Rowell v. Muskogee County Board ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 27, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ZACHARY ROWELL, as Special
Administrator in the matter of the Estate of
Marvin A. Rowell, and individually,
Plaintiff - Appellant,
v. No. 19-7062
BOARD OF COUNTY
COMMISSIONERS OF MUSKOGEE
COUNTY, OKLAHOMA; DAKOTA
WEST, in his individual capacity; JACOB
SLAY, in his individual capacity; LACY
ROSSON, in her individual capacity; ROB
FRAZIER, Sheriff, in his official capacity,
Defendants - Appellees,
_________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:18-CV-00125-RAW)
_________________________________
Stanley D. Monroe, Stanley D. Monroe, PC (James A. McAuliff, with him on the briefs),
Tulsa, Oklahoma, for the Plaintiff - Appellant.
Andy A. Artus (Jamison C. Whitson, and Taylor M. Riley, with him on the brief), Collins
Zorn & Wagner, P.C., Oklahoma City, Oklahoma, for Board of County Commissioners
of Muskogee County, Oklahoma, Jacob Slay, Lacy Rosson, and Sheriff Rob Frazier,
Defendants - Appellees.
Carson C. Smith (Robert S. Lafferrande, and Charles A. Schreck, with him on the brief),
Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for
Dakota West, Defendant - Appellee.
_________________________________
Before MATHESON, BACHARACH, and MCHUGH, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Marvin A. Rowell was arrested for public intoxication and brought to the
Muskogee County Jail (the “Jail”) in Muskogee, Oklahoma. In response to Mr. Rowell’s
uncooperative conduct during processing, Jail officials decided to move him from the
intake room to another room to place him in a restraint chair. In escorting Mr. Rowell
down a hallway, Officer Dakota West applied forward pressure to Mr. Rowell’s right
arm. After taking a few steps, Mr. Rowell fell and hit his head. He died shortly after
from multiple blunt impact injuries to his head, which caused an acute subdural
hematoma.
The Estate of Mr. Rowell (the “Estate”), through administrator Zachary Rowell,
sued Officer West, alleging a Fourteenth Amendment excessive force violation under
42 U.S.C. § 1983. The Estate also brought claims for failure to intervene against Officer
Jacob Slay, supervisory liability against Shift Supervisor Lacy Rosson, and municipal
liability against Muskogee County Sheriff Rob Frazier in his official capacity and the
Board of County Commissioners of Muskogee, Oklahoma (the “County”). The district
court granted summary judgment for the Defendants because it found that Officer West
had not committed a constitutional violation. The Estate timely appealed. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
2
I. BACKGROUND
A. Factual Background
We describe (1) the arrest and initial processing of Mr. Rowell at the Jail, (2) Mr.
Rowell’s time in the intake room, (3) Mr. Rowell’s fall in the hallway, and (4) the events
immediately after Mr. Rowell’s fall. We draw primarily from Jail video footage.1
The Arrest and Initial Processing
On an early Saturday morning in January 2016, Mr. Rowell was arrested for
public intoxication. When he arrived at the Jail, an official brought him to a hallway.
For roughly two minutes, Shift Supervisor Rosson questioned Mr. Rowell and then
another officer physically searched him. The video shows that Mr. Rowell slurred his
words and stumbled around. He appeared able to understand and answer Shift Supervisor
Rosson’s questions.
The Intake Room
After this initial questioning, Mr. Rowell was brought to a small intake room.
Officer Slay and Shift Supervisor Rosson were working in an adjoining room at the
intake window, doing paperwork to book and process Mr. Rowell and one other detainee
1
Because this appeal arises from the district court’s grant of summary judgment,
we describe the facts in the light most favorable to the Estate as the nonmoving party.
See Ezell v. BNSF Ry. Co., 949 F.3d 1274, 1278 (10th Cir. 2020). “[W]e will accept the
version of the facts portrayed in the video, but only to the extent that it ‘blatantly
contradict[s]’ the plaintiff’s version of events.” Emmett v. Armstrong, 973 F.3d 1127,
1131 (10th Cir. 2020) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
3
who was in the intake room. Officer West was in a control area not visible in the video.
He could see and hear the intake room through a video feed.
Mr. Rowell was in the intake room for almost eight minutes. He continued to
display signs of intoxication by stumbling while walking and swaying from side to side
while standing. He intermittently approached the window. At one point, while Mr.
Rowell stood near the window, Officer Slay told Mr. Rowell to “sit down for me.”
Suppl. App., Vol. I at 80, 9:42-9:48. Mr. Rowell leaned near the window for about 20
seconds before returning to sit on a bench. About one-and-a-half minutes later, Mr.
Rowell stood and started to wander around again. Shift Supervisor Rosson told him that
he needed “to calm down.” Id. at 12:16-12:20. About one minute later, Officer West
appeared at the intake window and asked Mr. Rowell, “What are you getting hyped up
about?” Id. at 13:33-13:36. Mr. Rowell said something inaudible. Officer West told him
to “chill out” and to “sit down.” Id. at 13:37-13:47.
Mr. Rowell was not violent or disruptive in the intake room. But he was less
cooperative than the other detainee, whom the officers never admonished and who
remained seated for most of the time.
Mr. Rowell’s Fall
Officers West and Slay exited from behind the window and entered the intake
room to confront Mr. Rowell. They spoke with him for about 45 seconds, then led him
into the adjacent Jail hallway, intending to bring Mr. Rowell to a restraint chair located in
4
another room.2 Mr. Rowell walked out first; Officer West walked one step behind him;
and Officer Slay trailed a few steps behind Officer West. Mr. Rowell took a few steps
down the hall with his head turned back over his right shoulder while speaking to
Officers West and Slay. Officer West grabbed his upper right arm and applied forward
pressure as they continued to move forward.
While Officer West was applying forward pressure to Mr. Rowell’s right arm and
while Mr. Rowell’s head was still turned over his right shoulder looking back toward
Officer West, Mr. Rowell fell into the wall and onto the ground, hitting his head.
The conversation between Officer West and Mr. Rowell during the few seconds in
the hallway before the fall is inaudible on the video. Officer Slay testified at his
deposition that Mr. Rowell “[kept] turning trying to face [Officer West], and [Officer
West] [was] telling him you need to walk straight.” App., Vol. I at 125. He further
testified that Mr. Rowell “was saying stuff,” but “his speech was slurred and impaired.”
Id. at 126. Officer West testified at his deposition that he decided to grab Mr. Rowell and
lead him down the hallway “[b]ecause when I asked him to walk straight, walk forward,
he was still having his body turned towards me, still talking, still being belligerent.” Id.
at 167. Officer West testified that he “was using the force I felt necessary to kind of
2
Shift Supervisor Rosson testified that, before Officer West and Officer Slay went
into the intake room, she had given Officer West authorization to place Mr. Rowell in the
restraint chair if Mr. Rowell did not change his behavior. Officer West testified that he
decided to place Mr. Rowell in the restraint chair, after consulting with Shift Supervisor
Rosson, because he was being loud and had not complied with directives to sit down.
5
guide him forward so he would walk forward. And he kept on turning his body towards
me. And that’s where we kind of go into the wall and that’s where he just falls down.”
Id. at 168.
The Post-Fall Events
After the fall, Mr. Rowell remained motionless on the ground. Officer West knelt
over Mr. Rowell’s body and attempted to resuscitate him. Officer Slay informed Shift
Supervisor Rosson over the radio that they needed to call emergency medical services.
Mr. Rowell was taken to Saint Francis Hospital in Tulsa, Oklahoma, and pronounced
dead shortly thereafter. The cause of death was multiple blunt impact injuries to the
head, which caused an acute subdural hematoma.
B. Procedural Background
The Estate sued in Oklahoma state court, and the Defendants removed the case to
federal court. The Estate brought claims under 42 U.S.C. § 1983 against (1) Officer West
for excessive force in violation of the Fourteenth Amendment, (2) Officer Slay for failure
to intervene, (3) Shift Supervisor Rosson for deliberate indifference in her individual
supervisory capacity, (4) Sheriff Frazier in his official capacity, and (5) the County for
municipal liability.3
3
The Estate also brought state law claims against the County. The district court
declined to exercise supplemental jurisdiction over those claims after entering judgment
for the Defendants on the § 1983 claims. It remanded the state law claims to state court.
The Estate does not contest the remand.
6
The Defendants moved for summary judgment. Officer West invoked qualified
immunity. He argued that he did not commit a constitutional violation because his
conduct was objectively reasonable under Kingsley v. Hendrickson, 576 U.S. 389 (2015),
in which the Supreme Court stated the standard for excessive force claims brought by
pretrial detainees. He also contended that he did not violate clearly established law
because no Supreme Court or Tenth Circuit case was sufficiently similar to the events
that occurred at the Jail. Officer Slay and Shift Supervisor Rosson argued they could not
be liable without an underlying constitutional violation and alternatively that they were
entitled to qualified immunity. The Sheriff and the County argued they could not be
liable without an underlying constitutional violation and that the Estate’s claims failed on
the merits.
The district court granted summary judgment to all Defendants. It “decline[d] to
adopt [Officer West’s] perspective that [Mr. Rowell] demonstrated more than mild ‘non-
compliance,’ ‘protest,’ and ‘resistance.’” App., Vol. III at 746. The court noted that
“[Mr. Rowell] suffered severe injury, did not seem to present a severe security problem,
and was not actively resisting.” Id. But the court found “no constitutional violation,
simply because the force used appears to be de minimis.” Id. It observed that without a
constitutional violation, “the court need not address [Officer West’s] alternative ground
of qualified immunity,” but that based on Tenth Circuit case law, “summary judgment
based on qualified immunity would be appropriate as well.” Id. at 747-48. The district
7
court granted summary judgment to the remaining Defendants, whose liability depended
on an underlying constitutional violation.
The Estate timely appealed. We now affirm.
II. DISCUSSION
A. Standard of Review
“We review a district court’s grant of summary judgment de novo, applying the
same legal standard as the district court.” Twigg v. Hawker Beechcraft Corp., 659 F.3d
987, 997 (10th Cir. 2011). “The court shall grant summary judgment if the 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. Civ. P. 56(a). “In applying this standard, we view
the evidence and the reasonable inferences to be drawn from the evidence in the light
most favorable to the nonmoving party.” Twigg, 659 F.3d at 997. “However, we cannot
ignore clear, contrary video evidence in the record depicting the events as they occurred.”
Carabajal v. City of Cheyenne, Wyo., 847 F.3d 1203, 1207 (10th Cir. 2017). “A fact is
material if, under the governing law, it could have an effect on the outcome of the
lawsuit.” Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014)
(quotations omitted).
B. Legal Background
Qualified Immunity
“Individual defendants named in a § 1983 action may raise a defense of qualified
immunity.” Henderson v. Glanz, 813 F.3d 938, 951 (10th Cir. 2015) (quotations
8
omitted). “A defendant’s motion for summary judgment based on qualified immunity
imposes on the plaintiff ‘the burden of showing both (1) a violation of a constitutional
right; and (2) that the constitutional right was clearly established at the time of the
violation.’” Burke v. Regalado, 935 F.3d 960, 1002 (10th Cir. 2019) (quoting Felders ex
rel. Smedley v. Malcom, 755 F.3d 870, 877 (10th Cir. 2014)). We exercise our “sound
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
Excessive Force Under the Fourteenth Amendment
Mr. Rowell was a pretrial detainee, so the Fourteenth Amendment’s Due Process
Clause governs his claim of excessive force. See Bell v. Wolfish, 441 U.S. 520, 535 n.16
(1979) (“Due process requires that a pretrial detainee not be punished. A sentenced
inmate, on the other hand, may be punished, although that punishment may not be ‘cruel
and unusual’ under the Eighth Amendment.”); Estate of Booker v. Gomez, 745 F.3d 405,
419 (10th Cir. 2014). A defendant violates the Fourteenth Amendment by purposely or
knowingly using force against a pretrial detainee that is “objectively unreasonable.”
Kingsley, 576 U.S. at 396-97.
Objective reasonableness under Kingsley turns on the “facts and circumstances of
each particular case.” Id. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Courts “make this determination from the perspective of a reasonable officer on the
scene, including what the officer knew at the time, not with the 20/20 vision of
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hindsight.” Id. The analysis must account for the “legitimate interests that stem from the
government’s need to manage the facility in which the individual is detained,
appropriately deferring to policies and practices that in the judgment of jail officials are
needed to preserve internal order and discipline and to maintain institutional security.”
Id. (brackets and quotations omitted). The objective reasonableness standard “protects an
officer who acts in good faith,” and who is “often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Id. at 399(quotations omitted).
In Kingsley, the Supreme Court listed non-exclusive factors that may bear on
whether an officer’s use of force on a pretrial detainee was objectively reasonable:
(1) “the relationship between the need for the use of force and
the amount of force used,” id. at 397,
(2) “the extent of the plaintiff’s injury,” id.,(3) “any effort made by the officer to temper or to limit the
amount of force,” id.,(4) “the severity of the security problem at issue,” id.,(5) “the threat reasonably perceived by the officer,” id., and
(6) “whether the plaintiff was actively resisting,” id.C. Analysis
The Estate argues that because “the district court concluded [Mr. Rowell] was not
noncompliant, did not present a security problem, was not actively resisting and suffered
severe injury . . . no force of any kind should have been employed and by so doing, the
10
force was excessive.” Aplt. Br. at 25 (emphasis removed). It contends that “[t]he use of
force both in the decision to place [Mr. Rowell] in the restraint chair and in pushing him
as he walked down the hallway was gratuitous force.” Id. at 26. If we reverse the grant
of summary judgment to Officer West, the Estate asserts we must reverse as to the
remaining Appellees. We disagree with these arguments and conclude the district court
properly found Officer West did not commit a constitutional violation. We therefore
affirm as to all Appellees.4
Officer West
Application of the Kingsley factors shows that Officer West’s use of modest
forward pressure to Mr. Rowell in the hallway was objectively reasonable.5
4
The Estate argues that the district court misapplied the summary judgment
standard by failing to determine whether the Defendants made a prima facie showing to
support summary judgment, by improperly weighing the evidence, and by failing to
determine whether genuine issues of material fact existed. Based on our careful review
of the record, we find the district court correctly described the events after it “reviewed
the jail video . . . , which in the [district] court’s view [was] largely dispositive, despite
being inaudible at various times.” App., Vol. III at 744. In any event, we review the
grant of summary judgment de novo.
5
Officer West contends he used de minimis force that is beyond the reach of the
Fourteenth Amendment. The Estate counters that “the use of what the district court
characterized as de minimis force is not a bar to a claim of excessive force under the
Fourteenth Amendment.” Aplt. Br. at 25. We need not resolve this debate because we
find that, applying the Kingsley factors, Officer West’s use of force was objectively
reasonable.
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a. Relationship between the need for the use of force and the amount of force
used
The first Kingsley factor favors Officer West. In assessing this factor, we consider
how a reasonable officer in Officer West’s position would have perceived Mr. Rowell’s
conduct. See Kingsley, 576 U.S. at 397 (“A court must make [the objective
reasonableness] determination from the perspective of a reasonable officer on the scene,
including what the officer knew at the time.”).
Mr. Rowell repeatedly wandered around the intake room and intermittently
approached the intake window. He was visibly intoxicated, swayed when he stood in
place, and leaned against the intake window. Although he was not violent or disruptive,
he did not obey instructions from Officers West and Slay and Shift Supervisor Rosson to
be calm and sit down.
Mr. Rowell continuously spoke with the officers as they led him out of the intake
room. Rather than walk down the hallway facing straight, he had turned his head back
over his right shoulder so his torso was sideways and pointed at the right wall as he
walked. On the hallway video he appeared intoxicated and unable to walk straight.
Based on the foregoing, it was objectively reasonable for Officer West to grab Mr.
Rowell’s arm and apply modest forward pressure to guide him down the hallway. See
Nosewicz v. Janosko, 754 F. App’x 725, 734 (10th Cir. 2018) (unpublished) (noting that
12
the “level of force necessary to gain compliance, but no more,” is justified).6 “[T]he
force was . . . proportional to the need presented” to guide Mr. Rowell. Booker, 745 F.3d
at 424.7
6
Although not precedential, we find the reasoning of unpublished decisions cited
in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decision are not
precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
7
The Estate argues that the decision to place Mr. Rowell in the restraint chair
violated the Jail’s Use of Force Policy, and “because there was no need for the use of
force as defined by the Use of Force policy, all conduct after the decision was made
which was in furtherance of the use of the restraint chair was objectively unreasonable.”
Aplt. Reply Br. at 13-14. We agree with the district court that “[t]he decision to place
[Mr. Rowell] in the restraint chair is, under the present record, irrelevant.” App., Vol. III
at 747.
First, the restraint chair decision bore no proximate causal relation to Officer
West’s conduct in the hallway. See Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.
2006) (applying tort law proximate cause principles in a § 1983 action).
Second, objective reasonableness under the Fourteenth Amendment does not
depend on compliance with state and local law and policies. In Tanberg v. Sholtis, 401
F.3d 1151, 1163-64 (10th Cir. 2005), we found that whether “an arrest violated police
department procedures does not make it more or less likely that the arrest implicates the
Fourth Amendment, and evidence of the violation is therefore irrelevant.” See also
Moreno v. Taos Cnty. Bd. of Comm’rs, 587 F. App’x 442, 446 (10th Cir. 2014)
(unpublished) (“The district court’s finding that evidence of violation of Taos County
policy was inadmissible as to the excessive force claim comports with our Fourth
Amendment jurisprudence.”). We noted that “the violation of police regulations is
insufficient to ground a § 1983 action for excessive force.” Tanberg, 401 F.3d at 1163.
The use of force violates the Fourth Amendment “if it is unreasonable under the
circumstances a law enforcement officer confronts.” Id. The Tanberg reasoning applies
here, and thus objective reasonableness under the Fourteenth Amendment does not
depend on the Defendants’ compliance with Jail policy. See McCowan v. Morales, 945
F.3d 1276, 1283 n.6 (10th Cir. 2019) (“[T]he same objective standard now applies to
excessive-force claims brought under either the Fourth or the Fourteenth Amendment.”).
13
b. Extent of the plaintiff’s injury
The second Kingsley factor favors the Estate because Mr. Rowell died as a result
of his injury.
c. Effort made to temper or limit the amount of force
The third Kingsley factor has minimal applicability because the incident lasted
only a few seconds. To the extent it applies, this factor favors Officer West because he
did not touch Mr. Rowell at first and applied modest forward pressure only when Mr.
Rowell continued to stumble in the hallway and turn his head over his shoulder while
talking to the officers.
d. Remaining Kingsley factors
The final three Kingsley factors—the severity of the security problem posed by
Mr. Rowell, the threat reasonably perceived by Officer West, and whether Mr. Rowell
was actively resisting—slightly favor the Estate. As noted above, Mr. Rowell was
uncooperative and intoxicated, but he was not violent or actively resisting. See Nosewicz,
754 F. App’x at 734 (distinguishing between a mere refusal to obey a command and
physical resistance).
e. Balancing the Kingsley factors
On balance, we conclude Officer West reasonably applied modest forward
pressure to a visibly intoxicated and uncooperative Mr. Rowell to guide him down the
hallway. See Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007) (en banc) (“We
have little difficulty concluding that a small amount of force, like grabbing [the arrestee]
14
and placing him in the patrol car, is permissible in effecting an arrest under the Fourth
Amendment.”); Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1030 (10th Cir. 1997)
(finding reasonable the force used to effectuate a Terry stop that consisted of “grabb[ing]
[the arrestee’s] arm three separate times . . . [with] relatively minor application of force
that did not exceed the amount allowable under the circumstances”). Officer West acted
similarly to the officer in Routt v. Howard, 764 F. App’x 762 (10th Cir. 2019)
(unpublished). There, applying Kingsley, we found that “[i]t is not objectively
unreasonable for a jail officer to hold a detainee’s arm and push him, even awkwardly,
through a jail hallway.” Id. at 766.8
The Estate contends Mr. Rowell’s death shows that Officer West’s use of force
was objectively unreasonable. But this factor is not dispositive. Officer West did not use
“deadly force,” which is “force that creates a substantial risk of causing death or serious
bodily harm.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1313 (10th Cir. 2009)
(brackets and quotations omitted). Moreover, reliance on the plaintiff’s injury alone
would make a constitutional violation turn on the plaintiff’s attributes that may be
unknown to the defendant. See Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir.
2011) (noting that “[t]he degree of injury should not be dispositive” in excessive force
8
The Estate argues that Routt is inapplicable because it arose on a motion to
dismiss. But courts regularly address qualified immunity defenses at both the motion to
dismiss and summary judgment stages. See Thomas v. Kaven, 765 F.3d 1183, 1194 (10th
Cir. 2014).
15
cases because “[s]ome plaintiffs will be thicker-skinned than others”). The tragic
outcome of the events in the hallway does not mean that Officer West’s conduct was
objectively unreasonable.
* * * *
Because Officer West’s conduct in the hallway was objectively reasonable, he did
not commit a constitutional violation.9 We therefore affirm the district court’s grant of
summary judgment to Officer West. See Estate of Redd v. Love, 848 F.3d 899, 906 (10th
Cir. 2017) (“We may decide which of [the qualified immunity] prongs to address first,
and need not address both.”).
The Remaining Appellees
The liability of the remaining Appellees depends on whether Officer West
committed a constitutional violation. Because he did not, we affirm as to them.
a. Officer Slay
The Estate claims that Officer Slay is liable under § 1983 because he failed to
intervene to prevent Officer West’s use of excessive force in the hallway. But a plaintiff
can maintain a claim for failure to intervene only when some other officer used excessive
9
To the extent that the Estate argues that Officer West or Officer Slay committed
a constitutional violation by failing to provide Mr. Rowell adequate medical attention
after the fall, no such claim appears in the Third Amended Complaint, nor was any such
claim argued to the district court. See App., Vol. I at 20-24. That claim is thus not part
of this case. See Alpenglow Botanicals, LLC v. United States, 894 F.3d 1187, 1202 (10th
Cir. 2018) (finding a claim was not part of the litigation because it was absent from the
operative pleading).
16
force. See Booker, 745 F.3d at 422; Mascorro v. Billings, 656 F.3d 1198, 1204 n.5 (10th
Cir. 2011).
b. Shift Supervisor Rosson
The Estate claims that Shift Supervisor Rosson is liable under § 1983 in her
individual capacity because, as Officer West’s supervisor during the incident, she was
deliberately indifferent to the possibility that he would use excessive force on Mr.
Rowell. But “[s]upervisors cannot be liable under § 1983 where there is no underlying
violation of a constitutional right by a supervisee.” Doe v. Woodard, 912 F.3d 1278,
1290 (10th Cir. 2019).
c. The County
The Estate claims that the County is liable for Officer West’s use of excessive
force under Monell v. New York City Department of Social Services, 436 U.S. 658(1978). But a municipality “may not be held liable where there was no underlying
constitutional violation by any of its officers.” Donahue v. Wihongi, 948 F.3d 1177,
1199 (10th Cir. 2020) (quoting Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir.
1993)).
d. Sheriff Frazier
The Estate claims that Sheriff Frazier is liable in his official capacity for Officer
West’s acts by promulgating a policy, practice, or custom that caused Officer West’s use
of excessive force, by failing adequately to train Jail staff, and by failing adequately to
supervise Jail staff. An official capacity claim under § 1983 is the same as a claim
17
against a municipality, and also requires an underlying constitutional violation. See Cox
v. Glanz, 800 F.3d 1231, 1254-55 (10th Cir. 2015); Donahue, 948 F.3d at 1199.
* * * *
Because the claims under § 1983 against Officer Slay, Shift Supervisor Rosson,
the County, and Sheriff Frazier cannot be maintained without an underlying
constitutional violation committed by Officer West, we affirm the district court’s grant of
summary judgment to the remaining Appellees.
III. CONCLUSION
We affirm the district court’s judgment.
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