FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 5, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                             FOR THE TENTH CIRCUIT


    SAMUEL EUGENE RHOADS,

               Plaintiff-Appellee,

    v.                                                  No. 08-8093
                                              (D.C. No. 1:07-CV-00306-WFD)
    MATTHEW MILLER, individually,                        (D. Wyo.)

               Defendant-Appellant,

         and

    BEN MAYLAND, individually and
    in his official capacity; DAVID
    MATTIS, in his official capacity;
    BIG HORN COUNTY SHERIFF’S
    OFFICE; KENNETH BLACKBURN,
    in his official capacity,

               Defendants.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Matthew Miller appeals from the district court’s order denying him

qualified immunity against Samuel Rhoads’ 42 U.S.C. § 1983 claim that

Deputy Miller subjected him to excessive force while booking him into the Big

Horn County Jail. We affirm.

                                    Background

      On December 1, 2005, Deputy Ben Mayland responded to a complaint that

a drunken man in a wheelchair – Mr. Rhoads – was threatening bar patrons.

Deputy Mayland arrested Mr. Rhoads and delivered him to the jail for booking.

      Mr. Rhoads, then sixty-six years old, admits to being an alcoholic. At

deposition, he testified that he was drinking that day and his memory of events is

not very good. According to his recollection, he was arrested by two officers at

the bar and taken to the jail. Upon arrival, he was wheeled into the garage, and

then he was beaten by one of the arresting officers, whose identity he was not

sure of. The officer grabbed his arm, pulled him out of his wheelchair, and tipped

him over, then kicked him in the ribs and stomped on his hands. He claims he

never got as far as the booking area, but instead was taken to the hospital after the

beating.

      Deputy Miller tells a different version of the facts. His deposition

testimony was that Mr. Rhoads was drunk and verbally abusive. After trying to

fill out the booking forms, eventually the deputy moved Mr. Rhoads into a room

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adjacent to the booking area so that Mr. Rhoads could change into a jail uniform.

Mr. Rhoads did not quickly remove his street clothes, and he continued to use

foul language. After removing his street pants, he began swinging the jail pants

in the air. He brushed Deputy Miller with the pants and threw them on the

ground. He then began swinging his arms, lightly brushing the deputy’s chest.

Deputy Miller used an arm-bar takedown on Mr. Rhoads, removing him from his

wheelchair to the ground. As a result, Mr. Rhoads suffered a bleeding cut above

his eye and a dislocated left elbow which ultimately required surgery to repair.

      Mr. Rhoads sued Deputy Miller and others under § 1983, alleging that he

was subjected to an excessive use of force. Skeptical of Mr. Rhoads’ testimony

about being beaten, the district court relied on the deputy’s testimony.

Nevertheless, the court concluded that, even under Deputy Miller’s version of the

facts, Mr. Rhoads identified a constitutional right that was clearly established at

the time of the incident. Accordingly, the court denied the deputy’s motion for

summary judgment based on qualified immunity. Deputy Miller appeals.

                                    Jurisdiction

      We first must satisfy ourselves that we have jurisdiction to hear this appeal.

See Johnson v. Martin, 

, 1213 (10th Cir. 1999). Mr. Rhoads

suggests that we lack jurisdiction because there are genuine issues of material fact

precluding summary judgment. See Johnson v. Jones, 

, 313 (1995)

(holding unappealable a summary judgment order that “determines only a

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question of evidence sufficiency” (quotation omitted)). But the district court’s

ruling was not based on the parties’ factual dispute; instead, it addressed legal

issues. And this court has recognized that in the qualified immunity context,

“even though a district court concludes that there are controverted factual issues,

a summary judgment ruling may still be immediately appealable in certain

circumstances,” such as where “a qualified immunity appeal raises the kind of

abstract legal issues that are separate from the factual issues that may arise at

trial.” Johnson v. 

.

      It is undisputed that Mr. Rhoads was injured at the jail on December 1,

whether through the arm-bar maneuver as Deputy Miller claims or through a

beating as Mr. Rhoads claims. While the existence of disputed facts is relevant to

our decision, as discussed below, we conclude that this appeal primarily involves

legal issues and we have jurisdiction to proceed.

                                       Analysis

      We review the denial of qualified immunity de novo. See York v. City of

Las Cruces, 

, 1210 (10th Cir. 2008). “The doctrine of qualified

immunity protects public officials performing discretionary functions unless their

conduct violates clearly established statutory or constitutional rights of which a

reasonable person would have known.” Johnson v. 

(quotations omitted). In reviewing a claim of qualified immunity, then, the court

considers (1) whether the facts establish a violation of a constitutional right and

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(2) whether the right was clearly established at the time of the incident. See

Pearson v. Callahan, 

, 815-16 (2009). But courts are “permitted to

exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first.” 

Deputy Miller

challenges the district court’s decision regarding both of these elements.

      In evaluating a motion for summary judgment based on qualified immunity,

we take the facts “in the light most favorable to the party asserting the injury.”

Scott v. Harris, 

, 377 (2007). “[T]his usually means adopting . . .

the plaintiff’s version of the facts,” 

unless that version “is so utterly

discredited by the record that no reasonable jury could have believed him,” 

In Scott, the plaintiff’s testimony was discredited by a videotape that

completely contradicted his version of the 

. Here, there is

no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’

testimony. 1 There is only other witnesses’ testimony to oppose his version of the

facts, and our judicial system leaves credibility determinations to the jury. See

Allen v. Wal-Mart Stores, Inc., 

, 1297 (10th Cir. 2001) (“The

weighing of evidence, the reconciliation of inconsistent testimony, and the

assessment of a witness’ credibility is solely within the province of the jury.”);


1
       Counsel informed the district court that the main booking area was under
video surveillance. But the jail’s practice is to reuse tapes, and the tape from the
date of this incident was recorded over when the jail failed to take any measures
to preserve it.

                                           -5-
Lamon v. City of Shawnee, 

, 1159 (10th Cir. 1992) (“It is the jury’s

exclusive province to assess the credibility of witnesses and determine the weight

to be given to their testimony.”). And given the undisputed fact of injury,

Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony,

not its admissibility. 2 See Santos v. Gates, 

, 851 (9th Cir. 2002)

(stating, in light of evidence that plaintiff was injured by officers, “[s]imply

because [plaintiff] has no clear recollection of the act which he contends caused

his severe injury does not mean that his claim must fail as a matter of law”).

      Mr. Rhoads alleges that his injuries resulted from a beating rendered

without resistence or provocation. If believed by the jury, the events he describes

are sufficient to support a claim of violation of clearly established law under

Graham v. Connor, 

, 395-96 (1989), and this court’s precedent. See,

e.g., Butler v. City of Norman, 

, 1055 (10th Cir. 1993) (holding that

plaintiff’s testimony that officers beat him with flashlights, kneed him in the

groin, and shoved him face-first into a wall supported excessive force claim and

showed a genuine issue of material fact precluding summary judgment on

qualified immunity); Frohmader v. Wayne, 

, 1026 (10th Cir. 1992)

2
       We recognize that Mr. Rhoads also testified that Deputy Miller was not one
of the persons who had beaten him, but Deputy Miller admits to performing the
arm-bar maneuver on Mr. Rhoads (which maneuver is generally in accord with
Mr. Rhoads’ description of an officer grabbing his arm and pulling him out of his
wheelchair). In light of Deputy Miller’s admission and Mr. Rhoads’ admitted
memory problems, a reasonable jury could believe that Mr. Rhoads was subjected
to a beating, as he testified, while discounting his description of his assailant(s).

                                          -6-
(per curiam) (holding that assaultive behavior against an arrestee by an officer

could not be determined to be objectively reasonable as a matter of law); Austin v.

Hamilton, 

, 1157-58 (10th Cir. 1991) (holding that, under arrestees’

version of the facts alleging repeated assaults without provocation, among other

abuses, no reasonable officer could have believed such treatment to be

constitutionally permissible); Dixon v. Richer, 

, 1463 (10th Cir.

1991) (holding that it was not objectively reasonable for an officer to choke and

beat a detainee where the detainee was not threatening the officer); see also 

, 1211 (10th Cir. 2008) (holding that jury could easily find

constitutional violations where detainee’s arm was broken when officers forced

him to the ground with an arm-bar takedown, placed a knee in his back, and

threatened to employ Taser). The jurors may decide not to credit Mr. Rhoads’

testimony, but that is their prerogative, not ours. Therefore, the district court did

not err in denying Deputy Miller’s motion for summary judgment based on

qualified immunity.

                                     Conclusion

      The district court’s denial of qualified immunity to Deputy Miller is

AFFIRMED.

                                                     Entered for the Court


                                                     Timothy M. Tymkovich
                                                     Circuit Judge

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