Campbell, Gary B. v. Johnson, Todd , 202 F. App'x 921 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 26, 2006*
Decided November 1, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1235
GARY B. CAMPBELL, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v.
No. 04-C-661
TODD JOHNSON,
Defendant-Appellee. Barbara B. Crabb,
Chief Judge.
ORDER
Gary Campbell claimed in this pro se lawsuit under 42 U.S.C. § 1983 that
Todd Johnson, a deputy sheriff in Wood County, Wisconsin, violated his Fourth
Amendment rights by using excessive force during and immediately after his 2004
arrest for a traffic offense. The district court granted partial summary judgment for
Johnson because the undisputed evidence established that the amount of force
Johnson used before handcuffing Campbell was reasonable, and a jury later found
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-1235 Page 2
that the force Johnson employed while putting on the handcuffs and after was
likewise reasonable. We affirm.
On March 31, 2004, Campbell was arrested for a traffic violation. That was
the only fact not in contention in the trial court. Campbell alleged that authorities
pulled him over for driving five miles above the speed limit, and that Johnson
dragged him from the car by his right arm after he stopped. Campbell further
alleged that Johnson unnecessarily twisted his arm while handcuffing him and then
threw him to the ground, rubbing his face into the concrete. For his part, Johnson
asserted that he signalled Campbell to stop because he was driving roughly 30
miles over the speed limit. According to Johnson, Campbell led him and other law
enforcement officers on a four-mile, high-speed chase and then refused to exit his
vehicle when he finally stopped. Johnson admitted that he and another deputy
physically removed Campbell from his vehicle, but stressed that they did so without
using excessive force.
Before trial, Johnson moved for summary judgment, arguing that the force he
used was reasonable as a matter of law. Campbell opposed the motion, noting in
his submission that “plaintiff does not dispute . . . the force used before the
handcuffs were applied, but the force used after by Deputy Johnson is a question
raised by the plaintiff that a jury should decide on.” Based on this assertion,
Johnson urged the district court to grant his motion as it related to the use of force
before the point when Campbell was handcuffed, but the deputy withdrew his
motion for summary judgment to the extent that it concerned his use of force in
applying the handcuffs and afterward. The district court granted partial summary
judgment, reasoning that even construed most favorably to Campbell the
undisputed evidence established that Johnson used only reasonable force in
removing Campbell from his vehicle. The court also granted Johnson’s motions in
limine that sought to prohibit Campbell from mentioning the shoulder injury he
suffered when pulled from the vehicle, Johnson’s decision not to use a taser, or stun
gun, to subdue him, and any reference to his race (Campbell is black, and all of the
officers involved are white). The case went to trial on the single question whether
Johnson used excessive force after Campbell was out of the vehicle. The jury
returned a special verdict finding that the force Johnson used while handcuffing
Campbell and afterward was not unreasonable under the circumstances.
Having lost at trial, Campbell identifies several issues for appeal, but only
two are developed enough to concern us. See United States v. Turcotte, 405 F.3d
515, 536 (7th Cir. 2005) (“[U]nsupported and undeveloped arguments are waived.”).
At the outset we note that Johnson urges us to dismiss the appeal due to Campbell’s
noncompliance with Federal Rule of Appellate Procedure 28(a). In relevant part,
Rule 28(a) requires the appellant to include a statement of facts and an argument.
Campbell’s brief is borderline, but we discern two arguments sufficiently developed
No. 06-1235 Page 3
for review. Cf. Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (explaining
that dismissal is appropriate where appellant offers no articulable basis for
disturbing district court’s judgment).
Campbell first argues that the district court erred when it granted partial
summary judgment concerning the use of force before he was handcuffed.
Summary judgment is appropriate if the moving party demonstrates “there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Allen v. Martin, 460 F.3d
939, 943 (7th Cir. 2005). We review the district court’s grant of summary judgment
de novo. Thornton v. Snyder, 428 F.3d 690, 693 (7th Cir. 2005). In granting
summary judgment, the district court wrote that both parties agreed that a high-
speed chase preceded the arrest and that Campbell failed to stop and exit his
vehicle when ordered. This statement was incorrect. Campbell’s version was that
he drove only five miles above the speed limit and that he complied with the
instructions given by Johnson and other officers. Nonetheless, in his opposition to
Johnson’s motion, Campbell explicitly conceded that he did not challenge the use of
force before he was handcuffed. Because Campbell conceded the issue, the district
court properly granted summary judgment as to the force used before he was
handcuffed. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 943-44 (7th Cir.
2005); Goldstein v. Fid. & Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750-51 (7th
Cir. 1996).
Campbell also argues that the district court erred in granting Johnson’s
motions in limine. We review a district court’s evidentiary rulings for an abuse of
discretion and afford the court great deference. Tober v. Graco Children’s Prods.,
431 F.3d 572, 576 (7th Cir. 2005). In this case, our review has been hampered by
Campbell’s failure to provide us with a transcript that establishes the district
court’s reasons for granting the motions in limine. See Fed. R. App. P. 10(b)(2);
LaFollette v. Savage, 63 F.3d 540, 544 (7th Cir. 1995).
On the basis of the present record, we conclude that the court did not abuse
its discretion by granting the motions in limine relating to the force used before
Campbell was handcuffed, his shoulder injury, and the taser. As we discussed
earlier, Campbell chose not to dispute the reasonableness of the force used before he
was handcuffed, so evidence on that subject was not relevant. Campbell’s
concession about the initial use of force also made his shoulder injury irrelevant;
the injury occurred when Johnson pulled him from the vehicle—before he was
handcuffed—so it had no bearing on the later use of force the jury was called upon
to evaluate. As to the fact that Campbell was not immobilized with a taser,
Campbell sought to argue that Johnson’s failure to use that weapon evidenced that
he was not resisting and thus the physical force used to handcuff him was
unnecessary. The district court presumably reasoned that evidence concerning
No. 06-1235 Page 4
Johnson’s decision not to use a taser was irrelevant, and we cannot say that the
court abused its discretion. That Johnson did not employ even greater force does
not shed light on whether the force he did use was unreasonable. See, e.g., Morfin
v. City of E. Chi., 349 F.3d 989, 1004 (7th Cir. 2003) (noting that determination of
whether force used was unreasonable requires balancing various interests).
Finally, because Campbell has not provided us with a transcript of the district
court’s rulings, we cannot evaluate whether the court abused its discretion by
granting the motion in limine regarding his race. Campbell apparently planned to
testify that he heard racial slurs during the encounter, but without seeing the
district court’s explanation for excluding that evidence, we could not conclude that
the ruling was erroneous.
AFFIRMED.