Hinton v. City of Elwood, Kan., 91-3327

• Decision Date: 29 June 1993
• Docket Number: No. 91-3327,91-3327
• Citation: 997 F.2d 774
• Parties: Kenneth L. HINTON, for himself and as father and next friend of Kamilah Hinton; Kaneasha Hinton; and Gabriel Hinton, Plaintiffs-Appellants, v. CITY OF ELWOOD, KANSAS; Sue Wright, Mayor; William White, Police Officer; and Larry Myer, Police Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 774

997 F.2d 774

26 Fed.R.Serv.3d 147

Kenneth L. HINTON, for himself and as father and next friend of Kamilah Hinton; Kaneasha Hinton; and Gabriel Hinton, Plaintiffs-Appellants, v. CITY OF ELWOOD, KANSAS; Sue Wright, Mayor; William White Police Officer; and Larry Myer, Police Officer Defendants-Appellees.

No. 91-3327.

United States Court of Appeals Tenth Circuit.

June 29, 1993.

Richard E. Jones of Jones and Jones, Topeka, KS, for plaintiffs/appellants.

J. Steven Pigg of Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendants/appellees.

Before LOGAN, TACHA, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This case arises out of the arrest of the appellant, Kenneth Hinton, ¹ by several Elwood police officers for disorderly conduct. Hinton subsequently filed a claim against the arresting officers, the Mayor of Elwood, and the City of Elwood, pursuant to 42 U.S.C. § 1983, charging that he had been subjected to excessive force in violation of his constitutional rights. The district court dismissed Hinton's claims on summary judgment. We find that the arresting officers' use of force did not rise to the level of a constitutional violation and therefore affirm the district court's dismissal of the appellant's claims.

FACTS

On July 19, 1988, Hinton, a black resident of Elwood, Kansas, discovered that his dog had been tranquilized and impounded by the Elwood animal control officer, Wayne Hall. Hinton approached Hall on three separate occasions to inquire about the incident and about retrieving his dog. Each time Hall told Hinton to wait for his court date and to talk to the judge.

The last encounter occurred on July 22, 1988, at Hall's residence, in the company of Hinton's three children and two of his neighbors children. Hinton became angry during this encounter, and told Hall that the daughter of a prior landlord had become ill after she called the animal control officer about his dog. Hall interpreted this comment as a threat and called the police.

Elwood police officer Larry Myer responded to Hall's call and located Hinton walking home with his and his neighbor's children. Myer parked his car in the middle of the street and informed Hinton that he wanted to discuss a complaint against him for disturbing the peace. Hinton stated that he had not been disturbing the peace and continued walking.

At this point, Hinton alleges that Myer poked him in the chest several times and stated that if he didn't stop he was going to jail. According to Hinton, he told Myer that he did not want to talk in front of the children, but would be willing to talk to Myer after he took the children home. By contrast, Myer denies that he poked Hinton in the chest. He asserts that Hinton shoved him in the chest after he asked Hinton to stop and that Hinton jerked his shirt off as if he wanted to fight.

The encounter between Myer and Hinton lasted approximately three minutes before Elwood Mayor Sue Wright arrived, followed shortly thereafter by Elwood Police Chief William White. Hinton alleges that White asked him what was going on and that he told White that he wanted to bring the children home before talking to the police. According to White, he told Hinton to calm down and go home and that if he engaged in one more outburst he would be arrested for disorderly conduct.

At the end of this conversation, Hinton shoved Myer out of his way, picked up his youngest daughter, and started to walk away. White then grabbed the appellant from behind and told him he was under arrest. As Hinton began to struggle with White, they both fell against Myer's police car. Wright grabbed Hinton's daughter out Hinton was taken into custody and charged with disorderly conduct, obstructing official duty, and two counts of battery against a police officer. ² While in custody, Hinton was taken to a local hospital where he was treated for several minor abrasions.

                of his arms and White and Myer pushed Hinton to the ground where they attempted to handcuff him.   Hinton continued to struggle with Myer and White by kicking his feet, flailing his arms, and biting the officers, and in the ensuing scuffle White shoved Hinton's face into the asphalt and twisted his arm behind his back.   White eventually used an electrical stun gun to subdue Hinton.   While Hinton asserts that White used the gun "numerous amounts of times," White contends that he used the stun gun only three times
                

At the time of the July 22 incident, Myer had no formal training as a police officer. Although White had received certification from the Kansas Law Enforcement Training Center and had attended a number of police seminars, he had no formal training in the use of a stun gun. Furthermore, the Elwood Police Department had no written rules or regulations governing the conduct of Elwood police officers. White had suggested to the Elwood City Council that it adopt such rules and regulations but this suggestion had been rejected.

Hinton filed suit against Myer, White, Wright, and the City of Elwood, asserting claims under 42 U.S.C. § 1983 and various state laws. Hinton's § 1983 claims charged that Myer and White used excessive force to effectuate his arrest, and that Wright and the City of Elwood failed to train Elwood police officers regarding, or to adopt any written polices regulating, the use of force. Hinton's claims also charged that Wright encouraged Myer and White's conduct by her failure to intervene during their encounter with Hinton. The United States District Court for the District of Kansas dismissed these claims on summary judgment. The court concluded that White and Myer were entitled to qualified immunity and that the City of Elwood had not acted with deliberate indifference. The court did not specify why it dismissed Hinton's § 1983 claim against Wright. On appeal, Hinton argues that the district court's dismissal of his § 1983 claims was in error.

JURISDICTION

Before reaching the merits of Hinton's appeal, we must first determine whether Hinton's notice of appeal was timely filed under Federal Rule of Appellate Procedure 4(a). The time periods established by Rule 4(a) for the filing of a notice of appeal are "mandatory and jurisdictional." Senjuro v. Murray, 943 F.2d 36, 37 (10th Cir.1991) (quoting Browder v. Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978)).

Rule 4(a)(1) requires a notice of appeal in a civil case to be filed "within 30 days after the date of entry of the judgment or order appealed from." Fed.R.App.P. 4(a)(1). Rule 4(a)(5) permits the district court, "upon a showing of excusable neglect or good cause, [to] extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by [Rule 4(a)(1) ]." Fed.R.App.Proc. 4(a)(5). No extension may "exceed 30 days past [the time prescribed by Rule 4(a)(1) ] or 10 days from the date of entry of the order granting the motion, whichever occurs later." Id.

Here, the district court entered its summary judgment order on September 9, 1991, and Hinton filed his notice of appeal on October 10, 1991. Accordingly, Hinton's appeal was filed one day beyond the 30-day period specified in Rule 4(a)(1). However, Hinton subsequently filed a motion for an extension of time on November 4, 1991. This motion was within the 30-day period permitted by Rule 4(a)(5) and was granted by the district court on November 6, 1991. The effect of the district court's order was to extend Hinton's time to file a notice of appeal until November 16, 1991. Notwithstanding this extension of time, however, Hinton never Rule 4(a) does not address whether an order granting a motion to extend the time to appeal may validate a prior notice of appeal. However, Rule 4(a) does address the continuing validity of a premature notice of appeal in two other contexts. Rule 4(a)(2) states "a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry." Fed.R.App.P. 4(a)(2). Rule 4(a)(4) provides that "[a] notice of appeal filed before the disposition of [certain substantive post-trial] motions shall have no effect" and "[a] new notice of appeal must be filed ... [after] entry of the order disposing of the motion." ³ Fed.R.App.P. 4(a)(4). We believe these two provisions stand for the proposition that a premature notice of appeal retains its validity only when the order appealed from is likely to remain unchanged in both its form and its content. When an intervening motion occurs which could alter the order or judgment appealed from, a new notice of appeal must be filed after disposition of the subsequent motion to ensure that the would-be appellant still desires to appeal.

                filed a second notice of appeal.   Thus, our jurisdiction over Hinton's appeal depends on whether his otherwise untimely notice of appeal on October 10 was validated by the district court's approval of his subsequent motion to extend the time to file a notice of appeal
                

This interpretation of Rule 4(a) is supported by our en banc decision in Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir.1988). In Goodrich, we held that a premature notice of appeal from an interlocutory order disposing of less than all the claims could be cured by a subsequent certification order under Rule 54(b) or a final disposition of the remaining claims. Id. at 645. We reasoned that an interlocutory order disposing of less than all the claims, though lacking in "technical formal finality," would likely "remain unchanged in its form and content." Id. at 644 (quoting Morris v. Uhl & Lopez Engineers, Inc., 442 F.2d 1247, 1250 (10th Cir.1971)). Thus, to require the filing of a new notice of appeal would amount to little more than "empty paper shuffling." Id. (quoting Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 760 F.2d 177, 181 (7th Cir.1985)).

Based on our conclusion that Rule 4...