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February 9, 1996 [NOT FOR PUBLICATION]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.
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Douglas I. Louison, Stephen C. Pfaff and Merrick and Louison on
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brief for appellees.
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Per Curiam. In this suit under 42 U.S.C. 1983
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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
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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
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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
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Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir.
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1991), cert. denied, 504 U.S. 985 (1992). That is, he had to
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submit "significantly probative" evidence, not simply "some
evidence" that Bowen had used excessive force. See Frohmader
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v. Wayne, 958 F.2d 1024, 1028-29 (10th Cir. 1992).
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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.
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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
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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
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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,
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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
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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
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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
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Cir. 1993).
Affirmed. See Loc. R. 27.1.
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