                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                   TENTH CIRCUIT                                October 30, 2018

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 EDWARD JOHN NOSEWICZ,

               Plaintiff - Appellant,
                                                              No. 18-1139
 v.                                              (D.C. No. 1: 16-CV-00447-PAB-KLM)
                                                               (D. Colo.)
 JEFFREY JANOSKO,

               Defendant - Appellee.


                              ORDER AND JUDGMENT*



Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges.



       While housed in the Adams County, Colorado detention facility, Edward

Nosewicz was involved in an altercation with jail officer Jeffrey Janosko. He filed a 42

U.S.C. § 1983 complaint against Janosko principally decrying excessive force. The

district judge decided Janosko was entitled to summary judgment based on qualified


       *
         Oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.
       This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not encouraged, but not prohibited.
Fed. R. App. 32.1. Citation is appropriate as it relates to law of the case, issue preclusion
and claim preclusion. Unpublished decisions may also be cited for their persuasive
value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by
an appropriate parenthetical notation B (unpublished). Id.
immunity because Nosewicz failed to show the acts claimed violated clearly established

law. In so concluding, he decided the altercation occurred because (as Janosko alleged)

Nosewicz actively resisted Janosko’s attempt to move him from his cell to a cool-down

cell. However, Nosewicz never admitted to actively resisting the move but instead said

Janosko’s use of force was gratuitous and injurious. Because Nosewicz’s version of the

material facts differ dramatically and irreconcilably from Janosko’s, summary judgment

was inappropriate; we reverse and remand.

                                     I. Background

      On the morning of December 5, 2014, Nosewicz was arrested by police officers

from the Thornton, Colorado police department for retaliation against his neighbor,

defacing property, and criminal mischief.1 He was transported to the Adams County

Detention Facility (ACDF). During the intake process, he was evaluated by two

members of ACDF’s medical staff. He also signed a form indicating he had no chronic

medical conditions and no need for medication other than an antibiotic for a tooth

infection. Nosewicz was placed in general population.

      Later that same day, between 7 and 8 p.m., Nosewicz became “very irate” and

complained to Janosko that he needed to see medical staff for his medications and

oxygen. (Appellant’s App’x at 125.) He admits he was “demanding and his voice was

aggressive and angry.” (Id.) Janosko agreed to notify the medical staff, which calmed


      1
        It appears Nosewicz’s retaliatory acts against his neighbor stem from a
disagreement over a shared fence. During the arrest, officers slammed Nosewicz to the
ground, injuring his face. Nosewicz does not here complain about the arrest.
                                            -2-
Nosewicz. Soon thereafter, another officer escorted Nosewicz to the medical unit, where

he was issued an oxygen concentrator. He also discussed his medications with a nurse

but did not receive them because his pharmacy could not be reached for verification.

Nosewicz does not complain of this incident, calling it instead “a model of constitutional

conduct.” (Appellant’s Op. Br. at 17.)

       A few hours later, at 4:10 a.m. on December 6, 2014, Nosewicz began “screaming

at the top of his lungs,” “When do we get the nurse again?” (Appellant’s App’x at 29,

123, 126.) Janosko told him a nurse would be through the cellblock later for morning

medication pass. Nosewicz claimed he could not hear Janosko and repeated that he

needed a nurse. Janosko then approached Nosewicz’s cell door and asked the tower

guard to open it in order to better communicate with Nosewicz. After the door was

opened, Janosko asked Nosewicz why he wanted to see a nurse. Nosewicz said he had

not yet received his blood pressure medication and had awakened in a cold sweat.

Janosko told Nosewicz he did not appear to be sweating but promised to call the medical

unit. The promise contained a caveat: if medical staff would not see him, Nosewicz

would have to file a medical kite. “This infuriated [Nosewicz] and he let [Janosko] know

so.” (Id. at 126.) He “became progressively angrier, was screaming at the top of his

lungs, and was yelling at Janosko.” (Id. at 30.) Janosko said “he did not appreciate the

tone which [Nosewicz] was using . . . and that he was being disrespectful to him.”

(Appellant’s App’x at 126, 192.) Due to Nosewicz’s “irate behavior and refusal to obey

lawful commands,” Janosko decided to escort him to a cool-down cell. (Id. at 30, 123,


                                           -3-
229 (n.4).)

       The parties dispute what happened next, although both agree a scuffle occurred.

For his part, Janosko claims Nosewicz refused to obey his command to exit his cell and

physically resisted being taken to another cell. Therefore, he took Nosewicz to the floor

with a straight-arm bar maneuver which caused a laceration to Nosewicz’s left elbow.

Nosewicz, on the other hand, says that after Janosko told him he was being disrespectful,

Janosko “slammed [his] head into a cinderblock wall, hit him on the left side of his chest,

fracturing one of his ribs, and caused his left elbow to be lacerated when he collapsed to

the floor.”2 (Appellant’s App’x at 237-38 (quotations marks omitted).)

       A surveillance camera mounted in the cellblock captured the events, but not well.

Video from the camera shows Janosko approaching Nosewicz’s cell and the cell door

opening. Soon thereafter, the parties somehow switched positions, with Nosewicz in the

doorway and Janosko inside the cell. Eventually, a scuffle ensued between the two.

Because the camera is mounted at some distance from Nosewicz’s cell and does not

contain audio, it fails to reveal what happened inside the cell or why. Notably, it does not

reveal whether Nosewicz refused commands to exit the cell or otherwise resisted

Janosko’s attempt to remove him from the cell.



       2
          Nosewicz’s story changed during his deposition. He initially stated that
immediately after his cell door opened, Janosko lunged at him, placed him in chokehold,
and slammed his head into the cinderblock wall which rendered him unconscious. As he
fell to the floor, he regained consciousness and Janosko hit him in the ribs, breaking
them. Later, when confronted with the surveillance video, he reconsidered and admitted
Janosko did not place him in a chokehold immediately after the cell door was opened.
                                           -4-
       Multiple officers responded to the scene. Nosewicz was moved to a cool-down

cell, where, five minutes later, he was seen by a nurse. He was then escorted to the

medical unit for treatment for his elbow. Medical staff later provided one of his

medications. He was released on bond that same day. It is unclear from the record

whether Nosewicz informed the facility’s medical staff of injuries caused by the event,

other than the lacerated elbow.3 Nevertheless, he went to the local emergency room,

where he was determined to have swelling on the left side of his head and a rib fracture.4

       Nosewicz filed a § 1983 complaint against Janosko alleging (1) deliberate

indifference to his serious medical needs in violation of the Fourteenth Amendment and

(2) excessive force in violation of the Fourth Amendment. Janosko sought summary

judgment based on qualified immunity, which “protects government officials from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks omitted). As a result, it

was up to Nosewicz to establish (1) how Janosko’s conduct violated a federal

constitutional right and (2) the right was clearly established at the time of Janosko’s




       3
         In his deposition, Nosewicz made vague references to the medical unit informing
him it could not “do anything with” his ribs and he “think[s]” medical staff “made note of
[his head contusion].” (Appellant’s App’x at 56.) But, at the same time, he testified to
injuries to his wrist and back. It is unclear from his testimony when these contacts with
the medical unit occurred.
       4
         Janosko speculates these additional injuries resulted from the arrest, see supra
n.1, but none were noted by ACDF’s medical staff during the intake process.
                                            -5-
conduct. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). The judge

decided Nosewicz (1) failed to show a constitutional violation with respect to his

deliberate indifference claim and (2) failed to show the law to be clearly established with

sufficient particularity as to his excessive force claim. He entered summary judgment in

Janosko’s favor.

                                       II. Discussion

         A summary judgment is reviewed de novo. Id. at 1088. It is appropriate if,

viewing the evidence in the light most favorable to the non-moving party, “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a); see also McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir.

2018).

         “We review summary judgment orders deciding qualified immunity questions

differently from other summary judgment decisions.” Martinez, 563 F.3d at 1088

(quotation marks omitted). “When a defendant asserts qualified immunity at summary

judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a

constitutional right and (2) the constitutional right was clearly established” with sufficient

particularity. Id.; see also White v. Pauly, --- U.S. ---, 137 S. Ct. 548, 552 (2017). “In

determining whether the plaintiff meets this burden, we ordinarily accept the plaintiff’s

version of the facts—that is, the facts alleged.” Halley v. Huckaby, 902 F.3d 1136, 1144

(10th Cir. 2018) (quotation marks omitted). However, “because at summary judgment

we are beyond the pleading phase of the litigation, the plaintiff’s version of the facts must


                                            -6-
find support in the record. Thus, if the nonmoving party’s version of the facts is blatantly

contradicted by the record, so that no reasonable jury could believe it, then we should not

adopt that version of the facts.” Id. (citations and quotation marks omitted). If the

plaintiff fails to satisfy either part of his “heavy two-part burden,” a court must recognize

the defendant’s qualified immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.

2001) (quotation marks omitted). A court has discretion to decide which of the two

prongs of the qualified-immunity analysis to address first. Pearson, 555 U.S. at 236.

       A. Deliberate Indifference to Medical Needs—Fourteenth Amendment

       The Eighth Amendment prohibits deliberate indifference to a convicted inmate’s

serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). This principal

also applies to pretrial detainees, like Nosewicz, through the Fourteenth Amendment’s

Due Process Clause. Martinez, 563 F.3d at 1088. Deliberate indifference to serious

medical needs may be “manifested . . . by prison guards . . . intentionally denying or

delaying access to medical care or intentionally interfering with . . . treatment once

prescribed.” Estelle, 429 U.S. at 104-05.

       Deliberate indifference has both an objective and subjective component. Mata v.

Saiz, 427 F.3d 745, 751 (10th Cir. 2005). Under the objective prong, the alleged

deprivation must be “sufficiently serious.” Id. (quotation marks omitted). “[A] medical

need is sufficiently serious if it is one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Id. (quotation marks omitted). The


                                            -7-
subjective prong “requires the plaintiff to present evidence of the prison official’s

culpable state of mind.” Id. A prison official cannot be liable unless “the official knows

of and disregards an excessive risk to inmate health or safety; the official must both be

aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Id. (quotation marks omitted).

       The judge decided Nosewicz made “little attempt to defend his deliberate

indifference claim” other than making a conclusory reference to Janosko’s “failure to call

medical” during the December 6 incident. (Appellant’s App’x at 234 (quotation marks

omitted).) But “[Janosko]’s failure to contact medical before entering [Nosewicz]’s cell,”

the judge concluded, was not enough to support his claim. Nosewicz had to “show that

[Janosko] prevented him from receiving treatment or denied him access to medical

personnel capable of evaluating the need for treatment.” (Id. (quotations marks

omitted).) Nosewicz’s naked claim failed because he admitted Janosko offered to call

medical staff on his behalf and he was seen by a nurse shortly thereafter.5

       Nosewicz tells us that seeing a nurse shortly after his encounter with Janosko does

not mean Janosko did not violate his Fourteenth Amendment right to adequate medical

care. That is because the only reason he was promptly seen by a nurse was due to

Janosko’s use of excessive force. According to him, under the judge’s reasoning, he

“should thank [Janosko] for injuring him so that he would be promptly brought to the



       5
         As a result, the judge did not need to decide whether Janosko acted with a
sufficiently culpable state of mind.
                                            -8-
attention of the medical staff.” (Appellant’s Op. Br. at 19.) Yet, he continues, it was

Janosko’s use of excessive force in response to his request for medical care which

violated his Fourteenth Amendment rights. He claims: “[A] jail guard’s deliberate and

unjustified use of excessive force against an inmate who has medical needs is the epitome

of indifference to such needs.” (Id. at 19-20.)

         To the extent these arguments may present a viable theory of liability, Nosewicz

did not raise them in the district court. As a result, our review is for plain error. See

United States v. Pablo, 696 F.3d 1280, 1287 (10th Cir. 2012) (arguments not raised in the

district court are reviewed for plain error); United States v. Nelson, 868 F.3d 885, 891 n.4

(10th Cir. 2017) (“[O]ur general rule against considering new arguments on appeal

applies equally when a litigant changes to a new theory on appeal that falls under the

same general category as an argument presented at trial.” (quotation marks omitted)).

Under plain error review, Nosewicz must show (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings. United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir.

2012).

         He does not request plain error review on appeal, either in his opening brief or in

his reply brief, even though Janosko’s answer brief claimed the new theory was subject to

plain error review.6 This “‘surely marks the end of the road for an argument for reversal



         6
      Nosewicz’s reply brief provides no argument concerning his Fourteenth
Amendment deliberate indifference claim.
                                             -9-
not first presented to the district court.’” United States v. Lamirand, 669 F.3d 1091, 1098

n.7 (10th Cir. 2012) (quoting Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th

Cir. 2011)); see also United States v. Courtney, 816 F.3d 681, 683-84 (10th Cir. 2016)

(reviewing argument for plain error in criminal appeal where appellant “argued plain

error fully in his reply brief”); United States v. MacKay, 715 F.3d 807, 831–32 & n.17

(10th Cir. 2013) (suggesting, but not deciding, that we may consider a plain error

argument made for the first time in a reply brief).

       Proper procedures aside, Nosewicz cannot establish plain error. “An error is plain

if it is clear or obvious under current, well-settled law. In general, for an error to be

contrary to well-settled law, either the Supreme Court or this court must have addressed

the issue.” See United States v. Wolfname, 835 F.3d 1214, 1221 (10th Cir. 2016)

(citations and quotation marks omitted). Although we have cases addressing an inmate’s

claim that he was denied medical care or such care was delayed following a prison

guard’s use of excessive force against him (which is the theory Nosewicz presented

below), see, e.g., Estate of Booker v. Gomez, 745 F.3d 405, 431-32 (10th Cir. 2014),

Borneman v. Rozier, 398 F. App’x 415, 418-20 (10th Cir. 2010) (unpublished), Nosewicz

cites no cases, and we have uncovered none, in which a prison guard’s alleged excessive

force in response to an inmate’s need for medical care can form the basis for an Eighth or

Fourteenth Amendment lack of medical care claim. That is not surprising. If he was

denied medical care, he has a valid claim. If his medical care claim was met with

excessive force, he has another. But his attempt to piggyback his denial of medical care


                                            - 10 -
claim on an excessive force claim, in other words to claim two separate constitutional

violations based on the same act (excessive force), is inappropriate.

       Summary judgment in favor of Janosko on the Fourteenth Amendment claim was

proper.

       B. Excessive Force – Fourth Amendment

       Nosewicz was arrested and detained without a warrant prior to any probable cause

hearing. As a result, the judge correctly applied the excessive force analysis of the

Fourth Amendment. Estate of Booker, 745 F.3d at 419. Under that analysis, the relevant

inquiry is whether Janosko’s actions were “objectively reasonable.” Graham v. Connor,

490 U.S. 386, 397 (1989) (quotations marks omitted). While “[t]he test of

reasonableness under the Fourth Amendment is not capable of precise definition or

mechanical application, . . . its proper application requires careful attention to the facts

and circumstances of each particular case.” Id. at 396 (citation and quotation marks

omitted). Relevant factors include “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 judge did not decide whether Janosko’s actions were objectively reasonable

(i.e., whether a constitutional violation occurred). Rather, he concluded Janosko was

entitled to qualified immunity because Nosewicz had failed to show how Janosko’s

conduct violated a clearly established constitutional right.

       “A clearly established right is one that is sufficiently clear that every reasonable


                                            - 11 -
official would have understood that what he is doing violates that right.” Mullenix v.

Luna, --- U.S. ---, 136 S. Ct. 305, 308 (2015) (quotation marks omitted). “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.” Zia Trust Co. ex rel. Causey v.

Montoya, 597 F.3d 1150, 1155 (10th Cir. 2010) (quotation marks omitted). Although we

do not require “a case exactly on point,” see Weise v. Casper, 593 F.3d 1163, 1167 (10th

Cir. 2010), “existing precedent must have placed the statutory or constitutional question

beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011).

       The Supreme Court recently reiterated that “clearly established law should not be

defined at a high level of generality.” White, 137 S. Ct. at 552 (quotation marks omitted).

Rather, “the clearly established law must be particularized to the facts of the case.

Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule

of virtually unqualified liability simply by alleging violation of extremely abstract

rights.” Id. (citation and quotation marks omitted). In other words, Nosewicz had to

“identify a case where an officer acting under similar circumstances as [Janosko] was

held to have violated the Fourth Amendment.” Id.

       In the district court, Nosewicz cited three cases, contending they clearly

established Janosko’s conduct to violate the Fourth Amendment: Estate of Booker, 745

F.3d 405, Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), and Morris v. Noe, 672 F.3d

1185 (10th Cir. 2012). The judge concluded none demonstrated the constitutional right


                                           - 12 -
to be clearly established at the time of the event. Since the parties disputed the nature of

their altercation, he assumed Nosewicz’s version was correct: Janosko “slammed [his]

head into a cinderblock wall, hit him on the left side of his chest, fracturing one of his

ribs, and caused his left elbow to be lacerated when he collapsed to the floor.”

(Appellant’s App’x at 237-38 (quotation marks omitted).) Nevertheless, he concluded all

three cases involved a handcuffed or otherwise non-resisting inmate/plaintiff. See

Kingsley, 135 S. Ct. at 2470 (handcuffed plaintiff); Estate of Booker, 745 F.3d at 413-15

(non-resistant and motionless plaintiff); Morris, 672 F.3d at 1196 (non-resistant plaintiff).

Nosewicz was neither incapacitated nor non-resisting. His disturbing behavior was a

threat to Janosko’s safety and he “was actively resisting by refusing to obey [Janosko]’s

lawful commands.”7 (Appellant’s App’x at 240.)

       Because Nosewicz failed to identify a case on point, the judge turned to the

“sliding scale” approach we adopted in Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir.

2004). See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Under

that approach, “[t]he 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, 359 F.3d at 1298. Applying the Graham factors, the


       7
         The judge also noted that Estate of Booker involved a different type and degree
of force: neck hold designed to cause unconsciousness, pain compliance hold to right
arm, pain compliance device to left ankle, over 100 pounds of pressure to back, and
longer-than-recommended Taser shock. Moreover, although the judge did not mention it,
Kingsley is “of no use in the clearly established inquiry” because it was decided in June
2015, after the incident in question (December 6, 2014). See Brosseau v. Haugen, 543
U.S. 194, 200 n.4 (2004).
                                            - 13 -
judge decided Janosko’s conduct was not “obviously egregious”:

       [T]he three Graham factors do not point strongly to a conclusion that defendant’s
       Fourth Amendment rights were violated. While plaintiff’s conduct was not a
       “severe” crime, it did “pose an immediate threat to the safety” of [Janosko] and
       the others in the cellblock. Graham, 490 U.S. at 396. [Janosko] offered to help
       [Nosewicz] seek medical care and sought to move [him] to a different cell for
       safety reasons. DSUMF 16; PSUMF 16. But [Nosewicz] “actively resisted”
       [Janosko’s] attempt to move [him] to a different cell. Graham, 490 U.S. at 396.
       As [Nosewicz] admits, [Janosko] was authorized to use compliance holds to move
       a resistant or disruptive prisoner. DSUMF 30 (“If an inmate is engaging in
       passive or aggressive resistance, such as [plaintifff’s] failure to follow lawful
       commands, a deputy may use a series of ‘control and compliance holds,’ which
       involve physical contact, but are designed to gain control of the inmate and/or
       escort him to another location.” (citations omitted))). While grappling with
       [Nosewicz] alone in a prison cell, [Janosko] struck [Nosewicz] and threw [him] to
       the ground, at which time [he] hit his head on the cell wall and cut his elbow.
       PUSMF 19, 20. Such actions are not “obviously egregious conduct in light of
       prevailing constitutional principles,” which allow for objectively reasonable use of
       force to ensure safety. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).
       Therefore, the Court finds that plaintiff has not met his burden to show that it
       would be “clear to a reasonable officer that his conduct was unlawful in the
       situation he confronted.” Casey, 509 F.3d at 1283-84 (internal quotation marks
       omitted).

(Appellant’s App’x at 240-41.)8

       As the judge’s analysis makes abundantly clear, two facts predominantly informed

the clearly established analysis—(1) Nosewicz was a safety risk and (2) he “actively

resisted.” Nosewicz says the analysis was flawed because both facts are disputed. We


       8
         We have called the sliding-scale approach into doubt. See Lowe v. Raemisch,
864 F.3d 1205, 1211 n.10 (10th Cir. 2017) (“[B]ecause the sliding-scale approach may
allow us to find a clearly established right even when a precedent is neither on point nor
obviously applicable,” it “may arguably conflict with recent Supreme Court precedent on
qualified immunity[.]”). However, we assume, without deciding, it applies here because
neither party has argued otherwise. Moreover, even if it should not apply, reversal is still
warranted because the judge’s analysis of the cited cases turned in large part on
Nosewicz’s “active[] resist[ance],” which is disputed.
                                           - 14 -
see it differently as to the former, but agree as to the latter.

       Nosewicz admitted “he became progressively angrier, was screaming at the time

of his lungs, and was yelling at Janosko” during the December 6 incident. (Appellant’s

App’x at 30, 123.). Yet, he claims that without knowing what was said, these facts alone

do not show he posed an immediate threat to the safety of Janosko and the others in the

cellblock. Nosewicz ignores the surveillance video. Although the judge did not

specifically mention it in his clearly established analysis, he did find the video to show

“that, after [Janosko] entered the cell, the parties switched positions such that [Nosewicz]

was in the doorway with [Janosko] inside the cell.” (Id. at 238 n.6.) Our own review of

the video supports this finding. Cf. Scott v. Harris, 550 U.S. 372, 378-79 (2007)

(rejecting the plaintiff’s version of car chase where contradicted by the videotape

capturing the events). Nosewicz’s undeniably hostile demeanor and the parties’ switch of

positions in the cell constituted an immediate threat to Janosko’s safety—he was inside

the cell with an angry and disruptive inmate blocking the only exit. Not only that, with

the cell door open, Nosewicz had easy access to the rest of the cellblock, where he could

potentially harm others or generally wreak havoc.

       As to whether he “actively resisted,” Nosewicz admitted: “Because of

[Nosewicz’s] irate behavior and refusal to obey lawful commands, Janosko needed to

escort [him] from his cell to another, safer location.” (Appellant’s App’x at 30.) He

claims, however, his anger and refusal to obey lawful commands, which required his

move to another cell, does not demonstrate “active[] resist[ance].” He is correct.


                                              - 15 -
       The judge did not explain how Janosko “actively resisted.” Initially, he said

Nosewicz “was actively resisting by refusing to obey [Janosko’s] lawful commands” yet

did not identify the lawful commands refused9 or the level of resistance. (Appellant’s

App’x at 240.) Later, he stated Nosewicz “actively resisted [Janosko’s] attempt to move

[him] to a different cell.” (Id.) But again, he did not define “active[] resist[ance].”

Instead, he simply cited Nosewicz’s admission to being irate and refusing to obey lawful

commands. But nowhere in that admission does it identify the lawful commands refused

or say Nosewicz actively resisted the move to another cell, let alone what that active

resistance entailed, i.e., whether he physically resisted or merely refused to leave. It says

only that his anger and refusal to obey lawful commands, whatever they were, prompted

the need to move him to a different cell. Unfortunately, the video does not fill in the

blanks.

       Although not clear, it appears the judge may have equated a mere refusal to leave

the cell as “active[] resist[ance].” If Nosewicz refused to obey a command to leave the

cell, such refusal would have justified Janosko’s use of physical force to effectuate his

removal from the cell. But, it would not have justified banging Nosewicz’s head into the

wall and hitting him with enough force to break his ribs. On the other hand, if Nosewicz

physically resisted the attempt to move him, Janosko could have increased the level of

force necessary to gain compliance, but no more. See Hinton v. City of Elwood, Kan.,



       9
        They might have been “you have to leave the cell with me” or merely “shut up”
or “calm down.” The record is not specific.
                                            - 16 -
997 F.2d 774, 780-81 (10th Cir. 1993) (officer physically grabbing plaintiff to keep

plaintiff from leaving was reasonable; later use of stun gun on plaintiff was also

reasonable where plaintiff resisted officers’ attempts to handcuff him by kicking his feet,

flailing his arms, and biting the officers); see also Story v. Norwood, 659 F.3d 680, 686-

87 (8th Cir. 2011) (reasonable for jail administrator to push inmate twice toward wall and

to threaten to use a Taser where inmate refused command to stand against wall). If

Nosewicz’s injuries resulted from the mutual escalation of violence, Janosko would enjoy

qualified immunity so long as his part in the fracas was reasonable.

       According to Janosko, that is exactly what occurred. In his incident report, he

states that due to the disturbance Nosewicz was causing by screaming and cursing at him,

he ordered him to exit his cell. When Nosewicz refused to do so, he entered the cell and

grabbed him by the arm to escort him out. In response, Nosewicz pulled his arm away.

Janosko told him to stop resisting and place his hands behind his back. When Nosewicz

refused those commands and continued to try to pull his arm away, Janosko placed him to

the floor to gain control over him, where Nosewicz continued to struggle and resist.

Apparently, the judge accepted Janosko’s version of the events.

       But Nosewicz never admitted to Janosko’s version of the facts.10 Instead he



       10
           Janosko’s report was cited as support for the undisputed fact that “[b]ecause of
[Nosewicz’s] irate behavior and refusal to obey lawful commands, Janosko needed to
escort [him] from his cell to another, safer location.” (Appellant’s App’x at 30.)
However, by admitting to this undisputed fact, Nosewicz admitted only to its statement of
fact, not the incident report. To the extent the report is relevant, it is relevant only as to
that in the report which supports the undisputed fact. The report shows Nosewicz was
                                                                           (Continued . . .)
                                            - 17 -
offered a different story: After Janosko told him he was being disrespectful, Janosko

attacked him without provocation. In other words, according to Nosewicz, Janosko’s use

of force was gratuitous. Because Nosewicz’s version is not “blatantly contradicted by the

record,” the judge was required to accept it at this stage of the proceedings. Halley, 902

F.3d at 1144 (quotation marks omitted). If we accept Nosewicz’s version of the events

(as we must at this juncture), Janosko is not entitled to qualified immunity. Although

Nosewicz’s admittedly irate and disruptive behavior may have posed a potential threat to

Janosko and others, such behavior would not, on its own, justify slamming Nosewicz’s

head into the wall and hitting him in the chest with enough force to break his ribs. See

Morris, 672 F.3d at 1195-96 (officer’s forceful takedown unreasonable where Morris, a

misdemeanant, posed no threat and did not resist or flee); see also Casey, 509 F.3d at

1285 (“Graham establishes that force is least justified against nonviolent misdemeanants

who do not flee or actively resist arrest.”); Dixon v. Richer, 922 F.2d 1456, 1458, 1463

(10th Cir. 1991) (officer’s kicking, hitting with a flashlight, choking, and beating an

already frisked plaintiff who had his hands up against his car and was not making any

aggressive moves or threats was not objectively reasonable under the Fourth

Amendment).

       What we have, on the record before us, is a question of material fact as to the




“irate” but is silent as to any specific commands Nosewicz refused to obey which
triggered the need to move him from the cell. It indicates only that Nosewicz’s behavior
(anger, screaming, disrespect, cursing) caused a disturbance and that disturbance
prompted the need to remove him from the cell.
                                           - 18 -
reasonableness of Janosko’s conduct. Summary judgment was not appropriate.

                                      III. Conclusion

      We AFFIRM the summary judgment entered in favor of Janosko on Nosewicz’s

Fourteenth Amendment deliberate indifference claim. We REVERSE the summary

judgment entered in favor of Janosko on Nosewicz’s Fourth Amendment excessive force

claim and REMAND for further proceedings consistent with this decision.



                                       Entered by the Court:



                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                        - 19 -
