Kisskalt v. Fowler
ORDER granting 32 that Defendants Motion for Summary Judgment ECF No. 144 is GRANTED. Judgment shall enter in favor of Defendant and against Plaintiff. It is FURTHER ORDERED that the three-day jury trial set to commence on Tuesday, January 20, 2015, and the Final Trial Preparation Conference set on Wednesday, January 7, 2015, at 10:00 a.m. are VACATED, by Judge Wiley Y. Daniel on 11/21/2014.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-01113-WYD-KLM
ERIC ADAM KISSKALT,
ADAM FOWLER, in his individual capacity,
ORDER ON SUMMARY JUDGMENT
THIS MATTER is before the Court on Defendant Adam Fowler’s [“Officer
Fowler”] Combined Motion for Summary Judgment and Memorandum Brief in Support
Thereof filed May 21, 2014. Officer Fowler asserts that he is entitled to qualified
immunity on Plaintiff Eric Adam Kisskalt’s [“Kisskalt”] claim against him for excessive
force in violation of the Fourth Amendment under 42 U.S.C. § 1983. A response to the
motion was filed on June 19, 2014, and a reply was filed on July 7, 2014. Thus, the
motion is fully briefed. For the reasons discussed below, the Motion for Summary
Judgment is granted.
I note at the outset that I will cite to the evidence only where there is a genuine
dispute about the fact(s) or where I otherwise deem it appropriate. Officer Fowler’s
exhibits are referenced by letter, e.g., Exhibit A, and Kisskalt’s exhibits are referenced
by number, e.g., Exhibit 1. Where Kisskalt has stated he has insufficient information to
admit or deny facts alleged by Officer Fowler, I will deem these facts undisputed. See
Fed. R. Civ. P. 56(e)(2) (a party opposing summary judgment “may not merely rely on
allegations or denials in its own pleadings; rather, its response must—by affidavits or
otherwise provided in the rule—set out specific facts showing a genuine issue for trial”).
Moreover, to the extent Kisskalt has made conclusory allegations that are unsupported
by evidence, this does not create a genuine issue of fact. See Annett v. Univ. of
Kansas, 371 F.3d 1233, 1237 (10th Cir. 2004).
On May 14, 2011, at approximately 12:25 a.m., Sergeant Todd Dobbs [“Sergeant
Dobbs”] contacted Kisskalt and his wife for speeding. Sergeant Dobbs advised Officer
Fowler that he suspected that Kisskalt, the driver of the vehicle, was under the influence
of alcohol. (See Affidavit of Officer Fowler, Ex. A [“Fowler Aff.”], ¶ 2.) Accordingly,
Officer Fowler responded to his location to assist in a possible DUI investigation. (Id.)
Officer Fowler arrived on scene and contacted Kisskalt, who admitted to consuming
alcohol prior to driving his vehicle.
Officer Fowler testified that he observed Kisskalt’s speech to be slurred, his eyes
were glassy and watery in appearance, and Officer Fowler detected an odor of alcohol
coming from Kisskalt. (Fowler Aff., ¶ 5.) Officer Fowler testified that in light of the
totality of his observations, including Kisskalt’s behavior, indicia of intoxication,
performance during voluntary maneuvers that Kisskalt was asked to perform, and a
portable breath test which had a result of .107 BRac, Kisskalt was arrested for Driving
Under the Influence of Alcohol. (Fowler Aff., ¶¶ 6-10.) Throughout the arrest, Kisskalt
was cooperative and did not cause problems or in any way threaten Officer Fowler or
any other officer.
Officer Fowler handcuffed Kisskalt behind his back, and testified that he ensured
that the handcuffs were double locked to prevent the handcuffs from becoming too tight.
(Fowler Aff., ¶ 10.) Officer Fowler also testified that he checked to make sure there was
a finger space between the handcuffs and Kisskalt’s wrist. (Id., ¶ 11; see also Ex. A1—photograph of Kisskalt’s wrists in handcuffs.) Kisskalt denies the above allegations
regarding the handcuffs, asserting that the handcuffs were too tight and/or improperly
applied. The photo exhibit shows and Kisskalt testified in his deposition that Officer
Fowler “wedged his finger in order to get it there in between my wrist and the cuffs” (Ex.
1, Kisskalt Dep. 120:4-21; Ex. 5). He asserts that the injuries occurred, however, on the
sides of the wrist, and that while there may have been space on top and on the bottom
of the cuffs, there is no way Officer Fowler could have wedged his finger into the sides
of the handcuffs as they were digging into Kisskalt’s wrists. (Id.) Officer Fowler asserts
in reply and I agree that Kisskalt cites to no evidence to support the assertions in the
previous sentence or to refute Officer Fowler’s testimony. Instead, this is argument of
counsel which is insufficient to create disputed facts. See Annette, 371 F.3d at 1237.
Thus, regardless of whether Officer Fowler “wedged” his finger in between the
handcuffs and Kisskalt’s wrists, it is undisputed that he ensured the handcuffs were
double locked to prevent the handcuffs from becoming too tight and ensured that there
was a finger space between the handcuffs and Kisskalt’s wrist.
After handcuffing Kisskalt, Officer Fowler placed him in the back of his patrol
vehicle. Kisskalt did not immediately complain about the tightness of the handcuffs
(Fowler Aff., ¶ 10; Ex. B, Kisskalt Dep. at 80:19-22), nor did he complain about pain.
(Fowler Aff., id.) Kisskalt complained about the handcuffs approximately five minutes
later when Officer Fowler returned to his squad car to buckle Kisskalt’s seatbelt before
they left the scene. (Ex. 1, Kisskalt Dep. 80:19-81:9; Ex. 2, Fowler Dep. 44:3-17.)
Officer Fowler testified that this first complaint was made as he began to
transport Kisskalt to the police department. Kisskalt asserts, on the other hand, that the
complaint occurred before Officer Fowler left the scene of the initial traffic stop.
Specifically, Kisskalt testified as follows with regard to the timing and content of his
Q. And, in fact, the first time that you made a complaint about the hand
cuffs being too tight was when you were placed inside the patrol vehicle;
A. That's correct.
Q. Was the vehicle stationary or en route to the police department at the
time you first made your complaint?
A. It was stationary.
Q. So if Officer Fowler put in his report that the first time you complained
about handcuffs being too tight was when the vehicle was actually en
route to the police department, you would dispute that.
A. I would dispute that
Q. And when you make your complaint to Officer Fowler about the
handcuffs, what is it exactly that you said to him?
A. I informed him that I was experiencing pain in my wrists and I felt like
the circulation was being cut off from my hands. I asked him if he could
loosen the handcuffs so I could have a little comfort.
Q. And what was his response?
A. He said, Have you ever been in handcuffs before?
Q. And did you answer him?
A. I did. I said, No, sir.
Q. And what did he say, if anything?
A. He said, That's what it feels like.
(Ex. 1, Kisskalt Dep. at 80:23-81:9; 83:19-84:9.)
Kisskalt asserts that his complaint was made while Sergeant Dobbs was still on
the scene, and while Officer Fowler had the cover of another officer. The evidence
Kisskalt cites from Officer Fowler’s deposition does not, however, support this assertion.
(See Ex. 2, Fowler Dep. 47:23-48:19.) Officer Fowler testified that Sergeant Dobbs was
not available at that time because he was waiting with Kisskalt’s wife, and he did not
know how long it would take for another officer to arrive on scene because it was
around 12:50 a.m. by that time (Fowler Aff., ¶ 18.) Moreover, Kisskalt also testified in
his deposition that Sergeant Dobbs was not present or in the vicinity when he made the
complaint. (Ex. 2, Kisskalt Dep. at 82:10-19.) This is significant as Officer Fowler
testified that he would have re-cuffed Kisskalt after his complaint had Sergeant Dobbs
been standing by, because at that point he would have “had a cover car” and “another
cover officer there to take him out and uncuff him.” (Ex. 2, Fowler Dep. at 48:3-12.)
Officer Fowler admitted he would have re-cuffed Kisskalt because when someone is
complaining about their hands going numb, he would want to make sure their hands do
not go numb and they are not seriously injured. (Id. at 48:13–19; see also 76:22-77:18.)
Officer Fowler testified that he instructed Kisskalt to place his hands in the
indentation of the back of the seat to avoid potential discomfort, and placed a seatbelt
over him for transport to the Lafayette Police Department. (Fowler Aff., ¶ 12; Ex. B,
Kisskalt Dep. at 80:9-15; 84:13-85:1.)1 After Kisskalt was placed in the patrol car,
Officer Fowler spoke briefly to Sergeant Dobbs. Kisskalt was in handcuffs on scene for
no more than five minutes. (See Fowler Aff., ¶¶ 13-14; Ex. B, Kisskalt Dep. at 83:14-21;
Officer Fowler testified, based on his training and experience, that handcuffs are
not comfortable, and that he did not believe “Kisskalt’s comment to be a complaint of
pain not otherwise associated with handcuffs.” (Fowler Aff., ¶ 16.) Thus, he did not
believe that Kisskalt’s handcuffs needed to be adjusted at that time, particularly as he
knew that they would arrive at the police department within minutes. (Id.) Accordingly,
Officer Fowler did not re-apply Kisskalt’s handcuffs or check to make sure they were
Kisskalt asserts that Officer Fowler is trained to recheck handcuffs, if not re-cuff
them, when a suspect is complaining that his or her handcuffs are too tight and should
have done so in this instance. Indeed, Officer Fowler, Sergeant Friese, and Sergeant
Dobbs of the Lafayette Police Department are all trained to recheck and possibly rehandcuff suspects “at the early convenience” after there is a complaint that
handcuffs are too tight. (Ex. 3, Friese Dep at 25:1-10; Ex. 4, Dobbs Dep. at 23:6-14,
34:6-12.) Further, Officer Fowler admits that handcuffs are not used for pain
compliance, but for the safety of police officers and suspects themselves.
While Kisskalt denies the facts in the previous sentence, Kisskalt admitted in his deposition that
he was told there was an indentation that he could place his hands in behind him, and that he utilized this
indentation. (Ex. 1, Kisskalt Dep. at 80:13-18.) Further, he admitted that Officer Fowler fastened his
seatbelt before leaving the scene for the police station. Thus, there are no disputed facts regarding this
During the drive to the police department, Kisskalt advised Officer Fowler for a
second time that his handcuffs were causing him pain and his hands were going numb
(Ex. 1, Kisskalt Dep. at 85:13-28); accordingly, he disputes Officer Fowler’s assertion
that Kisskalt “made a single comment”. In response to this comment, Officer Fowler
explained that they would be at the police department very soon (in about two minutes)
and they he would remove the handcuffs at that time. (Fowler Aff., ¶ 18; Ex. B, Kisskalt
Dep. at 85:22-23.)2 Officer Fowler testified that it would have taken longer to pull over,
request and wait for a cover officer, and then check Kisskalt’s handcuffs than the time it
would have taken to continue to the police department and safely remove Kisskalt’s
handcuffs in the holding room. (Fowler Aff., ¶¶ 17-18.) Officer Fowler also testified that
for officer safety reasons pursuant to his training, he could not pull over the patrol
vehicle and re-check Kisskalt’s handcuffs without calling for officer back up.
The location of Kisskalt’s traffic stop was less than one mile away from the
Lafayette Police Department. It took less than three minutes to travel from the scene to
the police department.
Upon arrival at the police department, Officer Fowler intended to remove
Kisskalt’s handcuffs immediately. However, Kisskalt refused to allow Officer Fowler to
remove the handcuffs. Instead, he asked him that photographs be taken of his hands.
(Fowler Aff., ¶¶ 20-21; Ex. B, Kisskalt Dep. at 87:13-20.) Thus, Kisskalt remained in
handcuffs at the police department for a longer period of time at his request. (Fowler
While Kisskalt denies this allegation and states that he was not sure how long the ride would
take, it is undisputed that Officer Fowler advised Kisskalt they would be at the police department in
approximately two minutes. Whether or not Kisskalt knew how long the ride would take is immaterial.
Aff., ¶¶ 20-21; Ex. B, Kisskalt Dep. at 87:21-23; 88:5-13.)3 It took four minutes for
Officer Fowler to locate another officer, take photographs and then remove Kisskalt’s
handcuffs. (Ex. B, Kisskalt Dep. at 104:19-106:14.)
When taking the photographs, Officer Fowler was still able to insert a finger in
between Kisskalt’s wrist and the handcuffs. (Fowler Aff., ¶ 11; Ex. A-1—photograph;
see also Ex. B, Kisskalt Dep. at 93:6-21—admitting that he recalled Officer Fowler
slipping his finger between the handcuffs and his wrists and a photograph being taken.)
While Kisskalt again asserts that Officer Fowler had to “wedge” his finger in (Ex. 5; Ex.
1, Kisskalt Dep. at 120:11-17), he cites no evidence to contradict the fact that Officer
Fowler was able to insert a finger in between Kisskalt’s wrist and the handcuffs.
In total, Kisskalt admits that from the time Officer Fowler handcuffed him until the
handcuffs were removed, he was in handcuffs for no more than ten minutes. At least
four minutes of this was because of Fowler’s request to remain in handcuffs. (Ex. B,
Kisskalt Dep. at 106:11-14.)
When the handcuffs were removed, Kisskalt’s wrists had red indentations
typically associated with being placed in handcuffs. His fingers were not discolored.
Officer Fowler testified that these red marks are not uncommon and did not look
different than other arrestee’s hands. (Fowler Aff., ¶ 22; Ex. A-2—photograph of
In response, while Kisskalt admits he requested to have photographs taken of his wrist while he
was handcuffed, he denies that he was in the handcuffs because he wanted to be there or that he did not
want them taken off and readjusted when he first informed Officer Fowler that he was in pain and his
handcuffs needed to be readjusted. Furthermore, Kisskalt asserts he did not and could not have known
the request for photographs would take four minutes to complete. As noted in the reply brief, however,
this response by Kisskalt does not deny any portion of Officer Fowler’s assertion or cite to any evidence to
contradict the assertion. Instead, Kisskalt attempts to explain his behavior which is irrelevant to the legal
analysis. Accordingly, this fact is deemed admitted in full.
Kisskalt’s wrists with handcuffs removed; see also Ex. C, Friese Dep. at 15:25-16:11.)
Kisskalt testified that the red marks lasted for a couple of days and that he has no
scarring as a result of the handcuffs. (Ex. B, Kisskalt Dep. at 102:18-22.)
Officer Fowler testified that after he took the handcuffs off, he asked Kisskalt if he
wanted any medical attention for his hands. Kisskalt declined. (Fowler Aff. ¶ 23.)
Before leaving the Lafayette Police Department, Officer Fowler also asked Kisskalt if his
wrists were all right. Kisskalt said he was “fine”. (Ex. B, Kisskalt Dep. at 94:22-24;
Fowler Aff. ¶ 24.) Upon arrival at the Boulder County Jail, Kisskalt was again asked if
he needed medical attention and responded, “I’m fine.” (Ex. B, id. at 100:8-10.)
As an accommodation prior to being transported to Boulder County Jail, Officer
Fowler handcuffed Kisskalt in front of his body in an effort for his hands to be more
comfortable. (Fowler Aff., ¶ 25.) While Kisskalt claims that this demonstrates that
Officer Fowler knew his wrists had been injured, this is unsupported argument.
Before leaving the Lafayette Police Department, Kisskalt alleges that Officer
Fowler shoved him against a wall. (Ex. 1, Kisskalt Dep. at. 97:1-25.) There was
something on the wall (spit-up or mucus), and Kisskalt testified that Officer Fowler
pressed or pushed his face towards the substance such that his face made contact with
the substance. (Id.)4 While Officer Fowler denies that doing shoving or pushing
Kisskalt, he asserts that this is immaterial to Kisskalt’s claim regarding handcuffs that
were too tight. Further, he notes that Kisskalt alleges no injury related to this “shove”.
While Kisskalt alleges that this shove occurred because Officer Fowler was upset by his request
for photographs, he cites no evidence in support of that assertion.
Kisskalt did not complain to any Lafayette Police Officer about his wrists or being
shoved up against a wall by Officer Fowler. He also did not complain when he arrived
at the Boulder County Jail. Kisskalt states he did not complain because he assumed
that the police would realize he was treated unfairly and because he “was afraid for [his]
safety” if he spoke out against Officer Fowler. (Ex. 1, Kisskalt Dep. at 91:9-22; 100:14101:8.) Nonetheless, regardless of his motivation, it is undisputed that Kisskalt did not
complain about his treatment.
Kisskalt sought no medical treatment related to his left wrist until June 14, 2011,
a month after the accident and while he was on vacation. (Ex. B, Kisskalt Dep. at
107:11-15.)5 As part of that treatment, Kisskalt underwent testing for numbness in his
left hand. The results indicated that Kisskalt’s nerve function was within normal range.
Kisskalt was diagnosed with mild ulnar neuropathy, was prescribed no treatment, and
was placed on no restrictions. (Ex. D, Dr. Femminineo Dep. at 17:19-20:9; Exhibit B,
Kisskalt Dep. at 109:3-111:5.) Dr. Femminineo testified that Kisskalt’s symptoms and
test results indicate normal physiological function and that the prognosis for recovery
was good. (Ex. D, Dr. Femminineo Dep. at 19:13-14; 21:13-22:3.) Kisskalt sought no
further treatment after that, although he retained Dr. Bennett Machanic to do an
Independent Medical Evaluation. That evaluation is dated February 13, 2014. (Ex. 7.)6
Kisskalt does not deny this; instead, he makes only unsupported argument and legal conclusions
While Kisskalt asserts that he is seeing Dr. Machanic presently to explore treatment options, he
does not cite to any evidence to support that assertion.
While Officer Fowler asserts that the wrist injury was benign, Kisskalt denies this.
He asserts that the injury to his wrist affects him to this day, and that he is still
experiencing pain and difficulty with his wrist. (See Ex. 1, Kisskalt Dep. at 111:6-25.)7
Kisskalt cites to Dr. Machanic’s evaluation and deposition testimony, asserting that
Dr. Machanic is “convinced” that Kisskalt experienced nerve damage because of the
handcuffing incident and that Kisskalt’s injury is “quite chronic.” (Ex. 6, Machanic Dep.
at 41:8-14; Ex. 7, Dr. Machanic’s Assessment at p. 2.) Kisskalt’s characterization of this
evidence is, however, misleading.
While Dr. Machanic was “convinced that [Kisskalt has] got an ulnar nerve
problem” (Ex. 6, Dr. Machanic Dep. at 41:13-14) and other problems with his left
wrist/arm that were “quite chronic indeed” (Ex. 7 at p. 2), he did not attribute those
injuries to the handcuff incident. Officer Fowler is thus correct in noting that Kisskalt
does not cite to evidence in the record beyond his allegations that his injury is
attributable to the handcuffing during his arrest. Further, Officer Fowler points out that
Dr. Machanic’s evaluation states that “the precise nature of what occurred at that time is
not fully clear at this point, . . . not entirely clear at this point as to the extent of what is
going on . . . .” (Ex. 7, p. 2.)8 Dr. Machanic also testified that he could not comment
While Kisskalt asserted in his response that this injury makes it painful and difficult to enjoy
sports and hobbies, that he drops objects and fumbles when he tries to grasp objects with his left hand,
and that his reflexes are slower, he cites no evidence to support those assertions.
While Dr. Machanic did not precisely know the degree of severity of the nerve damage, “[a]t
most, it would be moderate”, not severe, but “it’s not normal”. (Id. 41:8-14, 42:2-5, 42:22-43:1.) Thus,
while Officer Fowler asserts that Dr. Machanic made no specific diagnosis, that is not accurate.
Dr. Machanic did indicate, however, that another EMG nerve conduction study was necessary to
determine the status of the nerve (the extent and location of the current problem) and treatment options.
(Id. at 40:12-41:7; Ex. 7 at p. 2.)
further beyond his clinical observations. (Ex. 6, Dr. Machanic Dep. at 41:16-42:8.)
Further, he testified in response to a question as to whether the injury was preexisting:
A. “Well, all I can do is refer to history. The history talks about a singular
event, slice in time, at the point where he was handcuffed. That’s
supposedly the beginning of this. What’s evolved over the period of time
is not entirely clear because, as I said, I don’t have the optative numbers
so I can’t compare anything to the original studies done by
(Ex. 6, Dr. Machanic Dep. at 44:3-12.)
Kisskalt’s symptoms of pain or numbness were in his pinky and ring fingers. (Ex.
B, Kisskalt Dep. at 111:12-19.) Officer Fowler asserts that these symptoms are not the
typical result of a handcuff injury, citing to Dr. Femminineo’s testimony. While Kisskalt
denies this, pointing to Dr. Machanic’s deposition testimony, that testimony does not
address or dispute Dr. Femminineo’s testimony on the issue. Dr. Femminineo testified
that the sensory symptoms from handcuffing injuries “are pretty distinct” and manifest
with sensory complaints towards “the top of the hand, more towards the thumb and the
index finger.” (Ex. D, Dr. Femminineo Dep. at 27:16-28:5; 30:4-13.)
Standard of Review
Summary judgment may be granted where “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and the ... moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A fact is ‘material’ if, under the
governing law, it could have an effect on the outcome of the lawsuit.” E.E.O.C. v.
Horizon/ CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “A dispute over
a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving party on
the evidence presented.” Id.
The burden of showing that no genuine issue of material fact exists is borne by
the moving party. Horizon/ CMS Healthcare Corp., 220 F.3d at 1190. “‘Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.’” Atl. Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). When applying the
summary judgment standard, the court must “‘view the evidence and draw all
reasonable inferences therefrom in the light most favorable to the party opposing
summary judgment.’” Id. (quotation omitted). All doubts must be resolved in favor of
the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d
891, 892 (10th Cir. 1991).
The Merits of Defendant’s Motion
Officer Fowler argues that he is entitled to the protection of qualified immunity
under the allegations and law of this case. Qualified immunity “is an immunity from suit
rather than a mere defense to liability”. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Under the doctrine of qualified immunity, “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
When, as here, “‘defendant asserts quaffed immunity at summary judgment, the
burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right
and (2) the constitutional right was clearly established.’” Thomson v. Salt Lake Cnty.,
584 F.3d 1304, 1312 (10th Cir. 2009) (quoting Martinez v. Beggs, 563 F.3d 1082, 1088
(10th Cir. 2009)). Thus, “‘[q]ualified immunity is applicable unless the official’s conduct
violated a clearly established constitutional right.’” Id. (quoting Pierson v. Callahan, 555
U.S. 223, 129 S. Ct. 808, 816 (2009)). The court has “the freedom to decide ‘which of
the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.’” Lundstrom v. Romero, 616 F.3d 1108,
1118 (10th Cir. 2010) (quoting Pearson, 129 S. Ct. at 818).
In determining whether the plaintiff has met his burden of establishing a
constitutional violation that was clearly established, the court construes the facts in the
light most favorable to the plaintiff as the nonmoving party. Thomson, 584 F.3d at 1312.
“A right is clearly established . . . ‘when a Supreme Court or Tenth Circuit decision is on
point, or if the clearly established weight of authority from other courts shows that the
right must be as the plaintiff maintains.’” Thomas v. Kaven, 765 F.3d 1183, 1194
(quotation and internal quotation marks omitted). “A previous decision need not be
‘materially factually similar or identical to the present case; instead, the contours of the
right must be sufficiently clear that a reasonable official would understand that what he
is doing violates that right.’” Id. (quotation and internal quotations marks and alterations
omitted). “‘The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’” Id. at 1194 (quoting Saucier v. Katz, 533 U.S.
194, 202 (2001)).
In the case at hand, I first address Kisskalt’s claim of excessive force relating to
the handcuffs. “An officer using force in the course of a seizure of a citizen is entitled to
qualified immunity unless the level of force violated clearly established Fourth
Amendment law.’” Thomson, 584 F.3d at 1313. The question is “‘whether the officers'
actions are objectively reasonable in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.’” Id. (quoting Graham v.
Connor, 490 U.S. 386. 397 (1989) (internal quotation marks omitted)).
“Reasonableness is evaluated under a totality of the circumstances approach, which
requires that [the court] consider and balance the following factors: ‘the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.’” Id. (quoting id. at 396).
Kisskalt admits in his response brief, and I agree, that being arrested on
suspicion of drunk driving justified the initial use of handcuffs on him. See Pl.’s Resp. to
Def.’s Mot. Summ. J. at 14; see also Fisher v. City of Las Cruces, 584 F.3d 888, 896
(10th Cir. 2009) (“in nearly every situation where an arrest is authorized, . . . handcuffing
is appropropriate”); Silvan W. v. Briggs, 309 F. App’x 216, 224 (10th Cir. 2009)
(handcuffing peaceful arrestee for minor crime and detaining him for over an hour was
not excessive). Thus, the issue becomes whether Officer Fowler violated a
constitutional right by using excessive force in connection with making the handcuffs too
tight and/or by failing to adjust the handcuffs after Kisskalt complained.
The Tenth Circuit has recognized that “unduly tight handcuffing can constitute
excessive force where a plaintiff alleges some actual injury from the handcuffing and
alleges that an officer ignored a plaintiff’s timely complaints (or was otherwise made
aware) that the handcuffs were too tight.” Cortez v. McCauley, 478 F.3d 1108, 1129
(10th Cir. 2007). The actual injury must be “caused by the unreasonable seizure” and
must not be “de minimis”. Fisher, 584 F.3d at 897.9
Even construing the evidence in the light most favorable to Kisskalt, I find that he
has not shown the violation of a constitutional right under the above test. While Kisskalt
has presented evidence that Officer Kisskalt ignored his complaints that the handcuffs
were too tight and that he has an injury to his left wrist/arm, he has not shown more
than a de minimis injury. Indeed, when the handcuffs were removed, Kisskalt advised
both Officer Fowler and Boulder County Jail officials that he was fine and did not need
medical treatment for his wrists. Further, he did not seek treatment for the injury until
one month after his arrest, and Dr. Femminineo found at that time after performing
nerve testing that Kisskalt only had a mild left ulnar neuropathy with a good prognosis
As noted in the concurring opinion in Fisher, the Tenth Circuit created this test because police
officers almost always use handcuffs and, therefore, the Graham factors offer little guidance in tight
handcuff cases. 584 F.3d at 902 n. 1 (Gorsuch J., concurring). Thus, a look at the extent of an injury
claimed by the plaintiff fills “a small analytical void that Graham left open,” and helps to identify when an
otherwise lawful application of handcuffs constitutes force that a reasonable jury could find rises to the
level of excessive force because an officer applied handcuffs too tightly. Id. at 902.
and that Kisskalt’s nerves were operating within normal functional range.10 That is the
only opinion of a treating physician in the record. Dr. Machanic is Plaintiff’s retained
Even if the injury was more than de minimis, neither Dr. Femminineo nor
Dr. Machanic rendered an opinion on the issue of causation—that the handcuffing
actually caused the damage. Indeed, as discussed in Section II, supra, Dr. Machanic
was asked in his deposition whether he could determine if the injury was preexisting and
he responded that he could only refer to the history provided by Kisskalt related to the
handcuffing, which was “supposedly the beginning of this.” He also stated that “[w]hat’s
evolved over the period of time is not entirely clear because, as I said, I don’t have the
optative numbers so I can’t compare anything to the original studies done by
Dr. Femminineo.” (Ex. 6, Dr. Machanic Dep. at 44:3-12.) Moreover, Dr. Femminineo
testified that there could be a number of causes for the type of injury sustained by
Kisskalt. (Ex. D, Dr. Femminineo Dep. at 22:12-23:10.) Finally, the symptoms that
Kisskalt complained of in connection with his pinkie and ring finger are not those
commonly attributed to a handcuff injury, as testified to by Dr. Femminineo.
I also find that Kisskalt has not met his burden of showing that the constitutional
right was clearly established. He has not pointed to Supreme Court or Tenth Circuit
precedent (or the clear weight of other circuit courts) that recognizes an actionable
I further note that Dr. Femminineo testified that a person with severe nerve involvement, who is
complaining about being unable to grasp or handle objects because of the loss of sensation, would have a
“phenomenon of denervation”, with “weakness patterns that correlate with that”. (Ex. D, Dr. Femminineo
Dep. at 28:7-16.) He did not see signs of denervation in Kisskalt, which “suggest[ed] that his symptoms
were primarily sensory and there was no significant weakness pattern that would be correlated with that
degree of ulnar neuropathy that I saw.” (Id. at 30:4-13.)
constitutional violation in a similar circumstance.11 While “a factually identical case is
not required, . . .‘it must still be apparent to a reasonable officer in light of pre-existing
law that his conduct was unlawful.’” White v. Martin, 425 F. App’x 736, 744 (10th Cir.
2011) (quoting Thomas, 607 F.3d at 669). I find that Kisskalt has not cited to authority
that would have put a reasonable officer on notice that the conduct at issue (leaving
handcuffs on an arrestee complaining that the handcuffs were too tight for a total of ten
minutes, four of which was due to Kisskalt’s insistence on photographs) was a clearly
established violation of the Fourth Amendment.
Indeed, the Tenth Circuit has held that no claim for excessive force existed even
though a plaintiff was handcuffed behind the back and remained handcuffed for 20
minutes, complained repeatedly that the handcuffs were too tight and of pain, and
suffered damage to her shoulder and her radial nerve at the wrist which prevented her
from pursuing her professional and recreational piano playing. Morreale v. City of
Cripple Creek, No. 96-1220, 1997 WL 290976, at *1 (10th Cir. 1997). This is because it
was undisputed that the officer took steps to assure that the handcuffs were not too
tight”—in that case by verifying “that two fingers’ space remained inside the handcuffs
so that blood circulation would not be cut off” and double locking “the handcuffs so they
would not tighten down.” Id. at *1, 5. Officer Fowler took similar steps in this case. See
Because the existence of excessive force is a fact-specific inquiry, “there will almost never be a
previously published opinion involving exactly the same circumstances.” Casey v. City of Federal Heights,
509 F.3d 1278, 1284 (10th Cir. 2007). Indeed, “‘officials can still be on notice that their conduct violates
established law even in novel factual circumstances.’‘” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741
(2002)). Thus, the Tenth Circuit has adopted a sliding scale. “‘The more obviously egregious the conduct
in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly
establish the violation.” Id. (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)).
also Lewis v. Sandoval, 428 Fed. App’x 808, 811-12 (10th Cir. 2011) (officer’s actions
found to be reasonable under the circumstances where suspect did not complain of any
discomfort until arrival at the police department and where officer checked that he could
insert his fingertip between suspect’s wrist and the handcuffs and ultimately removed
the cuffs within ten minutes of suspect’s complaint).
The cases cited by Kisskalt are distinguishable. Thus, In Vondrak v. Las Cruces,
535 F.3d 1198, 1209 (10th Cir. 2008), the plaintiff immediately complained that the
handcuffs were too tight when they were clamped on, and complained a half dozen
more times while on the way to the police station. He also made several requests at the
police station for someone to loosen his handcuffs because his wrists were hurting, but
the officers ignored him. Id. Moreover, the plaintiff’s neurologist diagnosed him with
permanent nerve injury in his wrists, and concluded that the “‘handcuffing was the
competent producing cause’” of his injury. Id. (quotation omitted).
Similarly, in Cardenas v. Fisher, 307 F. App’x 122, 123 (10th Cir. 2009), the
plaintiff immediately felt pain after being put in handcuffs, and indicated he “was in
physical discomfort on his whole left side, from his shoulder to his lower back, while in
the squad car and at the jail.” Id. at 123-24. Despite repeated complaints about the
handcuffs' tightness, the defendant officer refused to loosen them. Id. at 124. When
the handcuffs were ultimately removed at the police station, another officer observed
that “[t]he handcuffs were extremely, extremely tight.” Id. at 124. The record indicated
that Cardenas sought medical treatment for his injuries a week or two after the incident
and that he maintained he was unable to work for approximately two months. Id.
Here, in contrast, Kisskalt did not complain immediately upon handcuffing. When
he made his complaints, the police department was only two to three minutes away, and
Officer Fowler’s decision to continue to the police department was based on his
understanding that pulling over immediately upon Kisskalt’s complaint would have
resulted in potentially significant delay, certainly a delay longer than two minutes.
Further, upon arrival at the police department, approximately three minutes later, Officer
Fowler immediately attempted to remove the handcuffs, but Kisskalt wanted to wait until
photographs were taken. At most, Kisskalt was in handcuffs for ten minutes, and even
at that time Officer Fowler was able to insert a finger between the handcuffs and
Kisskalt’s wrist. Kisskalt did not seek medical treatment for a month, and was
diagnosed by that doctor with only a mild injury. No doctors have opined that the
handcuffing was the cause of the injury. Based on the foregoing, I find that Officer
Fowler is entitled to qualified immunity as to the claim regarding Kisskalt’s handcuffing.12
I also find that Kisskalt did not establish a constitutional violation in connection
with his allegation that Officer Fowler used excessive force in shoving him against a
wall and pushing his face towards spit-up or mucus. Kisskalt did not “show an actual,
non-deminimis injury that occurred in connection with this allegation of excessive force,
as required. Tooley v. Young, 560 F. App’x 797, 801 (10th Cir. 2014) (quoting Koch,
Also, the Cortez case and Koch v. City of Del City, 660 F.3d 1228 (10th Cir. 2011) provide no
support for Kisskalt, as the facts regarding the handcuffing were not discussed and the court dismissed
the claims because the plaintiff did not show an actual injury that was not de minimis. Cortez, 478 F.3d at
1129; Koch, 660 F.3d at 1247-48. Finally, Fisher is inapposite as the plaintiff was not contesting the
tightness of handcuffs; instead, he asserted that the manner of his handcuffing “forcibly behind his
back”—“with a knee to his back, placing pressure on his stomach wound, and with his arms brought
behind his body”— was excessive and caused him pain. Id. at 893-96.
660 F.3d at 1247-48). Accordingly, Officer Fowler is also entitled to qualified immunity
on this claim.
Based upon the foregoing, it is
ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 144) is
GRANTED. Judgment shall enter in favor of Defendant and against Plaintiff. It is
FURTHER ORDERED that the three-day jury trial set to commence on Tuesday,
January 20, 2015, and the Final Trial Preparation Conference set on Wednesday,
January 7, 2015, at 10:00 a.m. are VACATED.
Dated: November 21, 2014
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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