Brown v. Town of Weymouth
Opinion
USCA1 Opinion
February 9, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1693
RICHARD O. BROWN,
Plaintiff, Appellant,
v.
TOWN OF WEYMOUTH, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Reginald C. Lindsay, U.S. District Judge]
____________________
Before
Selya, Cyr and Lynch,
Circuit Judges. ______________
____________________
Alexander M. Esteves on brief for appellant. ____________________
Douglas I. Louison, Stephen C. Pfaff and Merrick and Louison on __________________ _________________ ____________________
brief for appellees.
____________________
____________________
Per Curiam. In this suit under 42 U.S.C. 1983 ___________
alleging use of excessive force,1 plaintiff Richard Brown 1
appeals from the grant of summary judgment for defendants,
Officer James Bowen and Captain James Thomas, and from the
denial of his motion for relief from judgment under Fed. R.
Civ. P. 60(b). We affirm for the following reasons.
1. We have no doubt that summary judgment was
proper in this case, regardless whether the district court
misconstrued Brown's purpose in stating that his arrest had
occurred "without incident," and despite the parties'
disagreement on the question whether Brown had resisted
arrest. Even if it were undisputed that Brown had not __________ ___
resisted arrest, Bowen would have been justified in using
some physical force to effect Brown's arrest. The police
report, which both parties submitted in support of their
positions at summary judgment, indicated that Bowen knew,
when he arrested Brown, that Brown had just assaulted
Elizabeth Gordon while on bail for a different crime and that
Brown was intoxicated. In addition, Brown had fled the
premises, knowing that Bowen was a police officer who would
have had cause to arrest him for that assault. Bowen
therefore had the clear right to use necessary physical force
in arresting Brown. See Graham v. Connor, 490 U.S. 386, 396 ___ ______ ______
____________________
1Bowen asserted other claims as well, but he has not 1
appealed the dismissal of those claims.
-2-
(1989); Dean v. City of Worcester, 924 F.2d 364, 368 (1st ____ __________________
Cir. 1991).
The critical question before the court, therefore,
concerned the nature and degree of force used by Bowen. In
his affidavit in support of summary judgment, Bowen denied
forcing Brown's arm up over his head or forcing his arm and
shoulder into an anatomically wrong position. Given that
affidavit, the contrary allegations in the complaint no
longer sufficed to establish a genuine issue as to the degree
of force used by Bowen. Brown was required to present
"definite, competent evidence" that Bowen had used excessive
force in order to rebut the summary judgment motion. See ___
Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir. _______ ____________________
1991), cert. denied, 504 U.S. 985 (1992). That is, he had to ____________
submit "significantly probative" evidence, not simply "some
evidence" that Bowen had used excessive force. See Frohmader ___ _________
v. Wayne, 958 F.2d 1024, 1028-29 (10th Cir. 1992). _____
Brown failed to submit any affidavit describing the
nature and amount of force used by Bowen in support of his
opposition to summary judgment. He submitted medical records
reflecting Brown's treatment at South Shore Hospital the
night of the arrest. Evidence of injury suffered during an
arrest is relevant in determining whether the arresting
officer used excessive or reasonable force. See Wardlaw v. ___ _______
Pickett, 1 F.3d 1297, 1304 & n.7 (D.C. Cir. 1993), cert. _______ _____
-3-
denied, 114 S. Ct. 2672 (1994). Here, however, the hospital ______
records showed only muscle tenderness and strain in Brown's
right shoulder. Those are relatively mild injuries which
could have been completely consistent with a reasonable use __________
of force by Bowen. Thus, the hospital records were not
sufficiently probative and created no trialworthy issue of
fact on the question whether Bowen had used excessive force.
See Foster v. Metropolitan Airports Comm'n, 914 F.2d 1076, ___ ______ _____________________________
1082 & n.5 (8th Cir. 1990) (summary judgment granted for
police officer in part because the medical records reportedly
showed only that the plaintiff had suffered mild shoulder
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Related
Graham v. Connor
490 U.S. 386 (Supreme Court, 1989)
Charles Wayne Foster and Dana Gay Foster v. Metropolitan Airports Commission, Officers A. Baetz, Bruce Griller, and J. Edblom
914 F.2d 1076 (Eighth Circuit, 1990)
Gerard Dean v. City of Worcester
924 F.2d 364 (First Circuit, 1991)
Samuel Mesnick v. General Electric Company
950 F.2d 816 (First Circuit, 1991)
Donald Frohmader v. Deputy D. Wayne
958 F.2d 1024 (Tenth Circuit, 1992)
William C. Wardlaw v. William R. Pickett, Deputy United States Marshal
1 F.3d 1297 (D.C. Circuit, 1993)
Hinton v. City of Elwood
997 F.2d 774 (Tenth Circuit, 1993)