                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0428n.06

                                           No. 17-2220

                          UNITED STATES COURTS OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Aug 21, 2018
 ALBERT HANSEN                                           )                    DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )
                                                                ON APPEAL FROM THE
 v.                                                      )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE WESTERN
 RYAN APER                                               )
                                                                DISTRICT OF MICHIGAN
                                                         )
        Defendant-Appellant.                             )
                                                         )



BEFORE:        SUHRHEINRICH, CLAY, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant Ryan Aper challenges the district

court’s denial of his motion for summary judgment in this interlocutory appeal from plaintiff

Albert Hansen’s Fourth Amendment lawsuit based on excessive force in applying handcuffs. Aper

argues that the doctrine of qualified immunity protects him from liability for his actions. Because

the facts of this case are materially indistinguishable from those of Morrison v. Board of Trustees

of Green Township, where we upheld the district court’s denial of qualified immunity, we affirm

the district court’s judgment.

                                                I.

       On September 28, 2013, Aper observed Hansen driving almost twenty miles per hour over

the speed limit on U.S. Highway 2 in Michigan and initiated a traffic stop.           Hansen was

accompanied by another passenger. As he was talking with Hansen and his passenger, Aper

smelled marijuana. Aper asked Hansen to get out of the car and Hansen complied. Aper then
No. 17-2220, Hansen v. Aper


handcuffed Hansen. Hansen stood outside the patrol vehicle for about five minutes while his car

was searched, revealing two metal baking trays, marijuana, a silver Taurus handgun, and a

marijuana roach.1 Aper then handcuffed the other passenger and put both men in the patrol vehicle.

Aper testified that he was instructed on the Michigan Police Department’s handcuffing policies

and that he received training on the proper use of handcuffs. He further testified that handcuffs

are generally tested for tightness by placing a finger between the cuff and the arrestee’s wrist.

        Once Hansen was in the car, he told Aper that he had “extremely high blood pressure,” that

“the cuffs are tight,” and that they hurt. DE 22-3, Hansen Dep., Page ID 104. Aper admitted that

Hansen “made reference to the handcuffs bothering him” and “complained of discomfort.” DE

28-9, Aper Dep., Page ID 387. According to Hansen, Aper responded that handcuffs “are supposed

to hurt” and did not check the cuffs to see if they were too tight. DE 22-3, Hansen Dep., Page ID

104, 113. Aper, however, stated that he did check the cuffs to see if they were too tight, concluded

that they were on properly, and attributed Hansen’s discomfort to the fact that he was leaning back

and putting more pressure on his wrists.

        Hansen estimated that he remained in handcuffs for about thirty minutes, possibly up to

forty minutes. He complained to Aper once more but did not say anything else “because, you

know, it wasn’t to my benefit to say anything.” DE 22-3, Hansen Dep., Page ID 104. However,

he testified that he was “squirming” and “in visible pain.” Id. at 113. After the cuffs were removed,

Hansen stated that he had indentations on his wrists. He did not take any photographs and could

not remember whether he showed his passenger his wrists. He did not show Aper his wrists.

        Hansen and his passenger had been traveling to Hansen’s seasonal home in Kearsarge,

Michigan at the time of the traffic stop. After the arrest, Hansen continued to Kearsarge and spent


1
 Hansen’s passenger later submitted an affidavit stating that the marijuana belonged to him and Hansen had no
knowledge of it.

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No. 17-2220, Hansen v. Aper


two or three days there. Once Hansen returned from Kearsarge, he immediately saw his primary

care provider, Dr. R. Rao Yalamanchi, whom he generally saw every two months for ongoing

health problems that include arthritis, diabetes, gout, high blood pressure, and high cholesterol.

Dr. Yalamanchi’s office notes indicate that Hansen’s post-arrest visit took place on October 4,

2013, six days after the incident. The notes state:

        Complaints of pa[i]n and numbness right dorsal hand, right thumb. Symptoms
        started when he was handcuffed for half an hour by police for speeding one week
        ago, symptoms are persistent. Patient claims handcuffs were too tight and to[o]
        painful and patient told the Police officer, however, patient was told by the Officer
        handcuffs are supposed to be tight.

DE 22-4, Yalamanchi Medical Records, Page ID 144. Dr. Yalamanchi further found “[m]inimum

tenderness over the dorsal surface of right hand” and “[n]o motor weakness.” Id. at 145. He

“[a]dvised symptomatic treatment” and imaging studies if the pain did not improve. Id.

        At Hansen’s next visit on November 6, 2013, Dr. Yalamanchi’s notes indicate that Hansen

complained of a cold, numb feeling in his right hand that began after he was handcuffed. Dr.

Yalamanchi advised an electromyography (“EMG”) study of the hand. On December 17, 2013,

Hansen underwent an EMG study of his right hand. The study was deemed “abnormal” and

“show[ed] a lack of response of stimulation of the right radial nerve.” DE 22-5, Cardiology

Results, Page ID 238. The report concluded that “when considered in conjunction with the clinical

history it appears that this is more likely due to crush injury to the radial nerve at the wrist level.”

Id.

        Hansen continued to complain of numbness in his right hand at his visits to Dr.

Yalamanchi, and he was prescribed pain medication. At Hansen’s February 2014 visit, Dr.

Yalamanchi advised Hansen to consult with a neurologist. Hansen subsequently visited Dr. Girish

Mangalick on December 9, 2014 for a nerve test. Dr. Mangalick found “mild tenderness in the



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No. 17-2220, Hansen v. Aper


inner aspect of the right forearm” and, citing the December 2013 EMG study results, “advised

[Hansen] to take outpatient course of physical therapy.” DE 22-6, Mangalick Records, Page ID

247. Hansen testified that he went to physical therapy twice a week for about a month but stopped

after he had to get a knee operation and spend time recovering in a nursing home. Hansen still

experiences some tingling and numbness in his hand. He incurred medical costs in excess of

$2,500 for his hand injury, and Medicare and Health Alliance Plan filed liens for the unpaid bills.

       Aper submitted into evidence an independent examination conducted by Dr. Steven

Kushner, a doctor of osteopathic medicine. Dr. Kushner concluded that “there is no objective

finding that Mr. Hansen suffered an injury traceable to the handcuffing that occurred on September

28, 2013. Mr. Hansen’s subjective statements of pain are not supported by the examination.” DE

22-7, Letters & Aff., Page ID 258. Dr. Kushner found that aside from age-related osteoarthritis,

Hansen did not have any abnormalities in his right hand. He also opined that the medical records

from Dr. Mangalick “do[] not show the raw data . . . [just] an opinion, with the doctor feeling that

there was no response in the superficial branch of the radial nerve.” Id. at 255.

       On September 9, 2016, Hansen filed a lawsuit against Aper under 42 U.S.C. § 1983,

alleging that Aper violated Hansen’s Fourth Amendment right to be free from unreasonable seizure

by handcuffing Hansen too tightly. Aper moved for summary judgment based on qualified

immunity, arguing that Hansen’s “subjective complaints” could not support the conclusion that

Aper violated Hansen’s constitutional rights. In an opinion issued from the bench, the district

court denied Aper’s motion, concluding that there were genuine issues of material fact as to

whether Aper ignored Hansen’s complaints and whether Hansen suffered injury as a result. Aper

timely appealed.




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No. 17-2220, Hansen v. Aper


                                                 II.

       First, the parties dispute appellate jurisdiction over this matter. Since an appeal from a

district court’s denial of qualified immunity is interlocutory, such a denial “is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment”

only “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

Thus, we “may only exercise jurisdiction over the appeal ‘to the extent that a summary judgment

order denies qualified immunity based on a pure issue of law.’” Morrison, 583 F.3d at 399

(quoting Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006)). Hansen argues that this

court does not have jurisdiction over Aper’s appeal because the district court denied summary

judgment based on its conclusion that genuine issues of material fact existed.

       In contrast, Aper argues that this case does raise a “pure issue of law”—whether the facts

Hansen pled are sufficient to deny Aper qualified immunity. Aper claims that the current state of

the law is “ambiguous” and insufficient to put a law enforcement officer in Aper’s position on

notice that his actions were unlawful. He further argues that we should reevaluate the legal

standard we apply to § 1983 handcuffing cases and require that Hansen produce more evidence to

prove that he suffered an injury caused by the handcuffs.

       Insofar as Aper claims that the law did not put him on notice that his actions were illegal,

we have jurisdiction over this appeal because whether law is “clearly established” is a legal issue.

See Welch v. Spaulding, 627 F. App’x 479, 484 (6th Cir. 2015) (reviewing a denial of qualified

immunity to determine whether a prisoner’s constitutional right was clearly established). But our

jurisdiction does not extend to Aper’s other argument, which is that Hansen failed to produce

sufficient evidence proving an injury causally related to the handcuffing. The district court

determined that Hansen had produced sufficient evidence on the injury element to proceed to a



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No. 17-2220, Hansen v. Aper


jury and explicitly noted that Hansen’s ability to get before a jury and his ability to succeed at a

trial are two different inquiries. The district court therefore held that Hansen had established a

genuine issue of material fact as to whether he suffered injury due to the handcuffs.

“[A] defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s

summary judgment order insofar as that order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319–20 (1995).

Therefore, we dismiss for lack of jurisdiction Aper’s claim that Hansen did not produce sufficient

evidence of injury.

                                            III.

                                            A.

       We review a district court’s denial of qualified immunity de novo. Moody v. Mich. Gaming

Control Bd., 871 F.3d 420, 425 (6th Cir. 2017) (citing United States v. Ohio, 787 F.3d 350, 353

(6th Cir. 2015).

                                            B.

       Hansen filed suit under 42 U.S.C. § 1983, which “imposes civil liability on those

individuals who, acting under color of state law, deprive a citizen of, among other things, his

federally guaranteed constitutional rights.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015).

State actors do, however, receive immunity from suit in certain instances.          See Harlow v.

Fitzgerald, 457 U.S. 800, 807 (1982). “The doctrine of qualified immunity 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) (quoting Harlow, 457 U.S. at 818). This court

“ask[s] two questions in evaluating whether a law-enforcement officer is entitled to qualified



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No. 17-2220, Hansen v. Aper


immunity on an excessive-force claim: ‘(1) whether the officer violated the plaintiff's

constitutional rights under the Fourth Amendment; and (2) whether that constitutional right was

clearly established at the time of the incident.’” Estate of Hill by Hill v. Miracle, 853 F.3d 306,

312 (6th Cir. 2017) (quoting Kent v. Oakland County, 810 F.3d 384, 390 (6th Cir. 2016)). For a

right to be clearly established, “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). Aper argues that his actions did not violate clearly

established law because “[t]he law of this Circuit fails to give notice to law enforcement that any

discomfort, no matter how minor the complaints, renders a handcuffing unconstitutional.”

CA6 R. 22, Appellant Br., at 26.

          Indisputably, the right to be free from “excessively forceful handcuffing” is clearly

established for qualified immunity purposes. Kostrzewa v. City of Troy, 247 F.3d 633, 641 (6th

Cir. 2001); see also O’Malley v. City of Flint, 652 F.3d 662, 671 (6th Cir. 2011) (“The Fourth

Amendment prohibits unduly tight or excessively forceful handcuffing during the course of a

seizure.” (quoting Morrison, 583 F.3d at 401)). Furthermore, we have established a test for

determining which handcuffing claims survive summary judgment: “a plaintiff must offer

sufficient evidence to create a genuine issue of material fact that: (1) he or she complained the

handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced

‘some physical injury’ resulting from the handcuffing.” Morrison, 583 F.3d at 401. With respect

to the injury element, we have held that plaintiff testimony of bruising, swelling, or discoloration

while in the handcuffs is sufficient by itself to survive summary judgment. Id. at 403–04 (gathering

cases).




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         Morrison denied qualified immunity where the plaintiff was handcuffed and complained

about the tightness, the officer ignored the complaints, and the plaintiff suffered bruising and

marks on her wrists. 585 F.3d at 402. Here, Aper admits that Hansen complained about the

handcuffs. He alleges that he did check the handcuffs to make sure they were not too tight, while

Hansen claims that Aper ignored his complaints and told him that handcuffs were “supposed to

hurt.” In addition to claiming that the cuffs caused him pain and left indentations on his wrist,

Hansen produced medical records indicating that he suffered a physical injury caused by the

handcuffing. Because Hansen has met his burden of establishing at least a fact issue with respect

to every element of the Morrison test, the inquiry should, it seems, end here.

                                                         C.

         However, Aper points to three cases decided after Morrison which he argues are

inconsistent with that case.2          First, in Fettes v. Hendershot, the plaintiff was handcuffed,

complained multiple times that the handcuffs were too tight and were causing him pain, and alleged

that he suffered nerve damage to his wrists. 375 F. App’x 528, 533 (6th Cir. 2010). In response

to the plaintiff’s complaints, the officers assured him that he would only be handcuffed for ten

minutes and that “[he didn’t] have long.” Id. While the panel cited the three requirements from

Morrison, it still concluded that the officer was entitled to qualified immunity because “[o]ur

precedents fail to notify officers that any response to a complaint of tight handcuffing other than

an immediate one constitutes excessive force.” Id. This language was quoted in a subsequent

published decision, O’Malley v. City of Flint, where the panel relied on Fettes to reverse the district

court’s denial of qualified immunity. 652 F.3d at 671–72. In O’Malley, the plaintiff also


2
 Aper also refers to a district court case, Hakos v. Demuth, which has similar facts to the instant case and where the
court granted qualified immunity. No. 1:13-CV-01427, 2014 WL 517497, at *4–5 (N.D. Ohio Feb. 10, 2014).
However, because Hakos is a district court case, it does not bear on whether the law of the circuit was clearly
established.

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No. 17-2220, Hansen v. Aper


complained about the tightness of the handcuffs and the officer did not check or loosen them, id.

at 666, but unlike in Morrison, “[the plaintiff] did not have an obvious physical injury” in

O’Malley, id. at 671.

       Finally, Aper argues that Lee v. City of Norwalk, Ohio conflicts with Morrison as well.

There, the panel stated that even assuming the plaintiff met all three of the Morrison requirements

for surviving summary judgment, “no reasonable officer would have known that ignoring [the

plaintiff’s] complaints during the short drive to the police station was unlawful.” Lee, 529 F.

App’x 778, 782 (6th Cir. 2013). Because the plaintiff in Lee was handcuffed for a much shorter

amount of time—five minutes as opposed to the forty to fifty minutes in Morrison—and because

the officers in Morrison affirmatively refused to loosen the plaintiffs’ handcuffs, the panel believed

that the two cases were sufficiently different such that it was not bound by Morrison’s holding.

Id.

       Aper’s reliance on Fettes, O’Malley, and Lee is misplaced because these cases are all

distinguishable from Morrison. First, O’Malley is easily distinguishable because there, “[the

plaintiff] did not have an obvious physical injury.” 652 F.3d at 671. Although the record evidence

demonstrated that the plaintiff testified that his wrists were “bruised” and “swollen,” the plaintiff

did not appear to offer any additional medical evidence of injury in that case. Therefore, the

plaintiff did not meet one of the essential elements of the Morrison test. Hansen, though, has

presented medical records diagnosing him with a crush injury caused by handcuffing.

       Fettes and Lee, in addition to being unpublished and therefore non-precedential, are also

distinguishable from both Morrison and this case. The plaintiff in Fettes was handcuffed for

around ten minutes, 375 F. App’x at 533, and in Lee, the handcuffing lasted only between five to

ten minutes, 529 F. App’x at 782. But see O’Malley, 652 F.3d at 666 (the plaintiff appears to have



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No. 17-2220, Hansen v. Aper


been handcuffed for about two hours). In contrast, the plaintiff in Morrison was handcuffed for

forty to fifty minutes, 583 F.3d at 403, and Hansen was handcuffed for thirty to forty minutes.

Another pertinent distinction between Fettes and both Morrison and the instant case has to do with

the officers’ reactions to being told the cuffs were too tight. In Fettes, law enforcement assured

the plaintiff that the discomfort would be temporary because they were only driving a short way

to the station, 375 F. App’x at 533, whereas the officer in Morrison allegedly told the plaintiff that

“he could place the handcuffs on ‘as tight as he wanted to and that’s how they were staying,’”

583 F.3d at 402. Similarly, according to Hansen, Aper told him that handcuffs are “supposed to

hurt.” In both Morrison and the instant case, then, the defendant did not merely ignore the

plaintiff’s complaints but actively rebuffed them.

         Granting Aper qualified immunity here would thus directly conflict with Morrison, which

controls in this circuit absent an intervening change in the law. See Baynes, 799 F.3d at 616

(“Under the law-of-the-circuit doctrine, only the Court sitting en banc may overrule published

circuit precedent, absent an intervening Supreme Court decision or a change in the applicable law.”

(quoting Cooper v. MRM Inv. Co., 367 F.3d 493, 507 (6th Cir. 2004))).3 Aper was on notice that

handcuffing violates the Fourth Amendment if the arrestee is handcuffed, complains about the

tightness, law enforcement ignores the complaint, and the arrestee suffers injury. Therefore, the

district court correctly denied Aper qualified immunity.



3
 Hansen relies on Baynes in his brief for the argument that this court “has already considered and rejected” the trio of
cases relied upon by Aper. CA6 R. 27, Appellee Br., at 32. In Baynes, a panel of this court squarely rejected a
defendant’s attempt to use those three cases to argue that his actions did not violate clearly established law, stating,
“We cannot rely on Fettes, Lee, and O'Malley, decisions that failed to follow the dictates of Hope and broke from
earlier, controlling precedent of this Circuit, in a manner that was not necessitated by any intervening change in
governing law.” Baynes, 799 F.3d at 617. However, Baynes was published in 2015, while Aper’s handcuffing of
Hansen took place in 2013. Whether the law was clearly established is evaluated “at the time of the challenged
conduct,” see Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011), so we cannot consider Baynes in determining whether
Aper was entitled to qualified immunity.


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No. 17-2220, Hansen v. Aper


                                              IV.

         For the foregoing reasons, we affirm the judgment of the district court.




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