NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0217n.06 No. 10-5398 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CHARLES KOWOLONEK, P laintif f–Ap pellant,

v. LES MOORE, CARL AG NER, JASON REED, and STE VE BUTTS , OF F ICERS; CITY OF F LORENCE, Defendan ts–Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ON AP PEAL F ROM THE UNITED STA T ES DISTRICT COURT F OR THE EASTE RN DISTRICT OF K ENTUCKY

Before: K

ENNEDY, G IBBO NS, and KETHLEDGE, Circ uit Jud ges. JULIA SMITH GIBBONS, C ir c ui t J ud g e . Pl a in ti f f

- a p p e ll a n t Charles Kowolonek appea ls the denial of his partial motion for summary judgme nt and the g rant of defe ndant-a ppellees’ motion for s u m mary judgme nt reg arding his false detention/arr est and excessive forc e claims under 42 U.S.C. § 1983. The district court held that the four defe ndant police office rs—L es M o o re, Steve Butts, Carl Ag ner, and J ason Reed—did not violate Kowolonek’ s cons t i t u t ional rig hts by handcuf fing and briefly detaining him and that, in any case , they wer e entitled to qualified immunit y . The district court also fo u n d that there was no evidenc e permitting an infere nce that any of the defe ndants had used a

taser on K owolonek. For the following rea sons, we af firm the dec ision of the district court.

-1-No. 10-5398

Kowolonek v. Moore

, et al.

I. This case arises from an alterc ation betwee n Charles Kowolone k and a number of police office rs who responded t o a 9 11 burg lary call at his residenc e. On Aug ust 22, 2007, Offic er L es Moore responde d to a b u rgl ary in prog ress at 258 Merr avay Drive in Flore nce, Kentucky

. The dispatcher convey ed to Moore that the s uspect was a P uerto Ri can male i n a gra y t -s h i rt , possibly

acc ompanied by someone else, who had enter ed the home and broken a window in the back of the house. The dispatch log also ind i ca t ed t h at t he suspect had short hair. The caller was mistaken: there was no burg lary

. The window had been broken, but only beca use Kowolonek, who lived with his mother at 258 Merr avay , kicked a socce r ball throug h it. Kowolonek, whose fathe r is black and whose mother is white, is not Puerto Rican. Moore did not have the benef it of this information when he arr ived at the Merr avay residenc e to investiga te. Upon arr iving, M o o re fo u n d Kowolonek seate d on the front stoop of the house. Kowolonek wa s wea

ring a g ray

t-shirt, as desc ribed by

the dispatche r, but Moor e admitted that he did not think that Kowolonek was Puerto Rican. Moore said to Kowolonek that a burg lary had been repor ted and asked him if he lived there and for his identification. Kowolonek said that he lived at 258 Merr avay but had “no clue” wher e to find his identificatio n . M o o re als o asked Kowolonek twice to put down a c iga

rette he was a

ttempting to light. Kow olonek re fused to do so, and Moor e g rabbe d the cig are tte from his mouth.

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Kowolonek v. Moore

, et al.

Kowolonek then stood up and “looked [Moore] dead in the ey es, try ing to g et acr oss that he

was a resident . . . of the home.” He a sked Moore what wa s happening and repe ated that he was a resident. Moore responde d, “I ’m not g oing to ar re s t y ou.” Kowolonek then turned his back on Moore to sit down ag ain, and Moore handcuf fed his left wrist. Kowolonek denied that he was try ing
to walk awa

y from the office r when he turned around; he stated that he “[c]ould have been looking in the house to se e if any

body was there to confirm that [he] lived there .” Howeve r, he does admit to being “ver

y upset” a t the time. After his le ft wrist was cuff ed, Kowolonek rea ched for the scre en door and g rabbe d it with his rig ht hand. He claims he was attempting to sta biliz e himself. Miranda Wallace, Kowolonek’ s g irlfriend, then came aro u n d t h e house and tried t o g et between Kowolonek and Moore. Wallace explained that Kowolonek lived ther e and tha t she would g o inside to ge t Kowolonek’s mother or h i s identification. At about t he same time, Kowolonek let g o of t he door with his rig ht hand, an d Moore and Kowolonek found themselves in a mulched are a near the stoop on the side of the house. Both men rema ined standing

. Kowolonek knew that Moore was try ing to handcuf f him but would
not allow Moore to do so beca use he was “emba

rra ssed” about the police office r being in the y ard. I nstead, Kow olonek held his arms taut a t his side. Offic ers J ason R eed, Steve Butts, Carl Ag ner, a nd J im Hill arrived shortly there afte r. Hill (not a party to this suit ) was from the Sheriff’ s Depa rtment; the rest of the office rs wer e from the Flore nce Police Depa

rtment. Acc ording to the police log, Hill was the first afte r Moore to arr ive on the sce ne, while the othe rs ar rived shortly

afte r.

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Kowolonek v. Moore

, et al.

The office rs surrounde d Kowolonek and g rabbe d him, but Kowolonek stood hi s ground. Amidst the commot i o n , Ko wolonek’s mother beg an to y ell from the upstairs window that Kowolonek lived there

. Kowolonek hear d one of the office rs say that they wer e g oing to have to use their tasers, and Kowolonek told them that “a Taser would be the only way to g et [m e]

. . . beca use my will was so high beca use of what—y ou know—I was at m y h ouse and my home

. . . .” Kowolonek testified tha t one of the of fice rs then used his tase r on Kowolone k. Subsequently , the office rs fully handcuf

fed Kowolonek and escor ted him into a cruiser

. After the office rs spoke with

a few neig hbors and with Kowolonek’s m o t h er , t hey rele ased him. Kowolonek was held in the cruiser for a bout five minutes. Neither Kowolonek nor his mother saw who deploy ed a ta ser. Wallace stated t hat t he last office r to arr ive at the scene , who was wea ring a brown uniform, used his taser on Kowolonek. She stated that all of the othe r off icer s were wea

ring black. Kowolonek filed a complaint ag ainst office rs M o o r e , A g n e r , B u tt s , a n d Reed under 42 U.S.C. § 1983, alleg ing that the off i ce rs had falsely detained/a rre sted him and used excessive forc e, in violation of the Four

th Amendment. He also made rela ted claims under state law. After discovery , the parties moved for summary judgme nt. The district court h el d that the office rs did not violate Kowolonek’ s constitutional rig hts under the Four th Amendment and that, even if they had, they wer e entitled to qualified immunity . The district cour t also found that there was no evidence cre ating a g enuine issue of materia l fac t as to whether one of the defe ndants had used his taser on Kowolonek.

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Kowolonek v. Moore

, et al.

Acc ording ly , the district court denied Kowolonek’ s partial summary judgme nt motion, g rante d the office rs’ summary judgme nt mot io n , a n d d is mi s s e d K o w o lo nek’s state law claims without prejudice

.

II. We revie w a district court’s g rant of summa ry j udg ment on the g rounds of qualified immunit y de novo . Phillips v. Roane Cnty. , 534 F.3d 531, 538 (6th Cir. 2008). Summary judgme nt is only “appr opriate wher e the pleading s, depositions, answe rs to interrog atories, and admissions on file, t og ether with the affidavits, if any , show that there is no g enuine issue as to any materia l fac t and that the m oving party is enti tled to a judgment as a matter of l aw.” Id. (citing Fe d. R. Civ. P. 56(c) ). “The moving party bear s the burden of proving that there are no g enuine issues of materia l fac t.” Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322–23 (1986))

. “The ultimate inquiry is ‘whe ther the evidenc e prese nts a sufficie nt disag ree ment to require submissi on to a jury or whether it is so one-sided that one party must preva il as a matter of law.’” Id. (quoting Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 251–52 (1986)). III. Terry

Violation Kowolonek filed suit under 42 U.S

. C

. § 1983. To state a claim under § 1983, “a plaintiff must set forth fac ts tha t, when construed favor ably , establish (1) the depr ivation of a rig ht secure d by the Constit ution or laws of the United States (2) cause d by a person acting under the color of state law.” Sigley v. City of Parma He ights , 437 F.3d 527, 533 ( 6th Cir. 2006). Qualified i mmunity is an aff irmative defe nse to a § 1983 suit and shields “g overnme nt

o ff i ci als perf

orming discretionar

y functions

. . . from liability for civil damag es insofar as th ei r

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Kowolonek v. Moore

, et al.

conduct does not violate clea rly established statutory or constitutional rig hts of which a rea sonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). “This ‘objec tive leg al

rea sonablene ss’ standard an al y zes claims of immunit y on a fac t-specif ic, case -by -ca se basis to deter mine whether a re asonable officia l in the defe ndant’s position could have believed that his conduct was lawful, judge d from the perspe ctive of the rea sonable officia l on the scene .” Cochran

v. Gilliam , 656 F.3d 300, 306 (6th Cir. 2011). Thus, to deter mine the merits of a qualified immunit y defe nse, we “eng ag e in a two-step analy sis: (1) whether , considering the alleg ations in a light most favor able to the party injured, a constitutional rig ht has been violated, and if so, (2) whether that rig ht

was clea rly established.” Ciminil lo v. Streicher , 434 F.3d 461, 46 6 (6 t h C i r. 2 006). We may consider the se two prong s in either orde r. Cochran , 656 F.3d a t 306. A. We first consider w hether the initial st op of Kowolone k was within the bounds of Terry v. Ohio , 392 U.S. 1 (1968). When evalua ting an investiga tory Terry stop, we deter mine (1) “whe ther there was a proper basis for the stop” and, if so (2) “whe ther the deg ree of i n t ru s i o n . . . was

rea sonably rela ted in scope to the situation at hand.” United States v. Smith , 594 F.3d 530, 536 (6th Cir. 2010) (interna l quota tion marks omitted). A proper basis for a Terry stop e x ists whe re, under the totality of the circ umstances, the office r has a “re asonable , articula ble suspicion that [a] person has been , is, or is about to be eng ag ed in criminal activity .” Id. at 536–37 (interna l quotation marks omitted). To deter

mine whether the intrusion was rea sonably rela ted in scope to the situation at hand, we look to whether the stop was “‘suf ficiently limit ed in time’” and wh ether “‘the investiga tive

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Kowolonek v. Moore

, et al.

mean s u s ed [ we re] the least intrusive means rea sonably available .’” Id. at 537 (quoting United States v. Caruthers , 458 F.3d 459, 468 (6th Cir. 2 0 0 6)). We also consider whether the office rs “‘diligen t l y pursued a means of investiga tion that was likely to confirm or dispel their suspicions quickly , during which time it was nece ssary to detain the defe ndant.’” Id. (quoting United States v. Foster , 376 F.3d 577, 585 ( 6th Cir. 2004)). Her e, the investiga tory Terry stop beg an when M o o r e h a n d c u f f e d o n e o f K o wolonek’s wrists, as i t was at that point that a reasonable person would not h av e felt free to walk away

. See United States v. See , 574 F.3d 309, 313 (6th Cir. 2009)

. Thus, the question is w hether , prior to this point, Moore possessed rea sonable, articula b le s u s p ic io n tha

t Kowolonek had eng ag ed in criminal activity

. See Campbe ll v. Stamper , 244 F. App’ x 629, 631–32 (6th Cir. 2007). We find that he did. Moore responde d to a burg lary -in-prog ress call in which the suspect was i d en t i fi ed as a Puerto Rican male wea

ring a g ray t -shirt with short hair who was possibly acc ompanied by an

acc omplice. Kowolonek g ener ally fit this descr iption, with the exception of his rac e. Unlike case s in which 91 1 ca l ls fail to convey descr iptive information or are made anony mously , there by undermining support for rea sonable suspicion, see United States v. Johnson , 620 F.3d 685, 693 (6th Cir. 2010 ); Ca r u t h er

s , 458 F.3d at 465, here the caller was one of Kowolonek’ s neig hbors who rela y ed fairly detailed information about both the nature of t h e crime and the suspect. The descr iption was cer

tainly i m p erf

ect, and under ideal circ umstances, Moore would have called the dispatcher to confirm the descr iption of the suspect. Yet Moore was responding to a burg lary in prog ress and did not know if inno ce n t i n dividuals wer e in the home that was supposedly being

-7-No. 10-5398

Kowolonek v. Moore

, et al. burg larized or if the alleg ed acc omplice was st i l l i n side the house. Fur ther, this court does not require an exact match betwee n a descr iption in a 911 call and the office r’s observa tions to support

a finding of rea sonable suspicion. See United States v. Long , 464 F.3d 5 6 9 , 5 7 4 (6 t h Cir. 2006) (finding that slightly

inacc urate descr iption of the color of a suspect’s truc k and the c ontents of its bed did not defe at a finding of rea sonable suspicion); United States v. Hurst , 228 F.3d 751, 757 (6th Cir. 2000) (finding that “[t] he prese nce of three persons in the car , rathe r than two, is a discrepa ncy that might rea sonably be explained in any number of way s and does not defe at the assessment” that the offic er ha d rea sonable suspicion). I n addition, Kowolonek’ s subsequent interac tion with Moore also provided support for Moore’ s rea sonabl e suspicion. Upon approa ching Kowolonek, Moore explained that there was a repor t of a burg lary at the residenc e and asked Kowolonek for identification. Kowolonek responde d that there had been no burg lary , and that he lived at the residenc e but did not k n o w wher e his identification was. Moore was entitled to further investiga te to corr oborate th i s information, espec ially since he considere d Kowolonek a suspect base d on the 911 ca ll. And g iven that Moore had explained that he was investiga ting a repor ted burg lary at the residenc e, Kowolonek must have understood Moore ’s nee d to corrobor ate this information. I nstead, Kowolonek ref

used Moore’s re p ea ted reque sts for him to stop try ing to light his cig are tte. Moore then snatche d the cig are tte from Kowol o n ek ’s mouth, which made Kowolonek “ver y upset.” Kowolonek then stood up and turned awa y from the office r and towards the house as he beg an to sit back down. Moore stated that “I ’m not g oing to arr est y ou.” Moore then cuff ed one

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Kowolonek v. Moore

, et al.

of Kowolonek’s wrists. There fo re , just befor e the stop, the t otality of circumstance s included the following : the 911 call that provided a descr iption of a suspect g ener ally rese mbling Kowolonek, the inability to immediately corr oborate Kowolonek’ s identity , and Kowolon ek ’s angry demea nor as well as his turning awa

y from Moore towards the house. Fur ther, at that point, Moore “still wasn’t clea r on wha t the situation was insi de the house” or whether there wer e occ upants inside. I n light of these fac ts, Moore had rea sonable suspicion to detain Kowolonek initially in o rder to at least deter mine his ide ntity and tempora rily preve nt him from entering the house. See Foster , 376 F.3d at 586 (pe rmitting Terry

stop for purpose s including ide ntity confirma tion).

B. As the initial stop of Kowolonek was pr oper under Terry , the nex t question is whether the office rs’ subsequent actions—handc uffing Kowolonek completely and placing him into the cruiser for five minutes—were objectively rea sonable. Illinois v. Caballes , 543 U.S. 405, 407 (2005) (“[A] seizure that is la

wful at its ince ption c an violate the Four th Amendment if its manne r of execution

unrea sonably infring es interests protec ted by the Constit ution.”). Once ag ain, we consider whether the deg ree of intrusion was rea sonably rela ted in scope to the situation at hand by taking into acc ount both the duration of the detention and the investiga tive means e mploy ed. Smith , 594 F.3d at 537. Of particula

r import is whether the officer s “d i l i gently pursued a means of investiga tion that was likely to confirm or dispel their suspicions quickly , during which time it was nece ssary to detain the defe ndant.” Id . (interna l quotation marks omitted).

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Kowolonek v. Moore

, et al.

The mere duration of Kowolonek’ s detention was not objectively unrea sonable. During this five-minute period, the office rs spoke with neig hbors and with Kowolonek’ s mother to confirm his identity , and then immediately rele ased him. As the office rs used the five minutes only to conduct their investiga tion and to confirm Kowolonek’s i d entity , it cannot be said that the duration of the stop was unrea sonable. See United States v. Orsolini , 300 F.3d 724, 730 (6th Cir. 2002) (upholding fifty minute d et en tion under Terry ); United States v. W ellman , 185 F.3d 651, 656 (6th Cir. 1999) (upholding fiftee n or twenty minute detention under Terry ). We also consider whether the investiga tive means used—handc uffing Kowolonek and placing him into a cruiser —wer e th e l ea s t i ntrusive rea sonably available

. I n assessing

rea sonablene ss, we acknow ledg e “that police office rs are o ft en forc ed to make split second judgme nts—in circ umstances that are tense, uncer tain, and rapidly evolving—about the amount of forc e that is nece ssary in a particula r situation.” Dorsey v. Barber , 517 F.3d 389, 399 (6th Cir. 2008) (interna l quota tion mar

ks omitted). We ha

ve cautioned that “it is ina ppropriate , in the quietude of our chambers, to second- g uess s t an d ard police procedure and [ ] on-the-sc ene judgment.” Foster , 376 F.3d a t 587 (internal quotation mar ks omitt ed). The use of handcuf

fs and detention in a cruiser do not automatically transfor m a Terry stop into an arr est. Smoak v. Hall , 460 F.3d 768, 781 (6th Cir. 2006). Howeve r, “these display s of forc e must be war

rante d by the circ umstances.” Id. Most commonly , we have found handcuf fing and/or detaining a suspect in a police car permissible under Terry wher e there is a conce rn for office r safe ty beca use the suspect is thoug ht to be arme d. See Houston v. Clark Cnty. Sheriff D eputy John Does

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Kowolonek v. Moore

, et al.

1-5 , 174 F.3d 809, 814 (6th Cir. 1999) (holding t h at fo rc ing suspects from their car s at g unpoint, handcuf fing them, and plac ing the m into a cruiser did not ex cee d the bounds of Terry beca use the office rs had a “re asonabl[e] fea r that [t he] suspects [were] arme d and d an ger ous”); see also Radvank sy v. City of Olmstead Falls , 395 F.3d 291, 309 (6 t h Cir. 2005) (finding handcuf fing

rea sonable wher e burg lary s u s p ec t wa s rea sonably deede d arme d and dang erous)

. I f a subject is

unarme d, but nonetheless prese nts a risk to office r safe ty , handcuf fing and detention in a cruiser may still be reasonable

. See Foster , 376 F.3d at 586–87 (finding handcuf fing and detention of s u b

ject

rea sonable wher e subject was thought to be under the influence of PCP and there fore potentially violent). Finally , a subject’s attempt to flee or demonstrated flig ht risk may rende r handcuf fing and detention in a cruiser objectively rea sonable. See Caruthers , 458 F.3d at 468–69 (finding no Terry violation in part beca

use suspect prese nted flig ht risk); United States v. Jacob , 377 F.3d 573, 578–80 (6th Cir. 2004) (same). Howeve r, where officer safet y an d s u spect flight are of littl e concer n, we have found handcuf

fing and detention unrea sonable under Terry

. See Benne tt v. City of Eastpointe , 410 F.3d 810, 840 (6th Cir. 2005) (finding Terry violation wher e the handcuf fed and detained suspects “made no movements consistent with flig h t , ” “answere d the office rs’ questions,” and “[t] here was no indica tion [ they ] were a rmed a nd dang erous” ). Her e, Kowolonek did not prese nt an arme d threa t to office r safe ty , but he did actively resist being restra ined and was visibly upset. Fur ther, he turned his back on an office r and place d his hand

on the door of a house that repor tedly had just been burg larized and in which an acc omplice was

s u pposedly located, as well as possibly homeowner s. During the “tense , uncer tain, and ra p i d l y

-11-No. 10-5398

Kowolonek v. Moore

, et al. evolving ” events that followed—e vents requiring exactly the ty pe of “split second judgme nts” that

we are loath to second g uess—the office rs chose first to focus on restra ining an ang ry and resistant Kowolonek rathe r than listen to his mother, g irlfriend, and neig hbor, who tried to confirm Kowolonek’ s identity

. See Dorsey , 517 F.3d at 399 (interna l quotation marks omitted). On these fac ts, it is likely that the office rs did not exceed the bounds of Terry by handcuffing and briefly detaining Kowolonek in a cruiser to dispel their rea sonable suspicion that he was a burg lar and a burg lary had occ urre d. Howeve r, we need not rea ch this question beca use even if there was a constitutional violation, we fi n d that the office rs are nonetheless entitled to qualified immunit y beca use their actions did not violate clea rly established rig hts. “F or a rig ht to be clea rl y es t ablished, ‘[t] he
contours of the rig ht must be sufficie ntly clea r that a rea sonable officia l would understand that what he is doing violates that rig ht.’” Feathers v. Aey , 319 F.3d 843, 848 (6th Cir. 2003) (quoting Russo

v. City of Cincinnati , 953 F.2d 1036, 1042 ( 6th Cir. 1992)). The exact action in que stion ne ed not have previously been held unlawful, but the unlawfulne ss must be “appa rent from direc t holding s, from specific examples descr ibed as prohibited, or from the g ener al rea soning that a court employ s.” Id. The critica l question is whether it “‘w ould be clea r to a rea sonable office r that his conduct was unlawful in the s ituation he confr onted.’” Slusher v. Carson , 540 F.3d 449, 456 (6th Cir. 2008) (quoting Saucier v . Katz , 533 U.S. 194, 202 (2001)). Kowolonek fails to cite to a single case that clea rly establishes the contours of his rig hts such that a re asonable office r would know that this conduct was unlawful. Kowolonek’ s relianc e upon

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Kowolonek v. Moore

, et al.

Smoak , 460 F.3d at 78 2 , i s misplaced beca use in that case the office rs continued to detain the suspects for

nine m inutes after they no longe r had r easona ble suspicion, wher eas he re the office rs detained Kowolonek for

five minutes in order

to dispel their rea sonable suspicion. F urther, w hile Kowolonek did not prese nt an arme d threa t or high- speed flig ht risk that rea dily would have justified h i s d et en t i o n, see Houston , 174 F.3d at 814; Jacob , 377 F.3d at 578–80, he did turn his back o n Moore, place his hand on the door, and resist office rs’ attempts to handcuf f him. These actions are far more ag g ressive than those of the suspects in Benne tt , 410 F.3d at 840, whose detention exceede d the bounds of Terry

. As a result, t h e o ff i ce rs’ conduct here is easily “nea r enoug h to the ‘hazy ’ border separ ating illega l f rom leg al conduct f

or qualified immunity

to attach.” See B ing v. City of W hitehall , 456 F.3d 555, 571 ( 6th Cir. 2006). Fur ther, althoug h the office rs reg rettably made a mistake—there was in fac t no burg lary , and Kowolonek was innocent—this mistake does not automatically disqualify them from entitlement to qualified immunit y . See Dorsey , 517 F.3d at 394. “The conce rn of the immunit y i n q u i ry is to acknow ledg e that rea sonable m istakes can be made as t o the l eg al constraints on particula r pol ice conduct,” and to pr otect “all but the plainly incompetent or those who knowing ly violate the law.” Id. (i n t erna l quotation marks and citations omitted). The prec ise question is whether the office rs “had a sufficie nt fac tual basis for thinking that they wer e acting consistently with Terry ” when they handcuf fed and briefly detained Kowolonek. Smoak , 460 F.3d at 782. Her e, Moore reasonably believed t h at h e wa s co nfronting a burg lary suspect and that he had to preve nt that suspect from
enter ing into the house that he thought—ba sed on the dispatch—wa s occupie d by innocent

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Kowolonek v. Moore

, et al.

homeowner s and/or an acc omplice. This was cer tainly a sufficie nt f

actua l ba sis f

or him to believe that he wa s comply ing w ith the law in detaining Kowolonek. Fur thermore , when Office rs Butts, Ag ner and Reed arrived, they knew that a burgla ry had been repor

ted and they observe d Moore in a phy sical strug g le with Kowolonek. They did not know whether Kowolonek posed a risk to their safe ty o r wa s armed; they only witnessed Kowolonek eng ag ed in a phy sical strug g le with Moore and beg an to assist. Given this information, these office rs also “had a sufficie nt f

actua l ba sis f

or thinking that they wer e acting consistently with Terry .” See id. There fore , we find that even if the office rs violated Kowolonek’ s constitutional rig hts, those rig hts were not clear ly

established, and thus the of fice rs ar e entitled to qualified immunity

. IV. Excessive F orce Kowolonek also contends t hat the means that the office rs employ ed—re straining him in handcuf fs and using a taser ag ainst him—amoun t ed to excessive forc e. The discussion above reg arding Kowolonek’ s claim that his handcuf fing was unrea sonably intrusive under Terry applies fully to his claim t hat t hose actions amounted to excessive force becau s e t h e s t an dards gove rning these claims are “esse ntially the same.” See Dorsey , 517 F.3d a t 401; see also Smoak , 460 F.3d at 783 (“I nsofar as [pl aintiff’s] claim of excessive forc e rela tes to the intrusiveness of the seizure once the stop was made, the di s cu ssion above [evaluating the rea sonablene ss of the seizure] is fully applicable .”). Thus, as to the excessive forc e claim based on handcuf fi n g an d d et ention in the

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Kowolonek v. Moore

, et al.

cruiser , we rea ch the same conc l u s i on outlined above: all of the office rs are entitled to qualified immunit y . Howeve r, Kowolonek also claims that one of the office rs employ ed excessive forc e by using
a tase r. The district c ourt found that there was no g enuine issue of materia l fac t as to whether any of the defe ndants (Moore , Butts, Ag ner, or Reed) used a taser ag ainst Kowolonek and thus g rante d summary judgme nt to the officers. At this stag e, the issue is not whether an officer used hi s taser

on Kowolonek, since we construe the fac ts in his favor

. Rather, the issue is the identity of the office r who used his taser

on Kowolonek. Kowolonek’ s only evidenc e that one of the defe ndants used a taser ag ainst him is that Wallace, Kowolonek’s girlfr iend, s tated that “the last gu y t o ar ri ve on the s cene was the one who
t as ed him.” Acc ording to the police log, this was a Flore nce police office r. Howeve r, Wallace’s testimony is highly inconsistent on this point. She conce des that the individual she saw use a taser ag ainst Kowolonek was wea ring a brown uniform and that all of the other office rs wer e wea ring black uniforms. Moore, Butts, Ag ner and Reed—a ll Flore nce police office rs—wer e issued and wer e

wea ring black uniforms on the date in question. The only conclusion to be draw n from these fac ts is that Offic er Hill, a Boone County police office r and not a party to the suit, was wea ring the brown uniform. Moreove r, Wallace said that there wer e only two office rs on the scene when the “last g uy pulled up.” Howeve r, there wer e five office rs in total, not three

. As Wallace appar ently did not see all of the office rs arr ive—which is understanda ble, as she was inside the house d u ring part of the alterc ation—her testimony as t o the actions of t he “last” office r t o arr ive cannot be credited, e v en

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at summary judgme nt. Fur ther undermining her testimony , Wallace rec alled that the taser employ ed was blac k and re d, while all four de fenda nts averr ed that their ta sers a re y ellow in color. Given the patent wea

knesses and contra dictions in Wallace’ s testimony —the only testimony upon which Kowolonek re l i es t o s u pport his claim t hat one of t he defenda nts used a taser ag ainst him—it was not err or for the district court to find no g enuine issue of materia l fac t and g rant summary judgme nt f

or the defe ndants. See Griffin v. Hardrick , 604 F.3d 949, 954 (6th Cir. 2010) (“ ‘When opposing parties tell two differ ent stories, one of which is blatantly contra dicted b y t h e

rec ord, so that no rea sonable jury could believe it, a court should not adopt that version of the fac ts for purposes of ruling on a motion for summary judgme nt.’” (quoting Scott v. Harris , 550 U.S. 372, 380 (2007)) ). There fore , we need not rea ch the question of whether the forc e employ ed by using a taser a g ainst Kowolonek wa s indeed e x cessive. Kowolonek’ s final arg ument, that the office rs violated a duty by failing to stop the taser from being used, also ring s hollow. “[A] police o ff i ce r wh o fails t o act to preve nt the us e of excessive forc e may be held liable when (1) t he officer observe d or had rea son to know that excessive for ce would be or was being used, and (2) the offic er ha d both the opportunity and the means to pr event the harm from occur

ring .” Turner v. Scott , 119 F.3d 425, 429 (6th Cir. 1997). Even if Kowolonek can show that the officers had rea son to know that a taser would be used ag ainst him, Kowolonek cannot show that they had the opportunity and means to stop it from happening

. I n Kow o l o nek’s estimation, the entire incident, starting wi t h the initial alterc ation with Moore and ending with Kowolonek’ s handcuf

fing , lasted only “minutes.” The u s e of a taser could only have lasted for a

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fra ction of this time

. An d we h av e rec og nized a duty of protec tion only wher e the “under ly ing episode of excessive forc e . . . spanned a sufficie nt period of time fo r a near by defe ndant to both p er ceive what was happening and interce de to stop it.” Ontha v. Rutherford Cnty. , 222 F. App’x 498, 506 (2007). Compare id. at 501, 506–07 (f i n d i n g n o fa i lure to intervene wher e instance of excessive forc e lasted si x o r s ev en s econds) with Durham v. Nu’man , 97 F.3d 862, 868 (6th Cir. 1996) (re versing awa

rd of summary jud gm en t for the defe ndant wher e a beating “lasted approximately ten minutes” and the defe ndant nurse “wa tched t h e b eating unfold on her monitor from the nurse’ s station, and then from the doorwa y of

. . . the room wher e the beating took place ”). Given the rapid sequenc e of events here , the office rs did not have the op p o rt u n i t y t o i nterve ne to preve nt the harm fr om occur ring

. V. State Law Claims As the district co urt did not err in g ranting summary judgme nt to the office rs on Kowolonek’ s fede ral c laims, it also did not err in declining jurisdiction over Kowolone k’s re lated state-law claims pursuant to 28 U.S.C. § 1367(c). VI. For the fore g oing r easons, we aff irm the dec ision of the district court.

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