Joseph McAdam v. Matthew Warmuskerken, et al
Per Curiam OPINION filed: The motion to dismiss [4749497-2] is DENIED. The denial of the officers' motion for summary judgment based on qualified immunity and Heck is AFFIRMED. Decision not for publication. Boyce F. Martin , Jr. and Jeffrey S. Sutton, Circuit Judges; and Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky, sitting by designation. [12-2330, 12-2331]
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0269n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
JOSEPH M. MCADAM,
MATTHEW WARMUSKERKEN, Officer;
DEREK WILSON, Deputy; OSCAR DAVILA,
CITY OF LUDINGTON, et al.,
Mar 15, 2013
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*
PER CURIAM. Officers Warmuskerken, Wilson, and Davila appeal the district court’s
denial of their motions for summary judgment on the basis of qualified immunity. Joseph McAdam
has moved to dismiss the appeals for lack of jurisdiction. We deny McAdam’s motion and affirm
the district court.
In July 2009, McAdam was a passenger in his mother’s car when a police officer stopped
them for having defective taillights. After pulling the car over, an officer asked McAdam’s mother
to get out and perform several sobriety tests. While his mother was being tested, McAdam got out
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
-2of the car twice to check on her. The second time, McAdam stated that, instead of getting back in
the car, he could just walk home. The officers—including, by that point, the three officers who are
the defendants in this case—advised McAdam to go home or risk going to jail. According to
McAdam, he then began walking away. As he left, he took out his iPhone and began taping the
officers. Officers Warmuskerken, Wilson, and Davila then began following McAdam and, at some
point, told McAdam that he was under arrest for disorderly conduct. McAdam then claims the
officers performed a leg sweep and subdued him on the ground, where he was unable to move or
struggle. Despite his incapacity, McAdam says, the officers then tased him at least four times.
Following his arrest, McAdam was taken to the emergency room for treatment for injuries
he suffered while he was being tased. At the hospital, one of McAdam’s wrists was handcuffed to
a hospital bed, and the bed’s wheels were locked. According to McAdam, he was cooperative with
the hospital staff and never became aggressive. At some point, McAdam asked for his iPhone and
was told that the officers would be keeping it as evidence. McAdam stated that he would refuse
treatment on his knee until his phone was returned. In response, McAdam claims that the officers
tased him three more times.
McAdam pleaded guilty to assault and battery of the officers, but filed a complaint alleging
that the officers used excessive force at the scene of the traffic stop and at the hospital. He also filed
state-law claims against Officers Warmuskerken and Wilson for assault and battery. The officers
filed motions for summary judgment, arguing that they were protected by qualified immunity and
that Heck v. Humphrey, 512 U.S. 477 (1994), barred McAdam’s claims. The district court denied
the motions. The officers sought interlocutory review of their qualified-immunity and Heck
-3defenses. McAdam moved to dismiss the officers’ appeals, contending that the district court’s
decision was not subject to interlocutory review.
To overcome an officer’s claim of qualified immunity, a plaintiff must establish, first, that
the officer violated a constitutional right and, second, that the right was “clearly established” at the
time the officer acted. Saucier v. Katz, 533 U.S. 194, 201 (2001). A district court’s conclusions as
to whether a plaintiff has made such a showing are usually subject to interlocutory review. See
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). If, however, an officer uses an interlocutory appeal
merely to quibble over the district court’s assessment of the factual record and remains unwilling to
accept the claimant’s fact-supported version of events, we will dismiss the appeal. See Johnson v.
Jones, 515 U.S. 305, 319–20 (1995).
In this case, the officers do some quibbling but not enough to preclude our review. To some
extent, the officers’ briefs continue to protest McAdam’s claims that he was cooperative during both
the traffic stop and the hospital visit. But they also ask us to consider some legal questions,
including whether their conduct violated McAdam’s legal rights even after running the inferences
in his favor.
First, may an officer tase an individual who is subdued on the ground and is not resisting
arrest, even if the officer does so only once? No. See Hagans v. Franklin Cnty. Sheriff’s Office, 695
F.3d 505, 509–10 (6th Cir. 2012); Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 497–98 (6th
Cir. 2012). A single tasing violates a plaintiff’s clearly established rights if he is neutralized and is
not resisting an officer’s efforts to restrain him. The district court thus properly denied the officers’
-4Second, may an officer tase an individual, who is handcuffed to a hospital bed and is verbally
resisting medical treatment, but does not pose a safety risk to hospital staff or police officers? No.
See Austin, 690 F.3d at 497–98. Again, the right of an individual to be free from an officer’s force
if he is cooperative and non-aggressive is clearly established. See Hagans, 695 F.3d at 509–10.
Taking McAdam’s factual description of the hospital tasing as true, the officers are not entitled to
qualified immunity. Because McAdam has put forward plausible factual bases for his legal claims,
he is entitled to a trial.
Because the officers’ Heck argument is “inextricably intertwined” with their qualifiedimmunity defense, we turn to it next. See Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793,
797 (6th Cir. 1998). Heck bars a plaintiff from bringing a 42 U.S.C. § 1983 claim that, if successful,
would necessarily imply the invalidity of a prior conviction. Heck, 512 U.S. at 487.
The officers argue that McAdam’s guilty plea to the charges of assault and battery precludes
his § 1983 claims for excessive force. Not so. McAdam maintains that he was tased after being
handcuffed and after he was taken to the hospital. Even if McAdam committed an assault, that
would not give the officers license to tase him (free from Eighth Amendment scrutiny) after the
underlying events had already occurred and after McAdam was under control, which is what he
The motion to dismiss is denied, and we affirm the denial of the officers’ motion for
summary judgment based on qualified immunity and Heck.
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