We hold that Hannula has failed to show that Lively violated a clearly established right. First, we note that the extent of Hannula's injury is minimal. Hannula presents no evidence of contusions, lacerations or damage to the bones or nerves of her wrists.
The evidence establishes nothing more than that the handcuffing caused her pain. Second, Hannula has not proven that the amount of force was substantial. Indeed, if the injury is minimal, it is likely that the force creating the injury was also minimal. Third, on the issue of the officer's intent,
Hannula stated in her deposition that the officer appeared angry after she refused to submit to the breath test. While this evidence may be probative of malice, it certainly does not establish it. Hannula points to no other evidence in the record showing malice. Considering all three factors together, we conclude that Hannula has not produced sufficient evidence to prove that Lively's actions constituted a clearly established constitutional violation under
Hewitt. Compare this case
with Trujillo, 825 F.2d at 1454 (plaintiff stated cause of action for excessive force where police threw heavy metal flashlight at plaintiff, which caused a
depressed skull fracture and required immediate surgery)
and Martin v. Duffie, 463 F.2d 464 (10th Cir.1972) (plaintiff stated cause of action for excessive force where he was struck on head with such force that he suffered a
brain injury which required immediate surgery).