                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 06a0738n.06
                                 Filed: October 5, 2006

                                              No. 05-6660

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

    JIMMYRICO PIGRAM, By and Through
    His Next Friend (Mother), LINDA
    PIGRAM; and LINDA PIGRAM,

            Plaintiffs-Appellants,
                                                         ON APPEAL FROM THE UNITED
                                                         STATES DISTRICT COURT FOR THE
    v.
                                                         WESTERN DISTRICT OF TENNESSEE
    RUSSELL CHAUDOIN,

          Defendant-Appellee.
    __________________________________/


Before: MARTIN and DAUGHTREY, Circuit Judges; and REEVES, District Judge.*

           DANNY C. REEVES, District Judge. Defendant-Appellant Russell Chaudoin appeals the

district court’s denial of his motion for summary judgment. The sole issue on appeal is whether the

district court erred in denying the Defendant-Appellant qualified immunity for an alleged slap and

excessively tight handcuffs. For the reasons set forth below, we AFFIRM in part and REVERSE

in part.

                                           BACKGROUND




*
         The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky,
sitting by designation.

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       This case arises out of the arrest of Plaintiff-Appellee Jimmyrico Pigram. Pigram was a

student at Westside High School in Memphis, Tennessee. He suffers from manic depression and

receives prescription medication for this condition. However, on April 22, 2003, Pigram did not

have the correct amount of medication in his system because he had “skipped a dose” the night

before. On that date, Pigram created a disturbance in his classroom. According to Pigram, he was

“getting out of control” and was about “to get into a fight with [another] student.” As a result, his

teacher sought assistance from Officer Marcus Frierson, the Memphis Police Officer assigned to the

school. Frierson handcuffed Pigram and took him outside. Frierson observed Officer Russell

Chaudoin driving by the school and flagged him down for assistance. The parties dispute what

happened after Frierson and Pigram reached Chaudoin’s squad car.

       A.      The Defendant’s Version of Events

       Chaudoin claims that, as Frierson started to put Pigram into his vehicle, Pigram began to

resist by “bucking” and “pulling as if he was trying to get away.” According to Chaudoin, he got out

of his car and went around to assist Frierson in gaining control of Pigram. Chaudoin indicated that,

during this time, Pigram was cursing and resisting the officers’ efforts to place him in the car. At

that point, Frierson indicated that he continued to hold Pigram and Chaudoin grabbed him. Once

Pigram was safely restrained, Chaudoin removed Frierson’s handcuffs and placed his handcuffs on

Pigram. Chaudoin stated that he checked the cuffs for tightness and double locked them. He then

placed Pigram into his squad car.

       B.      The Plaintiffs’ Version of Events

       According to Pigram, when they reached the squad car, Chaudoin asked Frierson if he needed

assistance and Frierson responded affirmatively. Chaudoin then asked Pigram his name and he


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responded, but Chaudoin apparently did not understand him. Pigram admitted that he “got smart”

with Chaudoin, and that Chaudoin got out of the car and said “something” to which Pigram

responded “F*** you.” At that point, Pigram alleges that Chaudoin “slapped” him and “took Officer

Frierson’s handcuffs off and put his on.” Pigram testified that the cuffs were too tight when they

were first placed on him and that he “think[s]” he “tried to” say something to Chaudoin “but

[Chaudoin] would not listen.” However, in a statement to the Memphis Police Department’s Internal

Affairs Bureau (“IAB”), when Pigram was asked if he told anyone that the handcuffs were too tight,

he responded “[n]o he wouldn’t listen.”

       Pigram’s mother, Linda, testified that when she arrived at the high school, she observed her

son cursing at Chaudoin. She stated that, at that point, Chaudoin got out of his car and slapped her

son. She indicated that Chaudoin then removed his cuffs and “put them back on tighter”and that he

was then placed in the backseat of the squad car.

       The parties’ versions of the events after the officers placed Pigram in the squad car are

essentially consistent. Once in the backseat, Pigram began to strike his head against the plastic

barrier separating the front and rear seats. The officers then attempted to secure Pigram’s feet with

a “rip hobble1.” Chaudoin warned Pigram that if he did not stop kicking, he would be pepper

sprayed. When Pigram did not comply, Chaudoin sprayed him and the officers were able to apply

the rip hobble. Pigram was then transported to Juvenile Court by Chaudoin.

       Jeanne Thompson, a juvenile court probation counselor, met with Pigram on April 22, 2003.

During the meeting, she asked Pigram about his arrest. She indicated that she did not observe any




1
       A rip hobble is described as a long nylon strap used for foot restraint.

                                                   -3-
bruises or other injuries to his wrists. In addition, she stated that Pigram had not mentioned “being

slapped, tight handcuffs or any type of injury,” other than being pepper sprayed.

       On April 21, 2004, the Pigrams filed suit against the Memphis City Schools, Chaudoin, and

the City of Memphis, alleging violations of 42 U.S.C. § 1983 for use of excessive force during

Pigram’s arrest. After dismissal of the Memphis City Schools and the City of Memphis, Chaudoin

filed a motion for summary judgment. The district court determined that Chaudoin was entitled to

qualified immunity on the pepper spray and rip hobble claims but denied qualified immunity for the

alleged slap and application of the alleged overly-tight handcuffs. On October 14, 2005, Chaudoin

filed an interlocutory appeal, seeking review of the portions of the district court’s order denying

qualified immunity.

                                    STANDARD OF REVIEW

       In an interlocutory appeal from the denial of a motion for summary judgment on qualified

immunity grounds, we have jurisdiction to review the legal question of whether qualified immunity

should have been granted. See Behrens. v. Pelletier, 516 U.S. 299, 313 (1996); Mitchell v. Forsyth,

472 U.S. 511, 527 (1985). Review of the denial of qualified immunity is de novo. Risbridger v.

Connelly, 275 F.3d 565, 568 (6th Cir. 2002).

                                           DISCUSSION

       A qualified immunity analysis consists of two questions: first, taken in the light most

favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated

a constitutional right; and second, if a violation could be made out on a favorable view of the parties’

submission, was the right clearly established. Saucier v. Katz, 533 U.S. 194 (2001).




                                                  -4-
       As Saucier directs, we must first determine whether Chaudoin violated Pigram’s Fourth

Amendment right to be free from excessive force.              The Fourth Amendment’s “objective

reasonableness” standard governs the constitutional analysis in excessive force claims in the context

of an arrest, investigatory stop, or other seizure. Brosseau v. Haugen, 543 U.S. 194, 197 (2004).

In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that “[d]etermining whether the

force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a

careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental interests at stake.” Id. at 396. Courts must pay

“careful attention to the facts and circumstances of each particular case, including 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. The

reasonableness must be evaluated “from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Id.

       A.      The Slap

       Chaudoin argues that he is entitled to qualified immunity in light of this Court’s decision in

Lyons v. City of Xenia, 417 F.3d 565 (6th Cir. 2005). In Lyons, an opinion reconsidered after the

Supreme Court’s ruling in Brosseau, this Court granted qualified immunity to a police officer for

allegedly tackling a suspect who was engaged in a verbal argument with another officer. According

to Chaudoin, “[i]f it was unclear whether a police officer violated an established constitutional right

by tackling a person simply arguing with another police officer, there was no violation of a clearly

established constitutional right if an officer simply slaps an angry, cursing, disorderly suspect who

is apparently resisting arrest and trying to escape.”


                                                  -5-
        Chaudoin’s argument fails for two reasons. First, it misconstrues the facts, at least as viewed

in light most favorable to Pigram. Pigram admitted that prior to being put into the squad car, he was

“angry” and “cursing.” However, he specifically refuted the contention that he was “resisting arrest”

or “trying to escape.” Moreover, any violent behavior in which Pigram engaged inside the squad car,

i.e., banging his head against the glass and attempting to kick out the rear windows, should not be

imputed to his prior behavior outside the car, when the alleged slap occurred.

        Second, even though a “slap” would appear to involve less physical force than a “tackle,”

under specific circumstances, a slap may constitute a sufficiently obvious constitutional violation

under Brosseau and Lyons. See Lyons, 417 F.3d at 579. For example, a tackle might legitimately

be used to subdue an unruly suspect, especially if that suspect had not yet been secured in handcuffs,

as was the case in Lyons. Id. at 570. In contrast, a slap to the face of a handcuffed suspect – even

a verbally unruly suspect – is not a reasonable means of achieving anything more than perhaps

further antagonizing or humiliating the suspect. See also Carico v. Benton, Ireland & Stovall, 68

Fed. Appx. 632, 637 (6th Cir. 2003) (noting that the plaintiff “can clearly claim excessive force

against [the officer] for the slap to the face”).

        Under Graham, this Court is required to evaluate the reasonableness of Chaudoin’s use of

force by performing a “careful balancing of the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing governmental interests at stake.” Graham,

490 U.S. at 396 (internal quotation marks omitted). Although the “right to make an arrest . . .

necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect

it,” the officers’ interest justifies only the amount of force that a reasonable officer in the heat of the

moment could have believed was needed to effectuate the arrest.


                                                    -6-
       In the present case, the slap cannot reasonably be construed as a means of subduing Pigram,

especially given that Chaudoin’s justification for the slap was not to protect himself, other officers,

or the public, but rather was because Pigram had a “smart-ass mouth.” Moreover, when Pigram’s

mother asked Chaudoin why he had slapped her son, Chaudoin allegedly replied that she was “lucky

he didn’t do more than that,” which provides further evidence that the officer’s action served no

reasonable law enforcement purpose. On the facts as we must take them, there was simply no

governmental interest in slapping Pigram after he had been handcuffed, nor could a reasonable

officer have thought there was. This Court’s case law supports Pigram’s right not to be slapped

gratuitously. Specifically, cases in this circuit clearly establish the right of people who pose no

safety risk to the police to be free from gratuitous violence during arrest. See Phelps v. Coy, 286

F.3d 295, 302 (6th Cir. 2002); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994) (use of force after

suspect incapacitated by mace would be excessive as a matter of law); McDowell v. Rogers, 863 F.2d

1302, 1307 (6th Cir. 1988) (blow with nightstick to handcuffed, unresisting suspect would be

gratuitous and therefore unreasonable). Therefore, qualified immunity is not available for lack of

a “clearly established” right. See Saucier, 533 U.S. at 200.

       In summary, genuine issues of material fact exist regarding whether Chaudoin used excessive

force in arresting Pigram, and whether that force was objectively unreasonable under the

circumstances. We simply cannot find that the facts are so one sided in favor of Chaudoin that he

is entitled to qualified immunity on the issue of whether a constitutional violation occurred as a

result of the alleged slap. Accordingly, the district court correctly rejected Chaudoin’s claim of

qualified immunity.

       B.      Handcuffs


                                                 -7-
       In Lyons, the Sixth Circuit noted that “[t]he Fourth Amendment . . . prohibits unduly tight

handcuffing in the course of an arrest,” stating that this general principle is “clearly established”

under Sixth Circuit law for purposes of qualified immunity. Lyons, 417 F.3d at 575. However, the

Court cautioned that:

       [n]ot all allegations of tight handcuffing . . . amount to excessive force. In order
       to reach a jury on this claim, the plaintiff must allege some physical injury from the
       handcuffing, and must show that officers ignored plaintiff’s complaints that the
       handcuffs were too tight.

Id. at 575-76.

       Although Chaudoin, Frierson, and Thompson deny that Pigram made any statements to them

complaining about the tightness of the handcuffs, under the “light most favorable” standard we must

examine Pigram’s own statements to determine if he even alleged making statements regarding the

handcuffs. In his statement to IAB, Pigram stated that his right wrist was swollen because Chaudoin

put the handcuffs on too tightly. However, he reported that he did not inform Chaudoin of his

discomfort because “he wouldn’t listen.” In contrast, during his deposition, Pigram testified that he

noticed that the cuffs were too tight when Chaudoin first put them on and that he “think[s]” he “tried

to” say something to Chaudoin about the tightness of the cuffs but that “he wouldn’t listen,” although

Pigram could not remember when he said something.

       Under Lyons, a plaintiff must demonstrate that he complained to the officers and that his

complaints were ignored. In the absence of a complaint to the officer, no constitutional violation can

be said to have occurred. It is clear from the record that Pigram failed to make a complaint inasmuch

as he felt that any demands to the officers to loosen the handcuffs would have been futile, twice

using the phrase “he wouldn’t listen.” There is nothing in the record to indicate that Pigram ever told



                                                 -8-
Chaudoin that his handcuffs were too tight. Therefore, unless there is evidence that there was an

“obvious physical problem caused by the handcuffs,” i.e., that Chaudoin was on notice that the

handcuffs were too tight, even in the absence of an express complaint from Pigram, no reasonable

juror could find that Chaudoin had notice of the cuffs being too tight. Lyons, 417 F.3d at 576.

       Here, there is likewise no evidence indicating that there was an obvious physical problem

caused by the handcuffs. Ms. Pigram reported in her IAB complaint that while she was visiting her

son at the juvenile facility, she noticed that his right wrist was “swollen and puffed upon from the

handcuffs.” While there is evidence indicating that Pigram complained to the guards at the facility

that his “wrists were swelling and [that he] need[ed] to go on the south side and lay down,” this

evidence does not demonstrate that Pigram had an obvious physical problem prior to the time that

he was surrendered to the juvenile guards. Thus, the court cannot conclude that Pigram had an

obvious physical problem caused by the cuffs.

       Because the facts as alleged by the Pigrams do not rise to the level of unconstitutionally

excessive force, we reverse the district judge’s denial of summary judgment on the grounds of

qualified immunity as to the excessive-force handcuffing claim.

                                         CONCLUSION

       Based on the above discussion, we AFFIRM the district court’s denial of qualified immunity

for the alleged slap and REVERSE the denial of qualified immunity for the alleged excessively tight

handcuffs. The case is REMANDED for further proceedings consistent with this opinion.




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