* This order and judgment is not binding precedent, e xcept under the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

### JUN 28 2000 

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

MICHAEL RAY HICKS,

Plaintiff-Appellant,

v. CHRIS A. WOODRUFF; JOHN DOE; GONZALES, Chief of Oklahoma City Police Department; OKLAHOMA CITY POLICE DEPARTMENT; THE CITY OF OKLAHOMA CITY; MAXINE GRIDER; GRIDER’S FOODS, Defendants-Appellees. No. 99-6303 (D.C. No. 96-CV-1137-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , PORFILIO , and EBEL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 In an earlier report and recommendation, dated July 17, 1998, the

magistrate judge recommended dismissal of the claim s against the Oklahoma City Police Department. In addition, the magistrate jud ge recommended granting the respective summary judgment motions of defendants G onzales, City of Oklahoma City, Maxine Grider, and Grider Foods. Defendant J ohn Doe was dismissed as not properly identified or served. Plaintiff did n ot file timely objections to this report and recommendation as required by 28 U.S.C. § 636. Therefore, his right to appellate review of this decision is waived. See Vega v. Suthers , 195 F.3d 573, 579 (10th Cir. 1999) (“This court has adopted a ‘fi rm waiver rule’ which provides that a litigant’s failure to file timely objections to a magistrate’s R&R waives appellate review of both factual and legal determin ations.”). Insofar as plaintiff intends to bring this appeal of his claims against Maxine Grider and Grider Foods, their motion to dismiss directed to this court is g ranted. -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff-appellant Michael Hicks appeals the distr ict court’s order adopting the magistrate judge’s report and recommendation gr anting summary judgment to defendant-appellee Chris Woodruff on plaintiff’s 42 U.S.C. § 1983 civil rights complaint claiming Woodruff violated his constituti onal rights by using excessive force during his arrest of plaintiff. Although pla intiff’s complaint also asserted claims against Chief of Oklahoma Police Department Gonzales, Oklahoma City Police Department, the City of Oklahoma, Maxine Gri der, Grider Foods, and John Doe, the only claims properly before this court on appeal are those plaintiff asserted against Woodruff. 1-3- Facts On July 11, 1994, plaintiff entered Grider Foods st ore for the purpose of passing a forged check. Alerted by a suspicious cl erk, defendant Chris Woodruff, an off-duty Oklahoma City police officer working se curity at the store, requested plaintiff’s identification and asked plaintiff to a ccompany him to the back of the store to answer some questions. After the two pass ed through double doors at the back of the store, plaintiff attempted to retrieve his driver’s license and the check from Woodruff. According to plaintiff’s version of the facts, Woodruff attacked him, and in the ensuing scuffle, plaintiff took Woo druff’s gun. He claimed that he surrendered the gun, was ten to fifteen feet away from Woodruff, and was unarmed and fleeing when Woodruff shot him in the t high. Plaintiff fled from the store and was arrested by another police officer wi thin several blocks. A store videotape of the incident reveals a somewhat different scenario. It shows that as the two men were walking down the hallway, plaintiff turned around and hit Woodruff twice in the head and took his gun. The videotape shows that plaintiff pointed the gun directly at Wo odruff. There were some areas which were not covered by the store’s camera, and c onsequently, the videotape does not reveal at what point the shot, wounding pl aintiff, was fired. Contrary to plaintiff’s account, Woodruff claimed that once he noticed the safety on the gun was still on, he attempted to retrieve the gun from plaintiff. He asserted that the2 In his complaint, plaintiff alleged that the store videotape had been altered

to support Woodruff’s claim that the shooting was j ustified. In his response to defendant Maxine Grider’s motion to dismiss in this court, plaintiff continues to allege that an Oklahoma City police officer “return ed to Grider’s Foods the day after the incident, and edited the videotape.” Res p. to Mot. to Dismiss at 3. The magistrate judge concluded that there was no ev idence to support plaintiff’s conclusory claim that the videotape had been tamper ed with or altered. We agree. -4- shot which wounded plaintiff occurred during the struggle for the gun. For purposes of recommending a grant of summary judgment to Woodruff, the magistrate judge construed the facts in favor of pl aintiff, accepting plaintiff’s version of the facts insofar as his version was not refuted by the videotape. 2 On appeal, plaintiff asserts that the district court erred in granting Woodruff’s motion for summary judgment based on qua lified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291, andwe affirm.

Discussion “We review the district court’s grant of summary ju dgment de novo, applying the same legal standard used by the district court.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.), cert. denied , 120 S. Ct. 53 (1999). Summary judgment is approp riate when “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the-5-

evidence in the light most favorable to the nonmoving party. See Simms , 165 F.3d at 1326. Summary judgment decisions involving a qualified im munity defense, however, are subject to a somewhat different analysis on review. See Lighton v. University of Utah , 209 F.3d 1213, 1221 (10th Cir. 2000). “Qualified immunity is designed to shield public officials from liability and ensure that erroneous suits do not even go to trial.” Albright v. Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995) (quotation omitted). When the defendant base s a motion for summary judgment on the defense of qualified immunity, the plaintiff must show the defendant’s actions violated a specific statutory o r constitutional right, and “the constitutional or statutory rights the defendant al legedly violated were clearly established at the time of the conduct at issue.” Id

. Plaintiff alleges that Woodruff’s actions in shooti ng to prevent him from fleeing the store constituted excessive force, were unreasonable, and were in violation of established law. “‘Ordinarily, in ord er for the law to be clearly established, there must be a Supreme Court or TenthCircuit decision on point, or the clearly established weight of authority from ot her courts must have found the law to be as the plaintiff maintains.’” Albright , 51 F.3d at 1535 ( quoting Medina v. City & County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992)). In Tennessee
v. Garner , 471 U.S. 1, 3 (1985), the Supreme Court held thatdeadly force may be-6-

used if necessary to prevent the escape of a suspec ted felon if the police officer has reasonable cause to believe the suspect poses asignificant threat of death or serious bodily injury to the officer or others. Th erefore, at the time Woodruff shot plaintiff, the law concerning the use of deadl y force was clearly established. See Dixon v. Richer , 922 F.2d 1456, 1462 (10th Cir. 1991) (holding that the reasonableness standard is “clearly established” fo r the purpose of § 1983 claims). “The reasonableness inquiry is an objective one and heavily fact dependent.” Wilson v. Meeks , 52 F.3d 1547, 1553 (10th Cir. 1995). A police officer’s belief that a fleeing suspect poses a thr eat of serious physical harm is justified “(1) where the suspect has placed the off icer in a dangerous, life threatening situation; or (2) where the suspect is fleeing from the commission of an inherently violent crime.” Ryder v. City of Topeka , 814 F.2d 1412, 1419 (10th Cir. 1987) (footnote omitted). “This latter situat ion does not require that the officer’s life actually be threatened by the suspec t. Rather, the officer is allowed to infer that the suspect is inherently dangerous b y the violent nature of the crime.” Id. Plaintiff contends that, at the time of the shootin g, he had “surrendered” Woodruff’s gun, and thus was not a threat to Woodru ff or to anyone else. Appellant’s Br. at 3. Insofar as this is plaintiff’s attempt to mask his actions as evincing an intent to surrender, his characteriz ation is not supported by the-7-

facts. The store videotape clearly indicates that plaintiff attacked Woodruff, took his gun, threatened him with the gun, and attempted to flee to avoid arrest. At no time during the incident does the tape indicate a w illingness on plaintiff’s part to surrender. The magistrate judge concluded that, al though the behavior that initiated the incident--the attempt to pass a forge d check--was a nonviolent act that did not pose a threat to anyone, plaintiff, by his own actions, altered the nature of the incident when he attacked Woodruff an d took his gun.
In Garner , the Supreme Court stated that “if the suspect thr eatens the officer with a weapon . . ., deadly force may be us ed if necessary to prevent escape, and if where feasible, some warning has bee n given.” 471 U.S. at 11. Rejecting the Eleventh Circuit’s suggestion that an officer may only use deadly force if a suspect possesses a deadly weapon, see Pruitt v. City of Montgomery , 771 F.2d 1475, 1483 n.14 (11th Cir. 1985), this cou rt construed the statement in
Garner to be “merely . . . an example, and not a limitatio n, on the type of circumstances that would justify an officer’s belie f that the suspect was threatening immediate harm.” Ryder , 814 F.2d at 1419 n.16. We concluded, therefore, “that whether a particular seizure is re asonable is dependent on the ‘totality of the circumstance,’ and not simply on w hether the suspect was actually armed.” Id. ( quoting Garner , 471 U.S. at 9).-8-

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, r ather than with the 20/20 vision of hindsight.” Graham v. Connor , 490 U.S. 386, 396 (1989). A determination of reasonableness must include consideration of “the f act that police officers are often forced to make split-second judgments--in cir cumstances that are tense, uncertain, and rapidly evolving--about the amount o f force that is necessary in a particular situation.” Id. at 397. Here, the entire incident transpired in approximate ly one minute and forty-five seconds. From the moment of plaintiff’s physical attack on Woodruff and plaintiff’s threat with the gun, considering th e “totality of the circumstances,” Woodruff could have reasonably feared for his safety or those in plaintiff’s path as he fled. As the magistrate judge found, plainti ff’s conduct as captured on the store videotape would justify Woodruff’s inference that plaintiff was inherently dangerous. See Garner , 471 U.S. at 11 (holding use of deadly force reaso nable where police officer has probable cause to believe that suspect has committed a crime involving the infliction or threatened infl iction of serious physical harm); Ryder , 814 F.2d at 1419 (holding police officer “is allo wed to infer that the suspect is inherently dangerous by the violent natu re of the crime”). We conclude that plaintiff failed to show that Woodruff violate d a clearly established-9-

constitutional right and therefore, the district co urt’s grant of qualified immunity
was proper. Plaintiff also argues on appeal that because Woodru ff was off-duty, he was not acting as a police officer, but as a private ci tizen and was, therefore, not entitled to qualified immunity. In order to determ ine if a police officer was acting under color of state law, the court consider s whether, at the time in question, he “‘purpose[d] to act in an official cap acity or to exercise official responsibilities pursuant to state law,’” or “‘whether [the officer’s] actions related in some way to the performance of a police duty.’” David v. City & County of
Denver , 101 F.3d 1344, 1353 (10th Cir. 1996) ( quoting Martinez v. Colon , 54 F.3d 980, 986 (1st Cir. 1995) and Gibson v. City of Chicago , 910 F.2d 1510, 1517 (7th Cir. 1990)). It appears from our reading of the record in this c ase that the court assumed that Woodruff was acting in his capacity as a polic e officer under color of state law. Neither the court nor the parties raised the issue until plaintiff mentioned it in his objections to the magistrate judge’s report and recommendation. Therefore, because we do not consider an issue raised for the first time in the objections to3 Even if we considered the issue, the argument is se lf-defeating. Plaintiff’s

§ 1983 complaint is based on his contention that Wo odruff violated his constitutional rights while acting under the color of state law. See Haines v. Fisher , 82 F.3d 1503, 1508 (10th Cir. 1996) (“To state a claim under § 1983, a plaintiff must allege that the claimed deprivatio n was committed by a person acting under color of state law.”). Were he to pre vail on his argument that Woodruff was not acting in his capacity as a police officer, although Woodruff would be precluded from consideration for qualifiedimmunity, he would also be outside the color of state law and eliminated as a proper defendant in a § 1983 civil rights action. -10- the magistrate judge’s report and recommendation, w e deem the issue waived. See Marshall v. Chater , 75 F.3d 1421, 1426 (10th Cir. 1996). 3 An appeal from a district court decision in a 42 U. S.C. § 1983 civil rights case does not require a certificate of appealability. Therefore, plaintiff’s request for a certificate of appealability is denied as moo t. Plaintiff is reminded that he must continue to make regular partial payments on h is assessed fee until the entire amount has been paid. The motion to dismiss submitted by defendants Maxine Grider and Grider’s Foods is granted. The judgmentof the United States District Court for the Western District of Oklahoma is AFFIRMED. Entered for the Court

David M. Ebel Circuit Judge