physical control of a motor vehicle while he was intoxicated, Okla. Stat. tit. 47, § 11-902. 

Trooper Russell Maples approached Wells' parked truck and Wells got out of the truck

and walked toward him. Maples noticed Wells was unsteady, his eyes were bloodshot,

and he smelled of alcohol. Maples gave Wells the opportunity to contact someone to pick

up Wells and his intoxicated passenger, Donna Childer, but Wells was unable to find

anyone. 

Maples handcuffed Wells and Childers in a way that the handcuffs would not

clamp down on their wrists. Wells claimed that before he was handcuffed, he told

Maples "that [my arm] was full of plates and screws, and I had limited movement and it

would not go behind my back," Appellees' append. at 167, and that it was hurting. Wells

claimed Maples took his arms and forcefully pulled them behind his back. Maples placed

Wells in the front seat and Childers in the back seat of the patrol car. Wells testified that

he heard a "pop" and felt intense pain in his arm when he was placed in the car. Wells

complained that his arm hurt and requested that he be handcuffed with his hands in front. 

According to Wells, Maples seemed unconcerned with his reported pain. Maples testified

that he used the least aggressive method of handcuffing Wells and that his complaints

were typical of persons placed in handcuffs.

Maples took Childers to a detox center before taking Wells to the jail. Maples
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testified that Wells was asked during booking if he was injured or hurt and he said "No." 

The booking form indicated Wells had no "obvious pain or bleeding or other symptoms

suggesting need for emergency service." Appellees' suppl. append. at 68. Wells did not

remember being asked any of the questions on the booking form. 

Wells repeatedly complained about his injury and requested pain medication while

he was in jail. He was evaluated by a nurse the morning following his arrest, about nine

hours after being taken into custody. The nurse testified that, although the tip of one

screw had pierced Wells' skin at some point and another was visible beneath the skin, he

was not bleeding. She did not think the injury required immediate attention and was only

concerned with the long-term risk of infection. She determined that twice-daily wound

care would be sufficient. Wells was released from jail about eleven hours after his arrest,

but he did not seek medical assistance until July 23, 1994. The treating physician

determined that the hardware in Wells' arm should be removed, and surgery was

scheduled for September 2, 1994.

II.

The standards relating to the disposition of a case on a motion for summary

judgment are well established.

Summary judgment should be granted where, taking the facts in the light

most favorable to the non-moving party, there is no genuine issue of material fact,

and the moving party is entitled to judgment as a matter of law. Upon a motion for

summary judgment, the moving party bears the burden of showing the absence of a

genuine issue of material fact. The burden then shifts to the non-moving party to

produce evidence creating a genuine issue of material fact to be resolved at trial. 

To avoid summary judgment, the non-moving party must present more than "a

mere scintilla of evidence." There must be enough evidence to allow a reasonable

jury to find for the non-moving party. The non-movant "may not rest upon mere

allegations or denials" of the pleadings, but must "set forth specific facts showing

that there is a genuine issue for trial as to those dispositive matters for which it

carries the burden of proof."
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Wilson v. Meeks, 52 F.3d 1547, 1551-52 (10th Cir. 1995) (citations omitted). On appeal,

we apply the same standards to determine whether summary judgment was properly

entered. See Martin v. Board of County Com'rs of County of Pueblo, 909 F.2d 402, 404

(10th Cir. 1990).

As a preliminary matter, we conclude the district court was correct in granting

judgment in favor of Maples and Kenneth Van Hoy in their official capacities and the

State of Oklahoma. Under the Eleventh Amendment, the State of Oklahoma and its

officers are immune from suit in a § 1983 action. See Meade v. Grubbs, 841 F.2d 1512,

1524-26 (10th Cir. 1988).

A. Excessive force

Wells' remaining claims against Maples and Van Hoy in their individual capacities

arise solely from Maples' alleged use of excessive force during the arrest. The basis for

Wells' claim is the infliction of the injury and not any allegation that Maples was

deliberately indifferent to treatment of that injury or any medical need during the arrest. 

Compare Howard v. Dickerson, 34 F.3d 978 (10th Cir. 1994) (liability for injury arising

from handcuffing arrestee with known medical restriction could be based on claim of

deliberate indifference to medical need, in violation of Fourteenth Amendment). 

Consequently, the proper test for Wells' claims arising from the arrest itself is whether

Maples employed reasonable force under the circumstances.

The "reasonableness" of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight. . . . With respect to a claim of excessive force, the . . . standard of

reasonableness at the moment applies: "Not every push or shove, even if it may

later seem unnecessary in the peace of a judge's chambers," violates the Fourth

Amendment. The calculus of reasonableness must embody allowance for the fact
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that police officers are often forced to make split-second judgments--in

circumstances that are tense, uncertain, and rapidly evolving--about the amount of

force that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the "reasonableness"

inquiry in an excessive force case is an objective one: the question is whether the

officers' actions are "objectively reasonable" in light of the facts and circumstances

confronting them, without regard to their underlying intent or motivation.

Graham v. Connor, 490 U.S. 386, 396-97 (1989) (citations omitted). Relevant factors in

determining the reasonableness of force used by a police officer in making an arrest

include the severity of the crime, whether the subject posed an immediate threat to the

safety of the officer, and whether the subject was resisting arrest. Wilson, 52 F.3d at

1553. In addition, an assessment of the degree of force actually used is critical to the

balancing test used to determine if the force was excessive. See Tennessee v. Garner, 471

U.S. 1, 8-9 (1985).

It is undisputed that Wells was cooperative and non-threatening when he was

arrested. The crime with which Wells was charged is a misdemeanor for a first offense,

punishable by ten days to one year in jail and a fine of no more than $1,000. Subsequent

offenses are felonies with punishment ranging from one to ten years in prison and fines of

no more than $5,000. Okla. Stat. tit. 47, § 11-902(C). If intoxicated, Wells posed a

danger to himself, his passenger, and other motorists; however, the seriousness of the

offense was such that Maples offered not to arrest Wells if he could contact someone to

provide transportation. Maples indicated he was aware of arrestees who were placed in

police cars without being properly restrained with their hands behind their backs driving

off with the cars. Prior to taking Wells to jail, Maples stopped at a detox center to drop

off Childers, presumably leaving Wells in the police car. Maples was also responsible for

the safety of his passenger, a service manager of an automobile dealership who was riding
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with him.

Although handcuffed, the degree of force used to restrain Wells was minimal. 

Maples testified that the handcuff technique he used was the least forceful and restrictive

of the three he considered. We noted in Wilson, 52 F.3d at 1556, that "the first duty of a

police officer is to ensure the safety of the officers and the public. Handcuffing is a

necessary expedient to this end." We have also held that "the right to arrest an individual

carries with it the right to use some physical coercion to effect the arrest." Thompson v.

City of Lawrence, Kan., 58 F.3d 1511, 1516 (10th Cir. 1995).

Maples' decision at the scene of the arrest was reasonable and within the legitimate

exercise of his authority. Wells cites Hansen v. Black, 885 F.2d 642 (9th Cir. 1989),

which held that abnormally forceful application of handcuffs can violate an arrestee's

constitutional rights. However, Hansen did not address the issue presented here--whether

putting handcuffs on a potentially fragile arrestee without use of abnormal force is

similarly unlawful. Under the facts presented in this case, we conclude it is not.

Because we decide Maples did not use excessive force, Wells' claim against Van

Hoy, Maples' supervisor, must also fail. See Thompson, 58 F.3d at 1517.

B. Deliberate indifference to serious medical needs

Wells' claims against J.D. Sharp and the Oklahoma County Commissioners are

based on the theory that Wells was not provided adequate medical attention after he was

taken into custody. Wells sued Sharp in his individual and official capacity. Wells' claim

against the County Commissioners clearly fails because they have no statutory duty to

hire, train, supervise, or discipline county sheriffs or deputies, and cannot be held
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responsible for constitutional rights violations by such officers unless they voluntarily

undertake the responsibility of hiring or supervising. See Meade, 841 F.2d at 1528.

Under the Fourteenth Amendment's due process clause, pretrial detainees

. . . are entitled to the same degree of protection regarding medical attention as that

afforded convicted inmates under the Eighth Amendment. Thus, [an] inadequate

medical attention claim must be judged against the "deliberate indifference to

serious medical needs" test of Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285,

291, 50 L.Ed. 2d 251 (1976). . . .

The analysis under Estelle is two-pronged. The initial question is whether

there is evidence of "serious medical needs." A constitutional violation only

occurs when a governmental official's "deliberate indifference" is exhibited toward

such needs.

Frohmader v. Wayne, 958 F.2d 1024, 1027-28 (10th Cir. 1992) (citations omitted).

As defendants argue, Wells has failed to present sufficient evidence to establish

the first prong of the Estelle analysis--the existence of a serious medical need. While he

suffered an obvious injury to his elbow, it was sufficiently minor that no immediate

medical attention was required. Wells was kept in jail less than twelve hours and, upon

his release, he did not seek medical attention for eleven days. Even then, his condition

was not deemed sufficiently serious to require immediate treatment and was not treated

until more than a month later. The testimony of the nurse further illustrates Wells' injury

was not serious. She was concerned with wound care to prevent infection and decided

that attention twice each day was adequate. She testified that, although there was a break

in the skin from which a screw was protruding, there were no fluids or blood and it did

not require immediate attention.

Absent a showing of a serious medical need, the district court properly entered

summary judgment on Wells' inadequate medical attention claims.
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AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge