Wuebker v. Town of Evansville, WY

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 28, 2024
• Docket: 23-8058
• Status: Unpublished

Opinion

Appellate Case: 23-8058 Document: 010111055818 Date Filed: 05/28/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 28, 2024 _________________________________ Christopher M. Wolpert Clerk of Court BRANDON WUEBKER,

Plaintiff - Appellant,

v. No. 23-8058 (D.C. No. 2:22-CV-00092-ABJ) TOWN OF EVANSVILLE, WY; (D. Wyo.) SERGEANT LUKE NELSON, in his individual capacity, a/k/a Evansville Police Department Sergeant; BRYCE NORCROSS, in his individual capacity, a/k/a Evansville Police Department Patrol Officer,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, EBEL, and MORITZ, Circuit Judges. _________________________________

Plaintiff Brandon Wuebker brought this 42 U.S.C. § 1983 action against

Officers Luke Nelson and Bryce Norcross, as well as derivative Monell claims

against Evansville, Wyoming. He alleges First Amendment retaliation and

unconstitutionally excessive force during an arrest. The district court granted

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-8058 Document: 010111055818 Date Filed: 05/28/2024 Page: 2

defendants’ motion for summary judgment based on qualified immunity. For

substantially the same reasons set forth by the district court, we affirm.

We incorporate the findings set forth in the district court’s August 18, 2023,

order. In short, plaintiff was arrested after failing to comply with officer commands

during a traffic stop. He was injured as the officers made their arrest.

“We review the district court’s denial of a summary-judgment motion asserting

qualified immunity de novo.” Wise v. Caffey, 72 F.4th 1199, 1205 (10th Cir. 2023)

(citing Arnold v. City of Olathe, 35 F.4th 778, 788 (10th Cir. 2022)). Summary judgment

is appropriate if “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). We “view the facts in

the light most favorable to the non-moving party and resolve all factual disputes and

reasonable inferences in its favor.” Estate of Booker v. Gomez, 745 F.3d 405, 411

(10th Cir. 2014).

For plaintiff’s excessive force claim, the burden is on him to show “(1) the

[defendants’] alleged conduct violated a constitutional right, and (2) it was clearly

established at the time of the violation, such that every reasonable official would

have understood, that such conduct constituted a violation of that right.” Reavis

estate of Coale v. Frost, 967 F.3d 978, 984 (10th Cir. 2020) (internal quotation marks

omitted). The district court determined, under both the Graham factors and the

totality of the circumstances, that defendants’ use of force was objectively

reasonable. And it concluded plaintiff failed to demonstrate clearly established law

prohibited the use of force in the circumstances here.

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“To allege a First Amendment retaliation claim, Plaintiff must plead facts

showing that: (1) he engaged in activity the First Amendment protects; (2)

[defendants’] actions injured him in a way that would ‘chill a person of ordinary

firmness from continuing to engage in that activity’; and (3) his protected activity

substantially motivated [defendants’] responsive actions.” Frey v. Town of Jackson,

Wyoming, 41 F.4th 1223, 1232 (10th Cir. 2022) (quoting Nielander v. Bd. of Cnty.

Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009)). “Plaintiff must show that clearly

established First Amendment law prohibits the force applied against him under the

circumstances.” Id. at 1235. The district court granted summary judgment on this

claim, concluding defendants’ use of force was not motivated by retaliatory animus

but appropriate to the level of resistance encountered during the arrest.

In sum, we affirm for substantially the same reasons articulated by the district

court. Plaintiff’s excessive force claim fails because there was no constitutional

violation and the law was not clearly established. We also agree plaintiff’s First

Amendment retaliation claim fails, but only on the basis that plaintiff failed to prove

defendants’ use of force was substantially motivated as a response to his First

Amendment rights. Because we conclude there was no underlying constitutional

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violation, plaintiff’s Monell claim is foreclosed. Appellant’s “Motion to Partially

Seal Appellant’s Appendix Volume Three” is granted.

Entered for the Court

Timothy M. Tymkovich Circuit Judge