                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  January 7, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 BENJIE LORENZO CARDENAS and
 VIOLA PRIETO,
                                                         No. 08-2036
              Plaintiffs-Appellees,
 v.                                                       D. of N.M.
 MATTHEW FISHER, an Officer of                (D.C. No. CIV-06-936-JCH-RLP)
 the Albuquerque Police Department,
 individually and in his official
 capacity,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Matthew Fisher, an Albuquerque Police Department officer, asserts he is

entitled to qualified immunity from a claim brought by Benjie Lorenzo Cardenas




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
          Upon Appellant’s motion and after examining the briefs and appellate
record, this panel has determined unanimously that oral argument would not
materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The cause therefore was ordered submitted without oral
argument.
and Viola Prieto for constitutional violations under 42 U.S.C. § 1983. Fisher

appeals from a district court order denying his summary judgment motion.

      While we have jurisdiction to review interlocutory appeals under 28 U.S.C.

§ 1291, this jurisdiction is limited to reviewing issues of law. Hesse v. Town of

Jackson, 541 F.3d 1240, 1244 (10th Cir. 2008). Because Fisher raises only

sufficiency of the evidence issues, we DISMISS his appeal for lack of

jurisdiction.

                                  I. Background

      The following facts are set forth in the light most favorable to Cardenas and

Prieto as the nonmoving parties. See Lowery v. County of Riley, 522 F.3d 1086,

1088 (10th Cir. 2008).

      Late in the evening on December 3, 2005, Officer Fisher stopped a Honda

Civic after it ran a stop sign near an apartment complex. The Civic’s driver

produced a driver’s license with the name Isaac Romero, but he lacked any proof

of insurance or registration. The driver’s license photograph depicted a “Hispanic

male with short, dark brown hair, a goatee, and a mustache,” and the license

indicated the driver was 5’8” tall. R., Doc. 71 at 2 (Dist. Ct. Order). The driver

told Fisher he lived in the neighborhood, but the address on the license was not

nearby. In addition, the driver appeared to be drunk and was slurring his words.

      Fisher took the driver’s keys, placed them on the trunk of the Civic, and

returned to the patrol car to begin his paperwork. While Fisher was writing the

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citation, the driver exited the car, grabbed the keys off the trunk, and ran toward

the nearby apartment complex. Fisher reported what happened on his police radio

and within five minutes two additional officers arrived. Together the officers

knocked on doors in the apartment complex and questioned the residents about

the person pictured on the confiscated driver’s license.

      Prieto and her adult son, Cardenas, lived in separate apartments in this

complex. At the time of this incident, Cardenas was in his mother’s apartment

helping with Christmas decorations. Approximately ten minutes after the driver

fled from the Civic, the officers knocked on the door of Prieto’s apartment and

Cardenas answered. Cardenas was a “Hispanic male with dark hair, a haircut

similar to [the] driver’s license photograph, and a mustache.” R., Doc. 71 at 3–4.

      Unlike the driver of the Civic, though, Cardenas was 5’10” tall, was not

wearing the clothes the driver of the Civic had been wearing, and appeared sober.

Despite these differences, Fisher at first believed Cardenas was the person on the

confiscated driver’s license. He “grabbed Cardenas by the arms, twisted him

around, and slapped him in handcuffs.” Id. at 4. The handcuffs were “extremely,

extremely tight,” and Cardenas “immediately felt pain in his arm, shoulder, and

back.” Id. Despite Cardenas’s complaints about the handcuffs’ tightness, Fisher

refused to loosen them.

      Cardenas and Prieto repeatedly told Fisher that Cardenas was neither the

driver nor the person on the driver’s license. When the officers took Cardenas to

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his apartment, he produced a birth certificate, a New Mexico driver’s license, a

rent receipt, and a utility bill corroborating his identity. Fisher then searched

Cardenas’s apartment without permission and without a warrant.

      Fisher eventually concluded Cardenas was not the man on the driver’s

license, but still believed Cardenas was the driver who had fled. The officers

transported Cardenas to the police station and charged him with concealing

identity, eluding a police officer, improper use of a license plate, and failure to

register and maintain insurance. He was not charged with running a stop sign or

for driving while intoxicated. Another officer released the handcuffs at the police

station and reportedly observed that “[t]hose cuffs are on way too tight.” Id. at 6.

Cardenas himself 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.

      The district court found that sufficient evidence supported the claim that

Cardenas “sustained injuries as a result of the handcuffing, including bruises and

abrasions around his wrists.” Id. According to the district court, “Cardenas

sought medical attention for his injuries a week or two after the incident and

maintains that he was unable to work for approximately two months.” Id.

Cardenas was eventually acquitted on all charges, and following his acquittal he

and Prieto brought this § 1983 suit against Fisher in federal court.

      Fisher moved for summary judgment, claiming qualified immunity

protected him from Cardenas’s unlawful arrest and excessive use of force claims.

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The district court denied Fisher’s summary judgment motion, and he now appeals

that denial. 1

                                   II. Discussion

       Qualified immunity protects public officials “from undue interference with

their duties and from potentially disabling threats of liability.” Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982). Plaintiffs seeking to overcome a qualified

immunity defense must show that (1) the defendant violated a constitutional or

statutory right, and (2) the right was clearly established at the time of the

defendant’s unlawful conduct. Mecham v. Frazier, 500 F.3d 1200, 1204 (10th

Cir. 2007). In denying Fisher’s summary judgment motion, the district court

found Cardenas asserted sufficient facts that, if true, would constitute a violation

of a clearly established constitutional right.

       Before we can turn to the merits of Fisher’s interlocutory appeal, we must

first address the extent of our jurisdiction. A district court’s denial of a claim of

qualified immunity is an immediately appealable final decision under 28 U.S.C.

§ 1291 to the extent the appeal “turns on an issue of law.” Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). While we may review the district court’s legal

conclusions, we lack jurisdiction to review factual conclusions such as the



       1
        Fisher also sought summary judgment on additional state law tort claims
brought by Cardenas and Prieto. He was unsuccessful, however, and does not
appeal the disposition of those claims.

                                          -5-
existence of a genuine issue of material fact, or whether a plaintiff’s evidence is

sufficient to support a particular factual inference. Fogarty v. Gallegos, 523 F.3d

1147, 1153 (10th Cir. 2008) (citing Behrens v. Pelletier, 516 U.S. 299, 313

(1996), and Johnson v. Jones, 515 U.S. 304, 316 (1995)). Indeed, our review at

this point must “scrupulously avoid second-guessing the district court’s

determinations regarding whether [plaintiffs have] presented evidence sufficient

to survive summary judgment.” Clanton v. Cooper, 129 F.3d 1147, 1153 (10th

Cir. 1997).

      As we explain in more detail below, Fisher requests that we review the

record and separately weigh the sufficiency of Cardenas’s proffered

evidence—precisely what we are jurisdictionally prohibited from doing. Fisher

argues that when properly reviewed, the facts show neither unlawful arrest nor

excessive force. Regardless of the merits of these arguments, the Supreme

Court’s decisions in Behrens and Johnson are clear that we simply lack

jurisdiction to consider them at this interlocutory stage.

A. Unlawful Arrest

      Fisher claims he is entitled to qualified immunity since he reasonably

believed Cardenas had committed a crime when the arrest occurred. His

reasonable belief would provide the probable cause needed to make the arrest

lawful. See Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995).




                                          -6-
      But the problem here is that Fisher fails to make a legal argument that the

facts Cardenas asserts, even if true, do not amount to a constitutional violation.

Instead, he essentially disagrees with the district court’s conclusions that disputed

facts remain for a jury on the probable cause question and that, “[o]n the facts as

alleged by Plaintiff Cardenas, a reasonable officer in Defendant Fisher’s position

. . . would not have believed he had probable cause to suspect that it was Plaintiff

Cardenas he had stopped.” R., Doc. 71 at 14 (Dist. Ct. Order). Fisher argues the

district court improperly credited the testimony of certain eyewitnesses, failed to

consider trustworthy identifying information Fisher had at the time, and failed to

account for the similarities in appearance between the driver and Cardenas that

would have made a mistake of identity reasonable.

      These arguments relate to the sufficiency of the evidence, however, and we

have no jurisdiction to address them in this interlocutory context. See Behrens,

516 U.S. at 313 (“[D]eterminations of evidentiary sufficiency at summary

judgment are not immediately appealable merely because they happen to arise in a

qualified-immunity case.”). Because jurisdiction is wanting, we must dismiss the

unlawful arrest argument.

B. Excessive Force During Arrest

      Fisher next challenges the district court’s denial of qualified immunity on

the excessive force claim. He argues the amount of force used in arresting and

handcuffing Cardenas was objectively reasonable.

                                         -7-
      “We analyze whether the force used to effectuate an arrest violates an

individual’s Fourth Amendment rights under the ‘objective reasonableness'

standard of the Fourth Amendment.” Marquez v. City of Albuquerque, 399 F.3d

1216, 1220 (10th Cir. 2005) (quoting Graham v. Connor, 490 U.S. 386, 388

(1989)). This reasonableness inquiry turns on several factors, including the

alleged crime’s severity, the threat a suspect poses, and the suspect’s efforts to

resist or evade arrest. Id. In essence these factors “evaluate[] the force used in a

given arrest or detention against the force reasonably necessary to effect a lawful

arrest or detention under the circumstances of the case.” Cortez v. McCauley, 478

F.3d 1108, 1126 (10th Cir. 2007). Unduly tight handcuffing can constitute

excessive force if a plaintiff alleges: (1) “some actual injury that is not de

minimis, be it physical or emotional,” and (2) that the officer ignored the

“plaintiff’s timely complaints . . . that the handcuffs were too tight.” Id. at 1129.

      After applying these principles, the district court concluded that disputed

facts existed relating to whether the amount of force used to effectuate the arrest

was reasonable in these circumstances. Accepting Cardenas’s allegations as true,

though, the district court concluded sufficient facts existed for a constitutional

excessive force claim. In finding that Cardenas alleged more than a de minimis

injury, the court noted the significant pain he experienced while handcuffed, his

need to seek medical attention for his wrists, and his inability to work “for two

months as a result of his injuries.” R., Doc. 71 at 19 (Dist. Ct. Order).

                                          -8-
      Fisher’s interlocutory challenge to the excessive force ruling suffers the

same deficiencies as his challenge to the unlawful arrest ruling. In essence he

asks us to reweigh the evidence and find that Fisher used an objectively

reasonable amount of force to effect Cardenas’s arrest. As we have already

indicated, jurisdictional limits prevent us from reaching this factual question. 2

Because Fisher asserts no cognizable legal challenge regarding the de minimis

nature of the injury, we need not address the district court’s conclusion that the

facts alleged meet the de minimis standard imposed by Cortez. And, as the

district court notes, any dispute about the seriousness of these alleged injuries,

including medical and work records, will be fair game for trial. At that point

“Cardenas will be required to come forward with evidence sufficient to prove

actual injury that is not de minimis.” Id. at 20; see also Fogarty, 523 F.3d at 1159

(we are free to reconsider the record on appeal after trial to determine if the facts

establish entitlement to qualified immunity).

      Because jurisdiction is wanting, we must also dismiss Fisher’s argument

against the excessive force claim.



      2
          Fisher’s brief does have a section title indicating that “as a matter of
law,” Cardenas “fail[ed] to establish an excessive force claim.” Aplt. Br. at 23.
Instead of making a legal argument, though, this section focuses on whether the
district court was correct in finding Cardenas missed two months of work in the
absence of “any medical diagnosis or recommendation from Cardenas’s treating
physician.” Id. at 24. We decline to treat this argument as challenging the
district court’s determination of a matter of law.

                                          -9-
                                        ***

      In sum, arguments challenging the factual sufficiency of the district court’s

ruling dominate Fisher’s appeal. Bound by clear authority from both our circuit

and the Supreme Court’s decisions in Behrens and Johnson, we simply lack

jurisdiction to consider such arguments at this interlocutory stage.

                                  III. Conclusion

      For the foregoing reasons, we DISMISS Fisher’s interlocutory appeal.



                                               Entered for the Court,

                                               Timothy M. Tymkovich
                                               Circuit Judge




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