Pierson v. Bassett , 534 F. App'x 768 ( 2013 )


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  •                                                              FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                       August 20, 2013
    Elisabeth A. Shumaker
    Clerk of Court
    ROBERT PIERSON,
    Plaintiff-Appellant,
    v.                                                         No. 13-8019
    (D.C. No. 2:12-CV-00024-SWS)
    CORRY BASSETT, Deputy Sheriff;                              (D. Wyo.)
    ROB ANDAZOLA, Deputy Sheriff;
    LINCOLN COUNTY SHERIFF’S
    OFFICE, LINCOLN COUNTY, a county
    in the State of Wyoming; JOHN OR
    JANE DOES 1-5,
    Defendants-Appellees.
    ORDER AND JUDGMENT*
    Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
    O’BRIEN, Circuit Judge.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist 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 This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    Plaintiff Robert Pierson appeals from the district court’s order granting
    summary judgment to defendants on his civil rights claims brought under 
    28 U.S.C. §§ 1983
     and 1988. We affirm.
    I.
    The district court thoroughly reviewed the undisputed facts, and we need not
    repeat them in detail here. Briefly, on August 7, 2011, in the early afternoon,
    defendant Lincoln County Sheriff’s Office received a 911 call from a concerned
    motorist, who identified himself and provided a detailed description of a man driving
    his motorcycle erratically at a very high rate of speed in a rural area of Wyoming
    near the Idaho border. The motorist agreed to wait in the nearby town of Alpine until
    contacted again by the sheriff’s office.
    Defendant Deputy Bassett spotted plaintiff and pulled him over on the
    highway outside Alpine. Plaintiff denied violating any traffic laws. Deputy Bassett
    asked plaintiff for his driver’s license and if he had any weapons. Plaintiff asked if
    he could get off his motorcycle to get out his driver’s license, but instead of
    answering the question as to whether he had a weapon, he declared more than once
    that he did not consent to any searches. Plaintiff then got off of his motorcycle to get
    his driver’s license, and Deputy Bassett saw that plaintiff had a handgun holstered on
    his right hip. Although open carrying is legal in Wyoming, Deputy Bassett
    immediately placed handcuffs on plaintiff, explaining that he was not under arrest but
    was being handcuffed for Deputy Bassett’s safety until backup arrived. Plaintiff
    -2-
    objected and argued with Deputy Bassett for approximately ten minutes about being
    handcuffed, as evidenced by the audio recording plaintiff made on his cellphone.
    Within approximately thirty-five to forty-five minutes total, defendant
    Deputy Andazola arrived, and then Deputy Bassett’s supervisor, Lieutenant Andrews,
    arrived. Lt. Andrews explained to plaintiff that the motorist who had called 911 was
    no longer willing to sign a complaint at that point, and plaintiff was allowed to go on
    his way. Plaintiff filed this civil rights action under 
    42 U.S.C. §§ 1983
     and 1988,
    alleging that his constitutional rights were violated.
    The district court granted defendants’ motions for summary judgment. The
    court concluded that, under the totality of the circumstances, the motorist’s tip was
    sufficient to create reasonable suspicion to justify the traffic stop. The court also
    determined that Deputy Bassett’s concern for his safety was justified by his being the
    sole officer in the rural location of the stop, by the fact that plaintiff had a gun, and
    by plaintiff’s behavior during the stop, including his non-responsive answers
    regarding whether he had a weapon. The court also found that the total length of the
    detention even under plaintiff’s version of the facts was reasonable because
    Deputy Bassett’s decision to wait for backup before uncuffing plaintiff’s hands was
    reasonable, “[i]n light of the tense and argumentative dialogue that ensued between
    Plaintiff and Deputy Bassett following the cuffing of Plaintiff’s hands.” Aplt. App.
    at 417. The court rejected plaintiff’s claim of unreasonable seizure for open-carrying
    a firearm because he was stopped based on a report of reckless driving, not because
    -3-
    he was open-carrying a gun. Having concluded that plaintiff failed to establish a
    violation of his constitutional rights, the court determined that the individual
    defendants were entitled to qualified immunity and that the municipal defendants
    could not be found liable. Plaintiff appeals.
    II.
    We review a grant of summary judgment de novo, applying the same legal
    standard as the district court. Becker v. Bateman, 
    709 F.3d 1019
    , 1022 (10th Cir.
    2013). “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).
    “Our review of summary judgment orders in the qualified immunity context
    differs from that applicable to review of other summary judgment decisions.”
    Thomson v. Salt Lake Cnty., 
    584 F.3d 1304
    , 1312 (10th Cir. 2009). “When a
    defendant asserts qualified immunity at summary judgment, the burden shifts to the
    plaintiff to show that: (1) the defendant violated a constitutional right and (2) the
    constitutional right was clearly established.” 
    Id.
     (internal quotation marks omitted).
    “Qualified immunity is applicable unless the official’s conduct violated a clearly
    established constitutional right.” 
    Id.
     (internal quotation marks omitted). “In
    determining whether the plaintiff has met [his] burden of establishing a constitutional
    violation that was clearly established, we will construe the facts in the light most
    -4-
    favorable to the plaintiff as the nonmoving party.” 
    Id.
     (citing, e.g., Scott v. Harris,
    
    550 U.S. 372
    , 378, 380 (2007)).
    However, because at summary judgment we are beyond the pleading
    phase of the litigation, a plaintiff’s version of the facts must find
    support in the record: more specifically, “[a]s with any motion for
    summary judgment, ‘[w]hen opposing parties tell two different stories,
    one of which is blatantly contradicted by the record, so that no
    reasonable jury could believe it, a court should not adopt that version of
    the facts[.]’”
    
    Id.
     (quoting York v. City of Las Cruces, 
    523 F.3d 1205
    , 1210 (10th Cir. 2008)
    (quoting Scott, 
    550 U.S. at 380
    )).
    On appeal, plaintiff challenges the scope of his detention in handcuffs, not the
    justification for the stop. He argues that: (1) the district court improperly construed
    evidence against him from which reasonable jurors could conclude that he was
    compliant and not acting in a threatening manner to Deputy Bassett or
    Deputy Andazola; (2) Deputy Bassett’s handcuffing and forty-minute detention of
    plaintiff was an arrest without probable cause to arrest, and Deputy Bassett’s actions
    were therefore not objectively reasonable; (3) his rights to be free from detention and
    arrest with no probable cause were clearly established by August 7, 2011; (4) the
    district court erred when it dismissed his municipal liability claim; (5) the district
    court erred in rejecting his affidavit as conclusory and self-serving; and (6) the
    district court erred when it concluded that there were no genuine issues of material
    fact justifying a trial.
    -5-
    We have carefully reviewed the record on appeal and have listened to the
    audiotapes plaintiff made of the encounter on his cellphone. We reject plaintiff’s
    claims of error. The district court’s conclusion that plaintiff’s dialogue with
    Officer Bassett was “tense and argumentative” is completely accurate. Aplt. App.
    at 417. No rational trier of fact could believe plaintiff’s characterization of his own
    behavior as compliant and never argumentative after hearing the audiotapes. Thus,
    the district court did not err by granting summary judgment in favor of defendants
    because plaintiff’s affidavit is “‘blatantly contradicted by the record.’” York,
    
    523 F.3d at 1210
     (quoting Scott, 
    550 U.S. at 380
    ). We affirm based on the
    remarkably careful analysis fully set out in the district court’s January 22, 2013,
    order.1
    Affirmed.
    Entered for the Court
    John C. Porfilio
    Circuit Judge
    1
    We particularly note, as part of the district court’s discussion of the length of
    the detention, that the plaintiff asked for Deputy Bassett’s supervisor to come to the
    scene. “When a [person]’s own conduct contributes to a delay, he or she may not
    complain that the resulting delay is unreasonable.” United States v. Shareef,
    
    100 F.3d 1491
    , 1501 (10th Cir. 1996).
    -6-
    

Document Info

Docket Number: 13-8019

Citation Numbers: 534 F. App'x 768

Judges: Matheson, Porfilio, O'Brien

Filed Date: 8/20/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024