                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS                 June 7, 2017
                                    TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


 THOMAS G. NAUMAN,

          Plaintiff - Appellant,

 v.                                                    No. 17-4016
                                           (D.C. No. 2:14-CV-00560-CW-DBP)
 UTAH HIGHWAY PATROL and                                (D. Utah)
 NEIL EKBERG,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BRISCOE and BACHARACH, Circuit
Judges.


      Thomas Nauman brought suit under 42 U.S.C. § 1983 against Officer Neil

Ekberg and the Utah Highway Patrol for a shoulder injury that occurred during

his traffic arrest and subsequent detention. The district court granted summary

judgment in favor of Officer Ekberg based on qualified immunity, and Mr.

Nauman appeals that decision. We affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent except under the doctrines of law of the case, res judicata,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.
      The relevant facts are as follows. One evening in 2010, Officer Ekberg saw

Mr. Nauman commit several traffic violations. After observing other signs of

impairment, Officer Ekberg arrested Mr. Nauman on suspicion of driving under

the influence. Mr. Nauman asked Officer Ekberg not to handcuff him behind his

back due to a preexisting shoulder injury. The officer complied and handcuffed

Mr. Nauman in front of his waist instead. Later, at the jail, Officer Ekberg

allegedly injured Mr. Nauman’s shoulder by pulling his arm backward, possibly

in order to apply handcuffs. Mr. Nauman then said “Let go of my arm, it doesn’t

go that way” and felt his shoulder “pop[].” R. 319. At that point, Mr. Nauman

testified, the officer “immediately let go of [his] arm.” Id. Officer Ekberg then

led Mr. Nauman by the arm into another room without attempting to apply the

handcuffs again. On these facts, the district court found Officer Ekberg is

entitled to qualified immunity.

      Qualified immunity shields from liability “all but the plainly incompetent

or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). Where, as here, a defendant asserts qualified immunity at summary

judgment, the plaintiff must demonstrate (1) “that on the facts alleged the

defendant violated his or her constitutional or statutory rights” and (2) “that the

right was clearly established at the time of the alleged unlawful activity.” Fisher

v. City of Las Cruces, 584 F.3d 888, 893 (10th Cir. 2009).




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      Mr. Nauman has not made a sufficient showing on either prong. In his

opposition to the defendants’ summary judgment motion and in his briefs in this

court, Mr. Nauman never cites any authority to show a violation of a clearly

established right. Because he has failed to advance legal arguments on qualified

immunity, the district court correctly granted summary judgment against him.

See, e.g., Rojas v. Anderson, 727 F.3d 1000, 1005–06 (10th Cir. 2013); Smith v.

McCord, 707 F.3d 1161 (10th Cir. 2013). Indeed, this court has affirmed similar

summary judgment rulings even when “the record suggests a case might well have

been made that Defendants were not entitled to qualified immunity.” Rojas, 727

F.3d at 1005. And here the district court surveyed the case law and found no

authority that would have sustained Mr. Nauman’s claim.

      Although we sympathize with Mr. Nauman and his family for the pain and

hardship this incident has brought, nonetheless, our duty is to apply the law, and

we hold that the district court correctly granted summary judgment to Officer

Ekberg.

      AFFIRMED.

                                              ENTERED FOR THE COURT

                                              Timothy M. Tymkovich
                                              Chief Judge




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