                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-6403


RODNEY WILLIAM WOLFE,

                 Plaintiff - Appellant,

           v.

JOEL   FOOTEN,  Dep.,   W.C.S.D.;  THOMAS      ROUTZAHN,   Dep.,
W.C.S.D.; WASHINGTON COUNTY, MARYLAND,

                 Defendants – Appellees,

           and

WASHINGTON COUNTY SHERIFF’S DEPARTMENT,

                 Defendant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:08-cv-03479-PJM)


Argued:   January 26, 2011                  Decided:   March 21, 2011


Before DUNCAN, DAVIS, and WYNN, Circuit Judges.


Reversed and remanded by unpublished opinion.       Judge Duncan
wrote the opinion, in which Judge Davis and Judge Wynn joined.


John Edgar Mallonee, MALLONEE LAW FIRM, Bethesda, Maryland, for
Appellant.    Rodger Owen Robertson, LAW OFFICE OF JOSEPH M.
JAGIELSKI, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

     This appeal arises out of the district court’s grant of

summary    judgment     to   defendant        Maryland   police      officers,     and

their employer Washington County, on plaintiff Rodney Wolfe’s

excessive force claim under 42 U.S.C. § 1983.                  Wolfe argues that

Officers Joel Footen and Thomas Routzahn violated his Fourth and

Fourteenth    Amendment      rights     while     arresting    him    on   domestic-

violence     charges.        As   our    review     of   the   record      discloses

disputed    issues    of     material     fact,    we    reverse     the   grant   of

summary judgment.



                                          I.

     We review the facts in the light most favorable to Wolfe,

drawing all reasonable inferences in his favor.                    See Robinson v.

Clipse, 602 F.3d 605, 607 (4th Cir. 2010).                 On January 24, 2008,

at around 11:20 pm, Officers Footen and Routzahn, defendants

here, responded to a report of domestic violence at a residence

in Williamsport, Maryland.              While en route, they were informed

that the suspect, Wolfe, was violating a Final Protective Order.

They were also informed that Wolfe had a history of violence.

Officers Footen and Routzahn were the first to arrive on the

scene, along with a third police officer who remained outside

the residence for the duration of the events at issue.



                                          3
       Upon    arriving       at     the   residence,         the     officers      were

approached by fourteen-year-old Tiffany Wolfe, who informed them

that she had run out of the house when her father, Mr. Wolfe,

had    started      hitting    her    mother    and        sister.       When    nobody

responded      to    the   officers’       shouts     at     the     front   entrance,

Officers      Footen    and    Routzahn     opened     the     unlocked      door   and

entered the home.          The two began to investigate the first floor

of the multi-story residence, but were stopped short by a female

voice’s cry for help from upstairs.                  The officers proceeded up

the stairs and entered a dark bedroom, in which they found two

women lying on a bed: Heather Twigg--whom Officer Footen knew

from    an    earlier      encounter--and      Kayla        Wolfe    (“Kayla”),      Ms.

Twigg’s daughter with Mr. Wolfe.               The officers asked the women

where they could find Wolfe, but neither woman told them.

       As Officers Footen and Routzahn continued their search of

the house, three more officers arrived on the scene: Officers

Price, Embly, and McCarty.             Officer Price spoke with Ms. Twigg

and Kayla.          He learned that Wolfe was somewhere in the same

upstairs bedroom in which the two women had been found and that

Wolfe was unarmed.            Officer Price sent Kayla to get the other

officers.      After ensuring that Ms. Twigg had also left the room,

Officers Footen, Routzahn, Price, Embly, and McCarty entered to

search for Wolfe.



                                           4
       The officers found Wolfe hiding between a television stand

and the bed on which the women had been lying.                               Wolfe was drunk.

Officer          Price    shone    his     Taser’s          laser    sight    on     Wolfe,    and

another          officer    ordered        Wolfe       to     show     his   hands.          Wolfe

complied,          extending       his     hands       while    remaining       in    a    seated

position.          Officer Footen handcuffed Wolfe’s hands in front of

his body.          Wolfe was “physically calm and not fighting.”                              J.A.

301.

       Officer Footen told Wolfe to stand up so that he could walk

downstairs.          Again, Wolfe complied. 1                As Wolfe was rising to his

feet, Officer Footen pulled his handcuffs to help him stand up.

Officer Footen’s pressure on the “tight” handcuffs cut Wolfe’s

wrists and caused particular pain to his left hand, where he had

a prior injury.            Wolfe “tugged” backwards on his handcuffs, J.A.

151,       and    began    to     curse,    declaring          “This    is   why     you    mother

fuckers are getting killed.”                       J.A. 137.           Wolfe maintains that

his statement was a reference to a then-recent incident in which

a Police Academy classmate of Officer Footen had been killed.

Officer          Footen    had     spoken     at       the     slain    officer’s         funeral.


       1
       Wolfe’s account of succeeding events diverges sharply from
the officers.   As discussed below, the officers have presented
no evidence to corroborate their competing version of events.
Consistent with our obligation to draw all reasonable inferences
in Wolfe’s favor, Clipse, 602 F.3d at 607, we treat his
testimony as true for purposes of summary judgment.



                                                   5
     After Wolfe’s exclamation, Officer Footen threw him down

onto the bed.      Wolfe laughed, at which point Officer Routzahn

placed his boot on the middle of Wolfe’s neck.               As Wolfe moved

his head, struggling to breathe, Officer Footen “jumped on [his]

midsection.”     J.A. 152.    Wolfe tried to inform the officers that

he had previously injured his ribs, stating “Look, I got broken

ribs. . . you all don’t have to do this.”              Id.   He also moved

his legs forward and backwards in an effort to maneuver into a

fetal position to protect his ribs and face.

     In the meantime, Officer Footen grabbed Wolfe’s hands in

one hand and began “elbowing” Wolfe in the right side with his

other arm.     J.A. 154.      Officer Routzahn removed his foot from

Wolfe’s throat and kicked him twice in the side of his face.              In

response, Wolfe laughed and called the officers insulting names,

including “bitches.”       J.A. 162.       He also made a “hocking” sound

to “insinuate” that he would spit at the officers.            J.A. 243-44.

     At that point, Officer Routzahn “stomped” on Wolfe’s face

and said “Don’t spit on us.”       J.A. 166.       Officer Footen released

his grip on Wolfe’s hands, whereupon Officer Routzahn punched

Wolfe.   Wolfe again laughed at the blow and said “You hit like a

little bitch.”    J.A. 244.

     Officer    Routzahn     unholstered     his   flashlight   and   struck

Wolfe twice in his forehead.        Wolfe responded “Is that all you

got?” and once again called Officer Routzahn a “bitch.”                J.A.

                                       6
244.       Officer Routzahn then raised his flashlight and “swung it

like a club” into the side of Wolfe’s head.                    Id.

       As a result of the blows he had sustained, Wolfe was, at

this point, unable to stand up.                  The officers shackled his feet

and carried him to the top of the stairs.                    They were assisted by

a sixth officer, who arrived on the scene while Wolfe was being

moved.      As Wolfe could not or would not walk, the officers began

to   “slide”       him    down    the   steps,    with   his   body    stretched   out

between at least two officers.                    J.A. 224.          In an effort to

“persua[de]” Wolfe to walk down the stairs, Officer Routzahn

“[k]icked [him] four or five times” in the groin.                          J.A. 223,

225.       At least one kick to Wolfe’s groin was observed by Wolfe’s

mother,      who     was,    at    this   point,    present     downstairs. 2      The

officers then helped Wolfe walk out of the house.

       After Wolfe was taken outside, he was re-handcuffed with

his hands behind his back and transported by ambulance to the

Washington County Hospital, where he received treatment for a

bleeding      head       wound    and   other    injuries.      Shortly    after   the

incident, Wolfe filed a state-court criminal complaint against

Officers Footen and Routzahn.                   Wolfe’s complaint was dismissed

and no criminal charges were brought against either officer.


       2
       At oral argument, Wolfe’s counsel was unable to explain
why Wolfe’s mother was present or when she had arrived.



                                            7
     Wolfe was charged in Maryland state court for a variety of

offenses       arising    out     of   the   events   of    January      24,    including

assaults upon Ms. Twigg and Officer McCarty.                          On October 30,

2008,     Wolfe    pleaded        guilty     to   those    two    assaults      and     was

sentenced to twenty-years’ imprisonment.

     In December 2008, Wolfe filed a handwritten civil complaint

against Officers Routzahn and Footen in the federal district

court     of    Maryland,       alleging      unspecified        violations      of     his

constitutional rights under 42 U.S.C. § 1983 and seeking $2.5

million in damages.             On September 25, 2009, he filed an amended

complaint, clarifying that he sought damages for excessive force

under    the     Fourth     and    Fourteenth      Amendments,      as    well     as    on

various state law claims. 3              The amended complaint also added the

officers’ employer, Washington County, as a defendant.

     In    an     oral    decision      on   February     17,    2010,    the    district

court     granted        summary       judgment    for     defendants      on    Wolfe’s

excessive       force     claims       and   dismissed     his    state    law    claims

without prejudice.          This appeal followed.

     3
       As discussed at oral argument, Wolfe made the unusual
decision to include all of his § 1983 claims against both
officers in a single count.     This choice renders it somewhat
difficult to determine what aspect of the night’s events
constituted the factual predicate for his excessive force claim.
However, in light of his complaint’s statement of relevant facts
and his argument to the district court and on appeal, we assume
that his § 1983 claim is based on both the struggle in the
upstairs bedroom and the subsequent groin kicks.



                                              8
                                          II.

       We review the district court’s grant of summary judgment de

novo.     Clipse, 602 F.3d at 607.             We may affirm only if there are

no genuine issues of material fact and defendants are entitled

to judgment as a matter of law.                 Id.    For the reasons described

below, we believe that key issues of material fact preclude the

entry of summary judgment.

                                          A.

       As a threshold matter, we reject defendants’ attempt to use

Wolfe’s statements at his state-court plea colloquy against him.

Defendants argue in particular that Wolfe’s alleged acceptance

of    responsibility     for    the   struggle        with     the   officers     in   the

context of his state-court guilty plea forecloses his present

claims.     Defendants are correct that the doctrine of judicial

estoppel can preclude relief “where a criminal convicted on his

own    guilty   plea    seeks   as    a   plaintiff       in    a    subsequent      civil

action     to   claim    redress      based       on     a     repudiation      of     the

confession.”      Lowery v. Stovall, 92 F.3d 219, 225 (4th Cir.

1996).     We do not question this settled principle.                      We instead

hold only that judicial estoppel is inappropriate on the basis

of a state-court record as incomplete as this one.

       Significantly,     the    seven     pages       from    Wolfe’s   October       30,

2008, state-court plea colloquy included in the record before us

represent a bare fraction of the pertinent proceedings.                                The

                                           9
excerpted portion consists of a cover sheet, and pages 8, 12,

13, 14, 15, and 35 of the transcript.                J.A. 328-334.          It is not

apparent    from     the   parties’    briefing      why   the    transcript      was

edited in this manner or what is contained in the balance of the

state-court transcript.           Nonetheless, for whatever reason, the

excerpt begins in the middle of Wolfe’s plea colloquy and does

not, for instance, include any explicit acknowledgement by Wolfe

that he considered himself guilty of the crimes to which he was

pleading.

     Further,      the     transcript’s    rendering       of   the    government’s

recitation of what it could prove at trial is also replete with

missing     words,       marked   by      ellipses     and/or         the    notation

“inaudible.”       J.A. at 331-32.        Some of these omissions occur at

key junctures, as on line 5 of page 332 of the Joint Appendix,

which reads “The Defendant . . . ., Trooper McCarty was hit

back.”     J.A. at 332 (alteration in original).                 As Wolfe argues,

these gaps could well contain material information.                         Moreover,

Wolfe’s statement to the court, which includes language on which

the defendants seek to rest much of their argument, 4 appears on

the final page of the excerpted transcript, is cut off mid-

sentence, and is presented without any context as to why it was

    4
       As the language at issue is sufficiently divorced from
context as to be potentially misleading, we do not quote it
here.



                                        10
offered or how it was received by the district court.                See J.A.

334.

       On this fragmentary record, defendants cannot satisfy our

three-part test for judicial estoppel.               See Zinkand v. Brown,

478 F.3d 634, 638 (4th Cir. 2007) (noting that estoppel requires

(1) a party “to adopt a position that is inconsistent with a

stance taken in prior litigation,” (2) the relevant position to

“be one of fact as opposed to one of law,” and (3) the party to

“have intentionally misled the court to gain unfair advantage”);

see also United States v. Simmons, 247 F.3d 118, 124 (4th Cir.

2001). A complete version of Wolfe’s plea proceedings and the

facts       to   which   he     pleaded    guilty   may   reveal    compelling

inconsistencies between his guilty plea and his present claim.

Cf. Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th Cir. 2008).

Such       material   may     prove   informative   on    remand.    But   the

substantial gaps in the record preclude our reliance on Wolfe’s

guilty plea for purposes of this appeal. 5


       5
        Our   application   of   judicial estoppel   in   similar
circumstances has relied on a far more complete record than that
presented here. See, e.g., Lowery, 92 F.3d at 225 (noting that
the “record of the plea proceeding shows beyond dispute that the
trial judge carried out [his] mandate” “to determine that [the
defendant]   entered  his   guilty   plea voluntarily   with   an
understanding of the nature of the charge and the consequences
of the plea”) (internal quotations omitted); id. at 221-22
(quoting extensively from the defendant’s signed statement that
accompanied his plea agreement).



                                          11
                                        B.

     With       the   state-court     plea     colloquy    excluded     from     our

consideration, the record at summary judgment is reduced to a

set of competing factual claims, many of which implicate the

nature    and     quantity   of   force      that   the   officers    used     while

restraining Wolfe.        Not surprisingly, the defendants paint a far

more controlled portrait of their actions than that described

above; they urge that Wolfe pulled Officer Footen to the ground

and struggled with the officers, cursing at them and ignoring

their repeated verbal commands until Officer Routzahn struck him

once with his flashlight.           However, they have cited no evidence

beyond their own statements and reports--which are materially

inconsistent with Wolfe’s testimony and his mother’s affidavit--

to corroborate their version of events.

     For    instance,     although     Wolfe    received     medical    treatment

immediately after the incident, defendants’ motion for summary

judgment does not include any medical records.                The only medical

evidence presented to us on appeal is a two-page excerpt from a

doctor’s deposition.         The doctor testified that Wolfe suffered

“lacerations” and “soft tissue injur[ies].”                   J.A. 326.         Yet,

because     the    excerpt   begins    in     the   middle   of   the    doctor’s




                                        12
testimony, it is unclear if that was the extent of the harm

Wolfe suffered. 6

     Absent    any    corroborating      evidence,       assessment     of    the

parties’    competing      narratives     rests     on     a   quintessential

credibility determination, which “[w]e, of course, may not make”

at the summary judgment stage.           Smith v. Ozmint, 578 F.3d 246,

254 (4th Cir. 2009).         For purposes of summary judgment, the

salient question is whether the facts taken in the light most

favorable to Wolfe present an issue of triable fact.                    EEOC v.

Fairbrook Med. Clinic, 609 F.3d 320, 322 (4th Cir. 2010).                       As

described below, our assessment of Wolfe’s account under the

relevant legal standards confirms that they do.

     We    evaluate   excessive    force    claims       “under   the    Fourth

Amendment’s    objective     reasonableness       standard.”      Wilson       v.

Flynn, 429 F.3d 465, 468 (4th Cir. 2005) (quoting Graham v.

Connor, 490 U.S. 386, 388 (1989)).          Although this fact-specific

inquiry defies “precise definition,” Valladares v. Cordero, 552

F.3d 384, 388 (4th Cir. 2009), the Supreme Court has identified

several relevant factors, see Graham, 490 U.S. at 396.                       These

include “the severity of the crime at issue, whether the suspect


     6
        The record also contains photographs of Wolfe’s bleeding
head, which were apparently taken on the night of his arrest.
These images depict injuries consistent with either parties’
account.



                                    13
pose[d] an immediate threat to the safety of the officers or

others,       and    whether     he     [wa]s      actively          resisting       arrest   or

attempting to evade arrest by flight.”                        Id.

       Because       the      officers       were        acting       in     their     official

capacities--and are therefore potentially entitled to qualified

immunity--a          finding     that       they        may    have        violated     Wolfe’s

constitutional         rights        does   not     automatically            defeat     summary

judgment.       See Ridpath v. Bd. of Governors Marshall Univ., 447

F.3d 292, 306 (4th Cir. 2006).                     Such a determination satisfies

only    the     first        prong     of   our      two-part         qualified        immunity

analysis.       Id.        Wolfe must still show that the right violated

was    “clearly       established,”         i.e.,       one    “of    which    a     reasonable

person would have known.”               Id.; see also Valladares, 552 F.3d at

388.     We evaluate the officers’ conduct under this deferential

standard and find that neither officer is entitled to qualified

immunity.

       Assuming, as we must, that Wolfe’s testimony is accurate,

the    objective       unreasonableness            of    the    officers’        behavior      is

readily apparent.            Any threat presented by the unarmed Wolfe had

largely abated by the time he was handcuffed.                                   Even if the

officers initially imagined Wolfe’s exclamation, accompanied by

a     “tug”     on     his     handcuffs,          to     be    potentially           dangerous

resistance, that did not warrant Officer Footen holding him down

and    elbowing      him     while    Officer       Routzahn         choked    him    with    his

                                              14
boot, kicked him twice, stomped on his face, and struck him

multiple       times   with     his    service    flashlight.      See    Bailey    v.

Kennedy, 349 F.3d 731, 744 (4th Cir. 2003) (“[T]he extensive

blows and kicks used against an unarmed man were unreasonable,

especially the use of force that continued after [the suspect]

was bound hand and foot and lying face down on the floor.”).

Given     Wolfe’s      evident        helplessness,     his    laughter,    use    of

profanity, and “insinuation” that he might spit, also did not

justify the amount of force used against him.                       The fact that

Wolfe    explicitly      assured       the   officers   that     their   blows    were

unnecessary in light of his preexisting injuries underscores the

unreasonableness of their behavior.

       Officer Routzahn’s kicks to Wolfe’s groin on the stairway

were similarly unreasonable.                 Defendants argue that such kicks

were warranted, as Wolfe’s proximity to his earlier domestic

violence victims “rais[ed] the volatility level of his criminal

acts     and    increas[ed]       the     potential     danger     to    civilians.”

Appellees’ Br. at 20.                 The claim lacks merit.            According to

Wolfe’s testimony and his mother’s affidavit, he was handcuffed,

shackled, and surrounded by armed police officers when he was

kicked    in    the    groin.      Under     these   circumstances,      such    blows




                                             15
would not have been a reasonable means of reducing the risk

posed to civilians. 7

      Nor,     on     these    facts,        is        either       officer        entitled      to

qualified     immunity.            “[C]ourts       have       consistently         applied       the

Graham holding and have consistently held that officers using

unnecessary, gratuitous, and disproportionate force to seize a

secured,      unarmed     citizen,       do        not        act     in    an      objectively

reasonable     manner     and,       thus,     are       not    entitled         to      qualified

immunity.”          Bailey,    349     F.3d       at    744-45;       see   also         Jones   v.

Buchanan, 325 F.3d 520, 532 (4th Cir. 2003).

      In     short,    the    version        of     events          supported       by    Wolfe’s

testimony and his mother’s affidavit presents a triable issue of

material      fact.          The     district          court        erred     by      concluding

otherwise,      despite       prevailing          factual        questions         as     to     the

quantity of force used by the officers and the circumstances

under which their blows were inflicted.                             As we have explained,

“the purely legal question of whether the constitutional right

at issue was clearly established ‘is always capable of decision

at   the   summary     judgment       stage,’”          but    “a    genuine       question      of

material      fact     regarding        ‘[w]hether             the     conduct           allegedly


      7
       Defendants’ argument is further undermined by Officer
Footen’s testimony that a kick to the groin would not have been
justified at any point that night (which is why, he claimed,
such a kick was never administered).



                                              16
violative of the right actually occurred . . . must be reserved

for trial.’”   Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir.

2005) (quoting Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.

1992)).



                              III.

     For the foregoing reasons we reverse the grant of summary

judgment and remand for further proceedings.

                                               REVERSED AND REMANDED




                               17
