Grissom v. Palm ( 2022 )

Appellate Case: 21-3194 Document: 010110726937 Date Filed: 08/19/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 19, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
RICHARD GRISSOM,
Plaintiff - Appellant,
v. No. 21-3194
(D.C. No. 5:19-CV-03178-EFM-ADM)
ANDREW PALM; DANIEL SCHNURR; (D. Kan.)
MARIA BOS; DUSTIN RANDOLPH;
ANDREW FUOSS; PATRICK
MANSFIELD; ABRAHAM LOEWEN,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and CARSON, Circuit Judges.
_________________________________
State prisoner Richard Grissom sued under 42 U.S.C. § 1983 for excessive force in
violation of the Eighth Amendment. The district court granted summary judgment to the
*
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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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Defendants, holding they were entitled to qualified immunity. Mr. Grissom, appearing
pro se, appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.1
I. BACKGROUND
A. Factual History
The following summarizes the facts presented to the district court on summary
judgment. We review the record in the light most favorable to the nonmovant, Mr.
Grissom. Emmett v. Armstrong, 973 F.3d 1127, 1130 (10th Cir. 2020). The evidence
included a declaration from Corrections Supervisor Andrew Palm and an affidavit from
Mr. Grissom setting forth their accounts of the altercation between them. ROA, Vol. I at
818-22, 852-64. It also included a video of the incident taken from a prison surveillance
camera. See ROA, Vol. III.2
On November 25, 2017, Mr. Grissom was imprisoned at the Kansas Department
of Corrections (“KDOC”) El Dorado facility. Officer Palm walked by Mr. Grissom’s
1
We construe Mr. Grissom’s pro se filings liberally, but we do not act as his
advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005).
2
The video was sealed in district court. Appellees argue it should continue to
be sealed to protect prison security. In their publicly filed brief, they nonetheless
describe in detail the altercation between Officer Palm and Mr. Grissom based upon,
and with citations to, the video. So did the district court in its summary judgment
order. The video will remain sealed, but Appellees have waived any interest in
sealing written descriptions of the altercation based on the video in their brief or in
this Order and Judgment.
Based on the parties’ filings in this court on the sealing issue, we remanded to
the district court for factual findings regarding Mr. Grissom’s access to the video.
On remand, the district court found he “had the opportunity to view the video upon
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second-floor cell and saw him holding a bag containing a “green leafy substance.” Id.
at 818. He asked the control booth to open Mr. Grissom’s door so he could determine
whether the substance was contraband. When the door opened, Officer Palm asked to see
the bag. Mr. Grissom told him the bag contained sage and to verify with the Captain’s
Office that he could have it for religious purposes.
Mr. Grissom gave the bag to Officer Palm but became upset at the way Officer
Palm was handling it, telling him to stop trying to open the bag “because he was unclean
and going to contaminate [it].” Id. at 853. When Officer Palm asked to see a box Mr.
Grissom was holding, Mr. Grissom “reached for the sage” and said, “then give me that
back.” Id. (quotations omitted). Officer Palm believed Mr. Grissom was “aggressively
attempt[ing] to snatch the bag from [his] hands.” Id. at 819. Mr. Grissom countered that
Officer Palm “overreacted,” complaining that he was “simply going to trade the . . . box
. . . for the [sage that] [Officer] Palm was holding.” Id. at 850. Mr. Grissom asked to see
the Captain to resolve the matter.
Officer Palm ordered Mr. Grissom to turn around to be handcuffed for transit to
the Captain’s Office. When Officer Palm ordered him to turn his wrist, Mr. Grissom
request.” Mem. & Order at 6, Grissom v. Palm, No. 19-3178-EFM (D. Kan. Aug. 9,
2022), ECF # 81.
Further, on remand, the district court, in its July 15, 2022 order, invited
Mr. Grissom to submit any additional evidence to that court, but he did not do so. In
a filing to this court on August 17, 2022, Mr. Grissom continues to contest this
matter, but he has not shown that the district court’s finding in its August 9, 2022
order was clearly erroneous. See Ramos v. Banner Health, 1 F.4th 769, 777 (10th
Cir. 2021) (“We review the district court’s findings of fact for clear error.”).
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replied that he had “shoulder inflexibility” and the handcuffs did not “allow for
movement.” Id. at 851. Officer Palm had previously handcuffed Mr. Grissom and was
aware that he preferred “two sets of cuffs,” but he was unable to do so here because
Mr. Grissom was “moving his arm in a back and forth motion and refusing to turn his
wrist to allow the first handcuff to be secured on his wrist.” Id. at 820. Mr. Grissom
turned back toward Officer Palm, who “issued an ‘officer needs assistance’ call” as he
tried to handcuff Mr. Grissom. Id.The situation quickly deteriorated. Officer Palm claimed that Mr. Grissom
abruptly turned, knocking the handcuffs “across the cell” and prompting him to
“assume[] a defensive fighting stance and block[] several strikes from [Mr.] Grissom.”
Id. at 821. Mr. Grissom argued that Officer “Palm was the culprit who was throwing
punches while [he] deflected them.” Id. at 854. Mr. Grissom denied knocking the
handcuffs across the cell and claimed that Officer Palm instead “used them like brass
knuckles in his attempts to strike [him].” Id. at 853-54.
Mr. Grissom said he pushed Officer Palm back toward the cell’s opening but
Officer Palm grabbed his arm and tried to pull him forward. Officer Palm said he
retreated out of the cell and “deployed OC.” Id. at 821.3 He claimed that Mr. Grissom
also exited the cell, striking him and trying to throw him over the second-floor railing.
3
“OC” refers to oleoresin capsicum, a chemical agent commonly known “as
pepper spray or mace.” Id. at 771.
4
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To defend himself, Officer Palm said that he repeatedly struck Mr. Grissom in the head
with the metal OC canister.
Mr. Grissom said he struck Officer Palm only once, and only in the stomach while
Officer Palm had placed him in a painful headlock. Mr. Grissom denied trying to throw
Officer Palm over the railing, stating that instead “he was going to body slam [him] onto
the . . . floor they were standing on.” Id. at 854. Mr. Grissom said that he grabbed
Officer Palm’s legs, “picked him up,” but then “simply laid him ‘gently’ onto the tier”
and complied with responding officers’ request to cuff up. Id. at 861.
The video of the incident came from a camera on the other side of the tier.4 The
camera did not record sound, but the video mostly confirmed Officer Palm’s version. It
showed the following.
After Mr. Grissom’s cell door opened, Officer Palm and Mr. Grissom spoke for
about two minutes. Mr. Grissom pointed and moved his arms while speaking. Officer
Palm began one of three attempts to handcuff him. After the second attempt,
Correctional Officer Abraham Loewen arrived and stood to the side of the cell. On the
third attempt, Mr. Grissom jerked his arm away from Officer Palm, who pushed Mr.
Grissom against the inside cell wall. Officer Palm quickly backed off and assumed a
fighting stance. He and Mr. Grissom punched and blocked punches for five to ten
seconds. Mr. Grissom advanced toward the cell door. Officer Palm backed up and
4
Mr. Grissom’s cell was located among a second-tier row of cells. The
walkway outside the cells had a railing to prevent a fall to the ground level.
5
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grabbed an OC cannister from his utility belt. Two more officers arrived. One stood
several feet away from Mr. Grissom’s cell and the other stood near the top of the stairs as
other inmates approached.
Mr. Grissom came through the cell door toward Officer Palm, prompting him to
discharge a burst of OC spray into Mr. Grissom’s face. As Mr. Grissom emerged from
his cell, he swung his fist at Officer Palm’s head, making contact. Mr. Grissom then
wrapped his arm around Officer Palm’s waist. Attempting to free himself, Officer Palm
repeatedly struck Mr. Grissom in the head with his OC cannister. Another inmate then
attacked two of the responding officers.
As Officer Palm and Mr. Grissom struggled, Mr. Grissom grabbed Officer Palm’s
right leg and began to pick him up next to the second-floor guard rail. Both men fell on
the floor outside the cell. Officer Loewen pushed Mr. Grissom back into his cell while
Officer Palm discharged his OC cannister again toward Mr. Grissom. Responding
officers secured the scene, handcuffed Mr. Grissom, and escorted him out of the cell.
The attending nurse at the prison infirmary examined Mr. Grissom. She reported
that he had an abrasion to his right shin; several marble-sized knots on his scalp; a red,
swollen left ear; an abrasion with bruising to his upper back; a scratch on his neck and
under his lower lip; and burning sensations in his eyes and on his skin from the OC.
Mr. Grissom complained of a headache, dizziness, and blurred vision.
A KDOC internal investigation found that Officer Palm’s poor judgment, lack of
communication, and unnecessary force escalated the situation. He received a three-day
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suspension. KDOC penalized Mr. Grissom with segregation time for battery and
disobeying orders. In January 2018, KDOC transferred him to its Hutchinson facility.
B. Procedural History
Mr. Grissom sued Officer Palm, Officer Loewen, and other KDOC personnel
under 42 U.S.C. § 1983. He claimed Eighth Amendment violations because Officer Palm
used excessive force, Officer Loewen failed to intervene to protect him, and others
approved of Officer Palm’s actions and retaliated against him.
In response to the Defendants’ summary judgment motion, Mr. Grissom argued
only his excessive force claims against Officers Palm and Loewen. The district court
thus dismissed the claims against the other Defendants. It then determined that Officers
Palm and Loewen were entitled to qualified immunity and granted summary judgment to
them because (1) “the video confirm[ed] . . . [Mr. Grissom’s] aggression and violent
assault on [Officer] Palm”; and (2) Mr. Grissom identified “no case finding a
constitutional violation under similar circumstances.” ROA, Vol. I at 917, 918.
Mr. Grissom appeals the summary judgment based on qualified immunity granted
to Officers Palm and Loewen.
II. DISCUSSION
A. Standard of Review and Qualified Immunity
“We review de novo the district court’s order granting summary judgment . . . on
qualified-immunity grounds.” Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir.
2018). “When a defendant asserts qualified immunity at summary judgment, the burden
shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant’s
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motion.” Id. (quotations omitted). The plaintiff must “show (1) a reasonable jury could
find facts supporting a violation of a constitutional right, which (2) was clearly
established at the time of the defendant’s conduct.” Gutierrez v. Cobos, 841 F.3d 895,
900-01 (10th Cir. 2016) (quotations omitted). “We have discretion to address the two
qualified-immunity prongs in whatever order is appropriate under the circumstances.”
Toevs v. Reid, 685 F.3d 903, 910 (10th Cir. 2012).
In conducting our analysis, we “view the evidence, and all inferences arising from
that evidence, in the light most favorable to the nonmoving party[;] . . . this usually
means adopting the plaintiff’s version of the facts.” Emmett v. Armstrong, 973 F.3d
1127, 1130 (10th Cir. 2020) (ellipsis and quotations omitted). But “[w]hen the record on
appeal contains video evidence of the incident in question, . . . we will accept the version
of the facts portrayed in the video . . . to the extent that it blatantly contradicts the
plaintiff’s version of events.” Id. at 1131 (brackets and quotations omitted).
B. Excessive Force
“[C]laims of excessive force involving convicted prisoners arise under the Eighth
Amendment.” Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014). The
plaintiff must establish objective and subjective elements. Redmond v. Crowther, 882
F.3d 927, 936 (10th Cir. 2018). The objective element “asks if the alleged wrongdoing
was objectively harmful enough to establish a constitutional violation.” Id. (quotations
omitted). The subjective element concerns whether “the official[ ] acted with a
sufficiently culpable state of mind,” such that he “use[d] force maliciously and
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sadistically for the very purpose of causing harm, rather than in a good faith effort to
maintain or restore discipline.” Redmond, 882 F.3d at 936 (quotations omitted).
On appeal, Mr. Grissom pursues three excessive-force theories: (1) “assault and
battery,” Aplt. Br. at 6; (2) use of regular-sized handcuffs; and (3) failure to intervene.
But even if we assume that Officer Palm used excessive force, we affirm because
Mr. Grissom has failed to show a constitutional violation based on clearly established
law.
C. Clearly Established Law
“A clearly established right is one that is sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Mullenix v.
Luna, 577 U.S. 7, 11 (2015) (per curiam) (quotations omitted). The Supreme Court has
“repeatedly told courts not to define clearly established law at too high a level of
generality.” City of Tahlequah v. Bond, 142 S. Ct. 9, 11-12 (2021) (per curiam). “The
dispositive question is whether the violative nature of particular conduct is clearly
established.” Mullenix, 577 U.S. at 12. Accordingly, our “inquiry must be undertaken in
light of the specific context of the case, not as a broad general proposition.” Id.
(quotations omitted).
“A Government official’s conduct violates clearly established law when, at the
time of the challenged conduct,” “existing precedent . . . [has] placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
“[T]he ‘clearly established’ analysis” requires “identify[ing] a case where an officer
act[ed] under similar circumstances.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per
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curiam). In other words, “officers are entitled to qualified immunity unless existing
precedent squarely governs the specific facts at issue.” Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018) (per curiam) (quotations omitted). “A Supreme Court or Tenth Circuit
decision on point or the weight of authority from other courts can clearly establish a
right.” Ashaheed v. Currington, 7 F.4th 1236, 1246 (10th Cir. 2021) (quotations
omitted).
Although “general statements of the law are not inherently incapable of giving fair
and clear warning to officers,” the unlawfulness of their conduct “must be apparent” “in
the light of pre-existing law.” White, 137 S. Ct. at 552 (quotations omitted).
Assault & Battery
The surveillance video shows that (1) Officer Palm attempted to handcuff
Mr. Grissom, (2) Mr. Grissom jerked his hand away on the third attempt, and (3) the
situation deteriorated into a violent struggle as Officer Palm tried to gain control of
Mr. Grissom and defend against his aggression. Officer Palm repeatedly struck
Mr. Grissom on the head with the metal OC canister and tried to hit him in the face with
the handcuffs.5
Mr. Grissom fails to identify a single Supreme Court or Tenth Circuit case to show
clearly established law. Instead, he identifies two Eleventh Circuit cases, but because
5
Mr. Grissom does not challenge Officer Palm’s application of OC spray as
excessive. “Issues not raised in the opening brief are deemed abandoned or waived.”
Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (quotations
omitted).
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they concerned distinguishable circumstances, neither would have put a reasonable
officer in Officer Palm’s position on notice of a constitutional violation.
First, he mentions Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002), abrogated
on other grounds as recognized in Patel v. Lanier Cnty., 969 F.3d 1173, 1185-86 (11th
Cir. 2020). It affirmed a jury’s award of damages against corrections officers who had
taken the prisoner into his cell, choked and punched him, and then threw him to the floor,
where they kicked him and beat him “with batons until he lost consciousness.” Id. at
1312. But Johnson, unlike here, did not involve an inmate initiating a struggle during an
officer’s handcuffing attempts that escalated into a fight with that officer.
Second, Mr. Grissom also cites, Fennell v. Gilstrap, 559 F.3d 1212, 1220 (11th
Cir. 2009), abrogated on other grounds as recognized in Patel v. Lanier Cnty., 969 F.3d
1173, 1185-86 (11th Cir. 2020). There, six officers struggled to handcuff a combative
pretrial detainee. Another officer entered the room and tried to kick the detainee’s arm so
he would release his grip on an officer, but he inadvertently kicked the detainee in the
face and seriously injured him. Id. at 1214, 1219. The Eleventh Circuit determined that
the officer who kicked the detainee did not use excessive force because the detainee was
resisting the handcuffing attempts and “did not let go of [the other officer’s] arm despite
being punched.” Id. at 1218-19. This factual scenario differs from Officer Palm’s efforts
to defend himself, even if he did so aggressively, against Mr. Grissom’s attacks. The
cases Mr. Grissom cites therefore did not clearly establish the law.6
6
Although Mr. Grissom bears the burden of showing clearly established law,
see Gutierrez, 841 F.3d at 900-01, we also have not found a case that would have put
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We have recognized that “when prison officials must act to preserve internal order
and discipline,” they enjoy “wide-ranging deference.” Redmond, 882 F.3d at 938
(quotations omitted). “[A] prison guard, to maintain control of inmates, must often make
instantaneous, on-the-spot decisions concerning the need to apply force without having to
second-guess himself.” Sampley v. Ruettgers, 704 F.2d 491, 496 (10th Cir. 1983). This
explains the lack of case law that would make it “sufficiently clear that every reasonable
official [in Officer Palm’s position],” Mullenix, 136 S. Ct. at 308, would have understood
that the force he employed against Mr. Grissom—in both defending against his
aggression and restoring order—violated the Eighth Amendment. See Ashaheed, 7 F.4th
at 1247 n.6 (noting that factual specificity between prior precedent and the instant case is
“especially important” in the excessive-force context because “officers are forced to
make split-second judgments about the amount of force that is necessary” (alterations and
quotations omitted)).
Decisions in this circuit and elsewhere have rejected excessive-force claims where
one or more corrections officers used force to gain control of a combative or resistant
a reasonable officer in Officer Palm’s position on notice that his actions violated the
Eighth Amendment. Mr. Grissom used force and grappled violently with Officer
Palm. This differs, for instance, from the prisoner’s claim in Wilkins v. Gaddy, 559
U.S. 34 (2010), where a corrections officer allegedly slammed the prisoner onto the
concrete floor and then punched, kicked, kneed, and choked him simply for
requesting a grievance form. Id. at 38 (holding that “[a]n inmate who is gratuitously
beaten by guards does not lose his ability to pursue an excessive force claim merely
because he has the good fortune to escape without serious injury”).
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prisoner.7 Particularly instructive is Miller v. Glanz, 948 F.2d 1562 (10th Cir. 1991), in
which this court addressed two separate incidents and reached different outcomes under
the Eighth Amendment. First, we determined that an officer did not maliciously and
sadistically “knock[] [Mr.] Miller to the floor” and “scuffle” with him after Mr. Miller
had exited the law library without permission, resisted the officer’s handcuffing efforts,
and “wrestled with [the officer].” Id. at 1564, 1567. On the other hand, we found
malicious and sadistic conduct where multiple officers later entered Mr. Miller’s holding
cell and badly injured him by kicking, choking, beating and stomping him while he was
restrained. Id.7
See, e.g., Lehman v. McKinnon, No. 20-1312, 2021 WL 4129229, at *1, *3 (10th
Cir. Sept. 10, 2021) (unpublished) (determining that officer’s use of “[f]orce was surely
necessary to overcome [inmate’s] assault” where inmate had begun to comply with
officer’s handcuffing order but then threw several punches and caused the officer to fall
to the floor, where the inmate delivered several more blows); Tate v. Rockford, 497
F. App’x 921, 925 (11th Cir. 2012) (unpublished) (concluding that corrections “officers
might have reasonably believed” it was necessary to use force to subdue inmate,
including beating him and hitting him with handcuffs, where the inmate had “recent prior
violent behavior” against one of the officers, was yelling at the officers as they escorted
him down a crowded hall, and then turned toward an officer); and Hughes v. Smith, 237
F. App’x 756, 759 (3d Cir. 2007) (unpublished) (indicating that force was necessary
where inmate resisted officer’s entry into his cell and “scuffl[ed]” with officer, who
responded by punching inmate and placing him in a headlock (quotations omitted)).
Unpublished cases, even those from other circuits, can indicate that the law is not clearly
established. See City and County of San Francisco v. Sheehan, 575 U.S. 600, 617 (2015)
(suggesting that a “robust consensus of cases of persuasive authority” showed that the
federal right advanced by the plaintiff was not clearly established (quotations omitted));
Thompson v. Ragland, 23 F.4th 1252, 1260 n.3 (10th Cir. 2022) (observing that
unpublished opinions “can be quite relevant in showing that the law was not clearly
established” (quotations omitted)).
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The facts of Mr. Grissom’s case are much closer to the first Miller incident than
the second. Officer Palm attempted to handcuff Mr. Grissom for transit purposes and
quickly found himself engaged in a violent fight where he needed to defend himself and
regain control of the situation. As noted, we have not “identif[ied] a case where an
officer acting under similar circumstances was held to have violated the [Eighth]
Amendment.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (ellipsis and
quotations omitted).
Finally, we reject Mr. Grissom’s suggestion that the “infringement of [his] rights
[was] obvious.” Aplt. Br. at 5. Granted, “[g]eneral statements of the law can clearly
establish a right for qualified immunity purposes if they apply with obvious clarity to the
specific conduct in question.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018)
(quotations omitted). But we fail to see how Officer Palm’s use of the handcuffs and OC
canister while attempting to subdue Mr. Grissom obviously qualifies as “malicious[] and
sadistic[]” uses of force, rather than “good faith effort[s] to maintain or restore
discipline.” Redmond, 882 F.3d at 936.
Because Mr. Grissom has not shown it was clearly established on November 25,
2017, that the force Officer Palm used was excessive, we conclude that qualified
immunity applies.8
8
Mr. Grissom contests qualified immunity because KDOC found that Officer
Palm violated its Internal Management Policies and Procedures regarding the use of
force. But such a finding is not dispositive on qualified immunity. See Groh v.
Ramirez, 540 U.S. 551, 564 n.7 (2004) (noting that, standing alone, an official is not
“deprived of qualified immunity whenever he violates an internal guideline”); Wilson
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Handcuffing
We reach the same conclusion on Mr. Grissom’s handcuffing claim. He identifies
no authority, and we have found none, clearly establishing that an officer’s attempt to
apply regular-size handcuffs on an inmate who may need large-size handcuffs violates
the Eighth Amendment. See Stevenson v. Cordova, 733 F. App’x 939, 946 (10th Cir.
2018) (unpublished) (finding no authority “in this circuit or otherwise” clearly
establishing that an officer violates the Eight Amendment by refusing to loosen a
prisoner’s handcuffs).
Failure to Intervene
Because we conclude it was not clearly established that Officer Palm’s use of
force was unlawful, it necessarily follows that Officer Loewen did not have a clearly
established obligation to intervene to stop such force. See Ricciuti v. N.Y. City Transit
Auth., 124 F.3d 123, 129 (2d Cir. 1997) (observing that an officer “cannot be held liable
in damages for failure to intercede unless such failure permitted fellow officers to violate
a suspect’s clearly established statutory or constitutional rights of which a reasonable
person would have known” (quotations omitted)).
v. Meeks, 52 F.3d 1547, 1554 (10th Cir. 1995) (observing that “violation of a police
department regulation is insufficient for liability under section 1983”).
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III. CONCLUSION
Because Mr. Grissom has failed to show a violation of a right that was clearly
established, Officers Palm and Loewen are entitled to summary judgment based on
qualified immunity. We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
16