Castaneda v. City of Albuquerque (276 F. Supp. 3d 1152, 2016)

MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendants’ Motion for Summary Judgment (Including Qualified Immunity) and Memorandum of Law in Support filed on August 14, 2015 (Doc. 62), and Plaintiff Paul Castaneda’s Motion for Partial Summary Judgment on Count.I of His Complaint: Unlawful Arrest, Unlawful Charging, Unreasonable Seizure, and Excessive Force, filed on August 14, 2015 (Doc. 64). Jurisdiction arises under 28 U.S.C. § 1331.

Having considered the submissions of counsel and relevant law, the Court will:

(1) DENY Plaintiffs motion for partial summary judgment;

(2) GRANT Defendants’ motion on the following claims: (Count I) unlawful charging, unreasonable seizure, and excessive force in violation of the Fourth Amendment; (Count II). violation of due process rights under the Fourteenth Amendment;. (Counts III and IV) violations under the Americans with Disabilities Act; (Count V) violations under the Tort Claims Act against the City of Albuquerque, Ray Schultz, and Donny Keith for negligent training and supervision, and all violations of the New Mexico Children’s Code; (Count VI) violations of Article II, Section 18 of the New Mexico Constitution; and (Count VII) municipal or supervisory liability under § 1983; and

(3) DENY Defendants’ motion as to Plaintiffs claims regarding:' (Count I) unlawful arrest in violation of the Fourth Amendment; and (Count V) battery and false imprisonment under the New Mexico. Tort Claims Act, and violations under Article II, Section 10 of the New Mexico Constitution. These claims are the only ones remaining for the Court’s consideration.

Because no claims remain against the City of Albuquerque, Mr. Schultz, or Sergeant Keith, these three Defendants are dismissed from the case.

I. Procedural Background

On January 2, 2014, Plaintiff (Paul Castaneda) filed a complaint for damages in the Second Judicial District Court,’ County of • Bernalillo,- State of New Mexico. (Doc. 2-A, Compl. at 1.) Plaintiff, who has a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”), was a student at Grant Middle School in Albuquerque, New Mexico at the time of the incident described in the complaint. (Id. at ¶¶ 14-15; Doc. 72-2.) On December 12, 2008, Plaintiff was scheduled for an In School Suspension (“ISS”), but he asserts that due to his ADHD, he had forgotten about the ISS and reported instead to his regularly scheduled class. (Compl. at.¶¶ 16-19, 50.) Plaintiff alleges that Defendant School Resource Officer (“SRO”) D. Hensley came to Plaintiffs classroom, searched Plaintiffs backpack and pockets, handcuffed Plaintiff with zip ties (causing his fingers to turn blue), and transported Plaintiff to the Juvenile Detention Center. (Id. at ¶¶ 20, 23-25; Doc. 72, Ex. 4 at 42-46.) Defendant Hensley charged Plaintiff with “Interference with members of staff, public officials or the general public” pursuant to N.M. Stat. Ann. § 30-20-13(D) (1978). (Compl. at ¶ 26.)

Plaintiff filed his complaint in state court alleging (1) unreasonable seizure and excessive force, arrest, and charging in violation of his Fourth Amendment rights; (2) a deprivation of his liberty interest in violation of his substantive due process rights under the Fourteenth Amendment; (3) a violation of the Americans with Disabilities Act (“ADA”) in arresting and charging him with a delinquent act for the manifestations of his disability; (4) a violation of the ADA in the lack of accommodation of his disability; (5) battery and false imprisonment under the Tort Claims Act and in violation of Article 2, Section 10 of the New Mexico Constitution; (6) violations of his rights under Article 2, Section 18 of the New Mexico Constitution; and (7) negligent training and supervision of Defendant Hensley by Defendant Ray Schultz and Defendant Donny Keith. (Id. at ¶¶ 30-83.)

Defendants filed their Motion for Summary Judgment (Including Qualified Immunity) (Doc. 62) and a Motion to Stay Proceedings Until Such Time as the Court Decides Pending Motion for Qualified Immunity (Doe. 63) on August 14,2015. Plaintiff filed a response to the motion for summary judgment on September 11, 2015 (Doc. 72), and Defendants filed a reply on October 2, 2015 (Doc. 76). The Court granted Defendants’ motion to stay on December 23, 2015. (Doc. 87.) Plaintiff also filed a Motion for Partial Summary Judg-1 ment on Count I of His Complaint: Unlawful Arrest, Unlawful Charging, Unreasonable Seizure, and Excessive Force on August 14, 2015. (Doc. 64.) Defendants filed a response to Plaintiffs motion on September 9, 2015 (Doc. 69), and Plaintiff filed his reply on October 5,2015 (Doc. 78).

II. Statement of Facts

On the day of the incident at issue in this case—December 12, 2008—Plaintiff was a 13-year-old student at Grant Middle School. (Compl. at ¶¶2-3.) On that date, Defendant Hensley worked as a police officer for the Albuquerque Police Department and served as the School Resource Officer for Grant Middle School, Defendant Schultz was Chief of the Albuquerque Police Department, and Defendant Keith was a Sergeant working for the Albuquerque Police Department. (Id. at ¶¶ 6-8.) Prior to the incident, Plaintiff had been diagnosed with and prescribed medication for ADHD. (Id at ¶2; Doc. 72-2 at 1.) Plaintiff had been treated- by a physician and took medication for his ADHD earlier in -2008, but Plaintiffs mother (Ms. Linda Castaneda) testified that she believed he had stopped taking his medication prior to December 12, 2008. (Doc. 62-E, Linda Castaneda Dep. 87:22-88:6.) Plaintiff testified that the last time he saw- a physician, psychologist, or other specialist for ADHD or learning disabilities was in his eighth grade year, at the time of his last medication refill. (Doc. 62-B, Paul Castaneda Dep. 12:10-22.)

Plaintiff testified that one of the symptoms of his ADHD, is forgetfulness. (Doc. 72-4, Paul Castaneda Dep. 77:19-21.) Dr. Donald Flammer noted in a Psychiatric Diagnostic Examination-on March 27, 2008 that “[a]t school, .[Plaintiff] has poor memory” and other “symptoms of attention deficit hyperactivity disorder, which hinder his ability to maintain task persistence [and] to complete and practice basic academic skills in an age. appropriate manner.” (Doc. 72-2 at 1-2.) Grant Middle School administration was aware of Plaintiffs diagnosis and that he required certain accommodations. (See Doc. 72-1.) Plaintiffs Individual Education Plan (“IEP”), dated April 24, 2009, listed one of his necessary “[a]ccommodation[s] of instruction” as “[c]hecking for understanding”; a necessary “[presentation of instruction” as “repeated instructions”; and a “[b]ehavior management” accommodation of “[f]re-quent reminder of rules.” (Id. at 1.) Defendant Hensley testified that he does not believe he had any contact with Plaintiff prior to December 12, 2008, nor is there evidence in the record to show that Defendant Hensley was aware of Plaintiffs IEP or the necessary accommodations for that disability. (Doc. 62-A, Hensley Dep. 33:10-15, 50:21-51:11.)

Sometime in September 2008, the principal of Grant Middle School gave Plaintiff a referral to attend ISS on December 12, 2008. (Paul Castaneda Dep. 35:2-14.) The administration of Grant Middle School used ISS as a tool to deal with students’ behavior problems. (Hensley Dep. 36:18-37:3; Doc, 62-C at 3.) Plaintiff testified that in his experience, he normally received an ISS referral date that was within two to three days of a behavioral infraction. (Paul Castaneda Dep. 53:2-6.) This time, however, Plaintiffs ISS referral was scheduled for a date approximately two months after his behavioral infraction. (Id. at 35:2-14.) Ms. Barbara Tate served as- an educational assistant at Grant Middle School. (Doc. 62-D, Tate Dep. 16:9-11.) Ms. Tate supervised the ISS classroom on December 12, 2008. (Hensley Dep. 34:14— 18; Doc. 62-C at S'.) Ms, Tate asserts she did not have access to Plaintiffs IEP. (Tate Dep. 16:18-17:14.)

Ms. Tate testified that at the time of the incident, the ISS referral process worked in this way: when a student misbehaved, the student’s teacher wrote an ISS referral and sent the student to the administrative office where the principal decided on a consequence. (Id. at 6:16-24.) If the consequence was time in ISS, the student took the referral to the secretary who filled out a triplicate form with the date of the ISS. (Id. at 6:23-7:8.) The secretary gave one - copy to the student; the student took it home for a parent’s signature and brought it back. (Id. at 7:4-12.)

Ms. Tate testified that school staff routinely notified students who had ISS refer-ráis for the day by placing a copy of the students’ names on the outside window where students would see it as they entered school each morning. (Id. at 7:13-17.) School staff also posted a copy of the students’ names by the school’s office. (Id. at 7:18-19.). If a student with an ISS referral failed to report to the. ISS classroom, Ms. Tate testified that her practice was to check to see if the student was absent from school. (Id. at 7:21-8:6.) If the. student was present at school but had failed to report to ISS, Ms, Tate would track the student down. (Id. at 8:6-7.)

Plaintiff, who had spent time in ISS prior to the date of the incident, testified that he recalls the school—typically the principal or a secretary—gave students oral notice of ISS assignments before the first class period. (Paul Castaneda Dep. 32:20-33:3.) Plaintiff asserts he- did not receive any oral notice prior to his first class on the date of the incident. (Id. at 33:4-5.) Plaintiff testified that because he did not réceive an oral reminder, he had no recollection of the referral. (Id. at" 37:12-17.) Plaintiff also testified that he had served a Saturday school—an alternative disciplinary program at ■ Grant’ Middle School—the weekend prior to Décember 12, 2008. (Id. at 54:3-25.) Plaintiff testified that he believed he served the Saturday school as an alternative to the December 12, 2008 ISS referral. (Id,) Plaintiff contends that during the Saturday school, the principal of Grant Middle School told Plaintiff that he did not need to attend ISS on December 12, 2008. (Id. at 54:9-14.) Contrary to his earlier testimony that he did not have any recollection- of the ISS referral, Plaintiff also testified that because he was under the impression the principal had cleared the ISS referral for December 12, 2008, he “blew it all off, dike didn’t know about it (Id. at 54:17— 25.) And so although he was scheduled to spend the day in ISS, Plaintiff did not report to the ISS classroom on December 12, 2008. (Doc. 62-C at 3.)

Defendant Hensley testified that it was his practice to check into the ISS classroom every morning, and he contends he did so on the morning of the incident. (Hensley Dep. 45:15-46:4.) In the report he wrote after the incident, .Officer Hensley stated that Ms. Tate informed him she had several students who failed to appear for ISS that morning. (Doc. 62-C at 3.) Hensley testified at his deposition (but did not include in his written report) that when he checked into the ISS classroom that morning, Ms. Tate had already sent a student aide to Plaintiffs classroom to collect Plaintiff. (Hensley Dep. 44:10-47:11.) Defendant Hensley contends Ms. Tate informed him that Plaintiff refused to accompany the student aide to the ISS classroom. (Id. at 47:12-21.)

Defendant Hensley testified that the ISS system had become backlogged that year due to students refusing to attend their scheduled ISS dates. (Id. at 38:13-40:18, 43:8-24.) Defendant Hensley testified that the school administration would give students who refused to atte'nd ISS a new ISS referral, possibly with additional ISS time added to the referral for their refusal. (Id. at 40:4-12.) Ms. Tate also testified that when students failed to appear in the ISS classroom, the principal primarily assigned additional time in'ISS as punishment. (Tate Dep. 8:22-9:23.) Defendant Hensley testified that .the students’ refusals to attend ISS affected Ms. Tate, the ISS classroom, the overall function of the front office, and all of the teachers.-who used ISS as a disciplinary tool, (Hensley Dep. 41:2-43:24.)

On December 12, 2008, Plaintiff arrived at school before the first bell, ate breakfast, and then went to his first period guitar class'. (Paul Castaneda Dep. 32:22— 33:5.) Contrary to Defeiidant Hensley’s testimony, Plaintiff testified he has no recollection that a student aide ever came to his classroom that morning before Defendant Hensley arrived. (Id. at 37:5—17.) Defendant Hensley testified that after he spoke to Ms. Tate, he'went to Plaintiffs regular class, located Plaintiff, and took Plaintiff to his office. (Hensley Dep. 47:3— 50:20.) Plaintiff asserts that when Officer Hensley came to his classroom that morning, Plaintiff gathered his belongings and volunteered to go to ISS right then. (Paul Castaneda Dep. 33:6-18.) Plaintiff testified that after he volunteered to go to ISS, Officer Hensley replied, “no, you need to come to my office.” (Id. at 33:19-20.) Conversely, Defendant Hensley asserts that Plaintiff never said anything fo him except that he did not have ISS. (Hensley Dep. 50:6-8.)

Ms. Judy Jones, the teacher in Plaintiffs classroom, wrote an email a week after the incident at Plaintiffs mother’s request to advocate for Plaintiff. (Doc. 72-7.) Ms. Jones wrote that she accepted partial responsibility for his failure to attend ISS, as she had seen his name on the office-produced list. (Id.) She went on, “[wjhenhe came in to class, I forgot that he was not supposed to be there. Had I remembered, I would have told him to go, [and] he would have gone ;..(Id.) Ms. Jones also wrote that she told Defendant. Hensley that Plaintiff “may very well have forgotten to go to ISS, since that is'his disability.” (Id.) Conversely, Defendant Hensley testified that he did not have any conversation with Plaintiffs teacher. (Hensley Dep. 49:2-13.) Ms. Tate testified that the.majority of students who had to be tracked down for failing to report to ISS claimed they had forgotten about their ISS referral. (Tate Dep. 15:1-21.) This assertion was reflected in Defendant Hensley’s report made directly after the incident. (Doc. 62-C at 3 (“Ms. Tate said it is typical for students to report to other classes and claim they were not aware of their ISS date.”).),

Defendant Hensley brought Plaintiff to his office and had him wait there for six to seven minutes while he retrieved another student; Hensley had information that the second student also had refused to accompany the student aide to the ISS classroom and had cursed at the aide. (Hensley Dep. 48:6-18, 49:14-20; Paul Castaneda Dep. 33:20-24.) At some point between retrieving Plaintiff and transporting him to the Juvenile Detention Center (“JDC”), Hensley searched Plaintiffs backpack, asked Plaintiff to empty his pockets, and handcuffed Plaintiff using flex cuffs. (Hensley Dep. 51:16-52:16, 57:20-22; see also Paul Castaneda Dep. 43:18-24.) Defendant Hensley testified that he left a couple fingers’ space between Plaintiffs wrists and the cuffs. (Hensley Dep. 57:25-58:4.) Plaintiff was never combative, and Defendant Hensley testified he had no reason to believe that Plaintiff would have acted violently. (Id. at 58:8-14.)

Eventually, Defendant Hensley placed Plaintiff and the other student under arrest for interfering with the educational process in violation of N.M. Stat. Ann. § 30-20-13(D). (Id. at 50:1-8.) Mike Archi-beque, Defendant Hensley’s supervisor, reviewed and approved Defendant Hensley’s police report and the decision to arrest Plaintiff. (Id. at 60:18-61:20.) Defendant Hensley then transported Plaintiff to the JDC. (Id. at 58:20-59:24, 60:18-61:20.)

Defendant Hensley testified that when an officer arrests a child, the officer has the option of either faxing a copy of the police report to the Juvenile Probation Office, or taking the child directly to the JDC. (Doc. 64-2, Hensley Dep. 17:19-24.) Plaintiff submitted the deposition of Martha Todd, a juvenile probation officer with the Juvenile Probation Office. (Doc. 64-6, Todd Dep. 4:19-21.) Plaintiffs counsel, Mr. Kennedy, obtained Ms. Todd’s deposition for another case he litigated regarding the arrest of a student—J.H. ex rel. J.P. v. White, D-202-CV-2013-07803. Todd testified that after an officer has faxed the police report and/or taken the child to the JDC, a member of the Juvenile Probation Office completes a preliminary inquiry and decides whether to send it to the children’s court attorney. (Todd Dep. 7:12-8:7.) The children’s court attorney then decides whether to officially file charges against the minor. (Id.)

Staff from the JDC cut the flex cuffs from Plaintiffs wrists at some point after he arrived and placed Plaintiff in a holding cell. (Paul Castaneda Dep. 46:2-23.) Plaintiff testified that when the staff cut the flex cuffs off of his wrists, his hands and/or wrists were blue and had indentations for up to 45 minutes, but then they were fíne. (Id. at 42:4-17; 47:15-20; Doc. 64-4, Paul Castaneda Dep. 79:22-80:13.) Plaintiff asked the nurse at the JDC, “is this bad?,” and she said “[n]o, it will be fine. Just let it breathe for a minute.” (Paul Castaneda Dep. 47:12-18.) Plaintiff never asked Defendant Hensley to loosen the flex cuffs because Plaintiff knew that flex cuffs could not be loosened, and because he “didn’t want any trouble.” (Id. at 42:18-43:9.) Plaintiffs father picked him up from the JDC around 4:00 that afternoon. (Id, at 49:6-9.)

Plaintiff testified that the experience scared him, and that he “shed a tear in the holding cell” at the JDC. (Id. at 55:9-18.) Plaintiff was arrested on a Friday, but he did not go to school on the following Monday because he felt depressed about the incident. (Id. at 51:2-23, 55:5-56:3.) After the incident, Ms. Castaneda testified that she noticed a change in Plaintiffs behavior: e.g., he. started slamming doors, he punched a hole in a wall, he wrote all over his walls (including “I didn’t do it” and “it’s not my fault”), he became disrespectful at home, he cursed at her, he said that he belonged in jail, he said “I give up.” (Doc. 72-8, Linda Castaneda Dep. 77:13-78:7.) Ms. Castaneda testified that this behavior continued for years. (Id. at 78:11-12.) Plaintiff never sought any medical or psychological care after the incident, -although he testified he might benefit from counseling if he could afford it. (Paul Castaneda Dep. at 64:5-24.)

Plaintiff testified that after the arrest, he did not recall teachers treating him differently, but he felt like friends looked at him differently. (Doc. 72-4, Paul Castaneda Dep. 66:1-24.) Plaintiff dropped out of high school in the tenth grade, attended Penn Foster (an online high school course), and received his high school diploma in 2014. (Paul Castaneda Dep. 4:17-5:12.) Since he turned 18 years old, Plaintiff has earned four or five certifications as a volunteer firefighter through the State of New Mexico Fire Academy. (Id. at 5:13-25.) Plaintiff testified that but for his arrest, he might have felt he belonged in school, and he believes he might have done better in classes and gone on to college. (Doc. 72-4, Paul Castaneda Dep. 67:1-21.)

III. Legal Standards

A. Standard for Summary Judgment

Summary judgment is appropriate when the Court, viewing the record in the light most favorable to the non-moving party, determines “that there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56; see also Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact is “material” if it could influence - the determination of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over a material fact is “genuine” if the trier of fact could return a verdict for either party. Id. In cases where the moving party will not bear the burden of persuasion at trial, the moving party bears the initial responsibility of identifying “an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the moving party meets' this burden, Rule 56(e) “requires the nonmoving party to .go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for .trial.’” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e)). The party opposing the motion “must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548). The non-movant may not rely merely on allegations or denials in its own pleadings. Fed. R. Civ. P. 56(e)(2); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Additionally, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

In considering a summary judgment motion, the Court determines “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. Although the material submitted by the parties in support of and in opposition to the motion must be construed liberally in favor of the party opposing the motion, Florom v. Elliott Mfg., 867 F.2d 570, 574 (10th Cir. 1989) (citation omitted), “the burden on the moving party may be discharged by” demonstrating to the district court “that there is an absence of evidence, to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548.

“Genuine factual issues must exist that ‘can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’ ” Harapat v. Vigil, 676 F.Supp.2d 1250, 1258-59 (D.N.M. 2009) (quoting Anderson, 477 U.S. at 250, 106 S.Ct. 2505). “The mere existence of a scintilla of evidence will not avoid summary judgment.” Id. at 1259 (citing Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)). If the evidence in favor of the nonmovant “is merely colorable' ... or is not significantly probative, .... summary judgment may be granted.” Id. (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505).

“When both parties move for summary judgment, the court must analyze each motion individually and on its own merits.” G.M. ex rel. B.M. v. Casalduc, 982 F.Supp.2d 1235, 1241 (D.N.M. 2013) (citing Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) (“explaining that ‘[cjross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of anóther’ ” (alteration- in Casalduc)). “Cross-motions for summary judgment, however, do authorize a court to assume that there is no evidence which needs to be considered other than that which has been filed by the parties.” Id. (quoting Brubach v. City of Albuquerque, 893 F.Supp.2d 1216, 1223 (D.N.M. 2012) (internal citations omitted)).

B. Law Regarding Qualified Immunity

The qualified immunity defense “protects law enforcement officials who are required to exercise their discretion by shielding them from liability for harm caused by reasonable mistakes.” Casalduc, 982 F.Supp.2d at 1241 (citing Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009)). “Qualified, immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Qualified immunity grants such officials “an entitlement not to stand trial or face the other burdens of litigation ....” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

“Courts must use a two-step analysis in deciding whether, a party is entitled to qualified immunity.” Harapat, 676 F.Supp.2d at 1260. “When a defendant moves for summary judgment, on the basis of qualified immunity, the burden shifts to •the plaintiff to demonstrate, on the facts alleged, that (1) the defendant violated [his] constitutional or statutory rights and (2) the right was clearly established at the time of the alleged unlawful activity.” Castillo v. Day, 790 F.3d 1013, 1019 (10th Cir. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The 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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “A right is clearly established if ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Casalduc, 982 F.Supp.2d at 1241 (quoting Courtney v. Okla. ex rel. Dep’t of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013)). In other words, in the light ,of preexisting law, the unlawfulness of the official’s actions must be apparent. Id. “If the plaintiff cannot meet either part of this burden, the defendant is entitled to qualified immunity.” Castillo, 790 F.3d at 1019 (citation omitted).

“An officer is not liable for a reasonable mistake, whether it be a mistake of law, a mistake of fact, or a mistake based on mixed questions, of law and fact.” Id. (quoting Herrera, 589 F.3d at 1070); see also Pearson, 555 U.S. at 231, 129 S.Ct. 808. The Court may address either prong of the two-step qualified immunity analysis first. Id. (citing Courtney, 722 F.3d at 1222).

IV. Discussion

Plaintiffs Complaint contains seven counts, but neither the Complaint, his motion for partial summary judgment, nor his response to Defendants’ motion for summary judgment offer full clarity or define with precision what causes of action he intends to bring. (See Docs. 2, 04, 72.) Most importantly, “he often fails to clearly identify which defendant(s) did what, making his vague allegations all the more difficult to follow.” Scott v. City of Albuquerque, 2014-CV-665, at 3 (D.N.M. Aug. 17, 2015) (citing Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (“[I]n § 1983 áctions, such as here, the Tenth Circuit has ‘stressed the need for careful attention to particulars, especially in lawsuits involving multiple defendants’”)). The Court presents Plaintiffs claims below as understood using all of the pleadings, arguments, and evidence Plaintiff presented, in the same order as the counts in the Complaint.

A. Plaintiff’s Motion and Defendants’ Motion re: Count I of Complaint—Unlawful Arrest, Unlawful Charging, Unreasonable Seizure, and Excessive Force in Violation of the Fourth Amendment

1. Unlawful Arrest

a. Law Regarding Unlawful Arrest

The parties submitted cross-motions1 for summary judgment on the claims contained within Count I. (Docs. 62, 64.) Defendant' Hensley’s motion includes an assertion of qualified immunity. (Do'c. 62 at 10-14.) To overcome Hensley’s assertion of qualified immunity on the issue of unlawful arrest, Plaintiff must demonstrate a violation of his Fourth Amendment constitutional rights,' and that the law on his rights was clearly established at the time Hensley violated it. See Castillo, 790 F.3d at 1019 (citing Pearson, 555 U.S. at 232, 129 S.Ct. 808). The Court will find a violation of an arrestee’s “Fourth Amendment right to be free of unreasonable seizure if the officer makes a warrantless arrest without probable cause.” Harapat, 676 F.Supp.2d at 1263 (quoting Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (citing Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985))). A warrantless arrest is proper so long as the police officer has “probable cause for the arrest.” Id. (citing Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)). “Probable cause exists if facts and circumstances within the arresting officer’s knowledge and of which he or shé ■had reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is, committing an offense.” Id. (quoting Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008) (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995))).

Plaintiff must also show that the constitutional right was clearly established “in light of the specific context of the case, not as a broad general proposition.” Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson, 555 U.S. 223, 129 S.Ct. 808). “The relevant, dispositive inquiry in determining whether a right is clearly established- is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation .... ” Id. (citation omitted). The officer will be entitled to qualified immunity “if the law did not put the officer on notice that his conduct would be clearly unlawful.” Id. (citations omitted). “Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity.” Cortez, 478 F.3d at 1120 (citing Romero, 45 F.3d at 1476). The doctrine of qualified immunity protects arresting officers “if they had ‘arguable probable cause’; they are not required to have had actual probable cause.” Harapat, 676 F.Supp.2d at 1263 (quoting Cortez, 478 F.3d at 1120 & n. 15).

The Tenth Circuit has “held that, for a right to be clearly established, ‘there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.’ ” Cortez, 478 F.3d at 1114-15 (quoting Medina v. City of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). But the Court may find that officials were “on notice that them conduct violates established law even in novel factual circumstances.” Id. at 1115 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

The question of whether an officer had probable cause to arrest is a factual question and may not always be resolved at' the summary judgment stage. If the Court finds no genuine issue of fact about whether there is probable cause, then the second prong of the qualified immunity analysis, the question of “whether an officer ‘should have known’ that his conduct violated constitutional rights[,]” is a legal question for the Court to determine. Id. at 1120 (citing Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000)). “The conduct was 'either objectively reasonable under existing law or it was not.” Id. at 1120-21 (citing Pace, 201 F.3d at 1056).

b. Genuine Issues of Material Fact Remain on the Question of Whether Defendant Hensley Is Entitled to Qualified Immunity for Plaintiffs Claim of Unlawful Arrest

The Court first, turns to whether the “facts and circumstances within [Defendant Hensley’s] knowledge and of which he ... had reasonably trustworthy information are sufficient to lead a prudent person to believe that” Plaintiff committed an offense. Harapat, 676 F.Supp.2d at 1263 (citations omitted). The parties do not agree on the facts surrounding the arrest, but under either party’s version of the facts, the Court finds that there is a genuine issue of material fact about whether Defendant Hensley “had reasonably trustworthy information .'.. sufficient to lead a prudent person to believe that” Plaintiff had committed an offense. Id. (citation omitted). Because there are factual questions surrounding the issue of whether Hensley had reasonably trustworthy information, the Court is unable to determine whether an objectively reasonable officer would know that his conduct was unlawful in this situation. See Cortez, 478 F.3d at 1114. For these reasons, the Court cannot determine whether Defendant Hensley is entitled to qualified immunity on the issue of unlawful arrest at this stage of the proceedings.

Defendant Hensley arrested Plaintiff for violating N.M. Stat. Ann. § 30-20-13(D), which states: “.No person shall willfully interfere with the educational process of any public or private school by committing, threatening to commit of inciting others to commit any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public or private' school.” “In evaluating whether the events leading up to this arrest amount to probable cause, [the Court asks] whether an objectively reasonable officer could conclude that the historical facts at the time of the arrest amount to probable cause.” Cortez, 478 F.3d at 1116 (citing Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003); Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000)). “Probable cause is based on the totality of the circumstances, and requires reasonably trustworthy information that would lead a reasonable officer to believe that the person about to be arrested has committed or is about to commit a crime.” Id. (quoting Pringle, 540 U.S. at 371 n.2, 124 S.Ct. 795).

In his response to Defendants’ motion, Plaintiff argues that Defendant Hensley cannot demonstrate evidence of a key component of § 30-20-13(D), that Plaintiff willfully interfered with the educational process. (Doc. 72 at 12-14.) Plaintiff and Defendant Hensley offer different versions of the facts relevant to Plaintiffs intent. Under either version, the only information Defendant Hensley had which arguably implicated Plaintiff as having violated § 30-20-13(D) was a statement attributed to a student aide who said Plaintiff refused to accompany the aide back to the ISS classroom. The aide’s statement was relayed to Defendant Hensley from Ms. Tate, who had presumably spoken to the student aide. There is'no information in the summary judgment record that Defendant Hensley followed up with the student aide directly, that he knew the student aide’s identity, or that he knew-"whether the aide had a reputation for being a reliable source of information. Rather than interviewing the aide himself, asking Plaintiff if he had refused to accompany the aide, speaking to Plaintiffs regular first period teacher, or engaging in any other investigative efforts, Officer Hensley responded to the aide’s statement by immediately arresting Plaintiff. See Cortez, 478 F.3d at 1116 (where police officers’ only evidence of a crime , was a statement from a two-year-old child relayed through two adults by telephone, officers had a duty to investigate more before effectuating a war-rantless arrest); see also Romero, 45 F.3d at 1476-77 (“[T]he probable cause standard of the Fourth Amendment requires officers to reasonably interview witnesses readily available at the scene, investigate basic 'evidence, or otherwise inquire if a crime has been committed at all before invoking the power of warrantless arrest and detention”).

The parties disagree about what Plaintiff said to Defendant Hensley when he collected Plaintiff from the first period classroom. Hensley testified that the only thing Plaintiff said was that he did not have ISS. (Hensley Dep. 50:6-8.) Plaintiff asserts that when Defendant Hensley came to his classroom that morning, Plaintiff gathered his belongings and volunteered to go to ISS right then. (Paul Castaneda Dep. 33:6-20.) Plaintiff testified that after he volunteered to go to ISS, Defendant Hensley replied, “no, you need to come to my office.” (Id. at 33:19-20.) There is also evidence in the record that Plaintiffs teacher, Ms. Jones, may have told Defendant Hensley that Plaintiff “may very well have forgotten to go to ISS, since that is his' disability.” (Doc. 72-7.) Defendant Hensley contends that the evidence in the summary judgment record demonstrates that Plaintiff willfully interfered with the educational .process. Hensley asserts that his decision and the probable cause determination were bolstered by the fact that his supervisor approved his decision to arrest. (Doc. 62 at 11.) Hensley cites no authority to support the conclusion that a Court must find probable cause for a warrantless arrest where an officer obtained supervisor approval.

Questions of fact remain that preclude the Court from deciding whether a reasonable officer would have concluded .that Plaintiffs behavior violated the statute. The statute prohibits persons from willfully interfering with the educational process. N.M. Stat.. Ann. § 30-20-13(D) (1978) (1953 Comp., § 40A-20-10): There are two cases that explicitly discuss the intent requirement under this statute and its predecessor, N.M. Stat. Ann. § 40-20-10(C) (1953), in the context of an educational environment: State v. Silva, 86 N.M. 543, 525 P.2d 903 (1974) and Casalduc, 982 F.Supp.2d 1235.

The New Mexico Supreme Court examined the constitutionality of ,§.40A-20-10(C) in Silva, 525 P.2d 903. The Silva appellants had staged a sit-in at. the Eastern New Mexico university president’s office;- police arrested the appellants after the university, president repeatedly requested, that they leave. Id. at 904t Appellants challenged the constitutionality of § 40A-20-10(C), arguing that, the statute was void in part for. vagueness. Id. at 904-OS. In denying appellants’ challenge on the issue of vagueness, the court noted that “the intent requirement ... increases the statute’s certainty.” Id. at. 907 (citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). “Not only must the refusal be willful[,] ... but the disruption must also be accompanied by general intent.” Id. (citing State v. Shedoudy, 45 N.M. 516, 118 P.2d 280 (1941); State v. Ruga, 85 N.M. 204, 510 P.2d 1075 (N.M. Ct. App. 1973)).

Section 30-20-13(D) also requires willful intent: “No person shall willfully interfere with the educational process ....” This Court examined the meaning of “willful” as used in § 30-20-13(D) in a context that is very similar to the one at hand. Casalduc, 982 F.Supp.2d at 1244. The 14-year-old plaintiff in Casalduc was texting on her cell phone during class at Harrison Middle School in violation of school policy, and she refused to put the phone away after multiple requests from her teacher. Id. at 1239-40. The dean of the school brought the student to the administrative offices, where she also ignored requests to relinquish the cell phone from the dean and a counselor. Id. at 1240.

The dean asked for assistance from Officer Casalduc, the School Resource Officer. Id. at 1238, 1240. Officer Casalduc explained the school’s policy on cell phones to the student, but the student neither made eye contact with nor responded to Casalduc. Id. at 1240. Officer Casalduc explained § 30-20-13(D), how the student’s actions in texting during class and refusing to turn over her phone violated the statute, and how her behavior disrupted and interfered with school functions. Id. Officer Ca-salduc then told the student “that he would not arrest her if she agreed to relinquish the phone.” Id. He asked her for the phone again; she did not respond. Id. He gave her . another warning, explaining that he would arrest her unless she relinquished her phone to the counselor. Id. The student did not make eye contact or respond to the officer, and he arrested her for violating § 30-20-13(D). Id.

In deciding whether the student’s actions were willful within.the context of the statute, the Court noted that “New Mexico case law defines criminal willfulness as connoting knowledge or as acting ‘without just cause or lawful excuse.’ ”' Casalduc, 982 F.Supp.2d at 1244 (quoting State v. Elliott, 131 N.M. 390, 37 P.3d 107, 111 (N.M. Ct. App. 2001) (where defendant was scheduled to appear for a jury trial at 8:00 a.m. and he believed the trial started at 9:00‘ a.m. but still had not arrived at 9:15 a.m., defendant’s behavior was “willful” in that it was “without just cause or lawful excuse”); State v. Elmquist, 114 N.M. 551, 844 P.2d 131, 131 (N.M. Ct. App. 1992) (“equating willfulness and intention; an individual acts willfully when hé is aware of what he is doing”)). The Court found that the student’s actions in repeatedly ignoring the officer’s warnings and opportunities to comply would allow “a. reasonable officer [to] conclude that she knowingly and without just cause disrupted school functions and interfered with school procedures.” Id.

The evidence regarding whether Plaintiffs' actions show willful- intent are markedly different from that of the arrestees in either Silva or Casalduc. Whereas the Silva and Casalduc arrestees ignored multiple warnings anti opportunities to comply from adult authority figures, the facts in evidence show that Plaintiff possibly received only one warning from a student aide. Under Plaintiffs version of the facts, not only did he not willfully refuse to comply with the student aide (he said the student aide never came to get him), but he also volunteered to go to the ISS classroom as soon as Defendant. Hensley came to his room. There is also evidence that Hensley had information from Ms. jones, Plaintiffs first period teacher, which could be construed to conflict with the student aide’s statement. Further, there is no evidence in the record that, demonstrates whether the student aide was a trustworthy source of information.

Defendant Hensley points to several other recent cases in the District of New Mexico that have analogous fact patterns. (Doc. 69 at 18 (citations omitted).) In each of these cases, an SRO arrested a student for violating the statute at issue here, and in each case, the Court found that the SRO had probable cause or arguable probable cause to support the warrantless arrest. See J.H. ex rel. J.P. v. Bernalillo County, 61 F.Supp.3d 1085, 1115, 1122, 1159-60 (D.N.M. 2014); Casalduc, 982 F.Supp.2d at 1240, 1244; Scott, 2014-CV-665, at 2, 9; A.M. v. Acosta, 2012-CV-74, at 4-7 (D.N.M. Sept. 19, 2014). But each ease is also distinguishable from the facts in this summary judgment record in one important way—the SRO either saw the behavioral infraction for which the student was arrested, or the SRO had first-hand information from a teacher or administrator who witnessed the behavioral infraction. See J.H., 61 F.Supp.3d at 1159-60; Casalduc, 982 F.Supp.2d at 1240; Scott, 2014-CV-665, at 11; Acosta, 2012-CV-74, at 4. Defendant Hensley did not see Plaintiff violate the statute or have first-hand information from a teacher or administrator who witnessed Plaintiff violate the statute. Defendant Hensley presented no argument or authority about whether relying on the second-hand statement from the student aide as probable cause to arrest would be a reasonable mistake as contemplated by Herrera, 589 F.3d at 1070, and the Court declines to pass judgment on that question without further briefing from the parties.

“Summary judgment on the basis of qualified immunity is inappropriate where there is á factual dispute involving an issue on which qualified immunity turns.” Harapat, 676 F.Supp.2d at 1266 (citing Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988)). “Viewing the evidence presented in the light most favorable to [Plaintiff],' the Court finds that it is uncertain whether [Defendant Hensley] is entitled to qualified immunity for [Plaintiffs] unlawful-arrest claim.” Id. At this juncture, it is unclear whether Defendant Hensley justifiably relied on the student aide as a trustworthy source of information and had probable cause to arrest Plaintiff, or whether “a reasonable officer could conclude that [Plaintiff] knowingly and without just cause disrupted school functions and interfered with school procedures.” Casalduc, 982 F.Supp.2d at 1244. Plaintiffs motion for summary judgment is denied, and Defendants’ motion for qualified immunity is denied on the issue of unlawful arrest.

2. Unreasonable Seizure

a. Law Regarding Unreasonable Seizure

Plaintiff contends in his motion for summary judgment that Defendant Hensley’s seizure was unreasonable and served no legitimate governmental interest. (Doc. 64 at 22-24.) The Fourth Amendment protects against an arrest conducted in “an ‘extraordinary manner, unusually harmful to [the suspect’s] privacy or ... physical interests.’ ” Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (quoting Whren v. United States, 517 U.S. 806, 818, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). Examples of searches and seizures that have been found to be extraordinary and unusually harmful include “seizure by means of deadly force, ... unannounced entry into a home, ... entry into a home without a warrant, ... or physical penetration of the body ....” Whren, 517 U.S. at 818, 116 S.Ct. 1769 (citations omitted).

b. Defendant Hensley is Entitled to Qualified Immunity on Plaintiff’s Claim of Unreasonable Seizure

This Court examined the question of whether a seizure was unreasonable in a context that is strikingly similar to the one at hand. In Scott v. City of Albuquerque, the SRO arrested a student for skipping class in violation of the same statute. 2014-CV-665, at 1-2. The SRO handcuffed the student and transported him to the JDC. Id. at 1. The student, who was represented by the same firm as Plaintiff, brought many of the same claims as the ones at issue here against three of the same Defendants—Defendant Hensley (the SRO), Chief Schultz, and the City of Albuquerque. Id. In Scott, this Court found' that “[t]he Supreme Court’s analysis in Atwater guides the conclusion here.” Id. at 12.

In Ativater, an officer arrested the petitioner for “failing to ensure her children were wearing seat belts” and for failing to wear her own seat belt. Id. (citing Atwater, 532 U.S. at 324, 121 S.Ct. 1536). The officer handcuffed and transported Atwater to the police station. Atwater, 532 U.S. at 324, 121 S.Ct. 1536. The Supreme Court found that while “Atwa-ter’s arrest was surely ‘humiliating,’ ... it was no more ‘harmful to' ... privacy or ... physical interests’ than the normal custodial arrest. ... The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.” Id. at 354-55, 121 S.Ct. 1536. The Court found that the arrest in Scott followed suit— while the student may have been embarrassed, there was “nothing to suggest any extraordinary means were used in Mr. Scott’s arrest akin to those discussed by the Supreme Court in Whren, such as the use of deadly force or physical penetration of the body.” Scott, 2014-CV-665, at 13 (citing Whren, 517 U.S. at 818, 116 S.Ct. 1769). The same is true here. Plaintiff offers no argument or authority to support his contention that Defendant Hensley’s use of flex cuffs or transport to the JDC during this warrantless arrest was extraordinary or unusually harmful to Plaintiff’s privacy or physical interests.

Additionally, as the plaintiff did in Scott, Plaintiff points to the New Mexico Children’s Code as authority to establish the proposition that Defendant Hensley’s seizure of Plaintiff was unreasonable and extraordinary. (Doc. 64 at 26 (citing N.M. Stat. Ann. § 32A-2-11(A)).) See also Scott, 2014-CV-665, at 13-14. Plaintiff contends that because officers • have the option of calling the Juvenile Probation Office to get a risk, assessment completed over the telephone, that the. .choice to transport the child to the JDC instead constitutes an unreasonable seizure. .(Doc. 64 at 26.) Plaintiff cites no authority to ’support this argument. The statute Plaintiff relies upon is, in fact, inapplicable to this situation. As this Court explained in both Scott and J.H., § 32A-2-11(A) “concerns whether a child taken into custody for an alleged delinquent act should be placed in detention.” Scott, 2014-CV-665, at 13; see also J.H., 61 F.Supp.3d at 1172. That section prohibits officers from placing “a child taken into custody” into detention unless and until certain criteria are met. § 32A-2-11(A). Defendant Hensley placed Plaintiff into custody, Hensley is not responsible for deciding whether juveniles in custody will be placed into detention. Scott, 2014-CV-665, at 13. An officer from the Children, Youth, and Families Department of the State of New Mexico would have made the.decision about whether to place Plaintiff in detention. J.H., 61 F.Supp.3d at 1172 (citing N.M. Stat. Ann. § 32A-2-5(B)(3)); see also Scott, 2014-CV-665, at 13. (See also Todd Dep. 7:12-8:7.) “Personal liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Scott, 2014-CV-665, at 13 (quoting Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)) (alteration omitted)). Because “[Defendant] Hensley was not’required to determine- whether [Plaintiff] should be placed in secure detention,” he was not personally involved in the alleged constitutional violation. Id. at 13. Moreover, Plaintiff cites no authority to support his contention that transporting Plaintiff to the JDC following “the arrest constitute^] an ‘extraordinary’ procedure.” Scott, 2014-CV-665, at 14.

• Based on the evidence in the summary judgment record, “a reasonable jury could not conclude the manner in which [Defendant] Hensley arrested [Plaintiff] was unusually harmful to his privacy or physical interests.” Id. Plaintiff has failed to show that Defendant Hensley conducted the arrest in an extraordinary manner, thereby violating Plaintiffs constitutional rights. Plaintiffs motion for summary judgment is denied on this claim. Officer Hensley is entitled to qualified immunity with respect to Plaintiffs claim for unreasonable seizure.

3. Excessive Force

a. Law Regarding Excessive Force

“When an officer moves for qualified immunity on an excessive force claim, ‘a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law).’ ”' Harapat, 676 F.Supp.2d at 1264 (quoting Cortez, 478 F.3d at 1128). Courts use the same objective reasonableness standard to analyze Fourth Amendment excessive' forcé claims “that governs other Fourth Amendment inquiries.” Id. (quoting Cordova v. Aragon, 569 F.3d 1183, 1192 (10th Cir. 2009); citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Courts evaluate objective reasonableness “under a totality of the circumstances approach [considering] the following factors: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir. 2008) (citation omitted). “Additionally, a court must judge the reasonableness of a particular use of force from ‘the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. .. That perspective includes an examination of the information possessed by the [officer].” Harapat, 676 F.Supp.2d at 1264 (quoting Weigel, 544 F.3d at 1152).

Whether an officer violates a person’s constitutional rights in using handcuffs during the seizure “depends on the objective reasonableness of the officer's] actions.” Id. (citing Silvan W. v. Briggs, 309 Fed.Appx. 216, 224 (10th Cir. 2009)). While the Tenth Circuit does not have “a bright-line rule requiring plaintiffs to demonstrate physical injury when bringing excessive force claims ... [,] when an excessive force claim relies upon unduly tight handcuffing, [the Tenth Circuit has] held that the plaintiff must show some actual injury,” Id. (quoting Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208 (10th Cir. 2008) (alterations in original)).

Wheré a plaintiff brings claims of unlawful arrest and excessive force that arise “from a single encounter,” courts must “consider both the justification the officers, had for the arrest and the degree of force they used to effect it.” Cortez, 478 F.3d at 1127. Where the plaintiff can establish: “that the officers lacked probable cause, he is .entitled to damages for the unlawful arrest, which includes damages resulting from-any force reasonably .employed in effecting the arrest.” Id. “If the plaintiff can prove that the .officers used greater force than would have been rear sonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force;” Id. While the “two inquiries are separate and independent, ... the evidence may overlap,” Id. It is possible for the plaintiff to prove “the unlawful arrest claim, the éxcessive force claim, both, or neither.” Id. “Moreover, ⅛ 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.’ ” Harapat, 676 F.Supp.2d at 1265 (quoting Cortez, 478 F.3d at 1126).

b. Defendant Hensley is Entitled to Qualified Immunity on Plaintiffs Claim of Excessive Force

The Court analyzes the force applied in handcuffing Plaintiff in the context of a lawful arrest. Cortez, 478 F.3d at 1126. To overcome the protection of qualified immunity on his excessive force claim, “Plaintiff must show that (1) [Defendant Hensley] used excessive force during the arrest in violation of the Fourth Amendment, and (2) it would have been clear to a reasonable officer that the force exercised by [Defendant Hensley] was excessive and unconstitutional.” Casalduc, 982 F.Supp.2d at 1246. Again, the Court considers “what a reasonably prudent law enforcement officer would have found reasonable” considering “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether, he is actively resisting arrest or attempting to evade arrest by flight.” Harapat, 676 F.Supp.2d at 1268 (quoting Weigel, 544 F.3d at 1151-52).

“The Supreme Court has stated that a small amount of force, such as an arrest where one is handcuffed, placed in a police vehicle, and taken to the police station may be inconvenient and embarrassing, but it does not rise to the level of excessive force.” Id. at 1269 (citing Atwater, 532 U.S. at 354-55, 121 S.Ct. 1536). Where a plaintiff claims that the handcuffing itself constitutes excessive force,, the Tenth Circuit has held that a court may find excessive force where there is an allegation of (1) actual injury due to the handcuffing and that (2) the “officer ignored’ [the] plaintiffs timely complaints (or was otherwise made aware) that the handcuffs were, too tight.” Id. at 1269 (quoting Cortez, 478 F.3d at 1129). “The Tenth Circuit requires more than de minimis injury.” Id. (citing Cortez, 478 F.3d at 1129).

Plaintiff asserts that his only physical injury was that his fingers, hands, and/or wrists were blue with indentations for a few minutes after JDC staff cut the flex cuffs off, but then they were fine. (Compl. at ¶ 25; Paul Castaneda Dep. 42:4-17, 47:15-20.) The only evidence of an emotional injury is Plaintiffs testimony that he “shed a tear” in the holding cell and exhibited signs of anger and/or depression after the arrest. (Paul Castaneda Dep. 51:2-23, 55:5-56:3; Doc.72-8, Linda Castaneda Dep. 77:13-78:12.) Plaintiff admits that he suffered no lasting physical injury from being handcuffed, and he never sought medical or psychological care as a result of the arrest or handcuffing. (Paul Castaneda Dep. at 64:5-24.) These assertions, without more, are insufficient to demonstrate an actual physical or emotional injury.

The Tenth Circuit has held that to recover on an excessive force claim, based on tight handcuffing, the plaintiff must demonstrate an actual injury, either physical or emotional. Casalduc, 982 F.Supp.2d at 1247-48 (citing Cortez, 478 F.3d at 1127 n.25). An actual physical injury must be more than redness that lasts for days, chaffing, or soreness due to the handcuffs. See Cortez, 478 F.3d at 1129; Silvan, 309 Fed.Appx. at 224-25. For example, the plaintiff in Cortez v. McCauley asserted that the handcuffs he wore left red marks for days. 478 F.3d at 1129. Even so, the Tenth Circuit held that Cortex’s injury was “insufficient, as a matter of law, to support an excessive force claim if the use of handcuffs is otherwise justified.” Id. See also Segura v. Jones, 259 Fed.Appx. 95, 103 (10th Cir. 2007) (where the marks on suspect’s wrists from handcuffs were gone by the next day,, the injury was de minimus). In the unpublished case Silvan v. Briggs, where a plaintiff “suffered ‘chaffing and soreness of wrists’ and ‘extreme emotional trauma’ ” from being handcuffed in public, the Tenth Circuit found that these injuries were de minimus. 309 Fed.Appx. at 224-25. That Plaintiffs fingers and/or wrists were blue for several minutes, without more, does not rise to .the level of actual injury. Nor does Plaintiff contend that he suffered even “extreme emotional trauma,” such as the Silvan' plaintiff. See id. The Court finds that Plaintiff has offered insufficient evidence to demonstrate any actual injury.

Plaintiff testified that while he felt like the flex cuffs Defendant Hensley put on him were too .tight, Plaintiff never asked Hensley to loosen the flex cuffs because he knew that flex cuffs could not be loosened, and because he “didn’t want any trouble.” (Paul Castaneda Dep. 42:18-43:9.) The Tenth Circuit has found that “unduly tight handcuffing may "fail to rise to the level of excessive force if the plaintiff did not complain about the handcuffs and the officer was not otherwise aware that the handcuffs were too tight.” Casalduc, 982 F.Supp.2d at 1248 (citing Cortez, 478 F.3d at 1129). Defendant Hensley testified that he left a couple fingers’ space between Plaintiffs wrists and the cuffs. (Hensley Dep. 57:25-58:4.) This testimony, together with the fact that Plaintiff never complained about the handcuffs tightness— regardless of Plaintiffs reasons for failing to complain—demonstrates that there is no evidence that Defendant Hensley was aware that Plaintiffs handcuffs were too tight.

Plaintiff asserts that because he was a minor at the time of the incident, the simple act of handcuffing him, even without an injury that is more than de mini-mus, is sufficient for an excessive force claim. (Doc. 72 at 16-17.) Plaintiff contends that Holland ex rel. Overdorff v. Harrington, a Tenth Circuit case, cautions officers against using even “harsh language” in seizing children, but the Court finds that Holland is inapposite. 268 F.3d 1179, 1194-95 (10th Cir. 2001). In Holland, SWAT deputies clothed in hooded combat fatigues executed warrants on a residence, looking for a suspect accused of committing a violent-assault. Id. at 1183-84. During the execution of the warrants, deputies aimed their weapons at several children, even after they had gained control of the premises and occupants. Id. at 1183-84, 1193. The Tenth Circuit found that under the circumstances, where SWAT deputies aimed loaded weapons at children, the minor-plaintiffs did not need to show actual physical injury to bring a claim of excessive force. Id. at 1195. Holland, however, “is not merely distinguishable, but entirely different: it involved pointing firearms directly at entirely innocent children who happened to be in the wrong place at the wrong time—not handcuffing a child who had recently, to the officer’s eyes,” violated a statute and disrupted the duti