from the United States District Court No.
2:17-CV-00902-MLC-GJF for the District of New Mexico
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.
Chaparro (James D. Tawney with her on the brief), Flores,
Tawney & Acosta P.C., Las Cruces, New Mexico, for
Plaintiff-Appellee Warren McCowan.
TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
interlocutory appeal, Defendant Mark Moralez,  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
42 U.S.C. § 1983 claims. Those claims alleged that the
officer (1) used excessive force against McCowan while
driving him to the police station after having arrested him
for drunk driving, and (2) was deliberately indifferent to
McCowan's serious medical needs-his injured
shoulders-while at the police station, before transporting
McCowan to the county detention center where medical care was
available. We affirm the denial of qualified immunity on both
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.
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
non-threatening misdemeanant arrestee is unreasonable-and,
therefore, violates the Fourth Amendment. Thus, we agree with
the district court that Officer Moralez is not entitled to
qualified immunity from McCowan's excessive-force claim.
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.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.
having jurisdiction over this appeal under 28 U.S.C. §
1291, see Mitchell v. Forsyth, 472 U.S. 511, 530
(1985), we AFFIRM the district court's decision in full,
and remand this case to the district court for further
proceedings consistent with our decision.
the district court denied Officer Moralez qualified immunity
at the summary judgment stage of this litigation. For
purposes of this interlocutory appeal, then, we must
"take as true the facts the district court has
determined a reasonable jury could find at trial."
Walton v. Powell, 821 F.3d 1204, 1207 (10th Cir.
2016) (citing Johnson v. Jones, 515 U.S. 304, 313
(1995)). Here, those facts include the following:
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.)
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.
(Id. 174-75 (record citations, footnote
sued Officer Moralez and his employer, the City of Las
Cruces, asserting claims under both 42 U.S.C. § 1983 and
New Mexico law. Officer Moralez moved for summary judgment on
the § 1983 claims based on qualified immunity. Relevant
here, the district court denied Officer Moralez
qualified immunity on two of McCowan's § 1983
claims, which alleged that 1) Officer Moralez used excessive
force against McCowan by placing him in the back seat of the
patrol car, handcuffed but unrestrained by a seatbelt, and
then driving recklessly to the police station, knowing
McCowan was being tossed about the back seat; and 2) Officer
Moralez was deliberately indifferent to McCowan's serious
medical needs-his injured shoulders-by delaying his access to
medical care until Officer Moralez transported McCowan to the
detention center, where medical care was available. Officer
Moralez brings this interlocutory appeal from the district
court's decision denying him qualified immunity on these
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 establishes the
violation of a clearly established right, the burden shifts
to the defendant, who must prove that there are no genuine
issues of material fact and that he or she is entitled to
judgment as a matter of law. In short, although we review the
evidence in the light most favorable to the nonmoving party,
the record must clearly demonstrate the plaintiff has
satisfied his heavy two-part burden; otherwise, the
defendants are entitled to qualified immunity.
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 ...