                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS November 15, 2013
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court


 PRESTON KENT LONG and
 SIMONA LONG, husband and wife,
 individually and next friends of S.L.,
 a minor,

              Plaintiffs - Appellees,
 v.                                                     No. 13-6156
 OFC. ANDREW FULMER,                          (D.C. No. 5:12-CV-00957-HE)
 individually;                                      (W.D. Oklahoma)

              Defendant - Appellant.
 HCA HEALTH SERVICES OF
 OKLAHOMA, INC., dba OU
 MEDICAL CENTER, dba THE
 CHILDREN<S HOSPITAL and
 WOMEN<S SERVICES AT OU
 MEDICAL CENTER; STEVE NOLES,
 individually; STATE OF
 OKLAHOMA, ex rel. The Board of
 Regents of the University of
 Oklahoma; CH. ED WELCH,
 individually; and CPT. TERRY
 SCHOFIELD, individually,

              Defendants.


                            ORDER AND JUDGMENT *


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      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 case is

therefore ordered submitted without oral argument.

      Defendant and appellant Officer Andrew Fulmer, an employee of the

University of Oklahoma Health Sciences Center Police, appeals the denial of his

motion to dismiss the 42 U.S.C. § 1983 claim against him and others, on the

ground of qualified immunity. Finding Officer Fulmer was not entitled to

qualified immunity, the district court declined to dismiss the charge against him,

which was based on the allegation that he had violated plaintiff and appellee

Preston Long’s constitutional rights by using excessive force in arresting him.

For the following reasons, we affirm.



                                BACKGROUND

      On approximately May 18, 2010, Preston and Simona Long, along with

their minor daughter, S.L., went to the emergency department at the Children’s

Medical Center at the University of Oklahoma because S.L. was having a seizure.

At some point, Preston went to the cafeteria to get something to eat and drink. He


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says that there was no clear indication that the cafeteria was closed or that it was

somehow off limits to visitors/invitees to the Medical Center.

      Preston then attempted to check out of the cafeteria with various food

items. He apparently got into some sort of disagreement with Steve Noles, whom

it is believed to have been the cafeteria manager and an agent of the Medical

Center. Mr. Noles then requested assistance form the University of Oklahoma

Health Sciences Center Police Department. In response to that request, Defendant

Fulmer and another officer arrived to help.

      Officer Fulmer arrived wearing his full police uniform, including his badge.

He attempted to place Preston under arrest, apparently on the ground that he

(Preston) had disagreed with Mr. Noles. The allegations against Preston

amounted to misdemeanor theft, in violation of Okla. Stat. tit. 22 § 196. Preston

claimed he had done nothing wrong. Officer Fulmer then grabbed Preston and

instructed him to submit to arrest, and he attempted to physically restrain Preston.

At one point, Preston’s shoulder became separated. Preston was ultimately

arrested and then charged with a misdemeanor, which was subsequently dismissed

by the prosecutor “in the interest of justice.”

      On May 17, 2012, the Longs (Preston and his wife and daughter) filed the

instant petition in the Oklahoma County District Court, alleging twelve causes of

action against the University, four of its police officers, and other non-University

defendants. The action was subsequently moved to federal district court. The

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twelve causes of action were: (1) Deprivation of rights under 42 U.S.C. § 1983

by means of “deliberate indifference” on the part of the University, Police Chief

Ed Welch, and Police Captain Terry Schofield; (2) Excessive Force and

Unreasonable Seizure by Officer Fulmer, in violation of the Fourth Amendment;

(3) Intentional Infliction of Emotional Distress; (4) loss of spousal consortium;

(5) loss of parental consortium; and (6) punitive damages against Officer Fulmer

and the other non-University defendants.

      On December 17, 2012, the University moved to dismiss. Plaintiff Preston

Long objected on January11, 2013. The University and its Officers filed a reply.

On June 17, 2013, the district court entered an order granting the motion to

dismiss in favor of the University and two of its officers. The district court

denied, however, Officer Fulmer’s qualified immunity defense as to Mr. Long’s

excessive force claims brought through 42 U.S.C. § 1983 and the related punitive

damages request. This appeal from that denial followed.



                                   DISCUSSION

      The sole question presented in this appeal is whether the district court

correctly found that Office Fulmer is not entitled to qualified immunity regarding

the claim that he used excessive force to arrest Mr. Long. We first note that we

have jurisdiction over this appeal: “[a]lthough an order denying a motion to

dismiss based on qualified immunity is not a final judgment, this court has

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jurisdiction under 28 U.S.C. § 1291 to review the order ‘“to the extent that it

turns on an issue of law.’” Wilson v. Montano, 715 F.3d 847, 852 (10th Cir.

2013) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). In reviewing a motion to dismiss, “all well-pleaded

allegations in the . . . complaint are accepted as true and viewed in the light most

favorable to the nonmoving party.” Brown v. Montoya, 662 F.3d 1152, 1162

(10th Cir. 2011). Furthermore,”[i]n resolving a motion to dismiss based on

qualified immunity, a court must consider whether the facts that a plaintiff has

alleged make out a violation of a constitutional right, and whether the right at

issue was clearly established at the time of defendant’s alleged misconduct.” Id.

at 1164; see also Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996)

(stating that to overcome a qualified immunity defense, a plaintiff must first

assert a violation of a constitutional or statutory right and then show that the right

was clearly established).

      Mr. Long claims that Officer Fulmer violated his constitutional right to be

free from an unreasonable seizure based on the claim that Officer Fulmer used

excessive force in arresting Mr. Long. As the district court noted, “[t]he inquiry

is not whether the general right to be free from excessive force is clearly

established—which it is—but whether plaintiff Preston Long had a clearly

                                           -5-
established right under the particular facts of this case.” Order at 9, Appellant’s

App. at 102.

      In resolving the excessive force question, courts consider and balance three

factors: “(1) the severity of the crime at issue, (2) whether the suspect poses an

immediate threat to the safety of the officers or others, and (3) whether he is

actively resisting arrest or attempting to flee.” Morris v. Noe, 672 F.3d 1185,

1195 (10th Cir. 2012) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The

district court carefully analyzed each factor:

             [P]laintiffs allege that Preston Long got into a disagreement
      with the cafeteria manager at HCA and that manager requested
      assistance from the OUPD as a result. Plaintiffs allege Officer
      Fulmer and another officer came to the scene and that Officer Fulmer
      proceeded to place plaintiff under arrest for what were at most
      misdemeanor offenses. Plaintiffs allege that Preston Long “protested
      and pulled away, asserting again that he had committed no crime.”
      Then, according to the facts alleged in the Amended Complaint,
      “Officer] Fulmer . . . tackled Plaintiff Long to the ground leveraging
      against Plaintiff, P. Long’s left arm to the point of separation in the
      shoulder.”

Order at 7-8 (quoting Compl. at 4, Appellant’s App. at 100-01). The district court

then applied the appropriate review standard: “Taking these allegations [in the

Complaint] as true, the first Graham factor weighs slightly in favor of plaintiff’s

favor, as he was being arrested for a nonviolent misdemeanor.” Id. at 8. Cf.

Morris, 672 F.3d at 1195 (holding that the first factor weighed “slightly” in the

defendant officer’s favor, even though the plaintiff was arrested only for a

misdemeanor assault, in light of the fact that “[a] forceful takedown or ‘throw

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down’ may very well be appropriate in arrests or detentions for assault, especially

if the officer is trying to prevent an assault.”).

      With respect to the second and third Graham factors, the district court

found:

      There are no allegations that plaintiff posed any threat to the safety
      of the officers or others, so the second factor also weighs in favor of
      plaintiff. Finally, the third factor weighs slightly in Officer Fulmer’s
      favor, as plaintiff alleges he “protested and pulled away”; however,
      in the light most favorable to plaintiff, plaintiff has alleged only
      minimal resistance. On the other hand, the amount of force allegedly
      used by Officer Fulmer was considerable.

Id. The court therefore concluded that, “[a]lthough it may well be that the

development of the facts of this incident will reveal otherwise, for the purposes of

this motion, plaintiffs have pled enough to plausibly indicate that the amount of

force used by Officer Fulmer was not objectively reasonable in light of the facts

and circumstances confronting him.” Id. at 8-9. The court accordingly

determined that Preston Long had plausibly alleged an excessive force violation,

for purposes of the first step of the qualified immunity analysis. We agree with

that analysis.

      The district court next considered whether Mr. Long had sufficiently

alleged the second step of the qualified immunity analysis—whether “it would be

clear to a reasonable officer that his conduct was unlawful in the situation

[confronting the officer].” Morris, 672 F.3d at 1196. The “question of whether a

right is clearly established must be answered ‘in light of the specific context of

                                           -7-
the case, not as a broad general proposition.’” Id. (quoting Saucier v. Katz, 533

U.S. 194, 201 (2001)). “Ordinarily, in order for the law to be clearly established,

there must be a Supreme Court or Tenth Circuit decision on point, or the clearly

established weight of authority from other courts must have found the law to be as

the plaintiff maintains.” Klen v. City of Loveland, Colo., 661 F.3d 498, 511

(10th Cir. 2011). But, “because the existence of excessive force is a fact-specific

inquiry, . . . ‘there will almost never be a previously published opinion involving

exactly the same circumstances.’” Morris, 672 F.3d at 1196 (quoting Casey v.

City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)). Accordingly, our

court has adopted a sliding scale: “The more obviously egregious the conduct in

light of prevailing constitutional principles, the less specificity is required from

prior case law to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d

1279, 1298 (10th Cir. 2004).

      The district court analyzed this case in light of our recent Morris decision:

             In Morris, the Tenth Circuit held that it had found no cases
      involving the type of force in that case —“a forceful takedown that
      by itself caused serious injury”—but that in light of the Graham
      factors, it was clearly established that a forceful takedown was not
      justified against a nonviolent misdemeanant who was not actively
      resisting.

Order at 9 (quoting Morris, 672 F.3d at 1197-98); see also Casey, 509 F.3d at

1280, 1282-84 (holding that an excessive force violation was clearly established

under the Graham factors in a situation where an officer “jumped on” a


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nonviolent misdemeanant after he moved his arm and started to walk away from

the officer’s arm-lock where he was moving towards the courthouse.). We thus

agree with the district court that “it is plausible, in light of the facts alleged here,

that plaintiff’s right to be free from a forceful takedown in this situation, even

where he exercised some resistance, was clearly established under Graham.” Id.

at 10 (footnote omitted). 1

      In short, the district court carefully and thoroughly analyzed the qualified

immunity question and concluded that Mr. Long had plausibly alleged a violation

of his constitutional right to be free from excessive force and had plausibly stated

a basis for denying Officer Fulmer qualified immunity at this stage. We agree

with that analysis and adopt it here.



                                    CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of the

defendants’ motion to dismiss the § 1983 claim against Officer Fulmer in his

individual capacity, and the related punitive damages request.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge

      1
        As the district court further noted, “[c]learly, the amount of resistance
actually exercised could change this analysis. At this point, all the court can rely
on is the pleading that states that plaintiff ‘pulled away.’” Order at 10, n.5.

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