UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ERIC MAGNE, Plaintiff - Appellant,

v. RICK ALBERS, Clear Creek County Sheriff, in his offici al capacity; MICHAEL HANSEN, Clear Creek County Deputy Sheriff, in his individual capacity, Defendants - Appellees. No. 21-1256 (D.C. No. 1:18- CV-02741-JLK) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and EID , Circuit Judges.

________________ _________________ Eric Magne appeals the dist rict court’s grant of su mmary judgment to Clear Creek County, Colorado Deputy Sheriff Michael Hansen a nd Sheriff Rick Albers on his 42 U.S.C. § 1983 excessive force and inadequate trai ning claims. The district court determined there was no constitutional violation and thus Hansen was entitled to qualified immunity, while Albers was en titled to summary judgment. We affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 16, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1256 Document: 010110697955 Date Filed: 06/16/2022 Page: 12 I Magne’s claims arise from in juries sustained as a pretri al detainee at the Clear Creek County Jail. Shortly after midnight on October 29, 2016, he was arrested by Officer John Geiger on suspicion of driving under the influence of alcohol (DUI). Magne refused to take a roadside sobriety test, but a preliminary breath test indicated his blood alcohol content was 0.135 percent, exceeding Colorado’s legal limit of 0.08 percent. Magne was coope rative and was not handcu ffed during the arrest. At the jail, Magne was processed by Geig er and Hansen. Magne told them he was taking nerve medication for a previous head injury and the medication made it difficult for him to control his saliva. He asked to be placed in a holding cell, but once inside, he slammed the cell door shut several times. Upon hearing the loud banging, Geiger approached Magne, wrench ed his arm behind his back, and pinned him against the wall for nearly thirty seconds. Hansen and three other deputies soon arrived. 1 At approximately 2:00 a.m., Hansen escorted Magne to another room for fingerprinting. The events th at transpired next were ca ptured on video, although no audio was recorded. The par ties agree that Magne was ra ising his hands in the air and that he began touching Hansen’s ri ght shoulder, specifically the patch on Hansen’s sheriff’s deputy uniform. Magne says he noticed that spit from when he

1 Geiger was indicted and pleaded guilty to criminal char ges relating to the incident. Magne initially brought an exces sive force claim against Geiger and alleged Hansen failed to intervene, but he settled with Geiger and withdrew his failure-to-intervene cl aim against Hansen. Appellate Case: 21-1256 Document: 010110697955 Date Filed: 06/16/2022 Page: 23 was speaking had landed on Hansen’s shoulder and he was attempting to wipe it off. As Hansen was fingerprinting Magne’s left hand, Magne reached his right hand from Hansen’s right shoulder acro ss Hansen’s chest area. Hansen immediately executed an arm-bar takedown, graspi ng Magne’s left arm and pushing down on the back of his neck as they swung around and down to the floor. During the takedown, Magne’s head struck an adjacent me tal doorframe. His head bega n to bleed profusely, but Hansen kept him pinned on the floor until he was handcuffed. Af ter several minutes, Magne suffered an apparent seizure while waiting for an ambulance to arrive. He was transported to the hospital for treatment. Magne later initiated this action, cl aiming Hansen used excessive force in violation of the Fourteenth Amendment and Albers was liable in his official capacity for inadequately training Hansen. The dist rict court granted summary judgment to Hansen and Albers, concluding that Ma gne failed to show Hansen committed a constitutional violation and thus Hansen was entitled to qualified immunity. The court also determined that absent an underlying constituti onal violation Albers could not be liable and thus summary judgment was proper. Magne now appeals.
II “We review a district court’s grant of summary judgment de novo, applying the same legal standard as the district court.” Rowell v. Bd. of Cnty. Comm’rs , 978 F.3d 1165, 1170 (10th Ci r. 2020) (internal quotati on marks omitted). Summary judgment is appropriate “if th e movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Appellate Case: 21-1256 Document: 010110697955 Date Filed: 06/16/2022 Page: 34 Civ. P. 56(a). Although “we view the ev idence and draw infere nces in the manner most favorable to the non-moving party[,] . . . the non-moving party must nonetheless establish facts such that a reasonabl e jury could find in his favor.” Lindsey v. Hyler , 918 F.3d 1109, 1113 (10th Cir. 2019). “Unsubstantiated alle gations will not suffice.” Id. And “we cannot ignore clear, contrary vi deo evidence in the record depicting the events as they occurred.” Rowell , 978 F.3d at 1171 (internal quotation marks omitted). “A defendant’s motion for summary j udgment based on qualified immunity imposes on the plaintiff the burden of show ing both (1) a violation of a constitutional right; and (2) that the constitutional right wa s clearly established at the time of the violation.” Id. (internal quotation marks omitte d). We may, in our “sound discretion,” determine which of the two pron gs to address first as appropriate under the circumstances. Id. (internal quotation marks omitted).
A. Excessive Force—Deputy Hansen Magne claims Hansen violated the F ourteenth Amendment by using excessive force in executing the takedown. “A defe ndant violates the Fourteenth Amendment by purposely or knowingly using force against a pretrial detainee that is ‘objectively unreasonable.’” Id. (quoting Kingsley v. Hendrickson , 576 U.S. 389, 396-97 (2015)). The objective reasonableness of an offi cer’s conduct “turns on the facts and circumstances of each particular case.” Kingsley , 576 U.S. at 397 (i nternal quotation marks omitted). It is eval uated “from the perspective of a reasonable officer on the scene, including what the o fficer knew at the time, not with the 20/20 vision of Appellate Case: 21-1256 Document: 010110697955 Date Filed: 06/16/2022 Page: 45 hindsight.” Id. We “also account for the legitim ate interests that stem from the government’s need to manage the facil ity in which the individual is detained, appropriately deferring to polic ies and practices that in th e judgment of jail officials are needed to preserve internal order a nd discipline and to maintain institutional security.” Id. (brackets and internal quotation marks omitted). “[U]se of an objective standard . . . protect s an officer who acts in go od faith” and is “forced to make split-second judgments—in circumstances that are tense, un certain, and rapidly evolving.” Id. at 399 (internal quotation marks omitted). In evaluating whether an officer acted reasonably or unreasonably, we may c onsider the following nonexclusive factors: the relationship between the need for the use of force and the amount of force used; the extent of the plain tiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceive d by the officer; and whether the plaintiff was actively resisting. Id. at 397. Our analysis of the pertinent consid erations confirms Hansen acted with objective reasonableness in executing the take down. First, the need for the use of force was commensurate with the amount of fo rce used. Magne had been arrested for a DUI and had grown increasi ngly disruptive after being placed in the holding cell, where he repeatedly slammed the cell door. When Hansen escorted him to be fingerprinted, Magne held his hands in the air and continued to raise and lower his hands as Hansen attempted to fingerprint hi m. Magne then inexplicably persisted in touching Hansen for approxim ately twelve seconds, twice tracing the outline of the Appellate Case: 21-1256 Document: 010110697955 Date Filed: 06/16/2022 Page: 56 patch on Hansen’s shoulder w ith his index finger, wiping the patch with his hand, briefly pausing, and then repeatedly rubbi ng the patch with his hand until he reached across Hansen’s chest near Hansen’s neck . At that moment, Hansen executed the takedown. Magne denies reach ing near Hansen’s neck, a nd he faults the district court for failing to credit his version of the events, but th e video “blatantly contradicts” him. Emmett v. Armstrong , 973 F.3d 1127, 1131 (10th Cir. 2020) (brackets and internal quotation marks omitte d). Indeed, the vide o clearly shows that Magne reached across Hansen’s chest and touched Hanson’s unif orm (where a pen was clipped to his collar, visible in earlier footage from another angle, see Aplt. App., video 2 at 1:57:17-25), just below his neck, see id. , video 1 at 2:07:10; see also id. , video 2 at 2:07:29 (showing Magne’s t humb and index finger directed toward Hansen’s throat as Hansen steps back to execu te the takedown). Given the potential threat Magne posed by doing so, the need for Hansen’s use of force was proportionate to the force he used. This factor weighs heavily in Hansen’s favor. The second and third factors—the extent of Magne’s injuries and any attempt to temper the amount of force used—coul d suggest Hansen act ed unreasonably. Magne suffered a severe lace ration to his head, and he claims he sustained a traumatic brain injury, though he cites no ev idence to support his claim. And Hansen made no attempt to limit the amount of for ce he used. However, Hansen reacted in the split second when Magne reached across his chest near his ne ck, and when they spun around to the floor during the takedow n, Magne inadvertently hit his head on Appellate Case: 21-1256 Document: 010110697955 Date Filed: 06/16/2022 Page: 67 the door frame. We agree with the district court that these fact ors weigh in Magne’s favor, if only slightly. The fourth factor, the severity of th e security problem, we ighs in Hansen’s favor. Magne was impaired, if not still intoxicated, and he had grown increasingly disruptive. While he was unhandcuffed, he repeatedly touched Hansen for far longer than necessary to wipe away any spit that may have lande d on Hansen’s shoulder. And reaching near Hansen’s neck and t ouching his uniform pos ed an obvious and serious threat to Hansen’s personal security. There also was a potential security threat to the jail posed by Magne , who was entirely unrestrained. The fifth factor, which evaluates the th reat reasonably per ceived by the officer, also suggests Hansen acted reasonably. Hansen testified that Magne’s conduct was “assaultive with the intent of causing bodily harm.” Aplt. App., vol. 1 at 147. The video confirms that Magne to uched Hansen’s uniform near his chest, just below his neck. This confirms that Hansen’s perception was reasona ble, and accordingly, this factor weighs in his favor. Lastly, the sixth factor, whether Ma gne was actively re sisting, is only marginally applicable. The di strict court determined that Magne was resisting, but he was not retracting his arm or otherwise refu sing to be fingerprinted, although he was acting in a distracting and disruptive manner. Cf. Rowell , 978 F.3d at 1173 (distinguishing between uncoope rative behavior and activ e resistance). Moreover, although Magne denies that Hansen told Magne to stop touching him, neither was Appellate Case: 21-1256 Document: 010110697955 Date Filed: 06/16/2022 Page: 78 there any need for him to touch Hansen for as long or in the manner that he did. This factor does not weigh decisively in fa vor of either Magne or Hansen. On balance, the relevant factors wei gh in Hansen’s favor, and we therefore conclude that his use of the takedown was objectively reasonable. Absent a constitutional violation, we need not consid er the clearly-establ ished prong of the qualified immunity test. See Hinton v. City of Elwood , 997 F.2d 774, 782 (10th Cir. 1993). Magne fails to show any reversible error by the district court in granting summary judgment for Hansen based on qualified immunity.
B. Inadequate Training —Sheriff Albers Magne’s inadequate-training claim agai nst Albers in his of ficial capacity as Clear Creek County Sheriff is effectively a munici pal liability claim. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690 n. 55 (1978). However, “a municipality is responsible only for its own illegal acts. It may not be held liable where there was no underlying constitutional violati on by any of its officers.” Donahue v. Wihongi , 948 F.3d 1177, 1199 (10th Ci r. 2020) (internal quotati on marks omitted). Having failed to establish an unde rlying constitutional violati on, Magne cannot hold Albers liable for inadequate training. See Hinton , 997 F.2d at 782. He therefore fails to show any reversible error in the district court’s grant of summary judgment to Albers.
III The district court’s judgment is affirmed. Entered for the Court Bobby R. Baldock Circuit Judge Appellate Case: 21-1256 Document: 010110697955 Date Filed: 06/16/2022 Page: 8