Brown v. Town of Weymouth

USCA1 Opinion

February 9, 1996 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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No. 95-1693

RICHARD O. BROWN,

Plaintiff, Appellant,

v.

TOWN OF WEYMOUTH, ET AL.,

Defendants, Appellees.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Reginald C. Lindsay, U.S. District Judge]

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Before

Selya, Cyr and Lynch,

Circuit Judges. ______________

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Alexander M. Esteves on brief for appellant. ____________________

Douglas I. Louison, Stephen C. Pfaff and Merrick and Louison on __________________ _________________ ____________________

brief for appellees.

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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 ___ ______ ______

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1Bowen asserted other claims as well, but he has not 1

appealed the dismissal of those claims.

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(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. _______ _____

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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

strain); cf. Dean, supra, 924 F.2d at 369 (summary judgment ___ ____ _____

granted for police officer in part because the plaintiff's

minor physical injuries -- cuts, scratches and bruises --

were insufficient to support an inference that police

officers had used inordinate force in arresting plaintiff).

We have considered Brown's other claims of error

relating to the grant of summary judgment, but find them

meritless.

2. The district court properly denied relief from

judgment under Fed. R. Civ. P. 60(b). As defendants argue,

Brown and his counsel could have obtained the medical records

from Massachusetts General Hospital in a timely fashion if

they had exercised due diligence. Brown obviously knew those

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records existed before he retained counsel, but he apparently

never told counsel about them until after summary judgment

had been granted. Counsel filed an amended complaint and

Brown's opposition to summary judgment on the same day.

Because the amended complaint asserted that Brown had had

shoulder surgery -- a medical procedure not documented in the ___

South Shore Hospital records submitted in opposition to

summary judgment, counsel had reason to know at that time

that different records reflecting the surgery must have

existed. He apparently never asked his client about them,

and he made no effort to obtain them until nearly a year

later, by which time the court had granted summary judgment.

3. Because summary judgment for Bowen on the

excessive force claim was proper, the court correctly

dismissed the claim against Thomas, which had asserted the

failure to stop or report Bowen's alleged use of excessive

force. See Hinton v. City of Elwood, 997 F.2d 774, 783 (10th ___ ______ ______________

Cir. 1993).

Affirmed. See Loc. R. 27.1. ____________________________

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