WARREN MCCOWAN v. MARK MORALES and THE CITY OF LAS CRUCES, NEW MEXICO, a/k/a Las Cruces Police Department
No. 18-2169
United States Court of Appeals, Tenth Circuit
December 27, 2019
PUBLISH
Mark D. Standridge, City of Las Cruces (Cody R. Rogers, Jarmie & Rogers, P.C., with him on the briefs), Las Cruces, New Mexico, for Defendant-Appellant Mark Morales.
Daisy Chaparro (James D. Tawney with her on the brief), Flores, Tawney & Acosta P.C., Las Cruces, New Mexico, for Plaintiff-Appellee Warren McCowan.
Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
In this interlocutory appeal, Defendant Mark Moralez,1 a Las Cruces, New Mexico police officer, challenges the district court‘s decision to deny him summary judgment on the basis of qualified immunity from two of Plaintiff Warren McCowan‘s
McCowan based his excessive-force claim on his assertion that Officer Moralez placed McCowan in the back seat of a patrol car, handcuffed behind his back and unrestrained by a seatbelt, and then drove recklessly to the police station, knowing his driving was violently tossing McCowan back and forth across the backseat. This rough ride, McCowan contends, injured his shoulders, after McCowan had advised the officer before the trip to the station that he had a previous shoulder injury.
As to this claim, it was clearly established at the time of these events that an officer‘s gratuitous use of excessive force against a fully compliant, restrained, and
McCowan‘s second claim alleged that Officer Moralez was deliberately indifferent to McCowan‘s serious medical needs—his injured shoulders—by delaying McCowan‘s access to medical care until he arrived at the county detention center.2 Because these allegations alleged a clearly established violation of the Fourteenth Amendment, we also AFFIRM the district court‘s decision to deny Officer Moralez qualified immunity on that claim.
Therefore, having jurisdiction over this appeal under
I. BACKGROUND
Importantly, the district court denied Officer Moralez qualified immunity at the summary judgment stage of this litigation. For purposes of this interlocutory
At almost midnight on August 21, 2015, Officer Moralez pulled McCowan over for driving without his headlights. “McCowan had red, bloodshot, watery eyes, a flushed face, slurred his words, smelled strongly of alcohol and had a thirty pack of beer in his backseat. [He] admitted he drank three beers one to two hours earlier.” (Aplt. App. at 172 (record citations omitted).) McCowan agreed to take a sobriety test but, before doing so, he “informed Officer Morale[z] that he had a pending social security disability claim for a neck and shoulder injury, an injury which disrupted his equilibrium and would thus impair his ability to pass the test.” (Id. 173.)
After McCowan “perform[ed] ‘poorly’ on the sobriety test,” Officer Moralez arrested him. (Id.)
As he was handcuffed, McCowan claims he requested the cuffs be left “loose” and forward facing so as not to aggravate his shoulder injury, but Officer Morale[z] refused because he suspected McCowan was lying about his injury. McCowan further claims Officer Morale[z] did not check the tightness of the handcuffs, and that he [McCowan] was fully compliant with Officer Morale[z]’ requests.
(Id. (record citations omitted).) It is undisputed “that McCowan was compliant.” (Id.)
Once handcuffed, McCowan was placed in the back of Officer Morale[z]‘s police car and driven to the Las Cruces Police Department, which took two minutes and covered .8 miles. McCowan asserts he was not buckled in, and as a result of Officer Morale[z]’ fast, jerky driving,
was repeatedly slammed throughout the backseat “like a ping pong ball.” McCowan begged Officer Morale[z] to slow down, but McCowan claims Officer Morale[z] laughed at him and continued to speed. McCowan believes his being tossed around re-injured his shoulder.
(Id. 173-74 (record citations omitted).)
Once at the police station,
McCowan was placed in a holding cell within the . . . Police Department where, consistent with protocol, he was handcuffed to a metal bench. Because of searing shoulder pain, McCowan requested he not be handcuffed. When that request was denied, McCowan pleaded to be handcuffed from the front, which was also denied. . . .
Soon thereafter, McCowan was removed from his cell to be breathalyzed. He blew a .08 and .09, just above the legal limit in New Mexico. McCowan was returned to his cell while Officer Morale[z] completed paperwork relating to his arrest. McCowan asserts that he continued to cry and scream in pain, and begged the officers present, including Officer Morale[z], to loosen his handcuffs. According to McCowan, the officers laughed at his request.
At some point . . ., Officer Morale[z] entered McCowan‘s cell to prepare his transfer to the Dona Ana County Detention Center. According to McCowan, Officer Morale[z] slightly loosened his handcuffs upon discovering McCowan‘s wrists were purple. He then ordered McCowan to stand up straight, but McCowan was unable to do so because he was handcuffed and in pain. With the assistance of another officer, McCowan was pulled off the floor, causing his shoulders to audibly tear. McCowan screamed in pain but no medical treatment was offered or provided. McCowan was then taken to the detention center, where he was medically cleared and booked despite telling the booking officer he was in “excruciating pain.”
Following his arrest, McCowan had two shoulder surgeries and accumulated nearly $120,000 in medical bills. In February 2016, his DUI and failure to use headlamp charges were dismissed without prejudice.
McCowan sued Officer Moralez and his employer, the City of Las Cruces, asserting claims under both
II. STANDARD OF REVIEW
[We] review the denial of a summary judgment motion raising qualified immunity questions de novo. Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions. After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff. Applying the same standards as the district court, we must determine whether the plaintiff has satisfied a heavy two-part burden. The plaintiff must first establish that the defendant‘s actions violated a constitutional or statutory right. If the plaintiff establishes a violation of a constitutional or statutory right, he must then demonstrate that the right at issue was clearly established at the time of the defendant‘s unlawful conduct. In determining whether the right was “clearly established,” the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether the right was sufficiently clear that a reasonable officer would understand that what he is doing violates that right.
Estate of Ceballos v. Husk, 919 F.3d 1204, 1212-13 (10th Cir. 2019) (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). A court can consider the two qualified-immunity inquiries—whether the plaintiff has established a statutory or constitutional violation and whether that violation was clearly established in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity. If the plaintiff successfully
Estate of Ceballos, 919 F.3d at 1212-13 (quoting Medina, 252 F.3d at 1128).
[T]his court has jurisdiction to consider [a defendant‘s] interlocutory appeal from the denial of qualified immunity only to the extent that it presents abstract issues of law. See Mitchell v. Forsyth, 472 U.S. [at] 530 . . . . We do not have jurisdiction to review the district court‘s determination that there are disputed factual issues that preclude summary judgment. See Johnson, 515 U.S. at 307 . . . .
Estate of Ceballos, 919 F.3d at 1213.
III. DISCUSSION
A. McCowan‘s excessive-force claim set forth a clearly established Fourth Amendment violation
McCowan asserted that Officer Moralez used excessive force against him when the officer placed McCowan, handcuffed but unrestrained by a seatbelt, in the “caged” back seat of the patrol car, and then drove recklessly, knowingly tossing McCowan about the back seat. Although we briefly address whether McCowan established a constitutional violation—he did—we focus primarily on the question of whether that violation was clearly established at the time of these events, August 21-22, 2015, because that is the focus of Officer Moralez‘s argument on appeal. We conclude that the constitutional violation at issue under McCowan‘s excessive force claim was indeed clearly established.
“Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth Amendment,” depending on “where the plaintiff finds himself in the criminal justice system” at the time of the challenged use of force. Estate of Booker v. Gomez, 745 F.3d 405, 418-19 (10th Cir. 2014) (internal quotation marks, alteration omitted). Here, the Fourth Amendment applies because the challenged force occurred after McCowan had been arrested without a warrant and before any determination as to whether there was probable cause to charge him with a crime. See id. at 419.
A Fourth Amendment excessive-force claim is governed by a purely objective standard: “A police officer violates an arrestee‘s . . . Fourth Amendment right to be free from excessive force during an arrest if the officer‘s actions were not ‘objectively reasonable’ in light of the facts and circumstances confronting him.” Estate of Ceballos, 919 F.3d at 1213 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (further quotation omitted).6
To determine the objective reasonableness of the use of force, we “must balance ‘the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the countervailing governmental interests at stake.‘” McCoy v. Meyers, 887 F.3d 1034, 1045 (10th Cir. 2018) (quoting Graham, 490 U.S. at 396). In conducting this balancing, we consider the factors the Supreme Court clearly set forth in Graham v. Connor: “(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 the suspect is actively resisting arrest or attempting to evade arrest by flight.‘” Id. (quoting Graham, 490 U.S. at 396) (alteration omitted).
Applying the Graham factors to Fourth Amendment excessive force claims provides a method for measuring the reasonableness of force in any given situation. The specific essential facts presented here, as we accept them for purposes of this interlocutory appeal, are (1) the gratuitous use of force against (2) a fully compliant
Officer Moralez inaccurately compares this case to a dissimilar situation where officers simply failed to seatbelt a handcuffed prisoner who was then injured in a vehicular accident due to the driver-officer‘s negligence. See, e.g., Brown v. Larsen, 653 F. App‘x 577, 577-80 (10th Cir. 2016) (unpublished); Dexter v. Ford Motor Co., 92 F. App‘x 637, 638, 640-44 (10th Cir. 2004) (unpublished). That is not what McCowan has asserted happened here. Instead, McCowan‘s affidavit states that Officer Moralez, after placing the handcuffed McCowan in the back seat unrestrained by a seatbelt, drove recklessly; McCowan pleaded with the officer to slow down and
Of course, to succeed on this excessive-force claim, McCowan will ultimately
2. The Fourth Amendment violation McCowan alleged was clearly established in August 2015
The real focus of Officer Moralez‘s arguments on appeal is whether this Fourth Amendment violation was clearly established in August 2015. “To be clearly established, ordinarily there must be prior Supreme Court or Tenth Circuit precedent, or the weight of authority from other circuits, that would have put an objective officer in [Moralez]‘s position on notice that he was violating [McCowan]‘s Fourth Amendment rights.” Estate of Ceballos, 919 F.3d at 1213 (internal quotation marks omitted).
The Supreme Court has warned against defining a clearly established right “at a high level of generality.” White v. Pauly, —U.S.—, 137 S. Ct. 548, 552 . . . (2017) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 . . . (2011)). Instead, “the clearly established law must be ‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 . . . (1987)). This is not to say that there must be “a case directly on point for a right to be clearly established.” Kisela[ v. Hughes], [—U.S.—,] 138 S. Ct. [1148,] 1152 [(2018)] (quoting White, 137 S. Ct. at 551). But the “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quoting White, 137 S. Ct. at 551). “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.‘” Mullenix v. Luna, —U.S.—, 136 S. Ct. 305, 308 . . . (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 ... (2012)).
Estate of Ceballos, 919 F.3d at 1214-15. The need for specificity is especially important in Fourth Amendment excessive force cases because
it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.
City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (quoting Kisela, 138 S. Ct. at 1153). Nonetheless, even in the Fourth Amendment context, there need not be a prior “case directly on point,” so long as there is existing precedent that places the unconstitutionality of the alleged conduct “beyond debate.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (internal quotation marks omitted). For example (and as explained in greater detail below), this court, addressing a Fourth Amendment excessive-force claim, recently held that, although there was no “factually identical” prior case, there was still sufficient Tenth Circuit case law that “made it clear to any reasonable officer in the [Defendants‘] position that the post-restraint force [challenged in that case] was unconstitutional.” McCoy, 887 F.3d at 1052.
Officer Moralez asserts that there is no prior Supreme Court or Tenth Circuit excessive force case involving an officer driving recklessly so that he knowingly tossed about the backseat of his patrol car a handcuffed but otherwise unrestrained arrestee. Therefore, Officer Moralez contends that he was not on notice that what he did (as McCowan has alleged it) violated the Fourth Amendment. But the relevant inquiry here, as this court explained in McCoy, 887 F.3d at 1052-53, is whether there were relevant Tenth Circuit cases giving Officer Morales notice that the gratuitous
We begin by determining the salient factual components of McCowan‘s claim. We find six: 1) McCowan was being arrested for a non-violent misdemeanor. 2) He was handcuffed behind his back, and not restrained by any seatbelt, rendering him vulnerable because he was incapable of protecting himself from the “rough ride” to the police station. 3) He was compliant during the arrest and posed no threat to Officer Moralez or anyone else. 4) Officer Moralez knew of McCowan‘s extra vulnerability because of his pre-existing shoulder injury. 5) There was no law enforcement necessity nor reason even advanced for the “rough ride” that resulted in McCowan being slammed from side to side in the police car. 6) McCowan contemporaneously and unmistakably complained of severe pain and injury during Officer Moralez‘s challenged conduct.
Surely, if we can find precedent holding an officer liable where most of these salient facts are present, we can conclude that there was factually relevant precedent that put Officer Moralez on notice of the unconstitutionality of his behavior. Further, if we can find cases holding an officer was not entitled to qualified immunity on a lesser subset of these salient factors, then a fortiori those cases too should have advised Officer Moralez of the illegality of his behavior. Using that framework, we consider four Tenth Circuit cases applying the Supreme Court‘s Graham decision that McCowan argues reasonably should have advised Officer Moralez of the unconstitutionality of his behavior.
McCoy further held that, although there was no “factually identical” prior case, there was sufficient Tenth Circuit case law that “made it clear to any reasonable officer in the [Defendants‘] position that the post-restraint force was unconstitutional.” Id. at 1052. McCoy specifically identified three prior Tenth Circuit cases that, applying the Graham factors, “clearly establish that the Fourth Amendment prohibits the use of force without legitimate justification, as when a
McCoy provides us clearly established law at the time relevant to this case—August 2015—in two ways. First, although this court decided McCoy in 2018, well after the August 2015 incident involved in our case, McCoy held that the use of force against a fully subdued arrestee had already been clearly established to violate the Fourth Amendment as of the date of the unconstitutional conduct in McCoy, March 2011. See 887 F.3d at 1038. Specifically, McCoy held that it was already clearly established in 2011 that “the Fourth Amendment prohibits the use of force without legitimate justification, as when a subject poses no threat or has been subdued.” Id. at 1052. Second, in determining that the relevant law was clearly established as of the time of the 2011 conduct in McCoy, McCoy relied on three prior Tenth Circuit cases, all of which were decided before the 2011 conduct at issue in McCoy and so, of course, they also predated the 2015 incident involving Officer Moralez arresting McCowan. Thus, McCoy held that as of the time of Officer Moralez‘s conduct here in 2015, there were already three clearly established pre-existing Tenth Circuit cases making it clear to a reasonable officer in Moralez‘s position that applying gratuitous
In Weigel v. Broad, 544 F.3d 1143, 1146-49, 1151-53 (10th Cir. 2008), this court, applying the Graham factors, held that an officer‘s use of force would be unreasonable and, thus, violate the Fourth Amendment, if applied after a drunk driving suspect had been subdued, handcuffed and his legs restrained. In that case, although the drunk driving suspect initially agreed to take a sobriety test, he then walked away, crossing the highway and continuing to flee even after being hit by the mirror of a passing vehicle. Id. at 1148. After a struggle, officers and bystanders subdued the suspect by handcuffing his arms, tying his legs together, laying on top of his legs, and kneeling on his upper torso. Id. The suspect eventually died of asphyxiation. Id. at 1149. This court held that those facts sufficiently supported a Fourth Amendment violation. Id. at 1153.
The incident in Weigel occurred in December 2002 and the Tenth Circuit held that the unconstitutionality of the officers’ behavior there was clearly established as of that date, which precedes the date of Officer Moralez‘s conduct here by nearly thirteen years! In Weigel, we went on to conclude:
We do not think it requires a court decision with identical facts to establish clearly that it is unreasonable to use deadly force when the force is totally unnecessary to restrain a suspect or to protect officers, the public, or the suspect himself. Yet, as explained above, there is evidence that this is what happened here: even after it was readily apparent for a significant period of time (several minutes) that Mr. Weigel was fully restrained and posed no danger, the defendants continued to use pressure on a vulnerable person‘s
upper torso while he was lying on his stomach. A reasonable officer would know these actions present a substantial and totally unnecessary risk of death to the person. As the Supreme Court has stated: For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.
Hope v. Pelzer, 536 U.S. 730, 739 . . . (2002) (citations and internal quotations omitted).
The next Tenth Circuit case is Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007). Casey, applying the Graham factors, held that it was unreasonable for an officer to use force against a non-violent misdemeanant suspect who was not resisting, fleeing, or dangerous. See id. at 1279-83. In that case, the suspect went to the parking lot of a municipal courthouse to retrieve money from his car to pay his traffic citation, while carrying his court file. See id. This court held that it would be unreasonable for an officer to tackle, taser and beat the plaintiff while he was on his way back into the courthouse in order to arrest him for the misdemeanor offense of removing a public record—the court file—from the courthouse. See id. Again, this case is a fortiori to our case because, although it shares some of the salient facts at issue in our case,8 the suspect in Casey had not been physically restrained at the time
In addition to deeming this use of force to be constitutionally unreasonable, which is the relevant piece here, Casey went on to hold that that Fourth Amendment violation was also clearly established at the time of that incident, in August 2003, again preceding Officer Moralez‘s conduct in our case by about twelve years. See id. 1283-85.
We have located no case in which a citizen peacefully attempting to return to the courthouse with a file he should not have removed has had his shirt torn, and then been tackled, Tasered, knocked to the ground by a bevy of police officers, beaten, and Tasered again, all without warning or explanation. But we need not have decided a case involving similar facts to say that no reasonable officer could believe that he was entitled to behave as Officer Sweet allegedly did. Graham establishes that force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest.
Finally, in Dixon v. Richer, 922 F.2d 1456, 1457-59, 1462-63 (10th Cir. 1991), this court, applying the Graham factors, held that officers’ use of force—kicking the plaintiff and hitting him in the stomach with a flashlight, and then choking and beating him—was unreasonable where officers did not suspect the plaintiff of committing a crime, but instead stopped him just to ask about another individual, the
plaintiff had already been frisked, “had his hands up against the van with his back to the officers, and was not making any aggressive moves or threats.“”Based on these three cases—Weigel, Casey, and Dixon—this court determined in McCoy that it was clearly established in 2011—four years before the incident at issue in our case—that “the
Officer Moralez, then, was surely on notice in August 2015, when he arrested McCowan, that his gratuitous application of force to McCowan, a fully subdued, compliant and non-threatening misdemeanant arrestee, violated the
B. McCowan‘s claim alleging Officer Moralez was deliberately indifferent to McCowan‘s serious medical needs adequately alleges a clearly established Fourteenth Amendment violation
McCowan alleged that Officer Moralez was deliberately indifferent to a serious medical need—his injured shoulders—while at the police station and until the officer transported McCowan to the detention center where medical care was available. Because this claim adequately alleges a clearly established
1. McCowan‘s deliberate-indifference claim against Officer Moralez alleges a Fourteenth Amendment violation
We begin by noting what McCowan‘s deliberate-indifference claim is not. It is not an excessive-force claim stemming from the rough ride to the police station. We have just addressed that excessive-force claim in the preceding section of this opinion. Nor has McCowan ever asserted any excessive-force claim based on his assertion that Officer Moralez and another officer injured McCowan‘s shoulders when they pulled him up by his arms, while handcuffed, in preparation for transporting McCowan to the detention center.
The deliberate-indifference claim we address here is also not based on any assertion that Officer Moralez handcuffed McCowan too tightly. McCowan alleged a
Instead, the claim we address here is that Officer Moralez was deliberately indifferent to McCowan‘s serious medical needs—his injured shoulders—while the officer held McCowan at the police station and before the officer delivered McCowan to the detention center. But because medical care was available to McCowan at the detention center, even though he chose not to avail himself of it, and because McCowan asserts no deliberate-indifference claims against the detention center or any of its employees, his claim at issue here is that Officer Moralez was deliberately indifferent when he delayed McCowan‘s access to medical care during the time Moralez held McCowan at the police station (up to 150 minutes, according to McCowan), before transporting him to the detention center (which took between six and fifteen minutes).
As our starting point for considering this deliberate-indifference claim, it is the
The
Turning first to the objective prong, “[t]he objective component of deliberate indifference is met if the harm suffered rises to a level sufficiently serious to be cognizable under the Cruel and Unusual Punishment Clause.” Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (internal quotation marks omitted) (addressing
Next, turning to the subjective prong, that prong addresses whether Officer Moralez acted with “a sufficiently culpable state of mind.” Requena, 893 F.3d at 1215 (internal quotation marks omitted). Here, the district court determined that, through his affidavit, McCowan presented evidence from which a jury could find that Officer Moralez knew that McCowan was suffering from significant shoulder pain—McCowan attested that he told the officer that he had previously injured his shoulder and that he re-injured that shoulder during the ride to the police station, and then at the police station McCowan repeatedly told the officer that he was in excruciating shoulder pain—yet Officer Moralez disregarded all of that information in delaying
We conclude, therefore, that McCowan succeeded in alleging a claim that Officer Moralez was deliberately indifferent to McCowan‘s serious medical needs. Like the district court, we note that McCowan may have difficulty proving his claim to a jury, in light of the records from the detention center indicating that when he arrived there, McCowan did not complain of pain and did not seek any medical care there. Nevertheless, McCowan has alleged enough for his
2. This constitutional violation was clearly established by August 2015
The district court further concluded that Officer Moralez‘s alleged deliberate indifference to McCowan‘s “considerable” shoulder pain stated a clearly established constitutional violation. We agree.
In Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th Cir. 2002), decided years before the events at issue here occurred, Carl Olsen was arrested for fraudulently using a credit card. Id. at 1309-10. Olsen suffered from obsessive compulsive disorder (“OCD“) which can cause panic attacks. He had a panic attack while the arresting officer was transporting Olsen to the jail. Id. Olsen told the officer twice that he was having a panic attack, but the officer ignored him. Id. at 1310, 1317. The Tenth Circuit held that Olsen adequately asserted a
Olsen is sufficiently analogous to the situation at issue here to have provided Officer Moralez with notice that his conduct, as McCowan alleges it, was unconstitutional. McCowan told Officer Moralez that he had a prior shoulder injury that was sufficiently serious to be the subject of a social security disability claim. After being tossed about the back of the patrol car while handcuffed but otherwise unrestrained, McCowan complained to Officer Moralez repeatedly that he had re-injured his shoulder and was in “excruciating” pain from that injury. Like the panic attack in Olsen, the pain McCowan suffered was not visible to Officer Moralez, but like Olsen, McCowan repeatedly told the officer that he was in excruciating pain. Moreover, McCowan‘s wrists turned purple and he was unable to stand up straight when the officer ordered him to do so, further corroborating McCowan‘s pain complaints.
Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000), lends further support for our decision. In that
presented evidence that he suffered from severe chest pain which he reasonabl[y] believed was caused by a heart attack. The pain and suffering imposed by [Defendant] Barrett‘s failure to get him treatment lasted several hours. The
Eighth Amendment forbids “unnecessary and wanton infliction of pain.” Wilson v. Seiter, 501 U.S. 294, 297 . . . (1991) (emphasis added) . . . . Certainly, not every twinge of pain suffered as the result of delay in medical care is actionable. The evidence in this case, however, sufficiently establishes the objective element of the deliberate indifference test.
Sealock, then, lends some support to McCowan‘s claim that Officer Moralez‘s conduct in denying him medical care caused him “excruciating pain” for several hours. But it is Olsen that is sufficiently analogous to the situation at issue here to have placed Officer Moralez on notice that his conduct (as McCowan alleges it) unconstitutionally deprived McCowan of medical care needed for a serious medical need.14
4. Conclusion as to McCowan‘s Fourteenth Amendment claim for the deprivation of medical care for a serious medical need
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s decisions to deny Officer Moralez qualified immunity on both McCowan‘s excessive force claim, based on the “rough ride” in the patrol car, and McCowan‘s claim alleging deliberate indifference to his considerable shoulder pain while the officer kept McCowan at the police station. We REMAND this case to the district court for further proceedings consistent with this decision.
Notes
Kingsley went on to note that the second state-of-mind question that an excessive-force claim poses is whether, in deciding when the force used is excessive, a court should consider the defendant official‘s subjective motive or instead consider only whether an objective officer in the defendant official‘s position would have deemed the force used to be excessive. Id. In our case, we apply only an objective reasonableness inquiry to McCowan‘s Fourth Amendment claim. See Estate of Ceballos, 919 F.3d at 1213 (applying Graham, 490 U.S. at 396); cf. Kingsley, 135 S. Ct. at 2473 (similarly holding, in addressing a Fourteenth Amendment excessive-force claim, “that a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable“). Here, as we have explained, Officer Moralez‘s gratuitous use of force against a compliant and restrained misdemeanant like McCowan was objectively unreasonable under Graham.