PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MATTHEW T. MGLEJ, 

 Plaintiff - Appellee, 

v. 

RAYMOND GARDNER, a/k/a Officer 

Raymond, an officer of the Garfield 

County Sheriff's Office, in both his 

individual and official capacities, 

 Defendant - Appellant, 

and 

GARFIELD COUNTY SHERIFF'S 

OFFICE, a subdivision of the State of 

Utah, GARFIELD COUNTY, a political 

subdivision of the State of Utah; 

GARFIELD COUNTY JAIL, a subdivision 

of the State of Utah, 

 Defendants. 

No. 19-4015 

_________________________________ 

Appeal from the United States District Court 

for the District of Utah 

(D.C. No. 2:13-CV-00713-CW-DBP)

_________________________________ 

Frank D. Mylar (Andrew R. Hopkins, with him on the briefs) Mylar Law, P.C., 

Cottonwood Heights, Utah, for Defendant-Appellant Raymond Gardner. 

Benjamin T. Welch (Stewart O. Peay, Snell & Wilmer, Salt Lake City, Utah, and 

Amanda Z. Weaver, Snell & Wilmer, Phoenix, Arizona, with him on the brief) Snell & 

Wilmer, Salt Lake City, Utah, for Plaintiff-Appellee Matthew T. Mglej. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 9, 2020

Christopher M. Wolpert 

Clerk of Court
2 

_________________________________ 

Before BRISCOE, EBEL, and HARTZ, Circuit Judges. 

_________________________________ 

EBEL, Circuit Judge. 

_________________________________ 

In this interlocutory appeal, Defendant Raymond Gardner, a Garfield County, 

Utah, sheriff’s deputy, challenges the district court’s decision to deny him qualified 

immunity from Plaintiff Matthew Mglej’s 42 U.S.C. § 1983 claims stemming from 

Gardner’s arresting Mglej in August 2011. Mglej alleged that Gardner violated the 

Fourth Amendment when he arrested Mglej without probable cause, used excessive force 

in doing so, and then initiated a malicious prosecution against Mglej. Having jurisdiction 

under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), we AFFIRM 

the district court’s decision to deny Gardner qualified immunity on all three claims. 

I. BACKGROUND 

Because Deputy Gardner asserted qualified immunity in a summary judgment 

motion, we view the evidence in the light most favorable to Mglej. See Plumhoff v. 

Rickard, 572 U.S. 765, 768 (2014). The facts, then, for purposes of this appeal are as 

follows: In summer 2011, Mglej was on a cross-country trip when his motorcycle broke 

down in Boulder, an isolated town of approximately two hundred people located in 

Garfield County, Utah. Chuck Gurle, a mechanic in Boulder, let Mglej stay with him for 

a few days while Gurle waited for parts needed to repair the motorcycle. 
3 

Raymond Gardner was a Garfield County sheriff’s deputy who lived in Boulder 

and patrolled there. The deputy first met Mglej on or about August 6 when he stopped 

Mglej for speeding on his motorcycle.1

 

A few days later, on August 8, 2011, while Mglej was still in Boulder awaiting the 

repair of his motorcycle, Deputy Gardner received a report from a local convenience 

store/gas station that $20 was missing from the store’s register and they suspected 

someone matching Mglej’s description took the money. Deputy Gardner, who was off 

duty that day, went to Gurle’s home, knocked on the door, and asked to speak with Mglej 

outside, calling him by his first name, “Matthew or Matt.” (Aplt. App. 538.) Mglej went 

outside and spoke with the deputy. When the deputy asked about the missing money, 

Mglej denied taking it. Gardner then asked Mglej for his “ID”—apparently a document 

that could serve as a form of identification. (Id. 540 (“Q. Did you ask him for his driver’s 

license? A. I believe I asked him for an ID.” (Gardner’s deposition); see also id. 592 

(Mglej’s deposition).) Deputy Gardner explained to Mglej that, although Mglej denied 

taking the money, “I had still received a complaint of a criminal act and that as such I 

needed to do a report, which would require some information from him, to include some 

basic information usually contained on an ID, a driver’s license, for example.” (Id. 540.) 

Deputy Gardner told Mglej that he needed Mglej’s full name, date of birth, driver’s 

license information and address for his report (id. 540, 592), and that “it would be easier 

1

 Deputy Gardner’s account of his first meeting with Mglej differs, but for purposes 

of this appeal we accept Mglej’s version of the facts. See Plumhoff, 572 U.S. at 768. 
4 

on all of us if he would just produce that information in the form of an ID or a driver’s 

license” (id. 571 (Gardner’s deposition); see also id. 592-93 (“Deputy Gardner told me I 

had to give him my ID.” (Mglej’s deposition).) When Mglej declined to give the deputy 

his ID before consulting with an attorney, Gardner arrested him. 

Deputy Gardner then handcuffed Mglej behind his back and placed him in the 

front seat of the deputy’s patrol car. Mglej complained that the handcuffs were too tight, 

but Gardner told him to stop saying that, because it did not matter.2

 

Before driving Mglej ninety-five miles to the Garfield County jail, Gardner 

stopped by his home to change into his uniform, leaving the handcuffed Mglej in the 

unlocked patrol car. When the deputy returned to the car, Mglej again complained that 

the handcuffs were too tight. Seeing that Mglej’s hands were red, the deputy tried to 

loosen the handcuffs using the key but the handcuffs malfunctioned and the deputy could 

not loosen or remove them. Using tools from his garage, Deputy Gardner was eventually 

able to pry the handcuffs off Mglej’s wrists after twenty minutes of work, causing Mglej 

significant pain and injury in the process. 

Using a different set of handcuffs, the deputy again handcuffed Mglej and drove 

him to the Garfield County jail. On their way, Deputy Gardner received a call from an 

employee at the convenience store who reported that a more thorough examination of the 

store’s register indicated that there was no money missing. The deputy, nevertheless, 

continued to the county jail, where he booked Mglej on two charges, “Obstructing 

2

 Deputy Gardner disputes Mglej’s version of these events. 
5 

Justice” and “Failure to disclose identity.” (Id. 416.) The deputy also completed a 

written “Statement of Probable Cause for a Warrantless Arrest.” (Id. 415.) Based on the 

facts set forth in that statement, a judge approved Mglej’s continued detention and set 

bail. Mglej was released on bail three days after he was arrested. He then had to 

hitchhike the ninety-five miles back to Boulder, where he found that his motorcycle had 

been vandalized and his possessions stolen. The charges against Mglej were later 

dropped. 

Mglej then sued Deputy Gardner, among others. Relevant to this appeal, Mglej 

asserted claims under 42 U.S.C. § 1983 alleging that the deputy violated Mglej’s Fourth 

Amendment protection against unreasonable seizures by 1) arresting him without 

probable cause, 2) using excessive force in doing so, and 3) initiating a malicious 

prosecution of Mglej.3

 Gardner moved for summary judgment on these claims, asserting 

qualified immunity. The district court denied that motion. It is that decision that the 

deputy challenges in this interlocutory appeal. 

We have jurisdiction to consider Gardner’s interlocutory appeal only to the extent 

it raises legal questions. See Plumhoff, 572 U.S. at 771-73; Mitchell, 472 U.S. at 530. 

We have no jurisdiction at this stage of the litigation to consider the district court’s 

determination that Mglej presented sufficient evidence in support of his claims to survive 

3

 Although Mglej asserted his malicious prosecution violated both the Fourth and 

Fourteenth Amendments, it is the Fourth Amendment that governs that claim. See 

Manuel v. City of Joliet, 137 S. Ct. 911, 914-20 (2017). 
6 

summary judgment. See Plumhoff, 572 U.S. at 772-73 (applying Johnson v. Jones 515 

U.S. 304 (1995)). 

II. DISCUSSION 

With these jurisdictional limits in mind, we review de novo the district court’s 

decision to deny Deputy Gardner summary judgment, viewing the evidence in the light 

most favorable to Mglej. See Estate of Smart ex rel. Smart v. City of Wichita, 951 F.3d 

1161, 1169 (10th Cir. 2020); see also Plumhoff, 572 U.S. at 768. Once Gardner asserted 

qualified immunity, it was Mglej’s burden to show “that (1) the officers’ alleged conduct 

violated a constitutional right, and (2) that right was clearly established at the time of the 

violation, such that every reasonable officer would have understood that such conduct 

constituted a violation of that right.” Estate of Smart, 951 F.3d at 1168 (internal 

quotation marks, alteration omitted); see also Mullenix v. Luna, 136 S. Ct. 305, 308 

(2015). 

To be clearly established, ordinarily “a preexisting Supreme Court or Tenth 

Circuit decision, or the weight of authority from other circuits, must make it 

apparent to a reasonable officer that the nature of his conduct is unlawful.” 

Carabajal v. City of Cheyenne, 847 F.3d 1203, 1210 (10th Cir. 2017). In 

deciding whether a precedent provides fair notice, the Supreme Court has 

repeatedly admonished courts “not to define clearly established law at a high 

level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Instead, 

“the clearly established law must be ‘particularized’ to the facts of the case.” 

White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting Ashcroft v. 

al-Kidd, 563 U.S. 731, 742 (2011)). Although there need not be “a case 

directly on point for a right to be clearly established, existing precedent must 

have placed the statutory or constitutional question beyond debate.” Kisela, 

138 S. Ct. at 1152 (quoting White, 137 S. Ct. at 551). 

Corona v. Aguilar, 959 F.3d 1278, 1285-86 (10th Cir. 2020). 
7 

Mglej has met his two-part burden as to each of the three § 1983 claims at issue 

here to defeat qualified immunity. 

A. Claim 1: Arrest without probable cause 

In his first claim, Mglej alleged that Deputy Gardner violated the Fourth 

Amendment because he arrested Mglej without probable cause. 

1. Mglej has established a Fourth Amendment violation 

This Court has recognized three types of police-citizen encounters: 

(1) consensual encounters which do not implicate the Fourth Amendment; 

(2) investigative detentions which are Fourth Amendment seizures of limited 

scope and duration and must be supported by a reasonable suspicion of 

criminal activity; and (3) arrests, the most intrusive of Fourth Amendment 

seizures and reasonable only if supported by probable cause. 

United States v. Hammond, 890 F.3d 901, 904 (10th Cir. 2018) (internal quotation marks 

omitted); see also I.N.S. v. Delgado, 466 U.S. 210, 215 (1984). Mglej’s first claim, and 

the parties’ arguments and facts addressing it, implicate this entire spectrum of 

police-citizen encounters. 

 The parties do not dispute that Deputy Gardner arrested Mglej without a warrant 

outside the Gurle home after Mglej failed to give the deputy his driver’s license or some 

other form of identification. “Under the Fourth Amendment, a warrantless arrest requires 

probable cause.” Donahue v. Wihongi, 948 F.3d 1177, 1189 (10th Cir. 2020) (citing 

Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). Probable cause exists “if ‘the facts and 

circumstances within the arresting officers’ knowledge and of which they had reasonably 

trustworthy information were sufficient to warrant a prudent man in believing that the 

suspect had committed or was committing an offense.’” Id. (quoting Adams v. Williams, 
8 

407 U.S. 143, 148 (1972)). “To determine whether an officer had probable cause for an 

arrest, ‘we examine the events leading up to the arrest, and then decide whether these 

historical facts, viewed from the standpoint of an objectively reasonable police officer, 

amount to’ probable cause.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) 

(quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks 

omitted)). In claiming qualified immunity, Gardner asserted that there was probable 

cause to arrest Mglej under Utah law after he failed to produce his driver’s license or 

some other form of identification. 

 Before turning to consider that contention, however, we clear away some 

confusion stemming from several of the parties’ arguments. In the district court, Deputy 

Gardner asserted that there was also probable cause to arrest Mglej for theft. But the 

district court rejected that argument, and Gardner does not challenge that ruling on 

appeal. In any event, any probable cause to arrest Mglej for theft dissipated on the way 

to the jail during which time the convenience store employee called and told the deputy 

that there was no money missing. 

At the jail, Deputy Gardner booked Mglej for both “Failing to disclose identity” 

and “Obstructing Justice.” (Aplt. App. 416.) In this litigation, however, the deputy has 

not asserted there was probable cause to believe Mglej obstructed justice, and that offense 

clearly does not apply to the circumstances at issue here. The Utah obstruction of justice 

statute, Utah Code § 76-8-306(1)(i) (2011), provides that 

[a]n actor commits obstruction of justice if the actor, with intent to hinder, 

delay, or prevent the investigation, apprehension, prosecution, conviction, or 

punishment of any person regarding conduct that constitutes a criminal 
9 

offense . . . conceals information that is not privileged and that concerns the 

offense, after a judge or magistrate has ordered the actor to provide the 

information. 

(Emphasis added.) There was no such order in place at the time of Mglej’s arrest. 

 Our focus here, then, is only on whether there was probable cause to arrest Mglej 

for “Failing to disclose identity.” (Aplt. App. 416.) Mglej complains that Deputy 

Gardner did not originally arrest him for that charge, but instead just thought it up once 

he got Mglej to the County jail, after any evidence of a theft had dissipated. That 

argument, however, is unavailing. Because probable cause is measured by an objective 

standard, “an arrest is lawful if the officer had probable cause to arrest for any offense, 

not just the offense cited at the time of arrest or booking.” Wesby, 138 S. Ct. at 584 n.2 

(citing Devenpeck, 543 U.S. at 153-55 & 153 n.2). 

 We turn, then, to the question of whether there was probable cause to arrest Mglej 

under Utah law after he failed to produce his driver’s license or some other form of 

identification. Deputy Gardner points to a combination of three Utah statutes: one 

authorizing a police officer to conduct an investigative detention when he has reasonable 

suspicion a crime is being or has been committed, the second making it a misdemeanor 

for an investigative detainee to fail to give an officer his name under certain 

circumstances, and the third authorizing an officer to arrest a detainee for that 

misdemeanor offense. 

The first of these three statutes, Utah Code § 77-7-15, is part of the Utah Code of 

Criminal Procedure and is entitled “Authority of Peace Officer to Stop and Question 

Suspect—Grounds.” In 2011, that statute provided that 
10 

[a] peace officer may stop any person in a public place when he has a 

reasonable suspicion to believe he has committed or is in the act of 

committing or is attempting to commit a public offense and may demand his 

name, address, and an explanation of the individual’s actions. 

Utah Code § 77-7-15 (2011; subsequently amended.) This statute “codifies the 

requirements for an investigative detention” under Terry v. Ohio, 392 U.S. 1 (1968), 

Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000); see also Salt Lake City v. Bench, 

177 P.3d 655, 659 (Utah Ct. App. 2008), limiting such investigative detentions to 

“public” places.4

 But “that statute provides no criminal sanctions for refusing to present 

identification when requested by an officer, and thus, cannot be used to support the 

arrest” at issue here.5

 Oliver, 209 F.3d at 1188 n.8. 

The second statute, Utah Code § 76-8-301.5(1), is part of the Utah criminal code 

and it does impose criminal sanctions for certain conduct during an investigative 

detention. This is the statute Mglej was actually charged with violating. In 2011, 

§ 76-8-301.5(1) made it a crime for a person to fail 

to disclose identity if during the period of time that the person is lawfully 

subjected to a stop as described in Section 77-7-15: 

(a) a peace officer demands that the person disclose the 

person’s name; 

(b) the demand described in Subsection (1)(a) is reasonably 

related to the circumstances justifying the stop; 

4

 See infra note 10. 

5

 Deputy Gardner’s arguments that Mglej “violated” § 77-7-15, therefore, are 

unavailing because that statute addresses only the authority the State of Utah has 

given law enforcement officers, not what a detained individual must do to avoid 

criminal sanctions. 
11 

(c) the disclosure of the person’s name by the person does not 

present a reasonable danger of self-incrimination in the 

commission of a crime; and 

(d) the person fails to disclose the person’s name. 

(2011; subsequently amended.)6

 Violation of this statute is a class B misdemeanor, id. 

§ 76-8-301.5(2) (2011), punishable by up to six months in jail and up to a $1,000 fine, id. 

§§ 76-3-204(2), 76-3-301(1)(d). 

The third statute, Utah Code § 77-7-2(4), provides that “[a] peace officer may 

make an arrest under authority of a warrant or may, without warrant, arrest a person . . . 

when the peace officer has reasonable cause to believe the person has committed the 

offense of failure to disclose identity under Section 76-8-301.5.” “Reasonable cause” as 

used in this statute is “synonymous with ‘probable cause.’” State v. Harker, 240 P.3d 

780, 784 n.19 (Utah 2010); see also Donahue, 948 F.3d. at 1190 n.18.7

6

 The Utah legislature enacted this version of § 76-8-301.5 in 2008. This statute is 

consistent with the United States Supreme Court’s 2004 decision in Hiibel v. Sixth 

Judicial District Court, 542 U.S. 177, 185 (2004). In Hiibel, the Supreme Court 

considered an arrest under a Nevada “stop and identify” statute that required a person 

detained during an investigative stop to “identify himself,” which the Nevada 

Supreme Court interpreted to mean that the investigative detainee had to give his 

name, but not his driver’s license or any other document. Id. at 181-82, 185. 

Balancing the intrusion of requiring a person, during an investigative detention, to 

give an officer his name against the government interests in investigating possible 

criminal activity, Hiibel held that “requiring a suspect to disclose his name in the course 

of a valid Terry stop is consistent with Fourth Amendment prohibitions against 

unreasonable searches and seizures.” Id. at 187-88. 

7

 The applicability of this statute is directly tied to the scope of § 76-8-301.5, 

discussed previously. 
12 

With these three statutes in mind, “we examine the events leading up to the 

[§ 1983 plaintiff’s] arrest, and then decide whether these historical facts, viewed from the 

standpoint of an objectively reasonable police officer, amount to probable cause,” Wesby, 

138 S. Ct. at 586 (internal quotation marks omitted), here to arrest Mglej under Utah 

Code § 76-8-301.5 for failing to disclose his identity. As we explain, the district court 

correctly concluded on the summary judgment record before it that there was not 

sufficient probable cause to arrest Mglej under that statute. 

As a starting point, Gardner first contends that his encounter with Mglej was 

consensual and that, during such an encounter, he was entitled to ask Mglej for his 

driver’s license or some other form of identification. In the district court, Deputy 

Gardner specifically asserted that “Mglej agreed to voluntar[il]y speak with Gardner,” but 

then “refused to provide Deputy Gardner his name or address”; “[a]ccordingly Deputy 

Gardner felt he had no choice but to arrest Plaintiff” Mglej.8

 (Aplt. App. 168 (emphasis 

added).) But if this was simply a consensual conversation between Deputy Gardner and 

Mglej, as the deputy contends, then it would not have implicated Utah Code 

§ 76-8-301.5, because that statute applies only to an officer’s investigative detention of a 

suspect based on reasonable suspicion. See Oliver, 209 F.3d at 1185-86 (distinguishing 

8

 Although in his pleadings Gardner’s counsel contends that the deputy only asked 

Mglej for his name and address, the deposition testimony of both Deputy Gardner 

and Mglej is undisputed that the deputy instead asked Mglej for his driver’s license 

or some other documentary form of identification. 
13 

between consensual encounters and investigative detentions, and noting § 77-7-15 

addresses investigative detentions). 

Deputy Gardner is correct that an officer’s simply questioning an individual 

usually does not, alone, amount to a seizure for Fourth Amendment purposes. See 

Florida v. Bostick, 501 U.S. 429, 434 (1991). Furthermore, during a consensual 

encounter, an officer can ask to see a person’s identification. See id. at 434-35. But the 

hallmark of a consensual encounter is that, notwithstanding the officer’s questions and 

request for identification, “a reasonable person would feel free ‘to disregard the police 

and go about his business.’” Id. at 434 (quoting California v. Hodari D., 499 U.S. 621, 

628 (1991)); see also Oliver, 209 F.3d at 1185-86. Clearly a reasonable person in 

Mglej’s position, however, would not have felt free to disregard Deputy Gardner’s 

questions and go about his business because the deputy arrested Mglej for failing to 

produce his driver’s license or some other form of identification. See Delgado, 466 U.S. 

at 216-17 (noting that, although an officer’s questioning an individual is not sufficient to 

amount to a detention, “if the person[] refuses to answer and the police take additional 

steps . . . to obtain an answer, then the Fourth Amendment imposes some minimal level 

of objective justification to validate the detention or seizure”). 

This, then, was not simply a consensual encounter between Mglej and Deputy 

Gardner or, if it started as a consensual encounter, it had evolved into an investigation 

detention. “[A]n initially consensual encounter between a police officer and a citizen can 

be transformed into a seizure or detention within the meaning of the Fourth Amendment, 

‘if, in view of all the circumstances surrounding the incident, a reasonable person would 
14 

have believed that he was not free to leave.’” Id. at 215 (quoting United States v. 

Mendenhall, 446 U.S. 544, 554 (1980)). 

Gardner next contends that there was reasonable suspicion to believe that Mglej 

stole $20 from the convenience store to justify the deputy’s investigative detention of 

Mglej.9

 Assuming Deputy Gardner had reasonable suspicion, there still was no probable 

cause to arrest Mglej under Utah Code § 76-8-301.5(1) when he refused to give Deputy 

Gardner his driver’s license or some other form of identification. Section 76-8-301.5(1) 

only makes it a crime for a detainee, during an investigative detention, to refuse to 

provide his name to a police officer under certain circumstances. Deputy Gardner did not 

just ask Mglej for his name. He instead asked Mglej for his driver’s license or some 

other form of identification, and the deputy arrested Mglej when he failed to provide an 

ID. There is a significant difference between asking an investigative detainee’s name and 

demanding instead his driver’s license or some other form of identification document. 

Asking for a driver’s license or other identification is much more intrusive because, while 

such a form of identification would have Mglej’s name, it would include all sorts of 

additional personal information that the officer was not authorized under Utah law to 

demand during an investigative detention. See Utah Code § 77-7-15 (authorizing officer 

during investigative detention to ask detainee for his name, address and an explanation of 

9

 The Supreme Court has recognized that, “absent some reasonable suspicion of 

misconduct, the detention of” an individual simply to determine his identity violates 

that individual’s “Fourth Amendment right to be free from an unreasonable seizure.” 

Delgado, 466 U.S. at 216 (citing Brown v. Texas, 443 U.S. 47, 52 (1979)). 
15 

his actions). More importantly here, the Utah Code limits the criminal offense set forth 

in § 76-8-301.5 to refusing to provide one’s “name.” This is consistent with the Supreme 

Court’s decision in Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004), which 

held that “requiring a suspect to disclose his name in the course of a valid Terry stop is 

consistent with Fourth Amendment prohibitions against unreasonable searches and 

seizures.” Id. at 187-88 (emphasis added). Hiibel reached this conclusion after balancing 

the intrusion of requiring a person, during an investigative detention, to give an officer 

his name against the government interests in investigating possible criminal activity. See 

id. 

Mglej’s refusal to provide Deputy Gardner with his driver’s license or some other 

form of identification, then, as Deputy Gardner demanded, did not create probable cause 

to arrest Mglej under Utah Code § 76-8-301.5(1). Thus, sufficient to defeat summary 

judgment, the record establishes that Deputy Gardner’s decision to arrest Mglej violated 

the Fourth Amendment. See Donahue, 948 F.3d at 1189.10

2. This Fourth Amendment violation was clearly established in August 2011 

10 There are other problems with the probable cause Deputy Gardner claims he had to 

arrest Mglej under Utah Code § 76-8-301.5(1). Section 76-8-301.5(1) only 

proscribes conduct during an investigative detention occurring in a “public place,” as 

§ 77-7-715 provides, and requires an officer’s request for a detainee’s name to be 

reasonably related to the circumstances justifying the “stop.” In denying Deputy 

Gardner summary judgment, the district court noted that there were genuine factual 

disputes underlying whether these other conditions were met here. We have no 

jurisdiction to review those factual determinations in this interlocutory appeal. 
16 

Mglej has also sufficiently shown that this Fourth Amendment violation was 

clearly established at the time of Mglej’s arrest, in August 2011. 

As a practical matter, “[i]n the context of a qualified immunity defense on an 

unlawful arrest claim, we ascertain whether a defendant violated clearly 

established law by asking whether there was arguable probable cause for the 

challenged conduct.” Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 

2014) (quoting Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012)). 

Put another way, a defendant is entitled to qualified immunity if she “could 

have reasonably believed that probable cause existed in light of wellestablished law.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 879 

(10th Cir. 2014). 

Corona, 959 F.3d at 1285. 

 Here, however, based on the plain language of the Utah statutes, Deputy Gardner 

could not have reasonably believed that he had probable cause to arrest Mglej for 

violating Utah Code § 76-8-301.5 when the deputy specifically demanded Mglej’s 

driver’s license or some other form of identification. The district court, therefore, 

correctly denied Deputy Gardner qualified immunity from Mglej’s false arrest claim. 

Mocek v. City of Albuquerque, 813 F.3d 912 (10th Cir. 2015), on which Deputy 

Gardner relies, is distinguishable. In that case, Mocek alleged that a police officer lacked 

probable cause to arrest him under a New Mexico statute that made it a crime to conceal 

one’s “true name or identity” under certain circumstances. Id. at 922 (citing N.M. Stat. 

§ 30-22-3). Because New Mexico courts had not addressed what the statute meant by 

“identity,” the Tenth Circuit held that an objectively reasonable officer could have 

believed that he had probable cause to arrest Mocek under that statute when Mocek failed 

to produce his ID upon request, even though this Court doubted the state statute made it a 

crime not to produce an ID. Id. at 925-26. Different from the New Mexico statute at 
17 

issue in Mocek, it is clear that Utah Code § 76-8-301.5 only permits an officer to arrest a 

suspect for his failure to provide his “name” during such an investigative stop (provided 

the other conditions set forth in that statute are met). The Utah statute’s language is 

unmistakably clear. The district court, therefore, correctly denied Deputy Gardner 

qualified immunity from Mglej’s § 1983 unlawful-arrest claim. 

B. Claim two: Excessive force in handcuffing Mglej 

 Next, Mglej alleged that Deputy Gardner violated the Fourth Amendment when he 

used excessive force to arrest Mglej by handcuffing him too tightly, and then ignoring 

Mglej’s initial complaints that the handcuffs were too tight. See generally Graham v. 

Connor, 490 U.S. 386, 388 (1989) (stating that a claim alleging an officer used excessive 

force in making an arrest is governed by the Fourth Amendment). Mglej further 

contended that his injuries from the tight handcuffs were exacerbated when Deputy 

Gardner decided to use tools from the deputy’s garage to pry the handcuffs off Mglej’s 

wrists when they malfunctioned. 

As an initial matter, the district court erred to the extent it linked this excessive 

force claim to Mglej’s false-arrest claim, by holding that, “[b]ecause Officer Gardner 

lacked probable cause to believe a crime had occurred, any effort to constrain Mr. 

Mglej’s liberty would have been excessive” (Aplt. App. 358). Cortez v. McCauley, 478 

F.3d 1108, 1127 (10th Cir. 2007) (reh’g en banc) (“reject[ing] the idea . . . that a 

plaintiff’s right to recover on an excessive force claim is dependent on the outcome of an 

unlawful seizure claim”). Mglej’s excessive-force claim is separate from his claim that 

Deputy Gardner unlawfully arrested him, and requires a separate inquiry. See id.; see 
18 

also Maresca v. Bernalillo Cty., 804 F.3d 1301, 1308, 1313, 1316 (10th Cir. 2015); 

Romero v. Story, 672 F.3d 880, 890 (10th Cir. 2012). 

[A] plaintiff may argue law enforcement officers unlawfully arrested him. If 

the plaintiff successfully proves his case, “he is entitled to damages for the 

unlawful arrest, which includes damages resulting from any force reasonably 

employed in effecting the arrest.” [Cortez, 478 F.3d at 1127] (emphasis 

added). If the plaintiff also alleges excessive force, the district court must 

conduct a separate and independent inquiry regardless of whether the 

plaintiff’s unlawful arrest claim is successful. Id. And if the district court 

concludes the arrest was unlawful, the court may not automatically find any 

force used in effecting the unlawful arrest to be excessive. Instead, the district 

court must then analyze the excessive force inquiry under the assumption the 

arrest was lawful. As we said in Cortez:

[T]he excessive force inquiry evaluates the force used in a 

given arrest or detention against the force reasonably necessary 

to effect a lawful arrest or detention under the circumstances 

of the case. Thus, in a case where police effect an arrest without 

probable cause or a detention without reasonable suspicion, but 

use no more force than would have been reasonably necessary 

if the arrest or the detention were warranted, the plaintiff has a 

claim for unlawful arrest or detention but not an additional 

claim for excessive force. 

Cortez, 478 F.3d at 1126 (emphasis added). If successful in proving his 

excessive force claim, the plaintiff “is entitled to damages resulting from that 

excessive force.” Id. at 1127. Accordingly, “[t]he plaintiff might succeed in 

proving the unlawful arrest claim, the excessive force claim, both, or 

neither.” Id. 

Romero, 672 F.3d at 890 (footnote omitted). 

 Here, then, only for purposes of Mglej’s excessive force claim, we assume Deputy 

Gardner lawfully arrested Mglej, see id., and determine whether the force the deputy used 

to handcuff Mglej during that arrest was objectively reasonable, see Graham, 490 U.S 

at 397. Mglej asserts two theories as to why the force Deputy Gardner used in 

handcuffing Mglej was not objectively reasonable. He first asserts that the use of any 
19 

handcuffs at all during his arrest was excessive and, alternatively, that even if it was 

objectively reasonable to handcuff him, the force Deputy Gardner used to do that was 

excessive. Mglej’s first theory does not survive qualified immunity, but his second 

theory does. 

1. It was not clearly established that handcuffing Mglej at all was objectively 

unreasonable 

 Mglej first asserts that handcuffing him at all was objectively unreasonable under 

the circumstances presented here. But Mglej has failed to identify any relevant case law 

clearly establishing that Deputy Gardner violated the Fourth Amendment just by 

handcuffing Mglej. Cf. A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1152 (10th Cir. 

2016) (“conclud[ing] that A.M.’s [excessive force] claim fails because there was no 

clearly established law indicating that F.M.’s minor status could negate Officer Acosta’s 

customary right to place an arrestee in handcuffs during the arrest”). 

In fact, relevant case law generally suggests the contrary. The Supreme Court has 

held that “the right to make an arrest or investigatory stop necessarily carries with it the 

right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 

U.S. at 396; see also Cortez, 478 F.3d at 1128. See generally Atwater v. City of Lago 

Vista, 532 U.S. 318, 354-55 (2001) (holding arrest for minor offense, which included 

being handcuffed, placed in a patrol car and driven to the police station, though 

embarrassing and inconvenient, was not “made in an ‘extraordinary manner, unusually 

harmful to [her] privacy or . . . physical interests.’” (quoting Whren v. United States, 517 

U.S. 806, 818 (1996)). 
20 

Furthermore, the Tenth Circuit has noted that “in nearly every situation where an 

arrest is authorized . . . handcuffing is appropriate.” Fisher v. City of Las Cruces, 584 

F.3d 888, 896 (10th Cir. 2009); see also A.M., 830 F.3d at 1155 (“confidently 

conclud[ing] here that a reasonable officer in Officer Acosta’s position would have 

understood Atwater’s general acceptance of handcuffing incident to a lawful arrest to 

indicate that, in the ordinary course, handcuffing any arrestee—absent some injury 

specifically caused by the application of the cuffs—is lawful”).11 

2. However, Mglej has sufficiently alleged a claim that the force Deputy 

Gardner used to handcuff him was excessive 

 Mglej next asserts that, even if it was objectively reasonable to handcuff him, it 

was not objectively reasonable for Deputy Gardner to place the handcuffs on him so 

tightly and then to ignore Mglej’s initial complaints about how tight the handcuffs were. 

“An excessive force claim that includes a challenge to the ‘[m]anner or course of 

handcuffing’ requires the plaintiff to show both that ‘the force used was more than 

reasonably necessary’ and ‘some non-de minimis actual injury.’” Donahue, 948 F.3d 

at 1196 (quoting Fisher, 584 F.3d at 897-98). This circuit has previously recognized that, 

“[i]n some circumstances, unduly tight handcuffing can constitute excessive force where 

11 The district court faulted Gardner because he always uses handcuffs when he 

transports an arrestee, instead of making a case-by-case determination as to whether 

handcuffs are needed in a particular situation. Deputy Gardner’s subjective reasons 

for handcuffing Mglej, however, are not at issue here. “As in other Fourth 

Amendment contexts, . . . the ‘reasonableness’ inquiry in an excessive force case is an 

objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in 

light of the facts and circumstances confronting them, without regard to their underlying 

intent or motivation.” Graham, 490 U.S. at 397; see also Fisher, 584 F.3d at 894. 
21 

a plaintiff alleges some actual injury from the handcuffing and alleges that an officer 

ignored a plaintiff's timely complaints (or was otherwise made aware) that the handcuffs 

were too tight.” Cortez, 478 F.3d at 1129; see also Vondrak v. City of Las Cruces, 535 

F.3d 1198, 1208-09 (10th Cir. 2008). The salient factors we consider in making those 

determinations include how much force was objectively warranted in arresting Mglej, and 

any actual injury to Mglej, which aids us in determining whether Deputy Gardner used 

more force than objectively reasonable under these circumstances to handcuff Mglej. 

a. Mglej has sufficiently established that Deputy Gardner used more 

force than was objectively reasonable 

 “Determining whether the force used to effect a particular seizure is ‘reasonable’ 

under the Fourth Amendment requires a careful balancing of the nature and quality of the 

intrusion on the individual’s Fourth Amendment interests against the countervailing 

governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotation marks 

omitted). In conducting this balancing, we consider the three non-exclusive factors the 

Supreme Court set forth in Graham: 

“[1] the severity of the crime at issue, [2] whether the suspect poses an 

immediate threat to the safety of the officers or others, and [3] whether he is 

actively resisting arrest or attempting to evade arrest by flight.” Fisher v. City 

of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (quoting Graham, 490 

U.S. at 396). 

Donahue, 948 F.3d at 1196. Applying those factors here, we conclude only minimal 

force was objectively justified in arresting Mglej. See id. at 1196-97; Fisher, 584 F.3d at 

894-96. 
22 

 i. Deputy Gardner arrested Mglej only for a minor misdemeanor 

“Under the first [Graham] factor, a ‘minor offense supports the use of minimal 

force.’” Donahue, 948 F.3d at 1196 (alteration incorporated) (quoting Perea v. Baca, 

817 F.3d 1198, 1203 (10th Cir. 2016)). Deputy Gardner arrested Mglej for a non-violent 

Class B misdemeanor—failing to provide the deputy with his name. See Utah Code 

§ 76-8-301.5. That offense was punishable by no more than six months in jail and/or a 

fine of no more than $1,000. Id. §§ 76-3-204(2), 76-3-301(1)(d). Furthermore, although 

the parties do not address the question, it appears that the offense Deputy Gardner was 

investigating when he confronted Mglej—the theft of twenty dollars—is also a nonviolent misdemeanor offense. See id. § 76-6-412(1)(d) (listing theft of less than $500 as 

a Class B misdemeanor).12 

These minor non-violent offenses clearly weigh against the objective need to use 

much force against Mglej. See Donahue, 948 F.3d at 1189-90, 1197 (holding arrests 

under Utah law for misdemeanor offenses of public intoxication and failure to identify 

oneself warranted only minimal force); see also Koch v. City of Del City, 660 F.3d 1228, 

1246-47 (10th Cir. 2011) (reaching the same conclusion when considering a 

misdemeanor obstruction offense); Fisher, 584 F.3d at 895 (petty misdemeanor); Fogarty 

12 At the police station, Deputy Gardner also charged Mglej with obstruction of 

justice, even though that statutory offense clearly did not apply to the circumstances 

presented here. Even so, that offense would have been only a misdemeanor. See 

Utah Code § 76-8-306(3) (2011). 
23 

v. Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (petty misdemeanor disorderly 

conduct). 

ii. Mglej posed no threat to Deputy Gardner’s safety or the 

safety of others 

Under the second Graham factor, we consider whether Mglej posed “an immediate 

threat to the safety of the officers or others.” Donahue, 948 F.3d at 1196 (quotation 

omitted). “Under the second factor, an officer may use increased force when a suspect is 

armed, repeatedly ignores police commands, or makes hostile motions towards the officer 

or others.” Id. But there is no evidence that anything like that occurred here. Nor is 

there any evidence that otherwise suggested that Mglej posed any threat to Deputy 

Gardner’s safety or the safety of others. In fact, Deputy Gardner felt comfortable leaving 

Mglej alone in the unlocked patrol car parked outside Gardner’s home, where his wife 

and kids were, while Gardner ran inside to change into his uniform. He further felt 

comfortable bringing Mglej into his garage where the deputy then worked to pry off the 

malfunctioning handcuffs. The fact that there was no evidence that Mglej posed an 

immediate threat either to Deputy Gardner or others weighs against the use of more than 

minimal force against Mglej. See Donahue, 948 F.3d at 1197 (holding evidence that 

arrestee was unarmed and made no hostile motions toward officers supported use of only 

minimal force); Koch, 660 F.3d at 1246-47 (holding fact that arresting officer did not 

argue that the arrestee posed any safety threat weighed in favor of § 1983 plaintiff 

alleging use of excessive force). 
24 

iii. There is no evidence that Mglej was resisting or trying to 

evade arrest 

Under the third Graham factor, we consider whether Mglej was actively resisting 

arrest or attempting to evade arrest by flight. See Donahue, 948 F.3d at 1196. There was 

no evidence at all to suggest that Mglej was trying to resist arrest or flee. See id.; see also 

Fisher, 584 F.3d at 896. In fact, Deputy Gardner testified at his deposition that he felt 

comfortable leaving the handcuffed Mglej in the unlocked patrol car parked in front of 

the deputy’s home, where his wife and kids were, because Mglej “didn’t exhibit any 

behavior that would lead me to believe that he would try to escape.” (Aplt. App. 553.) 

All three Graham factors, then, indicate that only minimal force was objectively 

reasonable in arresting Mglej. See Donahue, 948 F.3d at 1196; Fisher, 584 F.3d at 896. 

b. Mglej has sufficiently established that the handcuffs caused him an 

actual injury 

 The next question is whether Deputy Gardner used more than the minimal force 

against Mglej that was objectively reasonable. Where, as here, the alleged excessive 

force is the use of handcuffs that were too tight, Mglej has to show that the handcuffs 

caused him “some actual injury that is not de minimis, be it physical or emotional.” 

Cortez, 478 F.3d at 1129; see also Donahue, 948 F.3d at 1196-97; Fisher, 584 F.3d 

at 898-99. “Because handcuffing itself is not necessarily an excessive use of force in 

connection with an arrest, a plaintiff must show actual injury in order to prove that the 

officer used excessive force in the course of applying handcuffs.” Donahue, 948 F.3d 

at 1197 n.29 (quoting Fisher, 584 F.3d at 897). 
25 

Mglej has made a sufficient showing of an actual non-de minimis injury here, 

based on the medical evidence that he suffered long-term nerve damage to his left hand. 

See Vondrak, 535 F.3d at 1209 (explaining that plaintiff’s permanent nerve injury from 

handcuffing established the required “actual injury”). 

 In addition to this long-lasting nerve injury, Mglej also asserted that he suffered 

prolonged and significant pain during the handcuffing. It is, of course, a fact that 

handcuffs are not comfortable and arrestees frequently complain about pain caused by 

their use. See United States v. Rodella, 804 F.3d 1317, 1328 (10th Cir. 2015) 

(“Handcuffing inevitably involves some use of force, and it almost inevitably will result 

in some irritation, minor injury, or discomfort where the handcuffs are applied.” (citation, 

internal quotation marks omitted)). In light of that, conclusory complaints of pain alone 

are not ordinarily sufficient to support a Fourth Amendment excessive force claim. See 

Koch, 660 F.3d at 1247-48 (holding plaintiff’s evidence, that she suffered superficial 

abrasions but did not establish any neurological injury, was insufficient to establish the 

required actual injury needed to support an excessive force claim based on being 

handcuffed too tightly). 

But in making that determination, we focus on the specific facts presented in a 

given case. See generally A.M., 830 F.3d at 1151 (noting that “the Supreme Court has 

said that ‘for the most part per se rules are inappropriate in the Fourth Amendment 

context’” (quoting United States v. Drayton, 536 U.S. 194, 201 (2002)). Here, we have 

the unusual case where there is more than just an uncorroborated sworn statement from 

Mglej that the handcuffs hurt his wrists. See Fisher, 584 F.3d at 900 (holding § 1983 
26 

plaintiff had established an actual injury, noting that “[t]his case does not involve only a 

self-serving affidavit asserting pain alone, without corroborating facts”). Deputy 

Gardner’s own actions corroborated that the handcuffs were too tight. After initially 

ignoring Mglej’s complaints that the handcuffs were too tight, once the deputy checked 

the handcuffs and saw that Mglej’s hands were red, the deputy testified in his deposition 

that he realized that it was “necessary to remove the handcuffs.” (Aplt. App. 553.) This 

was especially the case, according to the deputy, because it was going to take two hours 

to drive Mglej to the jail. When the deputy was unable to loosen the handcuffs with the 

key, Deputy Gardner was sufficiently concerned about how tight the handcuffs were that 

he deemed it necessary to use his own tools to pry the malfunctioning handcuffs off 

Mglej. The deputy’s initial attempts to remove the malfunctioning handcuffs made them 

even tighter, causing Mglej further injury and greater pain. 

It took Deputy Gardner twenty minutes to pry off the handcuffs, and this was after 

the initial fifteen to thirty minutes that Deputy Gardner ignored Mglej’s complaints that 

the handcuffs were too tight. “It is possible for someone to be handcuffed for so long that 

handcuffing constitutes an unreasonable use of force.” J.H. ex rel. J.P. v. Bernalillo Cty., 

806 F.3d 1255, 1258 n.2 (10th Cir. 2015) (citing Fisher, 584 F.3d at 894). Furthermore, 

the twenty minutes it took the deputy to destroy the handcuffs in order to pry them off 

intensified the pain, injury and fear Mglej suffered. Then, once the deputy got the 

malfunctioning handcuffs off, he put a new set of handcuffs on Mglej, which continued to 

cause Mglej’s injured wrists pain, put the handcuffed Mglej back into the patrol car and 

drove two hours to the jail. See Fisher, 584 F.3d at 894 (holding that, even when initial 
27 

handcuffing is objectively reasonable, other factors, such as prolonged duration, can 

affect the objective reasonableness calculation). 

 Viewing the evidence in the light most favorable to Mglej, then, the lasting 

physical injury he suffered and the extreme prolonged pain inflicted on him is sufficient 

for Mglej to meet his burden of establishing an actual, non-de minimis injury to support 

an excessive force claim based on being handcuffed too tightly. See Cortez, 478 F.3d 

at 1129 (“In some circumstances, unduly tight handcuffing can constitute excessive force 

where a plaintiff alleges some actual injury from the handcuffing and alleges that an 

officer ignored a plaintiff's timely complaints (or was otherwise made aware) that the 

handcuffs were too tight.”); see also Vondrak, 535 F.3d at 1208-09. 

 Furthermore, as the cases cited above indicate, such a Fourth Amendment 

violation was clearly established in August 2011. See Vondrak, 535 F.3d at 1209 (stating 

that, “at the time of Vondrak’s arrest [in 2003], the right to be free from unduly tight 

handcuffing was ‘clearly established’—as were the contours of the right,” citing Cortez, 

478 F.3d at 1129). In particular, this court previously recognized, in 2008, that a claim 

that overly tight handcuffs caused permanent nerve damage was sufficient to establish a 

Fourth Amendment excessive force claim. See id. The district court, therefore, did not 

err in denying Deputy Gardner qualified immunity on this excessive force claim.13

13 The clearly established Fourth Amendment violation that Mglej has alleged is that 

Deputy Gardner applied the handcuffs too tightly and ignored Mglej’s initial 

complaints that they were too tight. Mglej has not alleged a separate excessive force 

claim stemming particularly from the deputy’s attempts to remove the malfunctioning 

handcuffs. 
28 

C. Count 3: Malicious prosecution 

 Mglej finally alleged that Deputy Gardner initiated a malicious prosecution against 

him by booking him into jail on charges of failing to identify himself and obstructing 

justice. Based on those charges and the written probable cause statement Deputy Gardner 

completed in support of those charges, a judge approved Mglej’s continued detention and 

set bail. The charges against Mglej were eventually dropped. 

To state a § 1983 claim for malicious prosecution, a plaintiff must show: 

“(1) the defendant caused the plaintiff’s continued confinement or 

prosecution; (2) the original action terminated in favor of the plaintiff; (3) no 

probable cause supported the original arrest, continued confinement, or 

prosecution; (4) the defendant acted with malice; and (5) the plaintiff 

sustained damages.” 

Montoya v. Vigil, 898 F.3d 1056, 1066 (10th Cir. 2018) (quoting Wilkins v. DeReyes, 

528 F.3d 790, 799 (10th Cir. 2008)). 

 In moving for qualified immunity, Deputy Gardner asserted that Mglej could not 

establish the third and fourth elements of his malicious prosecution claim, the lack of 

probable cause and that Deputy Gardner acted with malice. As discussed earlier, 

however, Deputy Gardner lacked even arguable probable cause to charge Mglej with 

failing to give his name under Utah Code § 76-8-301.5. Moreover, even Deputy Gardner 

does not contend that there was even arguable probable cause to charge Mglej with 

obstructing justice. 

As for malice, it “may be inferred if a defendant causes the prosecution without 

arguable probable cause.” Stonecipher, 759 F.3d at 1146. The plain language of the two 

statutes under which Deputy Gardner booked Mglej clearly do not apply to the 
29 

circumstances presented in this case. Moreover, charging Mglej with obstructing justice, 

which clearly did not apply, supported doubling the bail Deputy Gardner suggested, from 

$555 to $1,110. The judge set Mglej’s bail at $1,000. 

Furthermore, Mglej testified in his deposition that, when the intake officer at the 

jail asked Deputy Gardner on what charges the deputy was booking Mglej, Deputy 

Gardner responded: “I don’t know. Let me look at the book. I am sure I can find 

something.” (Aplt. App. 600.) Mglej contends that the deputy then looked through the 

Utah criminal code before charging Mglej under two criminal statutes that, by their plain 

language, did not apply to the circumstances precipitating Mglej’s arrest. Mglej has, 

thus, sufficiently met the malice element of a malicious prosecution claim.14

 In the district court, Deputy Gardner did not specifically challenge that this 

constitutional violation—malicious prosecution—was clearly established in August 2011. 

In any event, it was. In 2008, the Tenth Circuit stated that “it of course has long been 

clearly established that knowingly arresting a defendant without probable cause, leading 

14 While ordinarily a Fourth Amendment claim is measured by an objective 

reasonableness standard, the malice element of a Fourth Amendment malicious 

prosecution claim focuses on the defendant officer’s knowledge or state of mind. See 

Young v. City of Idabel, 721 F. App’x 789, 804 (10th Cir. 2018) (unpublished) 

(summarizing Tenth Circuit cases holding “malice” element of § 1983 malicious 

prosecution claim is met when there is evidence that the defendant officer knowingly 

made false statements or knew there was no probable cause to support prosecution); see 

also Stonecipher, 759 F.3d at 1146 (citing Wilkins, 528 F.3d at 800-01, for the 

proposition that malice may be inferred from a § 1983 defendant’s intentional or reckless 

conduct). See generally Manuel, 137 S. Ct. at 925 (Alito, J., dissenting) (noting tension 

between “subjective bad faith, i.e., malice [which] is the core element of a malicious 

prosecution claim” and Fourth Amendment’s objective reasonableness standard). 

 
30 

to the defendant’s subsequent confinement and prosecution, violates the Fourth 

Amendment’s proscription against unreasonable searches and seizures.” Wilkins, 

528 F.3d at 805. 

III. CONCLUSION 

Viewing the evidence, as we must, in the light most favorable to Mglej, the district 

court correctly denied Deputy Gardner qualified immunity on Mglej’s three § 1983 

claims for false arrest, excessive force, and malicious prosecution. We, therefore, 

AFFIRM the district court’s decision to deny Gardner summary judgment on these three 

claims.