* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PAUL WAYNE ELLIS,

Plaintiff-Appellant,

v. CITY OF LINDSAY, a Municipal Corporation; MIKE BLAIR, Officer and individually; JACK HOLLOWAY, Officer and individually; GENE JONES, individually and as Chief of Police of the City of Lindsay,

Defendants-Appellees. No. 98-6153 (D.C. No. 97-CV-994) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.

Plaintiff Paul Wayne Ellis filed a civil rights act ion pursuant to 42 U.S.C. § 1983 against defendants City of Lindsay, Police C hief Gene Jones, and Officers Mike Blair and Jack Holloway, alleging violations o f his Fifth, Eighth, and1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- Fourteenth Amendment rights. Plaintiff alleged that Officer Blair used excessive force against him, that Officer Holloway failed to intervene to prevent Officer Blair from using excessive force, and that the Cityand Police Chief Jones failed to train and supervise police officers. The distri ct court granted defendants’ motion for summary judgment and entered judgment intheir favor. After the district court denied plaintiff’s timely motion to reconsider, plaintiff appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1

BACKGROUND This action arises from a dispute between two facti ons of the Lindsay Christian Fellowship Church. The dispute concerns plaintiff’s continued employment as pastor of the church. The group thatdid not want plaintiff as pastor sent him a certified letter to this effect. They then padlocked the church to keep him out. In June of 1995, plaintiff and twenty or thirty sup porting church members gathered for a meeting in the church parking lot. At the same time, the opposing faction was in front of the church. Officers Blairand Holloway were dispatched to the church to respond to a possible disturbance report made by the opposing-3-

faction. At the time of the officer’s arrival, the re was no actual disturbance. A member of the opposing faction gave the officers a copy of the letter indicating that plaintiff had been relieved of his duties as p astor. Thereafter, Officers Blair and Holloway approached plaintiff with the letter. At this point, the parties’ versions of th e facts differ. According to plaintiff, Officer Blair repeatedly sh outed at him that he was fired, that he must leave the property, and that if he refused to leave he would be jailed. Also, according to plaintiff, Officer Blai r raised his forearm to plaintiff’s ribcage and forced him backward into a parked car u ntil his daughter distracted the officer. At that time, plaintiff stepped away, but Officer Blair again raised his forearm and elbow to plaintiff’s ribcage and forcedhim against another car. Plaintiff contends that Officer Blair used this for ce even though plaintiff never touched or threatened to touch him and even though plaintiff violated no law. Plaintiff believes that Officer Holloway could have prevented this use of force, but instead was yelling at plaintiff’s wife. This use of force allegedly caused emotional injury and a bruise on plaintiff’s ribcag e, for which he went to the hospital emergency room the next day. His treatmen t consisted of x-rays, a rib brace, and pain pills. According to defendants, as the officers approached , plaintiff immediately began yelling that the letter terminating his emplo yment was not legal and that he2 We note that the record before this court contains only photocopies of the

photographs. See Appellant’s App. Vol. I at 116. Although the phot ocopies are of poor quality, they still do not evidence any use of force or physical contact. -4- was not leaving the property. He accused Officer H olloway of changing the locks on the church. During this time, plaintiff alleged ly was poking Officer Blair in the chest with his finger. Officer Blair told plai ntiff that he would be arrested if he did not stop the poking. Defendants deny that O fficer Blair used any physical force against plaintiff. They maintain that Office r Holloway was engaged in a separate conversation with plaintiff’s wife at the time the exchange occurred between plaintiff and Officer Blair. Two photographs taken during the incident by a chur ch member supporting plaintiff do not show any use of force by Officer B lair or any physical contact between plaintiff and Officer Blair. 2 During his deposition testimony, plaintiff was unable to provide any explanation why these pho tographs failed to show any force or physical contact. When Assistant Chief of Police Jim Holley arrived at the church, he informed the officers that the opposing faction wou ld need to obtain a court order to have plaintiff removed from the church property. Thereafter, the opposing faction and the officers left. Plaintiff did not c omplain to Assistant Chief Holley about any use of force or that he had sustained anyinjury.-5-

Plaintiff did, however, complain of unnecessary use of force to the Garvin County district attorney’s office. After investigation by the Garvin County Sheriff’s Department, the district attorney’s offic e found the complaint to be unsubstantiated. See Appellant’s App. Vol. I at 138. The Federal Burea u of Investigation also investigated the matter for poss ible criminal violation of civil rights statutes. After reviewing the FBI’s report, the United States Justice Department recommended that the matter be closed. See id. at 139. Thereafter, plaintiff commenced this civil rights a ction. Defendants filed a motion for summary judgment. The district court granted summary judgment for the reasons stated in the defendants’ briefs, c oncluding (1) the officers did not violate plaintiff’s substantive due process rights; (2) the officers did not arrest or seize plaintiff; (3) plaintiff did not assert a Fou rth Amendment excessive force claim; (4) even if he had, the officers did not use unreasonable or excessive force; (5) the officers are entitled to qualified immunity ; (6) the City is entitled to summary judgment because there is no constitutional violation; and (7) even if there had been a constitutional violation, there wa s no evidence the City failed to adequately train its police officers. Plaintiff filed a timely motion to reconsider. In the motion, he requested that the district court allow him an opportunity to amend his complaint to include a cause of action for violation of his Fourth Amend ment rights. In support of the-6-

request, plaintiff maintained that he had not had s ufficient time to conduct discovery. Plaintiff also submitted additional evi dence not presented at the time the district court decided the summary judgment mot ion. The district court denied the motion to reconsider. Plaintiff appealed.

DISCUSSION This court reviews the grant of summary judgment de novo and applies the same legal standard used by the district court purs uant to Fed. R. Civ. P. 56(c).
See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary jud gment is appropriate “if the pleadings, depositions, answers to interrogatories, and . . . affidavits . . . show that there is no genuin e issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A disputed fact is ‘materi al’ if it might affect the outcome of the suit under the governing law, and the disput e is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. Muskogee, Okla. , 119 F.3d 837, 839 (10th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)), cert. denied , 118 S. Ct. 1165 (1998) . “We construe the factual record and reasonable inferences therefrom in the light most favorable to the nonmovant.” Id. at 839-40. “Summary judgment is appropriate if the plaintiff[ has] failed to pre sent evidence sufficient to support a reasonable inference that the [defendants] violat ed the relevant constitutional-7-

standards.” Myers v. Oklahoma County Bd. of County Comm’rs , 151 F.3d 1313, 1316 (10th Cir. 1998).

I. REQUEST TO AMEND COMPLAINT We consider first whether the district court shouldhave allowed plaintiff to amend his complaint to set forth a cause of action for violation of his Fourth Amendment rights. Plaintiff disputes the district court’s finding in the order granting summary judgment that he was not seized an d the resulting conclusion the Fourth Amendment was not implicated. According to plaintiff, the facts show that he was seized within the meaning of the FourthAmendment when Officer Blair pinned him against the two cars and restraine d him from walking away. Several reasons justify the district court’s denial of plaintiff’s request to amend. First, even though plaintiff did not argue a Fourth Amendment violation in his complaint, the district court considered the possibility of a Fourth Amendment violation in granting summary judgment fo r defendants. Plaintiff does not indicate what Fourth Amendment argument he would make in an amended complaint, different from that addressed bythe district court. Second, in his objections to defendants’ motion forsummary judgment, plaintiff argued that his claims should be analyzed under the Fourth Amendment, but did not move to amend the complaint. See Appellant’s App. Vol. II at 183-84. Plaintiff’s later request to amend his complaint was untimely. See Las-8-

Vegas Ice & Cold Storage Co. v. Far West Bank , 893 F.2d 1182, 1185 (10th Cir. 1990) (“Untimeliness alone may be a sufficient basi s for denial of leave to amend.”); Diersen v. Chicago Car Exch. , 110 F.3d 481, 489 (7th Cir.) (delay in presenting post-judgment amendment when moving p arty had opportunity to present amendment earlier is valid reason for refus al to permit amendment), cert. denied , 118 S. Ct. 178 (1997); cf. Franks v. Nimmo , 796 F.2d 1230, 1238 n.4 (10th Cir. 1986) (holding motion to amend complaintmade two years after case was filed, after discovery was completed, and afterpartial summary judgment was granted was untimely). Third, to the extent plaintiff’s request to amend t he complaint was based on his assertion that he did not have adequate time to conduct discovery, he previously had failed to file the required affidavi t under Fed. R. Civ. P. 56(f) explaining why he could not respond to the summary judgment motion without discovery. See Committee for First Amend. v. Campbell , 962 F.2d 1517, 1522-23 (10th Cir. 1992). Because plaintiff failed “to tak e advantage of the shelter provided by Rule 56(f) by filing an affidavit, ther e [was] no abuse of discretion in granting summary judgment” since, as is discussed b elow, summary judgment was “otherwise appropriate.” Pasternak v. Lear Petroleum Exploration, Inc. , 790 F.2d 828, 832-33 (10th Cir. 1986).-9-

Finally, in opposing the motion to reconsider and r equest for amendment, defendants argued, and plaintiff did not deny, thatmost discovery was completed before the district court ruled on the summary judg ment motion, yet plaintiff did not move to file a supplemental response to the motion. See Appellant’s App. Vol. IV at 521. Accordingly, we conclude the distr ict court did not abuse its discretion in refusing permission to amend. See Viernow v. Euripides Dev. Corp. , 157 F.3d 785, 800 (10th Cir. 1998); see also Cannon v. City & County of
Denver , 998 F.2d 867, 879 (10th Cir. 1993) (denial of mot ion to amend after final judgment entered not abuse of discretion).

II. EXCESSIVE FORCE Plaintiff argues that the district court improperlyanalyzed his claims under a substantive due process standard rather than unde r the Fourth Amendment standard of objective reasonableness set forth in Graham v. Connor , 490 U.S. 386 (1989). This argument is without merit. The distr ict court analyzed his claims under both standards. Furthermore, plaintiff recognizes that the districtcourt analyzed his claims under the Fourth Amendment because he argues that the district court erroneously concluded that no seizure occurred. Plaintiff cont ends that he was seized because he was precluded from leaving the church property d ue to an investigatory stop or seizure and brief detention.-10-

Graham held that claims of “excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’” of a citizen “are properly analyzed under the Fourth Amendment’s ‘objective reasonablen ess’ standard, rather than under a substantive due process standard.” Graham , 490 U.S. at 388; see also id. at 395. “Not all police-citizen encounters[, however,] implicate the Fourth Amendment.” Latta v. Keryte , 118 F.3d 693, 698 (10th Cir. 1997) (quotation omitted). “A ‘seizure’ triggering the Fourth Amend ment’s protections occurs only when government actors have, by means of physi cal force or show of authority . . . in some way restrained the liberty of a citizen.” Graham , 490 U.S. at 395 n.10 (quotation omitted). Thus, a person ha s been seized within the meaning of the Fourth Amendment only if, considerin g all of the circumstances, a reasonable person would have believed that he was not free to leave. See Latta , 118 F.3d at 698. A mere approach by an officer doe s not amount to a seizure of an individual implicating the Fourth Amendment. See id. The following factors “could lead a reasonable inno cent person” to believe that he is not free to leave: “the threatening pre sence of several officers; the brandishing of a weapon by an officer; some physica l touching by an officer;” an officer’s aggressive language or tone of voice i ndicating that the person must comply with the officer; “interaction in a non-publ ic place;” and the “absence of other members of the public.” See id. at 699 (quotation omitted). The overall3 Plaintiff argues that by granting summary judgment for the reasons stated in

the defendants’ briefs, the district court improper ly granted summary judgment to Officer Blair based upon defendants’ version of the facts. According to plaintiff, the district court failed to take the record in the light most favorable to him. We (continued...) -11- relevant inquiry is how a reasonable citizen in the plaintiff’s position would have understood his situation. See United States v. Pena , 920 F.2d 1509, 1516 (10th Cir. 1990). Under the circumstances of this case, we conclude areasonable citizen would not believe his liberty had been restrained. Although plaintiff alleges physical touching and verbal mandates by Officer Bl air in a nonpublic place, the record in this case shows that plaintiff was free t o leave at any time during the encounter with the officers. The fact that he was able to step away from Officer Blair after Officer Blair had pinned him against th e first car suggests that the alleged force was minimal at most. Officer Blair’s request that he leave also suggests that he was free to leave. Contrary to pl aintiff’s belief, the facts viewed in the light most favorable to him do not establish either an investigatory stop or a seizure within the meaning of the Fourth Amendment. Even assuming that plaintiff was seized, we do not agree with plaintiff that Officer Blair’s use of force--even in light of plai ntiff’s allegations that he did not physically threaten or touch either officer and had committed no crime--was excessive and not objectively reasonable. 3 In applying the objective3 (...continued)

agree that the district court should not have grant ed summary judgment based on defendants’ version of the facts and should have taken the record in the light most favorable to plaintiff. Even if the district courthad done so, as we discuss, the district court still would have properly granted su mmary judgment in defendants’ favor. -12- reasonableness standard, the facts and circumstance s of the case must be considered. See Graham , 490 U.S. at 396. Not every push or shove violate s the Fourth Amendment. See id. The facts and circumstances in this case show that the alleged force was objectively reasonable. The force was minimal and was not abusive, as indicated by the minimal physical injury alleged. Under the circumstances, this de minimis force is not “‘repugnant to the conscience of manki nd’” and therefore is not constitutionally prohibited. Goodman v. Town of Golden Beach , 988 F. Supp. 1450, 1457 (S.D. Fla. 1997) (quoting Whitley v. Albers , 475 U.S. 312, 327 (1986), prison riot case alleging claim under Eighth Amendment). Plaintiff insists that the district court erred in granting summary judgment even if Officer Blair’s alleged excessive force con duct is viewed under the Fourteenth Amendment substantive due process standard. We assume, without deciding, that the substantive due process standardapplies to claims of excessive force arising outside of the context of a seizure. See Latta , 118 F.3d at 701-02. See generally County of Sacramento v. Lewis , 118 S. Ct. 1708, 1714-16 (1998)-13-

(where there is no seizure under Fourth Amendment, substantive due process standard applies); United States v. Lanier , 520 U.S. 259, 272 n.7 (1997) ( Graham requires that excessive force claim covered by spec ific constitutional provision, such as Fourth or Eighth Amendment, be analyzed und er that amendment rather than substantive due process). Under the due process standard, the factors relevant to whether the use of force is excessive are: (1) the relationshi p between the amount of force used and the need presented; (2) th e extent of the injury inflicted; and (3) the motives of the . . . officer. Force inspired by malice or by unwise, excessive zeal amo unting to an abuse of official power that shocks the conscience . . . may be redressed by [the Fourteenth Amendment].
Latta , 118 F.3d at 702 (quotations and citation omitted)

. The record, viewed in the light most favorable to p laintiff, does not reach this high threshold. See id. ; see also Butler v. City of Norman , 992 F.2d 1053, 1054 (10th Cir. 1993) (substantive due process stan dard is more onerous than Fourth Amendment standard). The evidence does not present a genuine issue of material fact whether Officer Blair’s conduct shock s the conscience. Although plaintiff alleged that he offered no force against Officer Blair and was not committing any crime, Officer Blair’s pushing of pl aintiff with his forearm and the bruise to plaintiff are not force sufficient to shock the conscience. Nothing indicates that the force was substantial. Rather, because plaintiff’s injury was minimal, it is likely that the force also was minimal. See Hannula v. City of-14-

Lakewood , 907 F.2d 129, 132 (10th Cir. 1990). Plaintiff’s deposition testimony, as well as that of his wife and other supporters, that Officer Blair’s words were hostile, that he shook papers in plaintiff’s face, and that he was shouting may be probative of malice, but alone they do not establish malice. See id. There is no other evidence in the record indicating that Office r Blair acted with malice toward plaintiff, and, as we indicated above, Officer Blai r’s conduct was objectively reasonable under the circumstances. Accordingly, w e conclude the district court did not err in granting summary judgment on the sub stantive due process claim. We hold that plaintiff has failed to establish thatOfficer Blair violated his Fourth or Fourteenth Amendment rights by using exce ssive force. The district court correctly granted summary judgment in OfficerBlair’s favor on these issues.

III. QUALIFIED IMMUNITY We consider whether Officer Blair and Officer Hollo way were entitled to qualified immunity because they violated clearly es tablished law. Plaintiff believes that it was clearly established at the tim e of the encounter that Officer Blair could use force only if plaintiff confronted him with force. Government officials are entitled to qualified immu nity when their “conduct does not violate clearly established statu tory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S.-15-

800, 818 (1982). To analyze a claim of qualified i mmunity, we use a two-part framework: “first we determine whether the plainti ff has asserted a violation of a constitutional or statutory right, and then we de cide whether that right was clearly established such that a reasonable person i n the defendant’s position would have known that [his] conduct violated the right.” Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996) (citing Siegert v. Gilley , 500 U.S. 226, 231 (1991)). If the plaintiff fails to show with parti cularity the facts and law establishing an inference that the defendants violated a constitutional right, see Walter v. Morton , 33 F.3d 1240, 1242 (10th Cir. 1994), this court n eed not reach the issue of whether the law was clearly established. See Gehl Group v. Koby , 63 F.3d 1528, 1533 (10th Cir. 1995). Because plaintiff did not prove that Officer Blair violated any constitutional right, cf. Quezada v. County of Bernalillo , 944 F.2d 710, 718 (10th Cir. 1991) (using excessive force establishes both constitutional violation and absence of qualified immunity), we need not rea ch the second issue of whether the law was clearly established. According ly, we conclude that Officer Blair is entitled to qualified immunity, and the di strict court correctly granted summary judgment on this issue. With respect to Officer Holloway, plaintiff believe s that it was clearly established that his failure to intervene was a con stitutional violation. Our-16-

conclusion that Officer Blair did not use excessive force forecloses any claim that plaintiff may have that Officer Holloway could be l iable for failing to intervene on plaintiff’s behalf. See Mick v. Brewer , 76 F.3d, 1127, 1136 (10th Cir. 1996) (“a law enforcement official who fails to intervene to prevent another law enforcement official’s use of excessive force may b e liable under § 1983”). We conclude the district court correctly granted su mmary judgment to Officer Holloway on the qualified immunity issue.

IV. FAILURE TO TRAIN AND SUPERVISE The final issue is did the district court err in gr anting summary judgment in favor of the City and Police Chief Jones considerin g plaintiff’s contention that there was a constitutional violation and evidence o f a policy or custom of violating a citizen’s constitutional rights and of failure to train. “A plaintiff suing a municipality under section 1983 for the acts of o ne of its employees must prove: (1) that a municipal employee committed a constitut ional violation, and (2) that a municipal policy or custom was the moving force beh ind the constitutional deprivation.” Myers , 151 F.3d at 1316; see Allen , 119 F.3d at 841-42; see also Webber v. Mefford , 43 F.3d 1340, 1344-45 (10th Cir. 1994) (claims of inadequate training, supervision, and policies “cannot be made out against a supervisory authority absent a finding of a constitutional viol ation by the person supervised”).-17-

Our conclusion that the use of force was not excess ive and therefore no constitutional violation occurred stands. Even if the force was unreasonable or conscience shocking, plaintiff failed to set forth any facts establishing either a-18-

custom of inadequate training or supervision. We d o not fault the district court’s grant of summary judgment in favor of the City and Police Chief Jones.
AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge