* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 8/14/96

FOR THE TENTH CIRCUIT

DUANE E. BROOKS,

Plaintiff-Appellant,

v.

JEFFREY BROWN, Officer; CARL

RASMUSSEN, Officer; DAVID

WILSON, Officer; DANIEL

KORKOWSKI, Officer,

Defendants-Appellees,

and

G. SCOTT LANDERS, Detective;

STEVEN COOPER, Detective; SEAN

DEBOW, Officer; JERRY NICHOLS,

Officer; L. RICHMOND, Officer;

DAVID MCCLENAHAN, Officer;

THOMAS WILKES, Officer;

ROBERT HEAPS, Officer,

Defendants.

No. 95-1386

(D.C. No. 94-B-591)

(D. Colo.)

ORDER AND JUDGMENT*
** Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court

of Appeals for the Third Circuit, sitting by designation.

1 Observing that plaintiff’s first notice of appeal misstated the date of the

judgment under review, and that his second, corrected notice was filed more than

thirty days after the judgment, defendants-appellees contend the appeal should be

dismissed as untimely. This contention is meritless. The obvious clerical error in

the first, timely notice, which could not reasonably have misled anyone regarding

the intent of the appeal, did not nullify plaintiff’s invocation of our jurisdiction. 

See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 n.3 (10th Cir. 1993);

see also Dupree v. United Parcel Serv., Inc., 956 F.2d 219, 220 n.1 (10th Cir.

1992); United States v. Neal, 774 F.2d 1022, 1023-24 (10th Cir. 1985).

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Before TACHA, ALDISERT,** and BALDOCK, Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff timely appeals1

 from a district court order granting summary

judgment on behalf of defendants-appellees, Aurora police officers Korkowski,

Brown, Rasmussen, and Wilson (“arresting officers”), whom plaintiff sued under

42 U.S.C. § 1983 for allegedly using excessive force in effecting his arrest for

burglary in 1993. Upon de novo review of the record under the same standard

applied by the district court, see Wolf v. Prudential Ins. Co., 50 F.3d 793, 796

(10th Cir. 1995); see also Wilson v. Meeks, 52 F.3d 1547, 1552-53 (10th Cir.
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1995)(detailing analytical structure of summary judgment disposition in present

context), we affirm for the reasons stated below.

First, however, we should clarify the proper scope of this appeal, which is

limited in two important respects. As our caption reflects, plaintiff initially

named several other defendants in this action. Early on in the proceeding, the

district court granted summary judgment for these additional defendants, based on

their lack of personal participation in any of the events alleged. Plaintiff has not

challenged that ruling, electing to pursue only those claims he asserted against the

remaining, arresting officers. Plaintiff also pleaded a claim of inadequate medical

care, or deliberate indifference, see Howard v. Dickerson, 34 F.3d 978, 980 (10th

Cir. 1994), in addition to the excessive force claim referred to above. On appeal,

however, he does not even contend, much less substantiate with citation to record

evidence, that the arresting officers had anything to do with his medical

treatment. We are, therefore, concerned here solely with the district court’s

determination that the arresting officers are entitled to summary judgment on

plaintiff’s excessive force claim. 

In November 1993, plaintiff was interrupted in the course of a residential

burglary by officers Korkowski and Brown. When ordered by officer Korkowski

to “freeze,” plaintiff fled. The officers tracked him to a neighbor’s garage, where

they overcame his physical resistance and, with some minor assistance from
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officers Rasmussen and Wilson, handcuffed him and transported him to the police

station. Plaintiff insists that the force used during this encounter was

constitutionally excessive. 

To sustain such a claim, plaintiff must show that the officers’ use of force

was not “‘objectively reasonable’ in light of the facts and circumstances

confronting them . . . .” Graham v. Connor, 490 U.S. 386, 397 (1989). This

standard requires “careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. We

note that, while this determination was made here in the context of the arresting

officers’ claims of qualified immunity, “‘in excessive force cases the substantive

inquiry that decides whether the force exerted by police was so excessive that it

violated the Fourth Amendment is the same inquiry that decides whether the

qualified immunity defense is available to the government actor.’” Mick v.

Brewer, 76 F.3d 1127, 1135 n.5 (10th Cir. 1996)(quoting Quezada v. County of

Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991)).

Officers Korkowski and Brown submitted affidavits relating their

recollections of the events surrounding plaintiff’s arrest. Officer Korkowski

stated in pertinent part:
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1. On November 15, 1993, . . . I responded to the area of a

burglary in progress . . . and was the first officer to arrive on the

scene. I took up a position . . . and watched the residence and the

possible suspect car, which I was advised had been stolen . . . .

. . . .

3. As the suspect exited the house, I yelled at him to “freeze,

police” . . . . The suspect then ran . . . .

4. Thereafter, I assisted other officers in looking for the suspect. 

After approximately 40 minutes, the suspect was located in a

garage . . . , where I first observed him under a vehicle. 

5. A male, female and 2 children, all who lived in the house,

were standing in the open door between the attached garage and the

house.

6. I yelled at the suspect to exit from under the vehicle very

slowly, however, he started out from under the vehicle very quickly,

and would not lay down on the ground as instructed.

7. Officer Brown and I then attempted to restrain the suspect in

the very limited space between the car and the truck in the garage. 

The suspect started to stand up with Officer Brown attempting to

hold his wrist. I grabbed the suspect by the forehead and pulled him

backwards. Officer Brown, the suspect, and I all fell to the ground in

the small space between two parked cars, where Officer Brown and I

struggled to restrain the suspect. The suspect was thereafter

handcuffed and searched for weapons. I saw that he had two

screwdrivers, one of which was 12 to 16 inches long, hidden under

his jacket.

8. I did not at any time on November 15, 1993, either during,

prior, or subsequent to his arrest, strike or kick the suspect Duane

Brooks. I further did not observe any other office [sic] strike or kick

the suspect Duane Brooks.
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R. doc. 39, attached Affidavit of Officer Daniel Korkowski at 1-3. Officer Brown

corroborated these statements, including some additional details about the

struggle in the garage:

7. . . . When the suspect began to crawl out from under the car, I

ordered him to stop and show me his hands, so that I could ensure

that he was not armed. He continued to crawl out from under the

vehicle and I could only see his left hand at this point.

. . . .

9. I then ordered the suspect to slide out from underneath the

truck, but to continue to stay down. As the suspect emerged from

underneath the truck, he pushed upward from the ground with his

right arm into the small space between two vehicles; I continued to

order the suspect to stay down.

10. As the suspect continued to stand and reach out, . . . . I then

attempted to control the suspect by grabbing him around the waist

and shoulders from behind. As he continued to stand, he dragged me

toward the rear of the garage at which time I feared that he would

escape.

11. Officer Korkowski who was behind me, then reached over me

and grabbed the suspect in a “chin cup”, which caused the three of us

to fall backward to the ground.

12. Thereafter I maneuvered to a position where I was lying on top

of the suspect and was able to bring the suspect’s arms behind his

back and thereafter ask for assistance in handcuffing the suspect.

13. On November 15, 1993, I did not at any time strike or kick the

suspect at any time prior to, during or subsequent to his arrest. 

Id., attached Affidavit of Officer Jeffrey Brown at 2-3. 
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These affidavits plainly reflect an objectively reasonable use of force to

apprehend a resisting felon who posed both a risk of flight and a potential danger

to the officers and family in the immediate area. Moreover, the affidavits are

borne out in material part by all of the pertinent reports and trial excerpts in our

record. Most importantly, as noted by the magistrate judge, plaintiff in his

deposition expressly adopted the statements made by officers Korkowski and

Brown describing the manner of their physical contact with plaintiff during his

arrest. R. doc. 75, exhibit C, at 17-19. In his objections to the magistrate judge’s

recommendation, which had relied primarily on the factual admissions made in his

deposition, plaintiff reversed himself and stated that he “does dispute the officers’

police reports and affidavits,” R. doc. 85 at 3, but never specified the substance of

and basis for this vacillating dispute. Such a vague and conclusory assertion does

not constitute a proper objection to the magistrate judge’s finding of facts. See

generally Soliz v. Chater, 82 F.3d 373, 375-76 (10th Cir. 1996). Indeed, plaintiff

went on to argue in his objection--as he had earlier in response to the motion for

summary judgment, see R. doc. 78 at 6-7--that excessive force had been

established precisely because of the facts related in the arresting officers’ reports

and affidavits, see R. doc. 85 at 4. Under the circumstances, we agree with the

district court that the entry of summary judgment on behalf of officers Korkowski

and Brown was appropriate.
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As for officers Wilson and Rasmussen, the magistrate judge noted that

uncontroverted evidence showed their involvement in plaintiff’s arrest had been

limited to handcuffing plaintiff and holding his arm while a bloodhound identified

him as the tracked suspect. Such conduct obviously cannot sustain a claim for

excessive force. Moreover, our conclusion that officers Korkowski and Brown

did not use excessive force forecloses any derivative claim that Rasmussen and

Wilson could be liable for failing to intervene on plaintiff’s behalf. See Mick, 76

F.3d at 1136 (“a law enforcement official who fails to intervene to prevent

another law enforcement official’s use of excessive force may be liable under

§ 1983")(emphasis added). 

We have considered all of the contentions raised by plaintiff, and, whether

expressly addressed or only tacitly rejected herein, each has been found meritless. 

The judgment of the United States District Court for the District of Colorado is

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Ruggero J. Aldisert 

Circuit Judge