                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0269n.06

                                       Nos. 12-2330/2331
                                                                                      FILED
                              UNITED STATES COURT OF APPEALS                      Mar 15, 2013
                                   FOR THE SIXTH CIRCUIT                    DEBORAH S. HUNT, Clerk


JOSEPH M. MCADAM,                                     )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )
v.                                                    )       ON APPEAL FROM THE UNITED
                                                      )       STATES DISTRICT COURT FOR
MATTHEW WARMUSKERKEN, Officer;                        )       THE WESTERN DISTRICT OF
DEREK WILSON, Deputy; OSCAR DAVILA,                   )       MICHIGAN
Deputy,                                               )
                                                      )
        Defendants-Appellants,                        )
                                                      )
CITY OF LUDINGTON, et al.,                            )
                                                      )
        Defendants.                                   )



        Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*

        PER CURIAM. Officers Warmuskerken, Wilson, and Davila appeal the district court’s

denial of their motions for summary judgment on the basis of qualified immunity. Joseph McAdam

has moved to dismiss the appeals for lack of jurisdiction. We deny McAdam’s motion and affirm

the district court.

        In July 2009, McAdam was a passenger in his mother’s car when a police officer stopped

them for having defective taillights. After pulling the car over, an officer asked McAdam’s mother

to get out and perform several sobriety tests. While his mother was being tested, McAdam got out

        *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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                                                 -2-

of the car twice to check on her. The second time, McAdam stated that, instead of getting back in

the car, he could just walk home. The officers—including, by that point, the three officers who are

the defendants in this case—advised McAdam to go home or risk going to jail. According to

McAdam, he then began walking away. As he left, he took out his iPhone and began taping the

officers. Officers Warmuskerken, Wilson, and Davila then began following McAdam and, at some

point, told McAdam that he was under arrest for disorderly conduct. McAdam then claims the

officers performed a leg sweep and subdued him on the ground, where he was unable to move or

struggle. Despite his incapacity, McAdam says, the officers then tased him at least four times.

        Following his arrest, McAdam was taken to the emergency room for treatment for injuries

he suffered while he was being tased. At the hospital, one of McAdam’s wrists was handcuffed to

a hospital bed, and the bed’s wheels were locked. According to McAdam, he was cooperative with

the hospital staff and never became aggressive. At some point, McAdam asked for his iPhone and

was told that the officers would be keeping it as evidence. McAdam stated that he would refuse

treatment on his knee until his phone was returned. In response, McAdam claims that the officers

tased him three more times.

        McAdam pleaded guilty to assault and battery of the officers, but filed a complaint alleging

that the officers used excessive force at the scene of the traffic stop and at the hospital. He also filed

state-law claims against Officers Warmuskerken and Wilson for assault and battery. The officers

filed motions for summary judgment, arguing that they were protected by qualified immunity and

that Heck v. Humphrey, 512 U.S. 477 (1994), barred McAdam’s claims. The district court denied

the motions. The officers sought interlocutory review of their qualified-immunity and Heck
                                          Nos. 12-2330/2331
                                                 -3-

defenses. McAdam moved to dismiss the officers’ appeals, contending that the district court’s

decision was not subject to interlocutory review.

        To overcome an officer’s claim of qualified immunity, a plaintiff must establish, first, that

the officer violated a constitutional right and, second, that the right was “clearly established” at the

time the officer acted. Saucier v. Katz, 533 U.S. 194, 201 (2001). A district court’s conclusions as

to whether a plaintiff has made such a showing are usually subject to interlocutory review. See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). If, however, an officer uses an interlocutory appeal

merely to quibble over the district court’s assessment of the factual record and remains unwilling to

accept the claimant’s fact-supported version of events, we will dismiss the appeal. See Johnson v.

Jones, 515 U.S. 305, 319–20 (1995).

        In this case, the officers do some quibbling but not enough to preclude our review. To some

extent, the officers’ briefs continue to protest McAdam’s claims that he was cooperative during both

the traffic stop and the hospital visit. But they also ask us to consider some legal questions,

including whether their conduct violated McAdam’s legal rights even after running the inferences

in his favor.

        First, may an officer tase an individual who is subdued on the ground and is not resisting

arrest, even if the officer does so only once? No. See Hagans v. Franklin Cnty. Sheriff’s Office, 695

F.3d 505, 509–10 (6th Cir. 2012); Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 497–98 (6th

Cir. 2012). A single tasing violates a plaintiff’s clearly established rights if he is neutralized and is

not resisting an officer’s efforts to restrain him. The district court thus properly denied the officers’

qualified-immunity defense.
                                         Nos. 12-2330/2331
                                                -4-

        Second, may an officer tase an individual, who is handcuffed to a hospital bed and is verbally

resisting medical treatment, but does not pose a safety risk to hospital staff or police officers? No.

See Austin, 690 F.3d at 497–98. Again, the right of an individual to be free from an officer’s force

if he is cooperative and non-aggressive is clearly established. See Hagans, 695 F.3d at 509–10.

Taking McAdam’s factual description of the hospital tasing as true, the officers are not entitled to

qualified immunity. Because McAdam has put forward plausible factual bases for his legal claims,

he is entitled to a trial.

        Because the officers’ Heck argument is “inextricably intertwined” with their qualified-

immunity defense, we turn to it next. See Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793,

797 (6th Cir. 1998). Heck bars a plaintiff from bringing a 42 U.S.C. § 1983 claim that, if successful,

would necessarily imply the invalidity of a prior conviction. Heck, 512 U.S. at 487.

        The officers argue that McAdam’s guilty plea to the charges of assault and battery precludes

his § 1983 claims for excessive force. Not so. McAdam maintains that he was tased after being

handcuffed and after he was taken to the hospital. Even if McAdam committed an assault, that

would not give the officers license to tase him (free from Eighth Amendment scrutiny) after the

underlying events had already occurred and after McAdam was under control, which is what he

alleges happened.

        The motion to dismiss is denied, and we affirm the denial of the officers’ motion for

summary judgment based on qualified immunity and Heck.
