FILED
                                                                    United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                       Tenth Circuit

                             FOR THE TENTH CIRCUIT                         October 5, 2020
                         _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 ROBERT G. MOYA,

       Plaintiff - Appellant,

 v.                                                           No. 20-2001
                                                 (D.C. No. 2:18-CV-00494-GBW-KRS)
 CITY OF CLOVIS; BRENT AGUILAR,                                (D. N.M.)
 officer, in his individual capacity and as an
 employee of the City of Clovis; JAMES
 GURULE, Sergeant, in his individual
 capacity and as an employee of the City of
 Clovis,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before HARTZ, McHUGH, and EID, Circuit Judges.
                  _________________________________

       Robert Moya filed this case to recover damages for injuries inflicted by a

police dog after he attempted to evade arrest. He appeals from the district court’s

grant of summary judgment to Defendants Brent Aguilar, James Gurule, and the City




       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
of Clovis, New Mexico, on his 42 U.S.C. § 1983 claims. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                   I.   Background

      Before the events giving rise to this case, Moya engaged police in what he

described as “[a] lot of cat-and-mouse chase[s].” R. at 153. Moya testified that “[a]

lot of times [he] was able to get away,”

arrested him “[m]any,

many times,”

      On May 29, 2015, Clovis Police Department Detective Adriana Munoz spotted

Moya. Munoz recognized Moya from prior encounters and checked to see if he had

any outstanding warrants. After learning that he did, Munoz turned her car around

and activated her emergency equipment. Moya fled.

        Munoz pursued Moya on foot. Defendants Gurule and Aguilar joined Munoz

in her pursuit. Aguilar brought his police dog, Leo, with him. They found Moya

standing on top of a shed in a backyard. Moya recalls Aguilar saying “‘[s]top or I’m

gonna release the dog. Get off of the shed and just surrender.’”

      Moya jumped down from the shed and took off running. Aguilar then released

Leo. Moya sprinted across the yard with Leo hot on his heels and Aguilar trailing in

pursuit. Moya reached the house next door and began scrambling onto the roof. Leo

“grabbed [him] by the foot” as he climbed but Moya “was able to yank [him]self up”

“and the dog slipped off [his] foot.”

      At this point, Moya stood safely on the roof well aware that Leo roamed

below. But instead of surrendering, Moya continued to flee. He jumped into the

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neighboring yard and began throwing things and running. Leo leapt over a wall

separating the two properties and tracked Moya down. Aguilar followed Leo over

the wall and caught up within seconds. He found Moya lying face down on the

ground with Leo biting and holding him by the left arm. Aguilar grabbed hold of Leo

while other officers arrived and handcuffed Moya. Aguilar then commanded Leo to

release Moya. Leo’s “bite lasted no longer than twenty seconds.” Supp. R. at 13.

      Moya sued to recover damages for the injuries Leo inflicted on him during

their second encounter. He claimed Aguilar violated his Fourth Amendment rights

by, among other things, using excessive force against him via Leo. He also alleged

that Gurule violated his Fourth Amendment rights by failing to stop Aguilar’s use of

excessive force and that the City of Clovis should be held liable for these actions

under Monell v. Department of Social Services, 

(1978).

      The district court granted summary judgment to Defendants. It applied the

doctrine of qualified immunity and rejected Moya’s Fourth Amendment claims against

Aguilar because, among other things, his decision to deploy Leo was constitutionally

reasonable under the circumstances. It then rejected Moya’s claims against Gurule and

the City of Clovis because those claims depended on a finding that Aguilar violated

Moya’s constitutional rights.

      Moya filed a notice of appeal and a motion with the district court to proceed

in forma pauperis on appeal. The district court denied Moya’s in forma pauperis

motion because he did “not show the existence of a reasoned, nonfrivolous argument



                                            3
on the law and facts in support of the issues raised on appeal.” Supp. R. at 33

(internal quotation marks omitted).

                                    II. Discussion

A. Merits

      “We review de novo the district court’s grant of qualified immunity to [a]

[d]efendant in the context of summary judgment.” Culver v. Armstrong,

, 1217 (10th Cir. 2016).

      Moya proceeds pro se on appeal. 1 “Although a pro se litigant’s pleadings are

to be construed liberally and held to a less stringent standard than formal pleadings

drafted by lawyers, this court has repeatedly insisted that pro se parties follow the

same rules of procedure that govern other litigants.” Garrett v. Selby Connor

Maddux & Janer, 

, 840 (10th Cir. 2005) (brackets, citation, and internal

quotation marks omitted). “An appellant’s opening brief must identify ‘appellant’s

contentions and the reasons for them, with citations to the authorities and parts of the

record on which the appellant relies.’” Bronson v. Swensen, 

, 1104

(10th Cir. 2007) (quoting Fed. R. App. P. 28(a)(8)(A)).

   1. Reasonableness of Aguilar’s Use of Force

      Moya’s first issue on appeal asks: “[A]fter being attacked by [officer] Leo

was the use of officer Leo [really] needed[?]” Aplt. Br. at 3. He argues that the




      1
          Moya had counsel before the district court.
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district court failed to consider the “grounds to show [and] prove that force was

needed to [r]estrain” him.

      In a Fourth Amendment excessive force case like this one, “[t]he ultimate

question is whether the officers’ actions are objectively reasonable in light of the

facts and circumstances confronting them.” Emmett v. Armstrong,

No. 18-8078, --- F.3d ---, 

, at *5 (10th Cir. Sept. 1, 2020) (internal

quotation marks omitted). “This is a ‘totality of the circumstances’ analysis.” Reavis

v. Frost, 

, 985 (10th Cir. 2020) (quoting Tennessee v. Garner,

, 9 (1985)). “[W]e specifically consider . . . : (1) ‘the severity of the

crime at issue,’ (2) ‘whether the suspect poses an immediate threat to the safety of

the officers or others,’ and (3) ‘whether he is actively resisting arrest or attempting to

evade arrest by flight.’”

Connor, 

, 396 (1989)).

      The district court’s decision contains extended discussion regarding the

reasonableness of Aguilar’s decision to deploy Leo in light of the circumstances

confronting Aguilar. See Supp. R. at 14–20. The court concluded: “Given the

numerous warnings, [Moya’s] history of fleeing, his flight from the officers on the

instant day, and the potential danger to officers and bystanders of a prolonged chase

through a residential neighborhood which included [Moya] jumping on roofs and

running through backyards, deploying Leo was a reasonable choice.”

The

district court’s decision also addressed the reasonableness of Aguilar’s delay in

calling Leo off after Leo apprehended Moya:



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      When Leo left . . . Aguilar’s side to jump the wall into the yard where
      he detected [Moya’s] scent, . . . Aguilar immediately followed. Officer
      Aguilar was always close enough to Leo for Leo to be able to hear any
      verbal commands. Leo was not out of Officer Aguilar’s sight for more
      than ten seconds. The longest Leo’s bite could have lasted was twenty
      seconds and Officer Aguilar ended it ten seconds after he reached
      [Moya] and immediately upon [Moya’s] handcuffing. [Moya] alleges
      that he was in the act of surrendering when Leo bit him, but . . . Aguilar
      had no way of knowing this fact. When . . . Aguilar approached
      [Moya], [he] was lying face down, but it is unclear whether he was
      already on the ground or was taken down by Leo. In light of [Moya’s]
      history of evasion both before and during the subject incident, it was
      reasonable for . . . Aguilar to believe that [Moya] had still been fleeing
      and would continue to flee if given the opportunity. Therefore, it was
      reasonable for . . . Aguilar to wait until other officers were able to
      handcuff [Moya] before commanding Leo to let go.

      Moya’s brief does not address the district court’s decision and does not cite the

record. Contrary to Moya’s suggestion, the district court did consider whether the

evidence supported his excessive force claim. To the extent Moya argues that the

district court erred in evaluating the reasonableness of Aguilar’s use of force, we

decline to consider this argument because Moya has not explained how the district

court erred. See Reedy v. Werholtz, 

, 1275 (10th Cir. 2011) (noting

that where “[t]he argument section of [an appellant’s] opening brief does not

challenge the [district] court’s reasoning on [a] point[, w]e . . . do not address the

matter”). We therefore affirm the district court’s conclusion that Aguilar’s use of

force was constitutionally reasonable.




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   2. Issues Not Presented to the District Court

      Moya contends on appeal that unnamed officers violated his unspecified rights

by releasing him without taking him to jail, allegedly in contravention of Clovis city

policy. But Moya’s complaint does not allege a cause of action based on officers’

failure to incarcerate him. And Moya failed to provide a record citation

demonstrating that he raised this issue to the district court. See Pac. Frontier v.

Pleasant Grove City, 

, 1238 (10th Cir. 2005) (noting that “parties must

cite the precise reference in the record where the issue was raised and ruled on.”

(emphasis and internal quotation marks omitted)). In our independent review of the

record, we did not locate any argument presented to the district court that officers

violated Moya’s rights by releasing him. 2

      “When an appellant fails to preserve an issue and also fails to make a plain-

error argument on appeal, we ordinarily deem the issue waived (rather than merely

forfeited) and decline to review the issue at all—for plain error or otherwise.” United

States v. Leffler, 

, 1196 (10th Cir. 2019). “Under such circumstances,


      2
        Moya did argue to the district court that officers’ decision to wait “for close
to two weeks before booking him on the warrant that the officers claim justified the
use of a canine attack” supported his argument that he did not pose a threat of
violence on the date of his arrest. R. at 210. But this is a different argument than the
one Moya presses on appeal. See Little v. Budd Co., 

, 821 (10th Cir.
2020) (“[A]bsent extraordinary circumstances, arguments raised for the first time on
appeal are waived. This is true whether the newly raised argument is a bald-faced
new issue or a new theory on appeal that falls under the same general category as an
argument presented” to the district court. (citation and internal quotation marks
omitted)).


                                             7
the failure to argue for plain error and its application on appeal surely marks the end

of the road for an argument not first presented to the district court.”

quotation marks omitted). Moya does not argue for plain error review and

we therefore decline to consider Moya’s argument related to his release without

incarceration.

      Moya further urges reversal due to “other issues [his] attorneys never

mention[ed].” Aplt. Br. at 4. He does not identify these issues or argue for plain

error review. We therefore decline to consider this argument for the reasons

previously stated.

B. Motion to Proceed in forma pauperis

      Moya filed a motion with this court to proceed in forma pauperis. To be

granted in forma pauperis status, Moya must show “a financial inability to pay the

required filing fees and the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” Watkins v. Leyba,

, 627 (10th Cir. 2008) (brackets and internal quotation marks omitted).

Because he is incarcerated, Moya must also submit “a certified copy of [his prison]

trust fund account statement.” 28 U.S.C. § 1915(a)(2). Moya did not file the

required account statement and we find no reasoned, nonfrivolous argument here.

We therefore deny Moya’s motion to proceed in forma pauperis.




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                                 III. Conclusion

      We affirm the district court’s grant of summary judgment to Defendants. We

deny Moya’s motion to proceed in forma pauperis and direct him to make full and

immediate payment of the outstanding appellate filing fee.


                                          Entered for the Court


                                          Carolyn B. McHugh
                                          Circuit Judge




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