961 F.

2d 219
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Vince FORD, Plaintiff-Appellant,

v.
Jay GRUWELL, Vernon Poage, David Thompson, James
Arnold, and
Roy Martin, Defendants-Appellees.
No. 91-8005.

United States Court of Appeals, Tenth Circuit.

April 7, 1992.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and

CAUTHRON, District Judge.*
ORDER AND JUDGMENT**
McWILLIAMS, Circuit Judge.

Vince Ford, a Wyoming citizen and resident, brought a civil rights action
pursuant to 42 U.S.C. 1983 against Jay Gruwell, Vernon Poage, David
Thompson, and James Arnold, all members of the Wyoming State Highway
Patrol, and others (we are not here concerned with the "others"), alleging that
the four officers acting under the color of state law conspired to violate his
rights under the First, Fourth, and Fifth Amendments. The four defendants by
answer denied liability. Discovery ensued, and, inter alia, Ford was deposed.
The defendants then moved for summary judgment based on the defense of
qualified immunity. After argument, the district court granted defendants'
motion for summary judgment and dismissed Ford's action. Ford appeals.
Ford, a long-time resident of Wyoming, was self-employed in the outdoor sign

advertising business, and also, in season, sold fireworks. The latter enterprise
involved towing mobile homes around the northeast part of Wyoming to
strategic places where fireworks were then sold out of the mobile homes. Both
of Ford's business endeavors involved considerable use of Wyoming highways,
where, through the years, he had numerous encounters with the Wyoming State
Highway Patrol. In his second amended complaint, Ford, under the heading of
General Allegations, set forth facts relating to some seven confrontations with
the defendants, or a combination thereof. In his opening brief, counsel for Ford
states that the only issue on appeal is Ford's claim that his Fourth Amendment
rights were violated by the four members of the Wyoming State Highway
Patrol based on events happening on February 26, 1989 and July 6, 1989.

Paragraph 14 of Ford's second amended complaint concerns the events

happening on February 26, 1989, and reads as follows:

14. On or about February 26, 1989, Plaintiff and his family were driving north
on Highway 85, bound for their home in Lusk, Wyoming, when stopped by
Defendant Gruwell. Once again, Defendant Gruwell claimed Plaintiff was
speeding. When Plaintiff refused to sign the "promise to appear" section of the
citation Defendant Gruwell issued him, Defendant Gruwell proceeded to
handcuff and arrest Plaintiff. In the course of this arrest, Defendant Gruwell's
excessive use of force caused Plaintiff's wrists to suffer lacerations from the
handcuffs. In addition, Plaintiff's hip, which contained a pin from a previous
fracture, was caused to suffer pain and inflammation as a result of the arrest
proceeding. Plaintiff was not, however, taken to any place of incarceration;
rather, Defendant Gruwell transported Plaintiff to Lusk, Wyoming, informed
him that he would accept a fifty-five dollar ($55.00) bond in lieu of signature,
and released him.

Paragraph 16 of the second amended complaint concerns the events happening

on July 6, 1989, and reads as follows:

16. On or about July 6, 1989, Defendants Gruwell, Poage, Thompson and

Arnold entered Plaintiff's private property in Lusk, Wyoming, demanding to see
certain "paperwork" for a mobile home parked on Plaintiff's property.
Defendants asserted that Plaintiff had not been issued an appropriate permit for
allegedly transporting the mobile home at some earlier point in time. Plaintiff
directed Defendants to the visible and appropriate permit tag affixed to the
mobile home for such purposes. When Defendants refused to examine the
permit tag, Plaintiff demanded that Defendants remove themselves from his
property. Defendants refused to depart, despite repeated similar demands.
Instead, they remained on Plaintiff's property for some forty-five (45) minutes

to harass, annoy, humiliate and embarrass Plaintiff without cause and with no
ensuing citation or arrest.
7

In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that all
claims that law enforcement officers have used excessive force in the course of
an arrest, investigatory stop, or other "seizure" of a person should be analyzed
under the "reasonableness" standard of the Fourth Amendment, rather than a
"substantive due process" standard. Further, the Supreme Court stated that the
"reasonableness" of a particular use of force should be judged from the
perspective of a "reasonable officer" on the scene, rather than with a hindsight
vision of 20-20. In this latter connection, the Supreme Court quoted with
approval the language of Judge Friendly in Johnson v. Glick, 481 F.2d 1028
(2nd Cir.), cert. denied, 414 U.S. 1033 (1973) that "[n]ot every push or shove,
even if it may later seem unnecessary in the peace of a judge's chambers,"
violates the Fourth Amendment. In Graham, the Supreme Court reversed the
Fourth Circuit because it had upheld the district court's use of the four-part
"substantive due process" standard in granting a motion for a directed verdict,
rather than using the "objective reasonableness" test of the Fourth Amendment.

In the instant case, the district court was fully apprised of Graham and the
standard promulgated therein by the Supreme Court. As indicated, the
defendants, relying on Ford's allegations in his second amended complaint and
his deposition, moved for summary judgment on the ground of qualified
immunity. In granting summary judgment, the district court recognized the
clearly established "right of an arrestee to be free from excessive force," but
went on to hold that Ford had "not demonstrated that the specific conduct [of
defendant Gruwell on February 26, 1989] violated his right to be free from such
[excessive] force."

In Coen v. Runner, 854 F.2d 374, 377 (10th Cir.1988), we spoke as follows:

10

Qualified immunity is an affirmative defense that protects government officials

from personal liability unless their actions violate clearly established law of
which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Once the defense has
been raised and the plaintiffs have met their burden of identifying both the
clearly established law that the government official is alleged to have violated
and the conduct that violated that law, the defendant must demonstrate that no
material issues of fact remain as to whether his or her actions were objectively
reasonable in light of the law and the information he or she possessed at the
time. Pueblo Neighborhood Health centers, Inc. v. Losavio, 847 F.2d 642, 646
(10th Cir.1988). A defendant who makes such a showing of objective

reasonableness is entitled to summary judgment unless the plaintiff can

demonstrate that there are factual disputes relevant to the defendant's claim to
immunity. DeVargas v. Mason & Hanger-Silas Co., 844 F.2d 714, 719 (10th
Cir.1988) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815,
86 L.Ed.2d 411 (1985).
11

From the allegations in the second amended complaint, and from Ford's
deposition, we learn that on February 26, 1989, Officer Gruwell stopped a
vehicle in the belief that the driver was speeding. The driver of that vehicle was
Ford. The officer believed that Ford was driving 75 miles per hour, and Ford
believed he was doing 55 miles per hour. That difference of opinion, of course,
simply required resolution by an impartial judge.

12

Ford was then given the opportunity to sign the "promise to appear" portion of
the speeding citation issued him, which he refused to do. If he had signed the
"promise to appear," Ford would apparently have been free to go. When Ford
refused to sign the "promise to appear," Officer Gruwell, under Wyoming law,
was apparently empowered to arrest Ford, which he proceeded to do. Ford,
under orders from Gruwell, put his hands behind his back, spread his legs, the
handcuffing procedure apparently requiring a "wide stance" on the part of the
arrestee, and the officer then handcuffed him. Ford, in his deposition, said the
cuffs were too tight and scraped his wrists, drawing blood, and that when
spreading his legs Gruwell kicked his legs farther apart and that in so doing he
aggravated a pre-existing hip injury.

13

In that same deposition, however, Ford admitted that he suffered only a "skin
scratch" from the handcuffs, that he was not claiming any "damages" for
injuries arising out of his arrest by Officer Gruwell, and that he did not seek or
require any medical attention as a result of his encounter with Officer Gruwell
on February 26, 1989. In any event, Ford was then transported to Lusk,
Wyoming where he was given the opportunity of posting bond or going to jail.
He posted bond and went on his way.

14

Apparently it is agreed that under the circumstances described, Officer Gruwell

had the right to arrest Ford, which included the right to have him handcuffed.
Like the district court, using the "objective reasonableness" test, we see no
violation of Ford's Fourth Amendment rights growing out of the conduct of the
defendant Gruwell on February 26, 1989. See Hannula v. City of Lakewood,
907 F.2d 129, 132 (10th Cir.1990) where we held that the defendant, a police
officer, was entitled to summary judgment based on qualified immunity, and in
so doing we held, inter alia, that where the officer was making a lawful arrest a
failure to loosen tight handcuffs which caused pain and minimal injury was not

"excessive force."*** Under the Graham test, we believe that summary

judgment in favor of the defendant, Officer Gruwell, was proper as concerns
Ford's claim based on the events of February 26, 1989.
15

Further, we agree that the actions of the officers on July 6, 1989, meet the
"objective reasonableness" test of Graham. As concerns the events of July 6,
1989, it is apparently Ford's theory that the defendants' conduct on that date
somehow constituted a "seizure" of his person. As the district court noted the
defendants did not arrest or otherwise "seize" Ford, and they were lawfully on
Ford's business premises "to determine whether or not the vehicle had been
properly permitted."

16

On July 6, 1989, defendants Arnold and Thompson, had observed Ford moving
an over-size trailer on the state highway and they dispatched defendants
Gruwell and Poage to check out the trailer and ascertain if there had been
compliance with Wyoming law regarding the movement of trailers on the
state's highways. When Gruwell and Poage arrived at Ford's business premises,
Ford was in the process of unhitching the trailer from a pickup. Officers Arnold
and Thompson arrived at the scene shortly thereafter. The officers checked the
vehicle in question and requested that Ford produce the proper paperwork
showing compliance with Wyoming law. Ford refused. While the officers were
still on the premises Ford called and spoke with his attorney. Officer Poage also
spoke briefly with Ford's attorney. The officers then left without issuing any
citation.

17

There admittedly was a sharp verbal exchange between Ford and the officers at
this confrontation on July 6, 1989, during which Officer Gruwell allegedly put
his hand on his service revolver and pulled it partially out of the holster.
However, there is no suggestion that the revolver was pulled completely out of
its holster, let alone pointed at Ford. Further, whether the officers were on the
premises 45 minutes, as alleged by Ford, or 15 minutes, as shown by patrol
records, is not particularly important. What is important is that no arrest was
made, no citation issued, no seizure of any "papers or effects," and, in our view,
there was, under the circumstances, no "seizure" of Ford's person within the
Fourth Amendment. It would seem to us that the officers had the right to at
least investigate the matter. In this connection, counsel suggests that defendants'
actions on July 6, 1989, in coming into the yard surrounding Ford's business
premises was at most a common law trespass, which would not form the basis
for a 1983 action. We agree. Under the described circumstances, summary
judgment in favor of the four defendants was proper as concerns Ford's claim
based on the events of July 6, 1989.

18

In short, in the words of Judge Friendly, not every "push and shove" violates
the Fourth Amendment, nor, we add, does every kick. The instant case does not
rise to the dignity of a 1983 action.

19

Judgment affirmed.

Honorable Robin J. Cauthron, United States District Judge for the Western
District of Oklahoma, sitting by designation

**

This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3

*** In Hannula, at p. 131, we also stated that because of "societal costs" once a
defendant raises a qualified immunity defense in a 1983 proceeding the
plaintiff assumes the "heavy burden" to show that the defendant has violated
clearly established law and that a plaintiff must also show a "substantial
correspondence" between defendant's conduct and such clearly established law