* This order and judgment is not binding precedent, e xcept under the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

### MAR 5 1998 

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

CLARENCE MICHAEL PAUL,

Plaintiff-Appellant,

v. THE CITY OF ALTUS; TODD GILPATRICK; RANDALL HOWLAND; RONALD MYERS; CHARLES DIGIACOMO; MIKE WHITE; JOHN DOE POLICE OFFICERS; JACKSON COUNTY MEMORIAL HOSPITAL,

Defendants-Appellees,

DR. GEORGE ANDREWS,

Defendant. No. 96-6376 (D.C. No. 95-CV-1469) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant Clarence Michael Paul brought this action pursuant to 42 U.S.C. § 1983, alleging that the defendants viol ated his civil rights. The district court granted summary judgment in favor of the City of Altus (City) and Officers Myers, Digiacomo and White. Claims agains t Officers Gilpatrick and Howland proceeded to trial, where the jury reached verdicts in favor of the defendants. Plaintiff now appeals from the distric t court’s order of summary judgment on his claims against the City and the ind ividual officers, and from various orders and rulings concerning the trial of his other claims. We affirm in part, reverse in part, and remand for further pr oceedings.
I. Plaintiff is a partial quadriplegic. On the evenin g of October 11, 1993, he was riding as a passenger in an automobile driven b y Lloyd Gildon. Mr. Gildon’s wife had reported the automobile stolen. Officer G ilpatrick of the Altus, Oklahoma, police department saw the Gildon vehicle and called in a request to run the tag number, which came back showing that th e vehicle was stolen. Officer Gilpatrick stopped the Gildon vehicle.-3-

According to plaintiff, the following events occurr ed after Officer Gilpatrick stopped the vehicle. After the driver a nd another passenger were removed, Officer Gilpatrick ordered plaintiff out o f the vehicle. Plaintiff told Officer Gilpatrick that he could not get out becaus e he was paralyzed. Gilpatrick and Howland yelled at plaintiff to get out of the c ar. Gilpatrick chambered his shotgun and told plaintiff “I’ve been waiting to po p you.” Plaintiff finally was able to roll down the window whereupon he informed Gilpatrick that he was paralyzed and could not get out of the car on his o wn. Plaintiff says Officers Gilpatrick and Howland thengrabbed him by his neck and throat, jerked him out of the vehicle, and threw him to the ground. While he was lying on the ground, one or more of th e officers kicked him. Officer Gilpatrick placed his knees on plaintiff’s neck and back while handcuffing him. During this ordeal, plaintiff bec ame unconscious and urinated on himself. He requested an ambulance, telling Off icer Howland that his neck and hip were hurt. Officer Howland allegedly respo nded with a joke concerning plaintiff’s sexual vulnerability in the penitentiary. Plaintiff says he heard the other officers laughing at him after this joke. Ev entually, an ambulance arrived, and plaintiff was transported to Jackson County Mem orial Hospital. Plaintiff was subsequently treated at a VA hospital, where he was informed that his neck was fractured and that he had a strained hip.-4- II. Summary judgment on City’s failure to train We review summary judgment rulings de novo, applyin g the same standard as the district court. Summary judgment i s proper when “the pleadings, depositions, answers to interrogato ries, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact a nd that the moving party is entitled to a judgment as a matter of law. ” Fed. R. Civ. P. 56(c). When a moving party makes a properly supported summary judgment motion, the nonmoving party has the burdenof showing a genuine issue for trial, by any of the kinds of e videntiary materials listed in Rule 56(c), except the mere pleadings the mselves. Pietrowski v. Town of Dibble , ___ F.3d ___, No. 97-6012, 1998 WL 19862, at *1 (10th Cir. Jan. 21, 1998) (further citations and qu otations omitted). We consider first plaintiff’s argument that the dis trict court improperly granted summary judgment to the City on his “failur e to train” claim. To establish a city’s liability under 42 U.S.C. § 1 983 for inadequate training of police officers in the use of force, a plaintiff must show (1) the officers exceeded constitutional limitation s on the use of force; (2) the use of force arose under circumstanc es that constitute a usual and recurring situation with which police o fficers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city toward persons with whom the p olice officers come into contact, and (4) there is a direct causal link between the constitutional deprivation and the inadequate train ing. Allen v. Muskogee, Okla. , 119 F.3d 837, 841 (10th Cir. 1997), cert. denied , 66 U.S.L.W. 3428, 3434 (1998). A civil rights plaintiff ordinarily cannot rely on a single incident of unusually excessive force to prove failure to train . See id. at 844. However, the-5-

city’s liability may arise from a single incident w here there is other evidence of inadequate training. See id. at 844-45. Plaintiff asserts that the City improperly trained Officer Gilpatrick to place his knee on plaintiff’s neck while handcuffing him. In support of its motion for summary judgment, the City presented materials fromthe Council of Law Enforcement Educational Training (CLEET). The CLEE T materials specifically included instructions not to apply pressure in the neck area while handcuffing a suspect, “for obvious medical reasons.” Appellant’s App. Vol. II at 208-09. The City also presented records showing that Office r Gilpatrick had received the CLEET training. Thus, the City argued, if Officer Gilpatrick placed his knee on plaintiff’s neck, it was in violation of his traini ng. If this were all that was presented, summary judgme nt for the City would have been appropriate. However, the City also pres ented an incident report from Officer Howland, who was on the scene during the handcuffing. Officer Howland’s statement reads in part as follows: “Gil patrick then brought the subjects [sic] right arm around to the middle of hi s back and had his knee on the subject’s neck. The way we’re instructed to handcuff from the felony prone position.” Id. Vol. II at 148 (emphasis added). Officer Howland’ s statement creates a material issue of fact concerning whetherthe City, or CLEET itself,1 The remand we now order does not necessarily entail a further trial on

plaintiff’s claim against the City. A failure to t rain claim cannot go forward unless the plaintiff can show that he actually suff ered a constitutional injury at the hands of the police. See City of Los Angeles v. Heller , 475 U.S. 796, 799 (1986). That issue may already have been decided against pl aintiff, by virtue of the jury verdict against him. We cannot determine if this i ssue has been resolved because the record before us does not contain the jury instructions or the verdict form. The jury’s verdict in favor of Officers Gilpatrick and Howland could mean that it decided plaintiff suffered no constitutional injuryin connection with their actions. In that case, plaintiff’s claim against the City co uld not go forward. On the other hand, the jury could have decided that plaintiff’s constitutional rights were violated, but that the officers were entitled to qu alified immunity because the law was not so clearly established as to hold them liab le. In that case, plaintiff would still have a claim against the City, even though th e individual officers were not liable. See id. at 798-99. On remand, if it is clear from the ins tructions and the verdict form that the jury found no constitutional violation, the claim against the (continued...) -6- instructed its officers to place their knees on sus pects’ necks while arresting them, even though the CLEET manual instructs them t o do otherwise. Given Officer Howland’s statement, the summary judg ment materials demonstrated a genuine issue of material fact conce rning each of the four criteria required for a failure to train claim. Placing a k nee on the vulnerable area of an arrestee’s neck could be considered excessive force . Police officers obviously must handcuff people as a regular part of their dut ies. Training officers to place their knees on an arrestee’s neck shows deliberate indifference to public safety. Plaintiff’s neck injuries could have been the resul t of this improper training. We must therefore reverse summary judgment against the City on the failure to train claim, and remand for further proceedings as to this claim. 11 (...continued)

City should be dismissed. If not, the claim agains t the City should go forward.

2 This is true regardless of whether plaintiff’s clai ms against Officers Gilpatrick and Howland failed because the jury foun d there was no constitutional violation, or because it believed that Officers Gil patrick and Howland were entitled to qualified immunity. In either case, pl aintiff would not have a claim against officers who failed to intervene. This dif ferentiates this claim from plaintiff’s claim against the City, which could go forward if the jury found in favor of the officers on the basis of qualified imm unity. -7- Summary judgment on officers’ failure to intervene Plaintiff next argues that the district court erred in granting summary judgment for the individual officers. His claim is that Officers Digiacomo, White and Myers failed to intervene to prevent Officers G ilpatrick and Howland from employing excessive force against him. The jury re turned a verdict in favor of Officers Gilpatrick and Howland on plaintiff’s exce ssive force claims against them. Having failed to establish a case of excessi ve force against Officers Gilpatrick and Howland, plaintiff has no claim agai nst the remaining officers for “failure to intervene” to prevent the use of su ch force. See generallyMick v.
Brewer , 76 F.3d 1127, 1136 (10th Cir. 1996) (defining sco pe of failure to intervene claim). 2

Bifurcation of trial Plaintiff next raises several claims concerning the trial against Officers Gilpatrick and Howland. He claims that the distric t court improperly bifurcated-8-

his trial, by requiring him to try his claims again st the police officers and the hospital separately, and by requiring separate tria ls on the issues of liability and damages. The trial court has considerable discretion in dete rmining how a trial is to be conducted. We therefore will not disturb the trial court’s bifurcation order absent an abuse of discretion. A court may order a separate trial of any claim or separate issue in furtherance of convenience or to avoid pre judice, or when separate trials will be conducive to expedition andeconomy. Bifurcation is not an abuse of discretion if such i nterests favor separation of issues and the issues are clearly sep arable. Regardless of efficiency and separability, however, bifurcatio n is an abuse of discretion if it is unfair or prejudicial to a party. Angelo v. Armstrong World Indus., Inc. , 11 F.3d 957, 964 (10th Cir. 1993) (further citations, quotations, and footnote omitte d). Plaintiff does not argue that the bifurcation was i nefficient, or that the matters bifurcated were inseparable. Rather, his c laim is based solely on the prejudice he claims resulted from the bifurcation. The district court’s order requiring bifurcation wa s entered on the day of trial. Plaintiff asserts that the majority of his witnesses were from out of town, and that he was forced to make unspecified “major l ast minutes [sic] changes which adversely affected his case.” Appellant’s Br . at 9. These generalized and conclusory assertions of prejudice are insufficientto show that the district court’s bifurcation order prejudiced plaintiff’s presentati on of his case to such an extent-9-

as to require reversal of the jury’s verdict. We t herefore reject plaintiff’s bifurcation argument.

Motion for mistrial/trial objections/evidence to su pport verdict Plaintiff’s remaining contentions are not adequatel y supported for purposes of review. He argues that the district court shoul d have granted his motion for mistrial. He has not included the transcript of th e motion argument or the district court’s ruling, nor any record citations to the eve nts causing counsel to move for mistrial. It is plaintiff’s responsibility to orde r and provide those portions of the transcript necessary for our review. See 10th Cir. R. 10.1.1. If the evidentiary record is insufficient to permit us to assess an ap pellant’s claims of error, we must affirm. See Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80 (10th Cir. 1992). Moreover, plaintiff’s argument fails to per suade us that reversal on this issue was proper in any event. Plaintiff also contends that the district court sho uld have sustained his objections and that the jury verdict was not supported by the evidence. Plaintiff is counseled on this appeal. His entire appellate argument on these issues consists of the following statements:

The plaintiff made his objections about the questio ning of Plaintiff and his mother about the nolo contendere plea, and him about the prior use of drugs. Many other objection s were made but not sustained.-10- The evidence presented in this case did not supportjury’s verdict, see Plaintiff argument of evidence Transcr ipt Addendum “E”. Plaintiff’s Br. at 10. Plaintiff’s comment about the nolo contendere plea and the prior use of drugs presumably is intended as an argument that th is evidence was improperly admitted at this trial. Plaintiff offers no record citation, an incomplete record, and no argument with reference to pertinent authori ties. Plaintiff’s cryptic complaint that “[m]any other objections were made but not sustained” also provides us with no basis for r eview. Perfunctory complaints which fail to frame and develop an issue are insuff icient to invoke appellate review. See Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994). Plaintiff’s argument concerning sufficiency of the evidence is equally unsupported by any record citation--other than a re ference to his own closing argument at trial. Challenges to the sufficiency o f the evidence to support a jury’s verdict ordinarily require submission of the entire trial transcript for our review. See Scheufler v. General Host Corp. , 126 F.3d 1261, 1268 (10th Cir. 1997). Plaintiff has provided us with only bits an d pieces of the trial transcript, and no specific indication of why he believes the v erdict is unsupported by the evidence. Accordingly, we affirm as to this issue as well.-11-

The judgment of the district court is AFFIRMED, with the exception of the district court’s order granting summary judg ment to the City, which is REVERSED and REMANDED for further proceedings.

Entered for the Court
Mary Beck Briscoe Circuit Judge