Zartner v. Miller ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 9, 2019
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court
KENNETH R. ZARTNER,
Plaintiff - Appellant,
v. No. 17-1355
(D.C. No. 1:15-CV-02218-PAB-KLM)
SHAWN L. MILLER, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, BACHARACH, and CARSON, Circuit Judges.
_________________________________
This appeal grew out of Officer Shawn Miller’s handcuffing of Mr.
Kenneth Zartner during an arrest. In the aftermath, Mr. Zartner sued
Officer Miller under 42 U.S.C. § 1983, claiming excessive force by making
the handcuffs too tight. 1 Officer Miller moved for summary judgment based
on qualified immunity, and the district court granted the motion.
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited if otherwise appropriate. See Fed.
R. App. P. 32.1(a); Tenth Cir. R. 32.1(A).
1
Mr. Zartner also sued the City and County of Denver, a jail nurse,
and six deputy sheriffs. But this appeal involves only Mr. Zartner’s § 1983
claim against Officer Miller for the allegedly tight handcuffs.
We affirm because Mr. Zartner did not present adequate evidence of
a causal link between the allegedly tight handcuffs and an actual injury.
Without adequate evidence of a causal link, Mr. Zartner cannot prevail
against Officer Miller.
I. Mr. Zartner was diagnosed with a fracture in his right wrist after
two separate uses of force.
Officer Miller arrested Mr. Zartner for aggravated theft of a motor
vehicle, handcuffing him in the process of making the arrest. Mr. Zartner
was then taken to a detention center, where he was examined by medical
staff. During the examination, no injuries were reported or observed.
The next day, Mr. Zartner was to be fingerprinted. He refused to
cooperate, so a group of deputy sheriffs forced Mr. Zartner to give his
fingerprints, using nunchucks to apply pressure to his wrists.
Mr. Zartner was then reexamined by a nurse. The nurse asked Mr.
Zartner whether he was hurting, but he didn’t respond and the nurse again
observed no injuries.
Later that day, Mr. Zartner complained about wrist pain, leading to
an examination of his wrists and the taking of x-rays. From the x-rays, Dr.
David Symonds diagnosed Mr. Zartner with a fracture in his right wrist.
II. When reviewing the grant of summary judgment, we engage in de
novo review.
We review de novo a district court’s grant of a motion for summary
judgment. Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018). The
2
motion must be granted if the moving party shows that (1) the parties do
not genuinely dispute any material facts and (2) the moving party is
entitled to judgment as a matter of law based on those facts. Fed. R. Civ.
P. 56(a). When applying this standard, we view the evidence in the light
most favorable to the nonmoving party and draw all reasonable inferences
in this party’s favor. Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1259
(10th Cir. 2018).
We must apply this standard in the context of qualified immunity,
which shields officers from civil damages if their conduct does not violate
a clearly established right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012). Once an officer
asserts qualified immunity, the plaintiff must
 allege facts showing that the officer violated a constitutional
right and
 identify case law showing that this right was clearly
established when the officer acted.
See Schwartz, 702 F.3d at 579.
In this circuit, unduly tight handcuffing can constitute excessive
force under the Fourth and Fourteenth Amendments. Cortez v. McCauley,
478 F.3d 1108, 1129 (10th Cir. 2007) (en banc). To trigger liability for
unduly tight handcuffs, however, the plaintiff must show
3
 an actual injury, 2
 a causal link between this injury and the unduly tight
handcuffs, 3 and
 the officer’s knowledge that the handcuffs were too tight. 4
III. The district court concluded that there was no constitutional
violation based on two independent grounds.
The district court granted summary judgment to Officer Miller based
on qualified immunity, concluding that Mr. Zartner had failed to show a
violation of his constitutional rights. This conclusion rested on two
independent grounds:
1. Mr. Zartner had failed to show a causal link between the
allegedly tight handcuffs and an actual injury.
2. Mr. Zartner had failed to show that Officer Miller knew that
the handcuffs were too tight.
Because the district court gave two independent rationales, Mr. Zartner can
prevail on appeal only by successfully challenging both. See Lebahn v.
Nat’l Farmers Union Unif. Pension Plan, 828 F.3d 1180, 1188 (10th Cir.
2016) (“When a district court dismisses a claim on two or more
2
See Cortez, 478 F.3d at 1129 & n.24; see also Fisher v. City of Las
Cruces, 584 F.3d 888, 899 (10th Cir. 2009) (“Accordingly, our precedent
requires a showing in a handcuffing case of an actual, non-de minimis
physical, emotional, or dignitary injury to succeed on a claim.”).
3
See Scott v. Hern, 216 F.3d 897, 911 (10th Cir. 2000).
4
See Cortez, 478 F.3d at 1129.
4
independent grounds, the appellant must challenge each of those
grounds.”).
We agree with the district court that the evidence did not show a
causal link between Officer Miller’s actions and an actual injury to Mr.
Zartner. To establish a causal link, Mr. Zartner needed to present expert
medical testimony. But he failed to do so. 5
IV. In district court and his opening appeal brief, Mr. Zartner urged
causation based solely on an inapplicable theory of “aggregation.”
The district court apparently acknowledged that Mr. Zartner’s
fracture had constituted an actual injury. Despite the existence of an actual
injury, the court concluded that Mr. Zartner had failed to present adequate
evidence of a causal link between the injury and Officer Miller’s use of
force.
In both district court and his opening appeal brief, Mr. Zartner urged
causation based solely on a theory of aggregation. Appellant’s Opening Br.
at 18 (Mr. Zartner arguing that he had “suffered serious injuries as the
result of the aggregate conduct” of Officer Miller and others); see also
Appellant’s App’x at 106 (virtually identical language in Mr. Zartner’s
response to Officer Miller’s summary-judgment motion in district court).
Under a theory of aggregation, the court considers the conduct of multiple
5
Because we affirm on the issue of causation, we need not decide
whether a fact-finder could reasonably have inferred that Officer Miller
had known that the handcuffs were too tight.
5
officers “in the aggregate.” Pauly v. White, 874 F.3d 1197, 1214 (10th Cir.
2017), cert. denied, 138 S. Ct. 2650 (2018).
Mr. Zartner pointed out that we have sometimes aggregated officer
conduct in § 1983 cases. See Estate of Booker v. Gomez, 745 F.3d 405,
421–22 (10th Cir. 2014). For example, we have aggregated officers’
conduct when
 two officers worked together to handcuff and subdue an
arrestee 6 and
 four officers participated in a coordinated use of force, which
included handcuffing the arrestee, applying a carotid hold,
putting pressure on the arrestee’s back, and using a taser. 7
But when the officers did not coordinate, we have considered each
officer’s liability based solely on his or her own acts. See, e.g., Pauly, 874
F.3d at 1214.
Invoking the aggregation theory, Mr. Zartner contended that a
reasonable jury could find causation by combining Officer Miller’s
handcuffing with (1) the deputy sheriffs’ later use of force to obtain
fingerprints and (2) other officers’ later use of handcuffs.
6
Weigel v. Broad, 544 F.3d 1143, 1148–49, 1151–53, 1153 n.4 (10th
Cir. 2008).
7
Estate of Booker v. Gomez, 745 F.3d 405, 413–16, 421–22 (10th Cir.
2014).
6
This contention stretches the theory of aggregation beyond our prior
cases. Officer Miller played no role in the deputy sheriffs’ use of force to
obtain fingerprints, and the deputies’ use of force played no role in the
handcuffing of Mr. Zartner: The deputies and Officer Miller used force
against Mr. Zartner in different episodes on different days, at different
places, and for different purposes. And no evidence connects Officer
Miller to the later use of handcuffs on Mr. Zartner. We therefore conclude
that Mr. Zartner failed to show causation through a theory of aggregation.
V. In his appellate reply brief, Mr. Zartner added an unsupported
theory of causation between Officer Miller’s use of force and the
wrist fracture.
In his appellate reply brief, Mr. Zartner argued that Officer Miller’s
use of tight handcuffs, by itself, had caused the wrist fracture. 8 But this
argument was not presented either in district court or in Mr. Zartner’s
opening appeal brief.
In district court, Officer Miller denied evidence of a causal link
between his conduct and an injury that was more than de minimis.
Appellant’s App’x at 49–50. In response, Mr. Zartner invoked his
aggregation theory. Appellant’s App’x at 105–07. But he didn’t argue in
district court that Officer’s Miller conduct had alone caused the injury. Mr.
8
After a third incident (see pp. 6–7, above), Mr. Zartner was
diagnosed with de Quervain tenosynovitis, paresthesia, and other injuries.
7
Zartner thus forfeited this theory. See Stender v. Archstone-Smith
Operating Trust, 910 F.3d 1107, 2018 WL 6423923, at *3 (10th Cir. 2018)
(holding that the appellants forfeited a legal theory by failing to present it
in district court).
Mr. Zartner also bypassed an opportunity to include this theory in his
opening appeal brief. He instead argued that his injuries were “indivisible”
based on the combination of force used by Officer Miller and the deputy
sheriffs. See Appellant’s Opening Br. at 18 (“The injury caused by the
handcuffs was the first in a series of indivisible injuries by a series of
actors thus making all actors jointly and severally liable.”); see also Dist.
Ct. Doc. No. 98 at 9 (using virtually identical language in Mr. Zartner’s
response to Officer Miller’s summary-judgment motion in district court).
Mr. Zartner reverses course in his appellate reply brief, arguing for
the first time that his fracture was caused solely by Officer Miller’s use of
handcuffs. But at this point it was too late for Mr. Zartner to change his
theory of causation. See Anderson v. Spirit Aerosystems Holdings, Inc.,
827 F.3d 1229, 1236 n.2 (10th Cir. 2016) (holding that adding an argument
in the reply brief was “too late”). So even if Mr. Zartner had asserted this
theory in district court, he would have waived it by omitting it in his
8
opening appeal brief. See id. (“The plaintiffs waived their challenge by
waiting to make it in their reply brief.”). 9
Mr. Zartner’s new theory is not only unpreserved but also
unsupported. For this theory, Mr. Zartner relied on his declaration, a
photograph, a report summarizing the results of an x-ray, a declaration by
Dr. Symonds, and Dr. Christian Stob’s deposition testimony. But these
pieces of evidence do not provide the required medical evidence of a
causal link between Officer Miller’s use of allegedly tight handcuffs and
the wrist fracture.
In his declaration, Mr. Zartner stated that he had no wrist pain before
getting handcuffed by Officer Miller. Appellant’s App’x at 146.
Along with the onset of pain, Mr. Zartner discussed a photograph of
his right hand, stating that it “shows a prominent abrasion overlying the
area under which the triquetral bone is located.” Id. But the only
9
In the “summary of argument” section in his opening appeal brief,
Mr. Zartner stated that “the District Court [had] ignored facts from which
it could reasonably be inferred that the handcuffing caused the triquetral
fracture.” Appellant’s Opening Br. at 12. But Mr. Zartner did not elaborate
on the theory in his opening brief; there he argued only aggregation. See
id. at 16–19. Mr. Zartner’s stray sentence in his summary of argument did
not constitute adequate briefing of a causation theory untethered to his
aggregation theory. See Christian Heritage Acad. v. Okla. Secondary Sch.
Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007) (concluding that a
brief discussion in the introduction-to-argument section did not adequately
present a distinct argument).
9
photograph in the summary-judgment record is blurry and shows no
obvious abrasions on Mr. Zartner’s right wrist.
X-rays were taken several days after deputy sheriffs had used
nunchucks to apply pressure to Mr. Zartner’s wrists. The x-rays revealed a
triquetral chip fracture in his right wrist.
Lastly, Mr. Zartner pointed to Dr. Symonds’s declaration and Dr.
Stob’s deposition testimony. In the declaration, Dr. Symonds stated that in
his professional medical opinion, the x-rays of Mr. Zartner’s right wrist
showed a bone fracture of “indeterminate” age. Appellant’s App’x at 110.
And Dr. Stob testified that
 tight handcuffs can cause compression neuropathy and fractures
and
 the symptoms of nerve compression include temporary
numbness and tingling.
Id. at 150–51.
The resulting question is whether Mr. Zartner’s evidence of causation
is enough to create a triable issue of fact. To answer, we must decide
whether expert medical testimony is necessary to create a triable issue of
fact on causation. This question turns on whether causation here would
constitute a medical question or a question that a lay person could answer
based on ordinary experience.
The testimony of a medical expert is not always necessary to
establish causation. For example, expert testimony might be unnecessary to
10
find causation when a brawl leads to a broken nose or black eye. See Myers
v. Ill. Cent. R. Co., 629 F.3d 639, 643 (7th Cir. 2010) (stating that expert
testimony is unnecessary when someone breaks a leg from a vehicle crash
because causation would be understandable to a layperson). But when an
injury lacks an obvious origin and multiple causes are possible, expert
medical testimony is necessary to prove causation between a use of force
and an injury. 10
In our view, the tight handcuffing was not the obvious cause of Mr.
Zartner’s wrist fracture. We assume, for the sake of argument, that Mr.
Zartner’s fracture could have resulted from Officer Miller’s use of tight
handcuffs. But by the time that the fracture was diagnosed, a group of
deputy sheriffs had used force on Mr. Zartner’s wrists, applying pressure
with nunchucks. And Dr. Stob testified that this use of force could have
caused a fracture.
Given the two separate uses of force that could have caused the
fracture, causation entails a medical question beyond a layperson’s
10
See Felkins v. City of Lakewood, 774 F.3d 647, 651–52 (10th Cir.
2014); Franklin v. Shelton, 250 F.2d 92, 97 (10th Cir. 1957); accord
Albertson v. Norris, 458 F.3d 762, 765–66 (8th Cir. 2006) (holding that the
defendants were entitled to summary judgment on a § 1983 claim because
the plaintiff had failed to present expert medical testimony showing a
causal link between the lack of medication and a stroke, reasoning that the
stroke could have had many other causes); Myers, 629 F.3d at 643 (“But
when there is no obvious origin to an injury and it has ‘multiple potential
etiologies, expert testimony is necessary to establish causation.’” (quoting
Wills v. Amerada Hess Corp., 379 F.3d 32, 46–47 (2d Cir. 2004))).
11
ordinary experience. See Fane v. Zimmer, Inc., 927 F.2d 124, 131 (2d Cir.
1991) (concluding that expert medical testimony was necessary on the
“medical question” of “[w]hat causes a bone to fracture” because the injury
had been complex, involved a complicated surgery, and causation went
“beyond the sphere of the ordinary juryman”). In light of this medical
question, Mr. Zartner needed to present expert medical testimony tying the
fracture to Officer Miller’s use of tight handcuffs. See Harvey v. United
States, 685 F.3d 939, 952–53 (10th Cir. 2012) (upholding summary
judgment for the defendant because expert testimony was necessary to
show causation between improper medical treatment and further injury to a
hand that had been fractured); accord Smith v. Curran, 472 P.2d 769, 771
(Colo. App. 1970) (requiring expert testimony because “the cause of an
infection” is a matter lying “within the field of medical experts”). 11 Mr.
Zartner did not present this testimony. As a result, the new theory of
causation would fail even if Mr. Zartner had preserved it in district court
and his opening appeal brief.
11
Though causation under § 1983 involves an issue of federal law,
opinions by Colorado appellate courts provide useful guidance. See Barnes
v. Anderson, 202 F.3d 150, 158–59 (2d Cir. 1999) (stating that “state tort
analogs” bear on proximate cause under § 1983 even though the issue
involves federal law).
12
VI. Conclusion
The district court correctly concluded that the summary-judgment
evidence would not permit a reasonable fact-finder to draw a causal link
between Officer Miller’s use of allegedly tight handcuffs and an actual
injury to Mr. Zartner. We therefore affirm the district court’s grant of
summary judgment to Officer Miller.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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