UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

WILLIAM R. STEVENSON, 

 Plaintiff - Appellant, 

v. 

R. CORDOVA, in his individual and 

official capacities; D. NUNEZ, in his 

individual and official capacities; M. 

HOLLOWAY, in his individual and 

official capacities; K. TOPLISS, in his 

individual and official capacities; C. 

WILLIAMS, in his individual and official 

capacities; K. CLINKINBEARD, in his 

individual and official capacities; J. 

ESPINOZA, in his individual and official 

capacities; J. BUFMACK, in his individual 

and official capacities; M. BENAVIDEZ, 

in his individual and official capacities; A. 

BELL, in his individual and official 

capacities; G. SULLIVAN, in his 

individual and official capacities, 

 Defendants - Appellees, 

and 

V. WOLFE; J. HANSON, 

 Defendants. 

No. 17-1053 

(D.C. No. 1:14-CV-00649-CBS) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

 *

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

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

(continued) 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 11, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

Before BRISCOE, HARTZ, and McHUGH, Circuit Judges. 

_________________________________ 

William R. Stevenson, a Colorado prisoner, filed a pro se civil rights action 

under 42 U.S.C. § 1983 alleging that correctional officers violated the Eighth 

Amendment by using excessive force to restrain him. He challenges the district 

court’s grant of summary judgment in favor of three defendants, a directed verdict in 

favor of one defendant, and the jury instructions in the trial on his claims against the 

remaining two defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm 

the district court’s judgment. 

I. Background1

 On February 29, 2012, Stevenson was approached by two female officers, 

including Sergeant Clinkinbeard, in an area of the prison referred to as the upper 

vestibule. His interaction with these two officers and the subsequent events was 

recorded by a security camera.2

 The security video shows other inmates walking 

through the upper vestibule as Stevenson spoke to the two officers. Clinkinbeard 

ultimately ordered Stevenson to submit to being handcuffed. There is no dispute that 

 

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. 

1

 The factual summary is based on the summary judgment record viewed in the 

light most favorable to Mr. Stevenson. 

2

 The resulting security video does not include an audio recording. 
3 

he refused to do so. He first raised both of his arms above his head. Then as the two 

officers attempted to force him to submit, he dropped to his knees and ultimately lay 

down on the floor with his arms beneath his body. 

Two more correctional officers entered the upper vestibule and joined the 

struggle to handcuff Stevenson, including Sergeant Espinoza, who shot Stevenson in 

the back with a taser gun several times, the number of which is disputed. Additional 

officers entered the upper vestibule as the struggle with Stevenson continued. 

Ultimately, at least twelve officers arrived on the scene, including Sergeant 

Benavidez, Lieutenant Holloway, Lieutenant Williams, and the shift commander, 

Captain Cordova. 

At some point (the exact timing is unclear in the security video), Espinoza was 

able to handcuff Stevenson’s arms behind his back. Stevenson felt Espinoza slam the 

handcuffs on, squeezing them forcefully, and he asserts that the handcuffs cut deep 

into his skin, touching bone and quickly cutting off his circulation. Stevenson 

immediately complained that the handcuffs were too tight, but no officer took action 

to loosen them. When Stevenson’s arms and legs were restrained, Espinoza ordered 

him to stand and walk. He agreed to walk only if the officers would loosen the 

handcuffs. When several officers tried to lift him to his feet, he made his body limp 

and ended up back on the ground, where Captain Cordova knelt and spoke with him 

for several minutes and Stevenson continued to complain that the handcuffs were too 

tight. At one point he cried out in pain when an officer pulled on his arm. 
4 

Because Stevenson still refused to walk, several officers lifted and carried him 

to the stairs at the far end of the upper vestibule, where they secured him to a 

backboard on his stomach with his hands still restrained behind his back.3

 He asserts 

that, while he was lying on the backboard, Sergeant Benavidez bent his wrists, let go 

when he cried out in pain, but then pulled on his elbow. He again asked that the 

handcuffs be loosened. The officers carried Stevenson down several flights of stairs 

where they secured the backboard to a gurney, then wheeled him across a yard to 

another building. In the medical unit, Stevenson again complained about the 

handcuffs being too tight, and they still were not loosened. The officers ultimately 

wheeled Stevenson into the segregation unit, where they removed and replaced the 

first set of handcuffs. Still refusing to walk, officers carried Stevenson to a 

segregation cell. The entire incident lasted approximately 60 minutes. 

Stevenson filed this pro se action4

 alleging that defendants used excessive 

force in violation of the Eighth Amendment by tasing him, applying the handcuffs 

too tightly, manipulating his wrists and arms while he was handcuffed to cause him 

additional pain, and refusing to loosen the handcuffs. As relevant here, the district 

court granted summary judgment based on qualified immunity in favor of Williams, 

 3

 At about this point one of the officers activated his body camera, and the rest 

of the incident was recorded with both video and audio. 

4

 Stevenson was represented by appointed counsel during the summary 

judgment and trial proceedings in the district court, but he proceeds pro se again on 

appeal. 
5 

Clinkinbeard, and Espinoza, but concluded that some excessive force claims against 

Cordova, Holloway, and Benavidez should proceed to trial. At the close of 

Stevenson’s evidence, the district court granted Benavidez judgment as a matter of 

law under Fed. R. Civ. P. 50(a). The jury then returned a verdict in favor of Cordova 

and Holloway, finding that Stevenson had not proven his excessive force claims 

against them. On appeal, Stevenson challenges the district court’s summary 

judgment and directed verdict rulings. He also asserts errors in the jury instructions. 

II. Discussion 

A. Excessive Force Standard 

An Eighth Amendment excessive force claim “involves two prongs: (1) an 

objective prong that asks if the alleged wrongdoing was objectively harmful enough 

to establish a constitutional violation, and (2) a subjective prong under which the 

plaintiff must show that the officials acted with a sufficiently culpable state of mind.” 

Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir. 2018) (internal quotation marks 

omitted). “An official has a culpable state of mind if he uses force ‘maliciously and 

sadistically for the very purpose of causing harm,’ rather than ‘in a good faith effort 

to maintain or restore discipline.’” Id. (quoting Whitley v. Albers, 475 U.S. 312, 

320-21 (1986)). In applying this standard, we recognize that when faced with a 

disruption, prison officials must balance the need to restore discipline with the risk of 

injury to inmates when force is used. See Hudson v. McMillian, 503 U.S. 1, 6 (1992). 
6 

B. Summary Judgment Ruling 

We review de novo a district court’s grant of summary judgment based on 

qualified immunity. Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 

2017), cert. denied, 138 S. Ct. 211 (2017). A defendant’s assertion of qualified 

immunity triggers a two-part analysis asking (1) whether the plaintiff has 

demonstrated a violation of a constitutional right and (2) whether that right was 

clearly established at the time of the violation. Id. The plaintiff bears the heavy 

burden of making this two-part showing, without which a court must grant qualified 

immunity. Id. And a court may address these inquiries in any order. Id.

The district court first held that the law was clearly established on all of 

Stevenson’s excessive force claims. It then divided his claims into two parts, separately 

considering the defendants’ use of force before and after Stevenson was restrained. The 

court held that he failed to come forward with facts sufficient to establish that any 

defendant committed an Eighth Amendment violation by using force to subdue and place 

him in handcuffs. But it held that his evidence raised factual disputes as to the use of 

force and whether it was excessive after he was restrained in the upper vestibule. The 

court concluded that, 

[t]here is some evidence from which a reasonable juror could conclude that 

Mr. Stevenson’s requests [that his handcuffs be loosened] fell on deaf ears, 

not because of any legitimate security concerns, but rather because he 

would not be compliant and insisted that the officers carry him. If believed 

by a jury, Mr. Stevenson’s testimony might suggest that the handcuffs were 

not loosened in a good faith effort to maintain or restore discipline, but 

rather maliciously for the purpose of causing pain. 
7 

R., Vol. VI at 193. The district court allowed Stevenson’s post-restraint claims 

against Cordova, Holloway, and Benavidez to proceed to trial, but granted summary 

judgment in favor of Clinkinbeard, Espinoza, and Williams. On appeal, Stevenson 

argues there were material facts in dispute whether the latter three defendants used 

excessive force.5

1. Claim of Excessive Force in Tasing Stevenson 

Stevenson argues that Espinoza’s use of a taser was unnecessary because he 

was outnumbered by the correctional officers, he was lying prone, and he was not 

resisting with physical force. He also faults Espinoza for using a taser without first 

trying lesser forms of force. But to succeed on an Eighth Amendment claim he must 

demonstrate more than “a mere dispute over the reasonableness of a particular use of 

force or the existence of arguably superior alternatives.” Whitley, 475 U.S. at 322. 

The evidence must support an inference that force was applied “maliciously and 

sadistically for the very purpose of causing harm.” Id. at 320-21 (internal quotation 

marks omitted). 

To that end, Stevenson argues there is a factual dispute whether Espinoza 

warned him before using the taser. But the only evidence he points to is the 

surveillance video, which has no audio recording. That video appears to show 

Espinoza running to the scene with a taser in his hand. But contrary to Stevenson’s 

 5

 Stevenson argues that the district court erred in granting summary judgment 

in favor of another defendant, Sergeant Sullivan, but he dismissed his claims against 

Sullivan with prejudice under Fed. R. Civ. P. 41(a)(1)(A)(i). See Aplee. App. at 

16-17. 
8 

assertion, it does not clearly show that Espinoza began tasing him immediately and 

without any warning. Stevenson also argues there is a factual dispute regarding the 

number of times he was tased. But it is undisputed that the tasings were not effective 

in getting Stevenson to comply with being handcuffed. Given the circumstances that 

Espinoza encountered, tasing Mr. Stevenson five (rather than three) times does not 

alter our analysis. Espinoza arrived to find Clinkinbeard and another female officer 

wrestling with Stevenson on the floor in the upper vestibule, an area of the prison 

accessible by other inmates. Espinoza’s choice to use a taser to try to induce 

Stevenson to comply with Clinkinbeard’s order does not support an inference that he 

acted maliciously and sadistically to cause Stevenson harm. 

2. The Law was not Clearly Established that Espinoza’s Use of a 

Taser would Violate Stevenson’s Eighth Amendment Rights 

Even were we to hold that Stevenson demonstrated a constitutional violation based 

on the number of times that Espinoza tased him, summary judgment was still proper 

because he fails to establish that his Eighth Amendment rights were clearly established 

with regard to this claim. “To qualify as clearly established, a constitutional right must 

be sufficiently clear that every reasonable official would have understood that what he is 

doing violates that right.” Redmond, 882 F.3d at 935 (internal quotation marks omitted). 

In determining whether a right is clearly established, we look for a Supreme Court or 

Tenth Circuit case that is sufficiently on point, or the clearly established weight of 

authority from other courts. Id. Ultimately, “existing precedent must have placed the 
9 

statutory or constitutional question beyond debate.” Id. (internal quotation marks 

omitted). 

The district court held that Stevenson’s Eighth Amendment rights were clearly 

established as to all of his excessive force claims. We respectfully disagree.6

 Here, 

because we conclude that that law was not clearly established, we also affirm summary 

judgment on this alternative ground. See Carabajal, 847 F.3d at 1213 (affirming 

dismissal of claim on alternate basis that defendant was entitled to qualified immunity 

because law was not clearly established). 

Stevenson relies on Casey v. City of Federal Heights, 509 F.3d 1278, 1285-86 

(10th Cir. 2007), but that case addressed the use of a taser in the Fourth Amendment 

context, see id. at 1281, which applies to force used “leading up to and including an 

arrest,” Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010). In light of the 

different—and higher—standard for liability under the Eighth Amendment, see id. at 

1325-26, our holding in Casey did not provide Espinoza with notice that tasing 

 6

 The district court stated only that “[t]he Supreme Court has long-recognized 

that the unnecessary infliction of pain on an inmate by a correctional officer violates 

the Eighth Amendment.” R., Vol. VI at 173. But this is not a case in which the 

constitutional violation was so obvious that the plaintiff’s rights were clearly 

established in the absence of a materially similar prior case. See Brosseau v. 

Haugen, 543 U.S. 194, 199 (2004). Therefore, the district court erred in defining 

clearly established law at such a “high level of generality.” Redmond, 882 F.3d at 

935 (internal quotation marks omitted). Rather, “[t]he dispositive question is 

whether the violative nature of particular conduct is clearly established. We 

therefore must determine whether a right is clearly established in light of the specific 

context of the case, not as a broad general proposition.” Id. (citation and internal 

quotation marks omitted). 

 
10 

Stevenson under the circumstances presented here would violate his constitutional 

rights. 

Turning to Eighth Amendment case law, we have not found a Supreme Court 

decision or a published Tenth Circuit case that is sufficiently on point.7

 Nor have 

other circuit court decisions addressed a correctional officer’s use of a taser in 

sufficiently analogous circumstances such that the constitutional question is beyond 

debate. Compare Martinez v. Stanford, 323 F.3d 1178, 1180, 1183 (9th Cir. 2003) 

(holding inmate demonstrated Eighth Amendment violation where, after he refused 

an order, officers struck him with plastic bullets, entered his cell, pushed him to a 

seated position, tasered him twice “despite his lack of resistance,” beat him with their 

fists and with a wooden baton, and then kicked, hit, and dragged him out of the cell 

after handcuffing him), and Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir. 1994) 

(holding officers violated inmate’s Eighth Amendment rights by using a stun gun on 

him in his cell to enforce an order to sweep the cell, where the incident did not 

implicate a security concern or the safety of officers or inmates), and Lewis v. 

Downey, 581 F.3d 467, 479 (7th Cir. 2009) (denying qualified immunity because a 

reasonable officer would understand that tasing an inmate in his cell without warning 

when he failed to immediately comply with an order would violate the inmate’s 

 7

 In an unpublished case with similar facts, we upheld a judgment in favor of 

correctional officers finding that they had not used excessive force by tasing an 

inmate after he refused three orders to be handcuffed so officers could remove him 

from his cell. See Jolivet v. Cook, 48 F.3d 1232, at *1-2 (10th Cir. March 1, 1995) 

(unpublished). Our decision did not indicate the number of times the taser was used. 
11 

constitutional rights), with Jasper v. Thalacker, 999 F.2d 353, 354 (8th Cir. 1993) 

(holding there was no Eighth Amendment violation where officers grabbed inmate 

and applied a stun gun to him for several seconds after the inmate refused an order, 

threatened an officer, and lunged toward him with clenched fists), and Caldwell v. 

Moore, 968 F.2d 595, 596-97, 601-02 (6th Cir. 1992) (holding there was no Eighth 

Amendment violation where officers entered an inmate’s isolation cell, shot him with 

a stun gun several times, and placed him in a straitjacket after he had refused for 

seven hours to comply with an order to cease shouting and kicking his cell door). 

Because Stevenson fails to demonstrate a constitutional violation or that his 

Eighth Amendment rights were clearly established with regard to Espinoza’s use of a 

taser, we affirm the district court’s grant of summary judgment on that claim. 

3. Claim of Excessive Force in Applying the Handcuffs 

 Stevenson claims that Espinoza used excessive force in slamming the 

handcuffs on and forcefully squeezing them closed, causing them to cut deep into his 

skin and cut off his circulation. He invokes the so-called “pinky rule,” under which 

restraints should be applied loosely enough that a finger can fit between the handcuff 

and the person’s wrist. But defendants presented uncontested evidence that this 

guidance applies when an inmate is being compliant, not when he is physically 

resisting application of the handcuffs. See R., Vol. IV at 264 (Cordova’s testimony 

contrasting a “passive” handcuffing to when officers are struggling to get the 

handcuffs on an inmate); id., Vol. VI at 97 (Clinkinbeard’s testimony that “[i]n a 

tactical situation, where the offender is not compliant [leaving space between the 
12 

handcuff and wrist] doesn’t always happen”). Here it is undisputed that, at the time 

Espinoza applied the handcuffs, Stevenson was resisting the efforts of multiple 

officers to physically force him to submit. Under the undisputed circumstances in 

which Espinoza acted, Stephenson fails to show that the evidence supports an 

inference of malicious and sadistic conduct. We therefore affirm the district court’s 

grant of summary judgment on this claim based on his failure to demonstrate a 

constitutional violation. 

4. Claim of Excessive Force in Refusing to Loosen Handcuffs 

Stevenson maintains that, in granting summary judgment in favor of Williams, 

Espinoza, and Clinkinbeard, the district court ignored undisputed evidence that these 

defendants were present in the upper vestibule and in close proximity to him while he 

repeatedly complained that the handcuffs were excessively tight. He argues his 

claims against these defendants based on their refusal to loosen his handcuffs should 

have proceeded to trial. 

In its summary judgment order, the district court construed Stevenson’s 

refusal-to-loosen claims as brought against Cordova and Holloway. See R., Vol. VI 

at 194-96. This is consistent with Stevenson’s complaint, in which he alleged that 

the supervisor defendants were liable for refusing to check the tightness of the 

handcuffs, loosen them, or direct subordinate officers to loosen them. See id., Vol. I 

at 59-61; see also id., Vol. VI at 60-61 (defendants’ summary judgment reply brief 

quoting complaint and arguing that Stevenson did not allege claims against 

Clinkinbeard or Espinoza for refusing to loosen the handcuffs). Accordingly, we see 
13 

no error in the district court’s failure to consider evidence on claims against 

Clinkinbeard and Espinoza that Stevenson did not allege against these defendants in 

his complaint. 

But Stevenson did allege a refusal-to-loosen claim against Lieutenant 

Williams. In granting Williams summary judgment, the district court held that the 

evidence suggested he “remained on the periphery of the incident and played no 

active role in restraining Plaintiff.” Id., Vol. VI at 197. Stevenson argues that the 

court ignored evidence that Williams was present in the upper vestibule from soon 

after he was handcuffed until he was being wheeled into the yard on the gurney. He 

contends that—as the district court held with regard to the other supervisors, Cordova 

and Holloway—the evidence shows that Williams could hear his complaints about 

the too-tight handcuffs but took no action to loosen them. 

We agree that the district court’s reasoning in granting summary judgment in 

favor of Williams—that he played no active role in restraining Stevenson—fails to 

address his claim based on Williams’s inaction. But we need not decide whether the 

evidence demonstrates a constitutional violation because we conclude that Stevenson 

fails to show that his Eighth Amendment rights with respect to this claim were 

clearly established. 

He again relies on cases addressing the use of force against an arrestee in 

circumstances governed by the Fourth rather than the Eighth Amendment. See, e.g., 

Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208-09 (10th Cir. 2008) (holding 

police officers were not entitled to qualified immunity on Fourth Amendment 
14 

excessive force claim where they ignored arrestee’s complaints that handcuffs were 

unduly tight, the arrestee suffered a permanent actual injury, and the constitutional 

right was clearly established). And we have not found an Eighth Amendment case 

with sufficiently analogous facts, in this circuit or otherwise, that would have put 

Williams on notice that his inaction amounted to cruel and unusual punishment. Our 

cases involving a use of force against a prisoner who was restrained involved 

significantly greater force than the refusal to loosen handcuffs alleged here. See 

Mitchell v. Maynard, 80 F.3d 1433, 1439, 1440-41 (10th Cir. 1996) (holding jury 

could find prison guards acted maliciously and sadistically by stripping an inmate, 

placing him in wrist, ankle, and belly chains, picking him up by his elbows and 

forcing him to run across a gravel yard, then kicking him when he fell while yelling 

racial epithets); Miller v. Glanz, 948 F.2d 1562, 1564, 1567 (10th Cir. 1991) (holding 

allegations sufficient to state an Eighth Amendment claim where officers kicked, 

beat, and choked a prisoner who was handcuffed behind his back and whose ankles 

were also restrained).

Thus, Williams was entitled to qualified immunity on Stevenson’s 

refusal-to-loosen claim because the law with respect to his Eighth Amendment rights 

was not clearly established. We therefore affirm the district court’s grant of 

summary judgment on that claim. 
15 

Stevenson has not shown any error in the district court’s summary judgment 

ruling.8

C. Directed verdict 

Stevenson’s post-restraint excessive force claims against Benavidez, 

Holloway, and Cordova proceeded to trial. At the close of Stevenson’s evidence, the 

district court granted Benavidez’s motion for judgment as a matter of law under Fed. 

R. Civ. P. 50(a), which provides: “If a party has been fully heard on an issue during 

a jury trial and the court finds that a reasonable jury would not have a legally 

sufficient evidentiary basis to find for the party on that issue, the court may . . . 

resolve the issue against the party.” The court reviewed the evidence related to 

Benavidez’s use of force. As seen in the security video, Benavidez lay across 

Stevenson’s legs after he was handcuffed in the upper vestibule, then he stood on the 

sidelines. The court credited Stevenson’s testimony that when he was strapped to the 

backboard Benavidez bent his wrist and pulled on his elbow, but let go each time 

when Stevenson called out in pain. The district court also noted the undisputed 

testimony that the officers had difficulty carrying the backboard by its hand-holds 

with Stevenson strapped to it, and therefore some contact with his body occurred. 

Finally, the evidence also showed that Benavidez put his hand on Stevenson when he 

 8

 Stevenson also argues that the district court erred in failing to address in its 

summary judgment order his claim that Cordova’s practices, policies, directives, 

customs, or procedures caused him to be subjected to excessive force by Cordova’s 

subordinates. But neither the defendants’ summary judgment motion nor his 

response addressed that specific claim. 
16 

was lying on the narrow gurney, this time out of concern that the gurney could tip. 

The court held that a reasonable jury could not conclude from this evidence that 

Benavidez’s conduct was malicious and sadistic. 

We review de novo the district court’s ruling on a motion for directed verdict, 

applying the same standard as the district court. West v. Keef, 479 F.3d 757, 758 

(10th Cir. 2007). Stevenson argues the evidence supports an inference that 

Benavidez intended to injure him because there was no penological purpose for his 

conduct when Stevenson was strapped to a backboard and incapable of posing any 

threat. We see no error. An excessive force claim should not go to the jury unless 

the evidence “will support a reliable inference of wantonness in the infliction of 

pain.” Whitley, 475 U.S. at 322. Here, the evidence regarding Benavidez’s conduct 

falls far short of a showing that the force he used amounted to cruel and unusual 

punishment. We affirm the entry of judgment as a matter of law in favor of 

Benavidez. 

D. Jury Instructions 

 The district court instructed the jury on the elements of Stevenson’s claims 

against Cordova and Holloway in Instruction Nos. 10 and 11. The jury was required 

to find that: (1) each defendant used force against him by not loosening the 

handcuffs; (2) the force used was excessive; and (3) Stevenson suffered harm. The 

court further instructed the jury that 

[w]hether a use of force against a prison inmate is excessive depends on 

whether the force was applied in a good-faith effort to maintain or restore 

discipline, or whether it was done maliciously and sadistically to cause 
17 

harm. If the force was used maliciously and sadistically for the purpose of 

harming Plaintiff Stevenson, then it was excessive. 

R., Vol. VI at 270, 272. These instructions also defined the terms “maliciously” and 

“sadistically,” and advised the jury of several non-exclusive factors it could consider 

in deciding whether the force used was excessive, including the extent of Stevenson’s 

injury, the need for applying force, the relationship between the need to apply force 

and the amount of force used, the threat reasonably perceived by the officers, and 

efforts made to temper the severity of a forceful response. The jury returned a 

verdict finding that Stevenson failed to prove his excessive force claims against 

Cordova and Holloway. 

Stevenson raises numerous claims of error in the jury instructions. He first 

contends that the court erred in failing to give instructions on two other theories of 

liability: (1) bystander liability and (2) liability based on Cordova’s practices, 

policies, directives, customs, or procedures that caused him to be subjected to 

excessive force by Cordova’s subordinates. Stevenson also raises several contentions 

of error in Instruction Nos. 10 and 11. He argues these instructions erroneously 

omitted (1) that the jury could infer malicious and sadistic intent based on the 

defendants’ refusal to loosen the handcuffs in the absence of a legitimate penological 

purpose, and (2) that the defendants were required to balance the need to maintain or 

restore order against the risk of injury, as stated in Hudson, 503 U.S. at 6. He further 

contends that the court erred in instructing the jury that his claims against Cordova 
18 

and Holloway required evidence of their malicious and sadistic intent rather than 

their deliberate indifference. 

Stevenson did not preserve his claims of error in the jury instructions by 

objecting at the trial. See Fed. R. Civ. P. 51(c)(1) (“A party who objects to an 

instruction or the failure to give an instruction must do so on the record, stating 

distinctly the matter objected to and the grounds for the objection.”). We therefore 

review his contentions only for plain error. Fed. R. Civ. P. 51(d)(2) (“A court may 

consider a plain error in the instructions that has not been preserved . . . if the error 

affects substantial rights.”). 

To obtain reversal on plain-error review, the appellant must satisfy a 

four-prong test. It must show (1) an error (2) that is plain, meaning clear or 

obvious under current law, and (3) affecting substantial rights. If these 

elements are satisfied, we may exercise discretion to correct the error if it 

seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. 

Therrien v. Target Corp., 617 F.3d 1242, 1253 (10th Cir. 2010) (internal quotation marks 

omitted). 

Stevenson fails to show plain error in the district court’s failure to give 

instructions on two other theories of liability. After the district court dismissed 

Benavidez from the case, it declined to instruct the jury on any claim against 

Cordova and Holloway predicated on a theory of supervisory liability because there 

was no evidence of a constitutional violation by any subordinate. See Dodds v. 

Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). That same lack of evidence also 

precluded Stevenson’s claim against Cordova based on the theory that his policies, 
19 

procedures, etc., caused his subordinates to use excessive force against Stevenson. 

Moreover, Stevenson never proposed an instruction on that claim, and he fails to 

point to any evidence at trial supporting that theory of liability. 

Stevenson did propose an instruction that the defendants had a duty to 

intervene when they witnessed other correctional officers violating a prisoner’s 

constitutional rights. He argues his proposed instruction correctly stated the law on 

bystander liability. But when Cordova and Holloway were the only remaining 

defendants, the district court ruled that the claims against them were limited to 

whether they had used excessive force in refusing to loosen the handcuffs. If it was 

error not to also instruct the jury on bystander liability as between Cordova and 

Holloway, the error was not plain and Stevenson’s substantial rights were not 

affected. He has not shown any error with respect to the district court’s failure to 

give either of these instructions on alternate theories of liability. 

Regarding Instruction Nos. 10 and 11, Stevenson raised one of his appeal 

contentions in his motion for new trial under Fed. R. Civ. P. 59(a). He argued that 

the district court erroneously omitted an instruction that the defendants’ requisite 

intent—using force against him maliciously and sadistically—could be inferred from 

the absence of evidence of a legitimate penological purpose. The district court held 

that Stevenson waived this argument under the invited-error doctrine because he had 

stipulated to the pertinent portions of Instruction Nos. 10 and 11. See United States 

v. Fields, 516 F.3d 923, 939 (10th Cir. 2008) (“[T]he invited-error doctrine precludes 

a party from arguing that the district court erred in adopting a proposition that the 
20 

party had urged the district court to adopt.” (internal quotation marks omitted)). The 

court also held that Stevenson failed to demonstrate error because the instructions 

directed the jury to decide whether the use of force was a “good faith effort to 

maintain or restore discipline,” which the court equated with “a legitimate 

penological purpose.” Stevenson does not show that the district court abused its 

discretion in denying this claim of error on either basis. See Cavanaugh v. Woods 

Cross City, 718 F.3d 1244, 1250 (10th Cir. 2013) (reviewing denial of Rule 59 

motion for abuse of discretion). 

The same reasoning applies to Stevenson’s claim that the court failed to 

instruct the jury that the defendants were required to balance the need to maintain or 

restore order against the risk of injury. He waived this argument by stipulating to 

Instructions 10 and 11, and he also fails to show plain error in light of the inclusion 

in these instructions of a list of non-exclusive factors that the jury was to consider in 

deciding whether the force used was excessive. 

Finally, Stevenson also fails to show plain error in the district court’s 

instruction on the state of mind necessary to find that Cordova and Holloway used 

excessive force.9

 He argues the standard should have been deliberate indifference. 

We have applied that standard to a supervisor’s liability for a subordinate’s use of 

 9

 Stevenson asserts that he raised this objection during the jury instruction 

conference, but he objected to the use of “malicious and sadistic” in the instructions 

rather than “malicious or sadistic.” That objection did not preserve his argument that 

the proper state of mind for liability is deliberate indifference. See Therrien, 

617 F.3d at 1252. 
21 

excessive force against a prisoner. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 

1151-52 (10th Cir. 2006). But it remains an open question whether that standard still 

applies in the wake of the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 

662 (2009). See Dodds, 614 F.3d at 1197-99 (discussing Iqbal and concluding that a 

claim against a supervisory defendant must allege that he acted with the state of mind 

necessary to establish the alleged constitutional violation). To the extent that 

Stevenson is challenging the district court’s decision not to give an instruction on 

supervisory liability based upon the defendants’ deliberate indifference, the lack of 

evidence of any constitutional violation by a subordinate precluded that theory of 

liability. And he otherwise fails to demonstrate that Instruction Nos. 10 and 11 

erroneously required the jury to find that Cordova and Holloway acted maliciously 

and sadistically in refusing to loosen the handcuffs, as is required for liability on an 

Eighth Amendment claim of excessive use of force. See Hudson, 503 U.S. at 6-7. 

E. Pending Motions

We dispose of Stevenson’s pending motions as follows: We grant Stevenson’s 

motion to proceed on appeal without prepayment of costs and fees. We deny his 

motion for free transcripts pursuant to 28 U.S.C. § 753(f) as unnecessary. The record 

on appeal now includes the complete trial transcript, which was included in the 

district court docket. This court has reviewed the trial transcript in ruling on 

Stevenson’s appellate issues. We also deny his motion to include certain deposition 

transcripts in the record on appeal because the record includes the deposition 

transcripts submitted as exhibits to the parties’ summary judgment filings. We deny 
22 

his motion to file an oversized reply brief. We deny as moot his renewed motion to 

appoint counsel and his motion for a mandatory injunction. 

III. Conclusion 

 The district court’s judgment is affirmed. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge