Thompson L. Awnings v. Joshua Fullerton; Ryan Duncan; Jeremy Cather; Todd Roberts; and Travis Banks

Thompson Awnings sued, among others, Officers Joshua Fullerton, Ryan

Duncan, and Tarvis Banks of the Lincoln Police Department (LPD) under 42 U.S.C.

§ 1983 in their individual capacities. Awnings’s suit alleged multiple constitutional

violations by the officers, including false arrest, excessive force, and denial of

medical care. He claims the district court 1 erred by: (1) refusing to disqualify the

entire City of Lincoln Attorney’s Office; (2) granting qualified immunity to Officers

Fullerton and Duncan; and (3) dismissing Officer Banks from Awnings’s suit

pursuant to Federal Rule of Procedure 12(b)(6). We affirm.

I. Background

A. Awnings’s Arrest2

On an early morning in July 2013, Officers Fullerton and Duncan of the LPD

encountered Damien Wilkins on a sidewalk in Lincoln. The officers questioned

Wilkins about his possible involvement with criminal activity. Awnings, Wilkins’s

companion, inserted himself into the conversation and began asking the officers why

they were questioning Wilkins. Officer Fullerton informed Awnings that the officers

were conducting law enforcement business with Wilkins. Officer Fullerton then told

1The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

2Although Awnings disputed the defendants’ version of the events, the district

court found that most of the defendants’ statements of material facts did not

controvert Awnings’s own recitation. See Mem. & Order at 7–23, Awnings v.

Fullerton, No. 4:15-cv-03078-RGK-CRZ (D. Neb. Apr. 24, 2017), ECF No. 133

(“Qualified Immunity Order”). Upon review, we find that the parties’ versions of

events largely do not controvert each other, and we recite here only the undisputed

facts. See Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (standard

of review) (citation omitted).

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Awnings, who had been drinking, that he could wait for his friend a short distance

away, if he wished.

Unsatisfied, Awnings—now obviously angry and agitated—refused the

direction to step away. Awnings then, in an expletive-laced exclamation, declared that

“[h]e would protect his buddy” and that he was “not going anywhere.” Qualified

Immunity Order at 9. Awnings was several feet from Officer Fullerton, and the officer

instructed Awnings to step away from the officers. Awnings again refused, asking,

“Why should I leave?” Id. at 9. Officer Fullerton answered that Awnings was

interfering with an investigation and that his behavior distracted them from their

work. Awnings uttered another expletive and told the officer, “I am staying right

here.” Id. Officer Fullerton—for the third time—asked Awnings to leave the

immediate area; Officer Fullerton reinforced his request by warning Awnings that if

he refused, he would go to jail. In response, Awnings again blurted out the same

expletive, followed by “I’ll kick your ass.” Id.

At that point, Officer Fullerton informed Awnings that he was under arrest and

commanded Awnings to place his hands behind his back. Awnings refused, telling

Officer Fullerton, “I’m gonna kick your [expletive] ass.” Id. Officer Fullerton then

“reached out and grabbed onto [Awning’s] arm and wrist, but then [Awnings]

stiffened his arm and began to pull away. Officer Fullerton again told [Awnings] he

was under arrest and to stop resisting and [Awnings] continued to resist and pull

away.” Id. at 10. The officer then executed a hip toss maneuver, which put Awnings

“on his back on the ground with Officer Fullerton on top of him.” Id. The two men

began to fight. Officer Jon-Eric Meyer, who had arrived at the scene, joined with

Officer Duncan and came to Officer Fullerton’s assistance. As the officers attempted

to handcuff Awnings, he resisted, “actively kicking and punching at the officers.” Id.

Awnings then

hook[ed] his hand under Officer Duncan’s LPD uniform shirt and

[brought] his hand up to the collar, grabbing onto the body armor and

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undershirt as well as his collar. [Awnings] used this hold . . . to try to

pull Officer Duncan to the ground with force, causing the collar to cinch

around Officer Duncan’s neck.

Id. Meanwhile, “Officer Duncan gave numerous commands for [Awnings] to let go”

and to put his hands behind his back. Id. Awnings ignored the directive and continued

to tighten his grip on Officer Duncan’s shirt collar, and the officer “tried to strike

[Awnings] a couple of times” to induce Awnings to release his grasp. Id. at 11.

Awnings pinned Officer Duncan to the ground.

Officer Duncan yelled to his colleagues for help. Awnings eventually released

Officer Duncan’s shirt, and the officers then rolled Awnings onto his stomach and

handcuffed him. Awnings refused to walk to the police cruiser. Officer Jeremy

Carther from the University of Nebraska–Lincoln Police Department arrived and

assisted the LPD officers in placing Awnings on his back in the backseat of the

cruiser. Awnings continued to resist and yell profanities. Awnings kicked Officer

Carther in the chest twice. At that point, Officers Fullerton, Meyer, and Carther

removed Awnings from the cruiser and called for a vehicle with a “full backseat

cage.” Id. at 11. Awnings continued to resist the officers, and when a police vehicle

equipped with the full cage arrived, Officer Chris Howard placed Awnings in leg

restraints. The officers then placed Awnings into the police cruiser. Officer Duncan

sustained minor injuries from the scuffle.

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B. Awnings’s Transport to the Detention Center3

Awnings sustained visible injuries during his arrest. Because he was bleeding,

the LPD officers called for an ambulance to transport Awnings to the Bryan West

Medical Center (“the Hospital”). Officer Howard accompanied Awnings in the

ambulance. At the Hospital, Awnings told the examining physician that he believed

he had one or more fractured ribs. The doctor ordered a chest X-ray, which revealed

no rib fracture. The doctor pronounced Awnings fit for incarceration, but he ordered

a follow-up examination at the Hospital within one to two days. Officer Banks, who

had relieved Officer Howard during Awnings’s examination at the Hospital, then

transported Awnings to the Lancaster County Jail. Officer Banks neglected to inform

jail personnel of the doctor’s request for a follow-up appointment with Awnings; he

“simply informed jail personnel that [Awnings] had been to the emergency room and

had been deemed fit for confinement.” Mem. & Order at 3, Awnings v. Fullerton, No.

4:15-cv-03078-RGK-CRZ (D. Neb. Jan. 20, 2016), ECF No. 40.

C. District Court and Other Proceedings

Awnings’s scuffle with the LPD led to several, subsequent state criminal

charges. Awnings pleaded no contest to two of 4 the charges, and the District Court

of Lancaster County, Nebraska, sentenced him to two consecutive 90-day jail terms.

The Nebraska Court of Appeals upheld Awnings’s convictions.

3We recite these facts as alleged in Awnings’s complaint and assume them to

be true. See Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (en banc) (per

curiam) (“We review a district court’s grant of a motion to dismiss . . . de novo. We

assume all facts in the complaint to be true, and draw all reasonable inferences in

favor of the non-moving party.” (citations omitted)).

4These charges included assault on an officer in the third degree, in violation

of Neb. Rev. Stat. § 28-931, assault in the third degree, in violation of Neb. Rev. Stat.

§ 28-310(1), and resisting arrest, in violation of Neb. Rev. Stat. § 28-904(1).

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After his state convictions, Awnings filed a lawsuit in federal court pursuant

to 42 U.S.C. § 1983, alleging, among other things, that Officer Fullerton arrested

Awnings without probable cause and that Officers Fullerton and Duncan used

excessive force in effecting his arrest. Awnings also alleged that Officer

Banks—because of his failure to inform jail personnel of the Hospital doctor’s

request for a follow-up examination—deprived him of his right to be free from

unreasonable seizures under the Fourth Amendment. Awnings also claimed that

Officer Banks’s conduct amounted to a denial of medical care, violating his due

process rights under the Fourteenth Amendment.

Elizabeth Elliott, an attorney employed by the City of Lincoln Attorney’s

Office (CLAO), initially represented the LPD officers. In that capacity, she filed a

notice of intent to serve subpoena duces tecum with the district court. Elliott

previously had worked in the Lancaster County Public Defender’s Office (LPDO).

In fact, Elliott worked as an attorney in that office while the LPDO defended

Awnings’s state criminal charges. Awnings objected to the notice, and Elliott moved

to withdraw from the case upon discovering the potential conflict. Awnings then

moved to disqualify the entire CLAO, claiming Elliott’s employment at the LPDO

while that office represented Awnings created a conflict of interest that could

prejudice his civil suit against the officers.

The magistrate judge considered Awnings’s motion and found that while

employed with the LPDO, Elliott “did not represent [Awnings], never appeared with

[Awnings] in court, and never spoke to him about his case. She [did] not recall

[Awnings] or the underlying facts of his state criminal case. She was never ‘actively

involved’ in [Awnings’s] underlying state criminal case.” Mem. & Order at 3,

Awnings v. Fullerton, No. 4:15-cv-03078-RGK-CRZ (D. Neb. Oct. 14, 2015), ECF

No. 26 (citation omitted). And Awnings pleaded no contest to the criminal charges

after Elliott left the LPDO. The CLAO assured the court that “Elliott has no

confidential information regarding [Awnings] and as such, has not divulged any

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confidential information to [the CLAO] about [Awnings] or his criminal case.” Id. at

4. Further, the CLAO had screened Elliott from any further work in Awnings’s case.

Finding no imputed conflict of interest stemming from Elliott’s prior employment at

the LPDO, the magistrate judge denied Awnings’s motion to disqualify the entire

CLAO. The district court affirmed the magistrate judge’s order.

Officers Banks, Duncan, and Fullerton moved to dismiss Awnings’s § 1983

suit under Federal Rule of Civil Procedure Rule 12(b)(6). The district court partially

granted the motion and dismissed Officer Banks from the suit. Officers Duncan and

Fullerton subsequently filed a motion for summary judgment, which the district court

granted. The court concluded that the Heck 5 doctrine barred Awnings from claiming

false arrest. But even if Heck did not foreclose Awnings’s false arrest claim, the

district court determined that Officers Duncan and Fullerton had probable cause to

arrest Awnings. Further, the court concluded that the officers’ use of force was

“objectively reasonable under the circumstances and did not violate [Awnings’s]

constitutional rights.” Qualified Immunity Order at 34. The district court then granted

summary judgment to the officers. The court held that the officers were entitled to

qualified immunity and dismissed both the false arrest and the excessive force claims.

II. Discussion

In this appeal, Awnings claims the district court erred by: (1) failing to

disqualify the entire CLAO; (2) granting qualified immunity to Officers Duncan and

Fullerton; and (3) granting Officer Banks’s Rule 12(b)(6) motion. We disagree and

affirm.

A. Disqualification of the CLAO Attorneys

Awnings argues that Elliott’s employment with the LPDO prior to joining the

CLAO raises a conflict of interest. Furthermore, he contends that Elliott’s conflict

5Heck v. Humphrey, 512 U.S. 477 (1994).

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should be imputed to the entire CLAO and that the district court should have granted

Awnings’s motion to disqualify. We review the district court’s denial of attorney

disqualification for abuse of discretion. See United States v. Kehoe, 310 F.3d 579,

590 (8th Cir. 2002) (citing Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605–06

(8th Cir. 1977)). “Because of the potential for abuse by opposing counsel,

‘disqualification motions should be subjected to particularly strict scrutiny.’”

Macheca Transp. Co. v. Phila. Indem. Ins. Co., 463 F.3d 827, 833 (8th Cir. 2006)

(quoting Harker v. Comm’r, 82 F.3d 806, 808 (8th Cir. 1996)). “[W]e apply the same

rules governing the professional conduct of attorneys that the district court has

adopted.” Harker, 82 F.3d at 808 (citing Blair v. Armontrout, 916 F.2d 1310, 1333

(8th Cir. 1990)). The moving party bears the burden of proving that disqualification

is required. See A.J. by L.B. v. Kierst, 56 F.3d 849, 859 (8th Cir. 1995) (citing Duncan

v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir. 1981)).

Under its general rules, the district court does not “adopt other codes of

professional responsibility or ethics.” NEGenR 1.7(b)(2)(A). But, “the court may

consult other codes of professional responsibility or ethics to determine whether a

lawyer has engaged in conduct unbecoming of a member of the bar.” NEGenR

1.7(b)(2)(B); cf. Malone v. Kantner Ingredients, Inc., No. 4:12CV3190, 2013 WL

5524548, at *7 (D. Neb. Oct. 3, 2013) (“When analyzing motions to disqualify, this

court refers to the Nebraska Rules of Professional conduct.”). In this case, the

magistrate judge cited State v. Kinkennon, 747 N.W.2d 437 (Neb. 2008), as the basis

for denying Awnings’s motion to disqualify the entire CLAO. The district court

subsequently affirmed the magistrate judge.

In Kinkennon, a Nebraska court appointed an attorney from a private law firm

to represent a defendant in a criminal case. Id. at 441. During the pendency of the

case, another attorney from the law firm began employment as a deputy county

attorney. Id. The defendant then moved to disqualify the entire county attorney’s

office, asking the state court to appoint a special prosecutor. Id. The state court denied

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the defendant’s motion. The Nebraska Supreme Court, after rejecting a per se rule of

disqualification, affirmed the trial court and explained:

We recognize that complete disqualification of a prosecutor’s office may

be warranted in cases where the appearance of unfairness or impropriety

is so great that the public trust and confidence in our judicial system

simply could not be maintained otherwise. Such an extreme case might

exist, even where the State has done all in its power to establish an

effective screening procedure precluding the individual lawyer’s direct

or indirect participation in the prosecution. But when the disqualified

attorney is effectively screened from any participation in the prosecution

of the defendant, the prosecutor’s office may, in general, proceed with

the prosecution.

Id. at 444 (footnote omitted).

Awnings says the district court erroneously relied on Kinkennon and contends

that our prior decision, State of Arkansas v. Dean Foods Products Co., 605 F.2d 380

(8th Cir. 1979), overruled on other grounds, In re Multi-Piece Rim Products Liability

Litigation, 612 F.2d 377 (8th Cir. 1980), compels reversal of the district court. He is

wrong. As we explained,

[i]n Dean Foods Products, this court affirmed a district court order

disqualifying an Assistant Attorney General from taking part in an

antitrust action against a defendant that was being represented by his

former law firm. Moreover, the court disqualified those members of the

Attorney General’s staff who had actively participated in the case under

the supervision of the disqualified attorney. The court explicitly reserved

judgment on whether the conflict should have resulted in the imputed

disqualification of the entire Attorney General’s office.

Blair, 916 F.2d at 1332 (emphasis added) (citations omitted). Thus, Dean Foods

Products does not command the disqualification of an entire attorney’s office even

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when an attorney in that office possesses confidential information about the

defendant. Rather, it is satisfactory that the attorney and the staff supervised by the

attorney be disqualified and appropriately screened.

We find no conflict between Kinkennon and Dean Foods Products, and neither

decision supports disqualifying the entire CLAO in Awnings’s civil case. When the

potential for a conflict became known, Elliott moved to recuse herself from the case

out of caution. She did not represent Awnings in his state criminal proceedings, did

not recall Awnings or his criminal case, and was never actively involved in the

criminal proceedings. Awnings pleaded no contest to the criminal charges after Elliott

departed the LPDO. Aside from filing the notice of intent to serve a subpoena duces

tecum, the CLAO screened Elliott from further participation in Awnings’s case.

While Awnings suggested that Elliott might have imparted confidential information

regarding his criminal case to the CLAO, see Appellant’s Br. at 16–17, “[g]eneral

assertions that an attorney possesses knowledge of a party’s ‘trade secrets, trial

strategies, negotiation strategies, legal theories or business practices’ are not typically

sufficient and can be overcome by an attorney affidavit stating the attorney has no

knowledge of such items.” Infogroup, Inc. v. DatabaseLLC, No. 8:14CV49, 2016 WL

2350113, at *2 (D. Neb. May 4, 2016) (citing Jacob N. Printing Co. v. Mosley, 779

N.W.2d 596, 602 (Neb. 2010)). Awnings only presented conjecture to support his

assertion that Elliott possessed confidential information regarding his case. Elliott,

on the other hand, submitted an affidavit claiming no knowledge of the case from her

previous employment.

Because Awnings failed in his burden to show the necessity of disqualifying

of the entire CLAO, we find no abuse of discretion in the district court’s denial of

Awnings’s motion to disqualify. See A.J. by L.B., 56 F.3d at 859 (citation omitted).

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B. Qualified Immunity

Next, Awnings claims the district court erred when it granted qualified

immunity to Officers Duncan and Fullerton because the district court erroneously:

(1) excluded Awnings’s statements about his medical condition; (2) admitted

affidavits from the LPD officers; and (3) ignored material fact disputes raised by

Awnings. “We review the district court’s grant of summary judgment de novo, and

may affirm the district court on any basis supported by the record.” Figg v. Russell,

433 F.3d 593, 597 (8th Cir. 2006) (citing Wilson v. Spain, 209 F.3d 713, 716 (8th Cir.

2000); Gonzales-Perez v. Harper, 241 F.3d 633, 638 n.6 (8th Cir. 2001)). We review

the district court’s admission of evidence for summary judgment purposes under an

abuse-of-discretion standard. Gannon Int’l., Ltd. v. Blocker, 684 F.3d 785, 793 (8th

Cir. 2012) (citing Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 591

(8th Cir. 2011)). We address each of Awnings’s claims in turn.

1. Evidentiary Rulings

Awnings claims that the district court erred in excluding statements he made

about his medical examination at the Hospital after his release from jail. He also

asserts that the court erred in admitting affidavits from Officers Fullerton, Duncan,

Meyer, Howard, and one other officer of the LPD and from Officer Carther from the

University of Nebraska–Lincoln Police Department.

Awnings submitted a declaration stating that following his release from jail, he

visited a physician at the Hospital, who diagnosed him with four broken ribs and a

collapsed lung. The district court excluded Awnings’s medical condition statement

because the “[examining] physician [was] not identified, the diagnoses [were]

hearsay, and there [was] no medical evidence to establish a causal link to” Awning’s

encounter with the LPD. Qualified Immunity Order at 22 n.22. Awnings says that at

the summary judgment stage, he need not present evidence in a trial-ready form. He

contends that he could have called the examining physician to testify at trial. Further,

he asserts that he was not required to disclose the physician’s name, especially when

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the doctor’s identity was readily discernible from the record. Lastly, Awnings, citing

Ziesmer v. Hagen, 785 F.3d 1233 (8th Cir. 2015), argues that because his injuries

were not sophisticated and within the range of common experience, he was not

required to produce an expert witness to prove causation. We disagree.

In Ziesmer, a police search of an individual turned into a physical altercation.

Id. at 1236. The trooper “tackled the [plaintiff, Ziesmer,] to the ground and dug his

knee into [Ziesmer’s] back, while pulling Ziesmer’s hands behind his back, causing

his shoulder to pop out of its socket. Trooper Hagen popped Ziesmer’s shoulder back

into its socket.” Id. “Immediately after the incident Ziesmer reports that he had

bruising and scrapes on his face and a large knot on the back of his head. He took

pictures of his bruised face when he got home.” Id. Ziesmer also sustained a welt on

his head. Id. We reversed the district court’s conclusion that Ziesmer needed to

produce a medical expert to opine on Ziesmer’s condition, reasoning:

It is true that “[w]hen an injury is sophisticated, proof of causation

generally must be established by expert testimony.” Robinson v. Hager,

292 F.3d 560, 564 (8th Cir. 2002). However, “[a] causal connection

between an event and an injury may be inferred in cases in which a

visible injury or a sudden onset of an injury occurs.” Id. (quoting Turner

v. Iowa Fire Equip. Co., 229 F.3d 1202, 1210 (8th Cir. 2000)).

Given that Ziesmer claims he began experiencing neck pain

shortly after the alleged altercation with Trooper Hagen, and given that

there is no evidence suggesting he experienced any such pain before [the

incident with the trooper], a layperson could conclude that Ziesmer’s

symptoms were caused by the trauma to his neck and back. See also Hill

v. Gonzalez, 454 F.2d 1201, 1203 (8th Cir. 1972) (noting that “expert

testimony is not necessary” to prove causation when the “inferences to

be drawn from the facts are within the range of common experience” of

the jury members (quotation omitted)); cf. Saunders v. Frost, 124 Fed.

Appx. 468, 469 (8th Cir. 2005) (agreeing that the plaintiff’s knee injury

was sophisticated, requiring an expert witness to prove causation,

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because his knee “had a long medical history marked by earlier traumas

and an earlier surgery”). Injuries such as those claimed by Ziesmer are

“within the range of common experience,” and the lack of a medical

expert on this issue is not fatal to his claim at this stage of the

proceedings.

Id. at 1239 (first and second alterations in original).

Here, Awnings’s alleged injuries—fractured ribs and a collapsed lung—were

internal and required sophisticated medical tools to diagnose accurately. As such,

Awnings’s non-visible alleged injuries are not within the range of common

experience where inferences may be made with confidence. Further, Awnings’s visit

to the Hospital immediately after his arrest showed no fractured ribs or a collapsed

lung. In the absence of medical evidence, only Awnings’s own allegations remain.

But, “[a] plaintiff may not merely point to unsupported self-serving allegations, but

must substantiate allegations with sufficient probative evidence that would permit a

finding in the plaintiff’s favor.” Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th

Cir. 2005) (citing Wilson v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir. 1995));

see also Bacon v. Hennepin Cty. Med. Ctr., 550 F.3d 711, 716 (8th Cir. 2008) (“[A]

properly supported motion for summary judgment is not defeated by self-serving

affidavits.” (alteration in original) (quoting Gander Mountain Co. v. Cabela’s, Inc.,

540 F.3d 827, 831 (8th Cir. 2008))). Thus, in contrast to Ziesmer, without probative

medical evidence, Awnings can establish neither severity of injury nor causation. This

evidentiary void is fatal to Awnings’s claim. We find no abuse of discretion in the

district court’s conclusion that Awnings failed to present evidence of a causal link

between his alleged injuries and his encounter with the law enforcement officers.

Awnings also challenges the district court’s decision to admit affidavits from

the officers, contending that the affidavits should have been excluded because the

officers do not state that they had personal knowledge of “any of the facts [they]

recited, and “the affidavit[s] do[] not establish that [the officers] would be competent

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to testify as to the objectionable portions.” Appellant’s Br. at 39. Awnings cites to no

authority that the affidavits must expressly state they came from personal knowledge,

and we decline to endorse the kind of formalism that Awnings propounds. The district

court found that the officers’ statements were based on personal knowledge and

overruled Awnings’s objections. See Qualified Immunity Order at 4 n.1. In his

objections, Awnings presented no arguments or evidence why the officers would not

be competent to testify at a trial. We find no abuse of discretion and affirm the district

court’s evidentiary rulings.

2. False Arrest

Awnings contests the district court’s conclusion that the Heck doctrine barred

his false arrest claim. He also challenges the district court’s alternative ruling—that

even if Heck does not bar Awnings’s claim, Officers Duncan and Fullerton had

probable cause to arrest Awnings. We need not address Awnings argument that the

district court misapplied Heck because the officers had probable cause to arrest him

for obstruction of a peace officer.

Awnings argues that at the beginning of his encounter with Officers Fullerton

and Duncan, he did not resist. The record, however, does not support Awnings’s

contention. According to Awnings, Officer Fullerton “yelled at him to shut up and

pointed to a direction behind him.” Qualified Immunity Order at 17. Awnings averred

that he could not hear Officer Fullerton and he “yelled back at [Officer] Fullerton.”

Id. at 18. Officer Fullerton then “grabbed [Awnings’s] right arm and started to yank

it.” Id. “Awnings [then] recoiled and tried to get his arm loose.” Id. Awnings does not

dispute that Officers Fullerton and Duncan were conducting law enforcement

business with his companion, that Officer Fullerton pointed Awnings away from the

scene, or that he refused to comply. At that point, Officer Fullerton grabbed Awnings,

and Awnings pulled away.

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Under Nebraska law, Awnings’s admitted conduct qualified as obstruction of

a peace officer and resisting arrest. “A person commits the offense of obstructing a

peace officer, when, by . . . physical interference, or obstacle, he . . . intentionally

obstructs, impairs, or hinders . . . the enforcement of the penal law or the preservation

of the peace by a peace officer . . . acting under color of his . . . official authority.”

Neb. Rev. Stat. § 28-906(1)(a). Here, Awnings acknowledged that Officer Fullerton

was initially at least five feet from him, but Officer Fullerton moved closer during

their encounter. Officer Fullerton had previously told Awnings “that it was none of

[Awnings’s] business, and that if he wanted to wait for Wilkins he could do so at

some distance away.” Qualified Immunity Order at 16–17. Awnings refused to move

back. Officer Fullerton subsequently gestured to Awnings to move away by waving.

But Awnings again refused to move and “yelled back at [Officer] Fullerton.” Id. at

18. Awnings’s does not deny yelling, “[Expletive] you, I am staying right here” and

“[Expletive] you, I’ll kick your ass.” Id. at 9. Awnings’s conduct constituted

obstruction of a peace officer. See State v. Rosado, No. A-09-014, 2009 WL 3381652,

at *2 (Neb. Ct. App. Oct. 20, 2009) (holding that pounding chest, saying “shoot me,

[expletive],” and being in close proximity to peace officer attempting to arrest another

individual was obstructing a peace officer under Nebraska law); State v. Chapman,

No. A-92-451, 1993 WL 100146, at *5 (Neb. Ct. App. Apr. 6, 1993) (holding that

under the Nebraska obstruction statute, a defendant “could ‘threaten to use force or

violence’ with words, such as telling [the officer] he ‘was going to kick [his] ass’”

(second alteration in original)); see also Ehlers v. City of Rapid City, 846 F.3d 1002,

1009 (8th Cir. 2017) (concluding that “[r]efusing to comply with a police officer’s

orders can constitute obstruction” under a similar South Dakota statute (citation

omitted)).

Based on Awnings’s obstruction, Officer Fullerton had probable cause to

arrest. With probable cause, it was unnecessary for Officer Fullerton to issue a

“verbal advisement of an attempted arrest”; rather, “actions to effectuate physical

control over [the defendant] [are sufficient to] constitute[] an attempt to arrest.” State

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v. Heath, 838 N.W.2d 4, 17 (Neb. Ct. App. 2013) (first alteration in original) (citation

omitted). By grabbing Awnings’s arm, Officer Fullerton attempted to effectuate

physical control over Awnings. Awnings resisted by pulling away. Awnings’s

ensuing fight with the officers is undisputed.

3. Excessive Force

Awnings also faults the district court for granting qualified immunity to

Officers Fullerton and Duncan on his excessive force claim. He argues genuine

disputes of material facts preclude the court’s grant of qualified immunity.

“To determine whether a particular use of force was excessive, the court

considers whether it was objectively reasonable under the circumstances, relying on

the perspective of a reasonable officer present at the scene, rather than the 20/20

vision of hindsight.” Ehlers, 846 F.3d at 1011 (cleaned up). “Force is excessive when

an officer’s actions are not objectively reasonable in light of the facts and

circumstances confronting him.” Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002)

(citing Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998)). “When an arrestee flees

or resists, some use of force by the police is reasonable.” Greiner v. City of Champlin,

27 F.3d 1346, 1355 (8th Cir. 1994) (citing Foster v. Metro. Airports Comm’n, 914

F.2d 1076, 1082 (8th Cir. 1990)). “[E]vidence of only de minimis injury [does not]

foreclose[] a claim of excessive force under the Fourth Amendment.” Chambers v.

Pennycook, 641 F.3d 898, 906 (8th Cir. 2011). “[I]t is logically possible to prove an

excessive use of force that caused only a minor injury . . . . ” Id. We “focus instead

on whether the force applied is reasonable from the perspective of a reasonable

officer on the scene at the time the force is used.” Id. (citing Graham v. Connor, 490

U.S. 386, 396 (1989)).

We agree with the district court that Awnings showed no genuine disputes of

material fact between his version of events and the officers’ version. Here, the record

shows that Officer Fullerton executed a takedown maneuver after Awnings resisted

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arrest for obstruction under Nebraska law. Awnings alleged that officers joined in

beating him, but Officers Fullerton and Duncan’s evidence—uncontroverted by

Awnings—showed an uncooperative and bellicose Awnings who resisted arrest by

swinging and kicking at the officers. Also of note, 6 Awnings contends that at least

four officers physically attacked him. But, according to the proof of record, Awnings

sustained only a de minimis injury—a small laceration over his right eyebrow. See

Ellison v. Lesher, 796 F.3d 910, 917 (8th Cir. 2015) (“Our cases characterize

relatively minor scrapes, bruises, and contusions as de minimis.” (citing Ziesmer, 785

F.3d at 1236–37; Wertish v. Krueger, 433 F.3d 1062, 1066–67 (8th Cir. 2006))).

Officer Duncan also suffered non-serious injuries during his attempt to subdue

Awnings.

Here, other than generic assertions, Awnings’s statements “do not give the

slightest hint about the amount of force the officer[s] used or why the amount of force

was unreasonable in light of [his] persistent efforts to [resist] the police.” Edwards

v. Giles, 51 F.3d 155, 157 (8th Cir. 1995) (citation omitted) (concluding that

assertions such as the officers “threw [plaintiff] to the ground” or plaintiff “was

thrown to the ground forcibly” are “abstract assertions [that] tell us nothing more than

that one officer used some physical power to move [the plaintiff to the ground”).

Reviewing the facts in the light most favorable to Awnings, he has failed to show that

Officers Fullerton and Duncan used unreasonable force to arrest him. See Ehlers, 846

F.3d at 1010–11. Officers Fullerton and Duncan are entitled to qualified immunity.

6Awnings stated that he pulled his arm back when Officer Fullerton first

grabbed his arm; that after Officer Fullerton’s takedown, Awnings tried to get Officer

Fullerton off and to get away from the officer; that he tried to curl his body into a ball

(thereby making it difficult for the officers to handcuff Awnings); and that he jumped

out of the police vehicle after having been placed in the back seat. See Qualified

Immunity Order at 18–20.

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C. Motion to Dismiss

Awnings contends that the district court erred in dismissing Officer Banks from

the suit. Awnings argues that he adequately stated a claim for deliberate indifference

to his serious medical needs. Awnings’s allegation stemmed from Officer Banks’s

failure to inform the jail staff of Awnings’s need for a follow-up visit with the

Hospital. We review de novo the district court’s grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). Wong v. Minn. Dep’t of Human Servs., 820

F.3d 922, 927 (8th Cir. 2016) (citation omitted). We assume the truth of Awnings’s

factual allegations, and “we construe the complaint in the light most favorable to the

nonmoving party.” Id. (quoting Ritchie v. St. Louis Jewish Light, 630 F.3d 713,

715–16 (8th Cir. 2011)).

The parties do not dispute that Officer Banks neglected to inform jail personnel

of Awnings’s need for a follow-up medical appointment. Awnings argues that his

transport from the Hospital to the jail was part of his arrest; therefore his claim

against Officer Banks necessarily implicates the Fourth Amendment. But, historically,

in this circuit, claims of deliberate indifference to an arrestee’s medical needs are

“properly analyzed under the Due Process Clause of the Fourteenth Amendment.”

Carpenter v. Gage, 686 F.3d 644, 650 (8th Cir. 2012) (citations omitted). Unresolved

is “the question whether the Fourth Amendment continues to provide individuals with

protection against the deliberate use of excessive physical force beyond the point at

which arrest ends and pretrial detention begins.” Graham, 490 U.S. at 395 n.10

(emphasis added); see also Chambers, 641 F.3d at 905 (“We have noted the existence

of a ‘legal twilight zone’ between arrest and sentencing, where it is unclear whether

excessive force claims are governed by the Fourth Amendment or cases decided based

on the Fourteenth Amendment and substantive due process.” (emphasis added)

(quoting Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000))). Awnings’s claim

against Officer Banks is a failure to provide adequate medical services—not an

excessive force claim related to his arrest. Instead, Awnings claim against Officer

Banks relates to the sufficiency of his post-arrest, post-medical examination, medical

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care. It is true that we have not as yet “resolved whether an arrestee’s claim alleging

denial of medical care is analyzed under the Due Process Clause or the Fourth

Amendment. Bailey v. Feltmann, 810 F.3d 589, 593 (8th Cir. 2016). We need not do

so here. The facts distinguish this case from those arising from an allegation of

excessive force. Factually, any alleged denial of medical care incident to Awnings’s

arrest ended when he actually received medical attention at the hospital. Awnings’s

claim against Officer Banks relates to Officer Banks’s omission to convey the followup

medical appointment ordered by the doctor—not from his participation in

Awnings’s arrest. In fact, Officer Banks did not participate in the arrest of Awnings.

Unlike the plaintiff in Carpenter, Awnings was first transported for medical treatment

before being taken to jail. On this record, our precedents favor analyzing Awnings’s

medical needs claim under Fourteenth Amendment standards.

Under the Fourteenth Amendment, “‘[d]eliberate indifference’ entails a level

of culpability equal to the criminal law definition of recklessness, that is, a prison

official ‘must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.’” Bender

v. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S.

825, 837 (1994)). “The standard for evaluating a substantive due process claim is

whether the alleged ‘behavior of the governmental officer is so egregious, so

outrageous, that it may fairly be said to shock the contemporary conscience.’”

Schmidt v. City of Bella Villa, 557 F.3d 564, 574 (8th Cir. 2009) (quoting Rogers v.

City of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998)). Here, Awnings sustained a

small laceration, and his examining physician post-arrest declared Awnings fit for

incarceration. Further, a chest X-ray showed no fractured ribs or lung damages. Under

these circumstances, it cannot be said that Officer Banks’s failure to inform the jail

staff of Awnings’s follow-up medical visit rises to the level of conduct that “shocks

the contemporary conscience.” Id. The district court correctly dismissed Awnings’s

claim against Officer Banks under Rule 12(b)(6).

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III. Conclusion

We affirm.7

COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.

I join all but Part II.C of the opinion of the court. As to Awnings’s claim

against Officer Banks, I disagree with the court’s decision to declare that the claim

is governed by the Due Process Clause. Whether the Fourth Amendment or the Due

Process Clause governs the actions of Officer Banks during the period after Awnings

was arrested but before a judicial officer determined probable cause to detain him is

important doctrinally. The issue was not thoroughly briefed in this case. The answer

is unnecessary to resolving this appeal. I would therefore refrain from deciding the

point.

We said in Bailey v. Feltmann, 810 F.3d 589 (8th Cir. 2016), that “this court

has not resolved whether an arrestee’s claim alleging denial of medical care is

analyzed under the Due Process Clause or the Fourth Amendment” and noted “a

conflict in authority” on the question. The Seventh Circuit draws the line at a judicial

determination of probable cause: “the Fourth Amendment governs the period of

confinement between arrest without a warrant and the preliminary hearing at which

a determination of probable cause is made, while due process regulates the period of

confinement after the initial determination of probable cause.” Villanova v. Abrams,

972 F.2d 792, 797 (7th Cir. 1992); see Ortiz v. City of Chicago, 656 F.3d 523, 530

(7th Cir. 2011). On the other hand, a divided panel of the Tenth Circuit ruled that a

claim based on alleged failure to prevent a detainee from committing suicide before

he was taken before a magistrate judge was governed by the Due Process Clause,

Barrie v. Grand Cty., 119 F.3d 862, 865-69 (10th Cir. 1997), while a concurring

7Prior to oral argument, Officer Banks moved to be dismissed as a party to this

appeal. That motion is denied.

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judge concluded that the Fourth Amendment applied. Id. at 870 (Briscoe, J.,

concurring).

In this case, Awnings loses under either approach. An arrestee’s asserted

Fourth Amendment right to be free from unreasonable neglect in communicating a

need for medical care was not clearly established in July 2013 when Awnings was

seized, so Banks is entitled to qualified immunity on that claim. See Bailey, 810 F.3d

at 593. If the more demanding deliberate indifference standard of the Due Process

Clause applies, then Awnings’s claim fails for lack of alleged conscience-shocking

conduct. Ante, at 19. We need not say more to resolve the appeal.

The court goes further, however, and says that “our precedents favor analyzing

Awnings’s medical needs claim under Fourteenth Amendment standards.” Id. But

our decisions do not resolve which constitutional provision applies. As we explained

in Bailey, 810 F.3d at 593, the decision in Carpenter v. Gage, 686 F.3d 644 (8th Cir.

2012), applied due process analysis to the claim of an arrestee alleging indifference

to medical needs, but the plaintiff did not invoke the more favorable Fourth

Amendment standard, so the issue was not joined. Id. at 650. Two earlier cases cited

in Carpenter applied due process analysis, but neither suggested that the plaintiff had

raised a claim of unreasonable seizure under the Fourth Amendment and did not

address that possibility. See McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009);

Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 & n.3 (8th Cir. 1999).

The court disclaims any decision about whether “an arrestee’s claim alleging

denial of medical care is analyzed under the Due Process Clause or the Fourth

Amendment,” ante, at 19 (quoting Bailey, 810 F.3d at 593), but then decides the issue

anyway as to an arrestee like Awnings. The doctrinal debate cited in Bailey concerns

whether claims arising after arrest but before a judicial determination of probable

cause are governed by the Fourth Amendment. Awnings’s claim against Banks arose

before a probable-cause determination, so the court necessarily rejects one of the two

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conflicting lines of authority cited in Bailey by declaring that the Due Process Clause

governs Awnings’s claim. I would reserve judgment on that significant question

where it was not thoroughly briefed and is unnecessary to a decision.

_________________________

Affirmed