The opinion
Case: 23-60451 Document: 74-1 Page: 1 Date Filed: 09/04/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 4, 2024
No. 23-60451
Lyle W. Cayce
____________
Clerk
Adrian Hoyle,
Plaintiff—Appellant/Cross-Appellee,
versus
City of Hernando; Scott Worsham, in his official capacity as
Chief of Police of the Hernando Police Department; Officer Lynn
Brown, Individually and in his official capacity as a Hernando Police Officer,
Defendants—Appellees/Cross-Appellants,
Officer Hunter Solomon,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:21-CV-171
______________________________
Before Higginson, Willett, and Oldham, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-60451 Document: 74-1 Page: 2 Date Filed: 09/04/2024
No. 23-60451
This appeal arises from a high-speed chase involving two Hernando
Police Officers, Lynn Brown and Hunter Solomon, and one man, Adrian
Hoyle, who ran a red light. After Hoyle was restrained on the ground, Officer
Brown allowed his police dog to continue biting Hoyle, while Officer
Solomon stomped on Hoyle’s motionless body. Hoyle filed suit under 42
U.S.C. § 1983 against the City of Hernando, the chief of police of the
Hernando Police Department, and Officers Brown and Solomon. The
district court granted summary judgment to all defendants, concluding that
the Heck bar1 applied and, in the alternative, that Hoyle had failed to
demonstrate a constitutional violation. Hoyle filed a motion for
reconsideration and all defendants (minus Officer Solomon) filed a motion
for attorney’s fees. Both were denied. Hoyle appealed and defendants
(minus Officer Solomon) cross-appealed. We AFFIRM.
I.
A.
On September 3, 2020, Officer Brown, while off-duty, observed a blue
Chevrolet Malibu, driven by Hoyle, run a red light at a high rate of speed.
Officer Brown activated his emergency lights and attempted to stop the car,
continuing his pursuit even after Lieutenant Robert Scott ordered him to
stop.2 Hoyle led Officer Brown and other officers who joined the pursuit on
an eight-minute high-speed chase. During the chase, Hoyle drove erratically,
_____________________
1
Heck v. Humphrey, 512 U.S. 477 (1994).
2
This isn’t the first time Officer Brown has ignored a supervisor’s order to cease
a high-speed pursuit. See, e.g., White v. City of Hernando, No. 3:21-CV-162, 2022 WL
4543182, at *1 (N.D. Miss. Sept. 28, 2022) (“[A]lthough Officer Lynn Brown of the
Hernando Police Department was not initially involved in the chase, he was aware of the
pursuit and was likewise aware of Lieutenant Coleman’s decision to terminate it. In fact,
the Defendants admit that Officer Brown was aware of the directive to terminate the
chase.”).
2
Case: 23-60451 Document: 74-1 Page: 3 Date Filed: 09/04/2024
No. 23-60451
passed several vehicles, drove on the wrong side of the road, and nearly
collided with other cars. Hoyle eventually lost control of the car and drove
into a ditch, where the Malibu was boxed in by the patrol cars of Officers
Brown and Solomon.
Officer Brown’s dash-cam footage reveals the following after the
chase ended: Two seconds after the Malibu came to a stop, Hoyle exited the
car with his hands raised in surrender. Shortly thereafter, Officer Brown set
his police dog (“K-9”) on Hoyle. The K-9 latched onto Hoyle’s leg for
approximately one minute, until Officer Brown pulled the K-9 off Hoyle.
During the encounter, Officer Brown allowed the K-9 to continue biting
Hoyle for roughly 30 seconds after Hoyle had already been restrained.3 While
the K-9 had Hoyle’s right leg in its jaws, Officer Solomon threw seven close-
fisted punches at Hoyle’s head, including two while Hoyle was lying on the
ground. Hoyle swung back once at Officer Solomon (and missed). Then,
once Hoyle was already restrained in handcuffs on the ground, Officer
Solomon proceeded to stomp on Hoyle’s motionless, supine body.
Hoyle was later taken in a squad car to the hospital for treatment.
According to Officer Brown’s report, the Officers did not know the Malibu
was stolen at the time of the chase and only learned this fact when Hoyle later
admitted to stealing the vehicle in Memphis. Hoyle was charged with felony
fleeing and possession of stolen property in Mississippi state court. Two
charges of assault on a law-enforcement officer were later added.
_____________________
3
This isn’t the first time Officer Brown has deployed a K-9 for an extended period
of time. See, e.g., Cooper v. Brown, 156 F. Supp. 3d 818, 828 (N.D. Miss.) (“Brown’s alleged
explanation (contradicted by his own expert) that ‘he didn’t have to get the dog off until he
got the cuffs on’ seems quite consistent with his deposition testimony, which appears to
depict an officer in no great hurry to terminate the attack by his dog.”), aff’d in part, appeal
dismissed in part, 844 F.3d 517 (5th Cir. 2016).
3
Case: 23-60451 Document: 74-1 Page: 4 Date Filed: 09/04/2024
No. 23-60451
On June 3, 2021, Hoyle entered into a plea agreement in which he
pleaded guilty to felony fleeing in exchange for the other charges being
remanded.4 See Miss. Code Ann. § 97-9-72(2). In the factual basis
articulated by the prosecution in support of Hoyle’s plea, Hoyle admitted
(with two caveats) to the following:
(1) that he “operated his motor vehicle in a reckless manner
with willful disregard for the safety of persons or property or in
a manner manifesting extreme indifference to the value of
human life[,]” specifically driving “at a high rate of speed” in
an “erratic” manner, “passing vehicles, driving on the wrong
side of the road, [and] forcing cars off the roadway nearly
hitting other vehicles”; (2) that he “refuse[d] to bring his
motor vehicle to a stop after being given a visible or audible
signal [b]y Officer Lynn Brown . . . who had reasonable
suspicion to believe that [Hoyle] had committed a crime”; (3)
that he “well kn[ew] that Officer Lynn Brown was in fact a law
enforcement officer acting within the scope of his duty”; (4)
that he eventually “lost control, [] ran off the road[,]” and,
when “officers tried to box him in[,]” he struck “both
officers[’] . . . vehicles” before “finally c[oming] to a stop”;
and (5) that the “the officers deployed a K-9 to apprehend the
suspect fearing [Hoyle] may have a weapon.”
Hoyle also admitted, as part of the factual basis, that the K-9 “engage[d] the
lower right leg of [Hoyle] as he continued to resist arrest.”
When the state court asked Hoyle whether he “ha[d] any
disagreements with the factual bases set out by the prosecutor,” Hoyle took
_____________________
4
At oral argument, the parties clarified that when charges are “remanded” under
Mississippi law, they are dismissed without prejudice. See Oral Arg. at 9:55-10:05, 27:39-
27:45; see also Rew v. Vincent, 489 F. Supp. 3d 563, 575-76 (S.D. Miss. 2020) (concluding
“that a remand to the file does not constitute a ‘conviction or sentence’ under Heck, or an
ongoing state criminal proceeding also protected by Heck” (citations omitted)).
4
Case: 23-60451 Document: 74-1 Page: 5 Date Filed: 09/04/2024
No. 23-60451
issue with two statements: He responded that “[he] didn’t strike the
[officer’s] vehicle and [he] didn’t strike the officer.” Seeking clarification,
the court asked Hoyle if he agreed with the prosecution’s assertion that
Hoyle “fle[d] the scene when the officer was trying to arrest [him],” and
Hoyle “agree[d] what the prosecutor said about that is accurate.”
The court accepted the joint recommendation of the State and Hoyle
and sentenced Hoyle to a term of 274 days. The court ordered that counts 2,
3, and 4 would be remanded and Hoyle would be given credit for 274 days
served in custody.
B.
Hoyle filed his original complaint in July 2021, pursuant to 42 U.S.C.
§ 1983, asserting federal and state-law claims. He amended his complaint
approximately a month later. In his amended complaint, Hoyle asserts
federal excessive-force claims under the Fourth and Fourteenth
Amendments and state-law claims of negligent hiring, supervision, and
retention, as well as negligent and/or intentional infliction of emotional
distress.5 The City of Hernando; Scott Worsham, Chief of Police of the
Hernando Police Department; and Officer Brown (collectively, “the
Municipal Defendants”) and Officer Solomon moved for judgment on the
pleadings or, in the alternative, for summary judgment.
In September 2022, Judge Biggers granted defendants’ motions for
judgment on the pleadings or, alternatively, for summary judgment. The
court determined that Hoyle’s federal excessive-force claims were Heck
barred and, alternatively, did not demonstrate a constitutional violation. The
court dismissed Hoyle’s federal claims with prejudice, and declined to
_____________________
5
As the district court correctly noted, Hoyle abandoned any federal unlawful-arrest
claim.
5
Case: 23-60451 Document: 74-1 Page: 6 Date Filed: 09/04/2024
No. 23-60451
exercise jurisdiction over his state-law claims, dismissing them without
prejudice.
Hoyle filed a Federal Rule of Civil Procedure 59(e) motion for
reconsideration, and the Municipal Defendants filed a motion for prevailing-
party attorney’s fees. While those motions were pending, Judge Biggers
retired and the case was reassigned to Judge Mills.
In August 2023, Judge Mills denied both motions. As to Hoyle’s
motion for reconsideration, the court found that “[Hoyle] has a good faith
argument that Judge Biggers’ conclusion that [Hoyle’s] prevailing in this
lawsuit would ‘necessarily imply’ the invalidity of his criminal conviction
runs afoul of” Fifth Circuit precedent, but declined to grant the motion.
Concerning its denial of the Municipal Defendants’ motion for attorney’s
fees, the court reasoned that the Heck issues are “rather close ones,” and that
Hoyle’s allegations of excessive force are not “frivolous.”
Hoyle appealed and the Municipal Defendants cross-appealed in a
timely manner.
II.
We have appellate jurisdiction under 28 U.S.C. § 1291 over the denial
of Hoyle’s motion for reconsideration and the Municipal Defendants’
motion for attorney’s fees. We review a denial of a Rule 59(e) motion for
abuse of discretion. Wise v. Wilkie, 955 F.3d 430, 434 (5th Cir. 2020). To
the extent the ruling was a reconsideration of a question of law, it is reviewed
de novo. Id. “A district court abuses its discretion if it bases its decision on
an erroneous view of the law or on a clearly erroneous assessment of the
evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (internal
quotation marks and citation omitted).
6
Case: 23-60451 Document: 74-1 Page: 7 Date Filed: 09/04/2024
No. 23-60451
III.
First, we consider the district court’s denial of Hoyle’s motion for
reconsideration. The underlying dismissal of Hoyle’s federal excessive-force
claim rested on two grounds: First, the district court concluded Hoyle’s
federal excessive-force claim was Heck barred. Second, the district court held
that “[n]otwithstanding the Heck bar, . . . it is not constitutionally excessive
to release a canine to effectuate an arrest,” so there was “no viable excessive
force claim.”
On appeal, Hoyle urges that the Heck bar is inapplicable because his
excessive-force claim and his felony-fleeing conviction are “temporally and
conceptually distinct.” Poole v. City of Shreveport, 13 F.4th 420, 426-27 (5th
Cir. 2021) (quoting Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008)).
But Hoyle’s counsel inexplicably waived any challenge to the district
court’s second, independent basis for its decision—i.e., its alternative
holding on the merits that Hoyle failed to demonstrate a constitutional
violation. In his opening brief, Hoyle asserts that “[t]he sole issue before this
[c]ourt is whether the Heck doctrine . . . precluded, as a matter of law, the
federal excessive force claims made by Hoyle.” By circumscribing his appeal
to the Heck-bar issue and failing to dispute the district court’s alternative
holding, Hoyle’s counsel waived any challenge to the court’s alternative
decision on the merits.6 See Smith v. Sch. Bd. of Concordia Par., 88 F.4th 588,
594-96 (5th Cir. 2023).
So, notwithstanding the possible merit of Hoyle’s Heck-bar argument,
we affirm the district court’s order denying Hoyle’s motion for
_____________________
6
We note that the motion for reconsideration filed below by Hoyle’s counsel also
abandoned any challenge to the district court’s no-constitutional-violation holding.
7
Case: 23-60451 Document: 74-1 Page: 8 Date Filed: 09/04/2024
No. 23-60451
reconsideration because Hoyle’s counsel abandoned any challenge to the
district court’s no-constitutional-violation holding.
IV.
Next, we consider the district court’s denial of the Municipal
Defendants’ motion for attorney’s fees. We review that decision for abuse
of discretion. Merced v. Kasson, 577 F.3d 578, 595 (5th Cir. 2009).
“In any action or proceeding to enforce a provision of [42 U.S.C.
§ 1983], the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). But
attorney’s fees are “presumptively unavailable” for prevailing defendants.
Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001). Prevailing defendants
“cannot recover § 1988 fees without demonstrating that the plaintiff’s
underlying claim was frivolous, unreasonable or groundless.” Merced, 577
F.3d at 595 (citation omitted). “When considering whether a suit is
frivolous, a district court should look to factors such as whether the plaintiff
established a prima facie case, whether the defendant offered to settle, and
whether the court held a full trial.” Myers v. City of W. Monroe, 211 F.3d 289,
292 (5th Cir. 2002).
It’s true that the Municipal Defendants did not make a settlement
offer and the district court did not hold a trial.7 However, as is evident from
the district court’s order, “the Heck issues in this case are rather close ones.”
And given the severity not only of Officer Solomon’s actions, but also those
of Officer Brown, it’s possible that Hoyle could have prevailed in defeating,
at minimum, Officer Brown’s qualified-immunity defense had his counsel
not waived any such challenge. Accordingly, the Municipal Defendants have
_____________________
7
It’s also true that the district court’s order denying the Municipal Defendants’
motion for attorney’s fees focused, in part, on the wrong defendant (Officer Solomon).
8
Case: 23-60451 Document: 74-1 Page: 9 Date Filed: 09/04/2024
No. 23-60451
not met their burden to establish that Hoyle’s “underlying claim was
frivolous, unreasonable or groundless,” Merced, 577 F.3d at 595 (citation
omitted), and the district court did not abuse its discretion in denying
prevailing-party attorney’s fees to the Municipal Defendants.
V.
Because Hoyle’s counsel waived any challenge to the district court’s
no-constitutional-violation holding and the Municipal Defendants are not
entitled to § 1988 fees, we AFFIRM the district court’s order.
9
Case: 23-60451 Document: 74-1 Page: 10 Date Filed: 09/04/2024
No. 23-60451
Andrew S. Oldham, Circuit Judge, joined by Willett, Circuit Judge,
concurring:
I join the court’s opinion because it faithfully applies our precedent. I
write separately, however, to highlight an oddity of our fee-shifting cases.
American courts generally cannot shift attorney fees * without express
authorization in a statute or contract. The Supreme Court has termed this
the “American Rule.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.
240, 247 (1975). It exists in contradistinction to the English Rule, under
which the losing party must pay both his fees and his opponent’s. See id. at
247 n.18 (“As early as 1278, the courts of England were authorized to award
counsel fees to successful plaintiffs in litigation. Similarly, since 1607 English
courts have been empowered to award counsel fees to defendants in all
actions where such awards might be made to plaintiffs.”).
Section 1988 is perhaps the most well-known fee-shifting statute in
America. It provides: “In any action or proceeding to enforce [inter alia, 42
U.S.C. § 1983], the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee . . .” 42 U.S.C.
§ 1988(b). That provision does much to explain why § 1983 litigation is so
popular in our courts. But its plain text does nothing to differentiate between
prevailing plaintiffs and prevailing defendants. It simply says “the prevailing
party” may reap the benefit of fee shifting. Ibid. (emphasis added). And that
appears to mirror the English Rule, which has provided prevailing-party fee
_____________________
*
“There are at least eleven competing terms we could use instead of ‘attorney
fees.’” Gahagan v. United States Citizenship & Immigr. Servs., 911 F.3d 298, 300 n.1 (5th
Cir. 2018); see also ibid. (citing Haymond v. Lundy, 205 F. Supp. 2d 403, 406 n.2 (E.D. Pa.
2002), for variations on the phrase).
10
Case: 23-60451 Document: 74-1 Page: 11 Date Filed: 09/04/2024
No. 23-60451
shifting to both plaintiffs and defendants since the reign of James I. See
Alyeska, 421 U.S. at 247 n.18.
Oddly, however, American courts have interpreted the phrase
“prevailing party” to mean “most plaintiffs, even when they do not really
prevail,” and “virtually no defendants ever.” For example, if a plaintiff
prevails on one of 15 claims and recovers just 5% of the $2 million in damages
she sought, she can still claim prevailing-party status and get a fee award
twice the size of her damages. See Mancini v. Northampton Cnty., 836 F.3d
308, 320 (3d Cir. 2016). A plaintiff who recovers $1 in nominal damages from
the State is entitled to more than 79,000 times that amount in attorney fees.
See Arce v. Louisiana, No. 16-14003, 2019 WL 2359204, at *15 (E.D. La. June
4, 2019). And the policy preference for paying plaintiffs’ fees is so strong that
it overrides even a contingency-fee contract that purports to cap fee awards
to plaintiffs’ attorneys. Blanchard v. Bergeron, 489 U.S. 87, 89 (1989).
Contrariwise, as the majority opinion points out, a prevailing defendant
cannot enjoy fee shifting unless the plaintiff’s claim was “frivolous.” Merced
v. Kasson, 577 F.3d 578, 595 (5th Cir. 2009); see ante, at 8–9.
What’s worse, the federal courts have also held that certain disfavored
plaintiffs cannot recover prevailing-party fees. For example, Shelby County,
Alabama sued as a civil-rights plaintiff to challenge the coverage formula in
Section 5 of the Voting Rights Act of 1965. It won a landmark victory that
declared Section 5 unconstitutional. See Shelby Cnty. v. Holder, 570 U.S. 529
(2013). But when Shelby County sought prevailing-party fees, the district
court and the D.C. Circuit denied them. See Shelby Cnty. v. Lynch, 799 F.3d
1173, 1175 (D.C. Cir. 2015). Why? Because even though civil-rights plaintiffs
are generally entitled to prevailing-party fees for much less significant
victories, Shelby County was not the type of plaintiff the federal courts
preferred. See also Whitford v. Gill, 402 F. Supp. 3d 529, 534 (W.D. Wis.
2019) (denying Wisconsin Election Commission’s motion for fees, even after
11
Case: 23-60451 Document: 74-1 Page: 12 Date Filed: 09/04/2024
No. 23-60451
it prevailed in the Supreme Court and successfully dismissed plaintiffs’
claims as nonjusticiable).
All of this seems to be predicated on the idea that prevailing-party fee-
shifting statutes are supposed to incentivize certain kinds of preferred
litigation by certain preferred litigants. But the statutory text says none of
that. And federal courts are supposed to leave policy-preference choices to
Congress—not invoke them to rewrite statutes. If “[t]ext is the alpha and the
omega of the interpretive process,” United States v. Maturino, 887 F.3d 716,
723 (5th Cir. 2018), and if we are committed to taking the text seriously in
§ 1983 litigation, see Tyler B. Lindley, Anachronistic Readings of Section 1983,
74 Ala. L. Rev. 897 (2024), we should eventually revisit our atextual
approach to § 1988.
12