Arzabala v. Weems

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

RANDY ARZABALA,

Institutional ID No. 2431930

Plaintiff,

Vv. No. 5:21-CV-00268-H

LARRY SCOTT WEEMS, et al.,

Defendants.

OPINION AND ORDER

Defendants Larry Scott Weems and Christopher Miller filed a motion for summary

judgment on the issue of qualified immunity with a brief and appendix in support. Dkt.

Nos. 59, 60, 61. Separately, Defendants Mike Benson and G. Brian McNeill also filed a

motion for summary judgment on the issue of qualified immunity with a brief and appendix

in support. Dkt. Nos. 63, 64, 65. Plaintiff did not file a timely response.’ As explained

below, the Court finds that Defendants are entitled to qualified immunity and grants their

motions for summary judgment.

l. Background and Plaintiff’s claims

Plaintiff Randy Arzabala, a state prisoner proceeding pro se and in forma pauperis,

filed this civil-rights complaint under 42 U.S.C. § 1983. He alleges that Defendants Weems,

' Plaintiff filed two untimely motions for extensions of time to respond. Dkt. No. 70, 72. But he

failed to show good faith or good cause for his lengthy delay in seeking additional time, so the Court

denied the motions. Dkt. No. 73. More recently, Plaintiff filed a motion seeking reconsideration of

the denial of his motions for extension. Dkt. No. 74. Plaintiff attached his proposed reply—more

than nine months late—to his motion for reconsideration. Dkt. No. 74-1. Both groups of

defendants responded in opposition to the motion. Dkt. Nos. 75, 76, 77. Plaintiff has shown no

newly discovered evidence, intervening change in the law, or manifest error in the Court’s prior

denials, so his motion to reconsider is denied. In any event, even if the Court considered Plainuff's

unauthorized, incredibly late reply, it would not alter the analysis or outcome.

Miller, Benson, and McNeill—all law enforcement officers—subjected him to excessive

force during his arrest on September 10, 2020. He seeks monetary damages.

Plaintiff's claims are set out in his amended complaint, Dkt. No. 10, his answers to

the Magistrate Judge’s Questionnaire, Dkt. No. 21, and his sworn testimony at a Spears

hearing, see Dkt. No 24 (cited as Hrg, followed by the timestamp). His complaint stems

from the events that happened just before his arrest on September 10, 2020, Dkt. No. 10,

He contends that he was moving a vehicle in the parking lot of a motel when a white truck

pulled in front of him and turned on yellow and blue lights. /d. at 7. He states that he

believed the driver of the truck was a construction worker, who appeared to be angry, so he

drove away to avoid a confrontation. Jd. He asserts that the white truck pursued him, but

after a few minutes, he saw a white and black police vehicle with activated red and blue

lights, so he decided it was safe to pull over, and he did. Zd.

He claims that he jumped out of his vehicle and “threw [his] hands up to show [he

was] surrendering” but Defendant Miller lifted him off the ground and slammed him down,

rendering him unconscious, for at least a short time. /d.; Hrg 6:15. Elsewhere, he admits

that he “did run from the vehicle for a short distance. But [he] stopped and surendered, well

tryed [all sic]” before the defendant tackled him. Dkt. No. 21 at 1. He claims that when he

regained consciousness, he was already handcuffed on the ground, but the defendants

continued to kick him and beat him. /d. at 2; Dkt. No. 10 at 7. Specifically, he asserts that

Defendant Weems kicked him in the head and face after he was handcuffed. Dkt. No. 21

*See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). The purpose of a Spears hearing 1s to provide

the plaintiff with an opportunity to clarify, amend, and amplify his pleadings. Eason v. Holt, 73 F.3d

600, 602 n.15 (5th Cir. 1996) (citing Riley v. Collins, 828 F.2d 306, 307 (Sth Cir. 1987)). Plaintiff's

testimony at the Spears hearing supplements his complaint and becomes part of his pleadings. See

Talib v. Gilley, 138 F.3d 211, 213 (Sth Cir. 1998),

at 3. He asserts that the other defendants also continued to beat him and failed to stop

Defendant Weems from kicking him.

As a result of the defendants’ use of force, he contends that he suffered fractured ribs,

a severe concussion, and cuts on his face and head that required staples. Dkt. No. 21 at 3.

He alleges that he still suffers permanent nerve and brain damage and post-traumatic stress

from the incident. Jd. He seeks monetary relief.

2. Defendants’ Motions

Defendants argue that they are entitled to qualified immunity because they did not

violate Plaintiffs constitutional rights and their actions were reasonable in light of clearly

established law. Dkt. Nos. 59, 60, 63, 64.

In support of their motion, Defendants Weems and Miller offer the following

summary judgment evidence:

A. Affidavit of Christopher Miller;

B. Affidavit of Larry Scott Weems;

Gy Declaration of Mike Benson;

D. Declaration of G. Brian McNeill;

E. Video from Christopher Miller’s body worn camera (BWC);

F. Seized Drug Analysis Report;

Gr; Case Report No. 20-33658; and

H Government Records Affidavit of Katherine Wilkinson, authenticating E, F,

and G, listed above.

Dkt. No. 61.

In support of their motion, Defendants Benson and McNeill offer the following

summary judgment evidence:

A. Declaration of G. Brian McNeill;

B. South Plains Auto Theft Task Force Reports Concerning Case No. 2020-

00000053;

Cc. Lubbock Police Department Case No. 20-33716 Supplement 004 (Weems

Report);

D. Lubbock Police Department Case No. 20-33716 Supplement 007 (Miller

Report);

EB. Video file: Christopher Miller BWC

F. Declaration of Michael Benson; and

G. University Medical Center Records from Sept. 10, 2020 re: Randy Arzabala.

Dkt. No. 65.

The summary judgment evidence supports Defendants’ version of the facts as

follows:

All four remaining defendants are law enforcement officers. On September 10, 2020,

Defendants Miller and Weems were detectives with the Lubbock Police Department's

Crime Suppression Unit, and Defendants Benson and McNeill were investigators with the

South Plains Auto Theft Taskforce, which is a division of the Lubbock County Criminal

District Attorney's Office. See Dkt. Nos. 61; 65. That day, the Crime Suppression Unit and

the South Plains Auto Theft Taskforce were working together, looking for a maroon

Cadillac Escalade that was associated with both the burglary of a local business the night

before and an earlier theft of a travel trailer. A member of the Crime Suppression Unit

spotted the vehicle in the parking lot of a hotel and called for back-up. Defendants Miller,

Weems, McNeill, and Benson responded to assist and staged their vehicles near the hotel.

Officers watched as Plaintiff exited the hotel, got into the Escalade, and began to drive

away. An on-scene officer, driving in an unmarked police truck, activated its lights and

attempted to stop the Escalade, but Plaintiff drove around him and began to flee.

Defendants each joined in the pursuit.

The pursuit went on for about five minutes. Plaintiff drove over a curb, through a

field, and into an alley in an apparent attempt to evade the caravan of pursuing officers.

Defendant Weems observed that two of the Escalade’s tires flattened, but Plaintiff again

increased his speed and continued to flee. Dkt. No. 65 at 39. Toward the end of the chase,

Plaintiff turned to drive the wrong way down the access road for Interstate 27, driving north

into oncoming southbound traffic. Some officers followed him, including Defendants

Weems and Miller, while other officers continued the pursuit from a distance, using the

northbound access road. Plaintiff left the access road and drove through a caliche pit,

behind some buildings, and back toward the access road again. Finally, Defendant Miller

caught up to the vehicle and performed a forcible stop maneuver. The Escalade slowed and

struck a metal fence post, coming to a stop.

Plaintiff exited the vehicle and began to run away. Defendant Miller ran after him.

Miller BWC at 0.00:25. Defendant McNeill, who was driving up on the scene, saw Plaintiff

pull something out of his waistband and toss it over a fence as he ran. Dkt. No. 65 at 7.

Defendant Weems arrived and used his vehicle to block Plaintiffs path, but Plaintiff pivoted

and continued to run, heading back into the roadway. Miller BWC at 0.00:34. Defendant

Miller caught up to him and tackled him to the ground. /d. at 0.00:38. Plaintiff tried to sit

up, and Defendant Miller forced him down onto his stomach and struggled to gain control

of Plaintiffs arms. /d. at 0.00:39-42. Defendants Weems, Benson, and McNeill quickly

arrived and surrounded Plaintiff.

Defendants Miller and Benson grabbed Plaintiff's left arm, as Plaintiff rolled onto his

right side and tucked his right arm under his body. /d. at 0.00:42-56. Plaintiff struggled

against the officers, twisting and bringing his knee under him as if trying to get up as they

shouted at him to give them his other arm. /d. Defendant Miller gained control of

Plaintiff's legs and held them down while the other officers struggled to secure Plaintiff's

arms. See id.; Dkt. No. 61 at 5. Defendant Benson secured Plaintiff's left arm and held it as

Plaintiff resisted and Defendant McNeill attempted to secure Plaintiff's right arm. Miller

BWC at 0.00:58. While Plaintiff was struggling, Defendant Weems nudged Plaintiff in the

side a few times with his tennis shoe, then walked around and kicked Plaintiff on the top of

his head. /d. at 0.00:55-0.01:01. Defendant Weems explains that “[t]hese kicks were very

light and were merely an attempt to distract [Plaintiff] from the other officers and get him

handcuffed. The kicks were not punitive in nature.” Dkt. No. 61 at 10. Plaintiff brought

his right arm up toward his head, presumably to block Defendant Weems’s kicks, and

Defendant McNeill was able to gain control of it. Miller BWC at 0.01:01-1:16. Defendant

Weems held one foot on top of Plaintiffs head for about 3 seconds while the other officers

finished placing the handcuffs on the plaintiff. /d. at 0.01:14-16. The defendants

successfully cuffed Plaintiff about 40 seconds after Defendant Miller first tackled him to the

ground. /d. at 0.01:17. As soon as the handcuffs locked in place, the defendants all stepped

back from Plaintiff, and Defendant McNeill asked the group, “what did he throw at the

fence?” /d. The defendants asked another on-scene officer to keep an eye on Plaintiff, and

they began looking for the discarded item. /d. Officers later found a baggie of

methamphetamine inside the fenced area and a syringe with methamphetamines in

Plaintiffs pocket. See Miller BWC at 1:10; Dkt. No. 61 at 30; Dkt. No. 65 at 8, 45.

Defendants argue that they are entitled to summary judgment because the summary

judgment evidence shows that (1) Defendant Miller’s use of force in tackling Plaintiff was

not excessive, (2) Defendants Benson and McNeill’s use of force in pushing, pulling, etc.

was not excessive, (3) Defendant Weems'’s use of force in kicking Plaintiff during the

struggle was not excessive, (4) Defendants Benson, McNeill, and Miller did not violate

Plaintiff's rights in failing to stop Defendant Weems from kicking Plaintiff, and (5) even if

the Court finds a genuine issue of material fact about one of Plaintiff's constitutional claims,

Defendants Miller, Weems, Benson, and McNeill are entitled to qualified immunity because

Plaintiff has failed to show that their actions were unreasonable in light of clearly

established law.

Legal Standards

A. — Summary Judgment

Summary judgment is appropriate where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In considering a motion for summary judgment, courts must not make credibility

determinations or weigh evidence but must instead draw all reasonable inferences in favor

of the non-moving party. See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530

F.3d 395, 398-99 (Sth Cir. 2008); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (Sth Cir.

2002). That said, summary judgment “may not be thwarted by conclusional allegations,

unsupported assertions, or presentation of only a scintilla of evidence.” Hemphill v. State

Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015). And the Court need not accept

the plaintiff's version of the facts where the record evidence clearly contradicts those

allegations. Waddleton v. Rodriguez, 750 F. App’x 248, 253-54 (Sth Cir. 2018) (citing Scott v.

Harris, 550 U.S. 372, 378-79 (2007)).

When the non-moving party fails to file a timely response to a proper motion for

summary judgment, he cannot satisfy his burden to “designate specific facts showing that

there is a genuine issue for trial,” and summary judgment must be granted. Stu/ts v. Conoco,

Inc., 76 F.3d 651, 656-57 (5th Cir. 1996). “Rule 56 does not impose upon the district court

a duty to sift through the record in search of evidence to support a party’s opposition to

summary judgment.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (Sth Cir. 1998)

(quoting Skotak v. Tenneco Resins, 953 F.2d 909, 915 n.7 (Sth Cir. 1992)). Although a court

may not enter a “default” summary judgment when the non-moving party fails to respond

to a motion for summary judgment, the non-moving party is relegated to his unsworn

pleadings, which do not constitute summary judgment evidence, and the court may accept

the moving party’s evidence as undisputed. Eversley v. MBank Dallas, 843 F.2d 172, 174 (Sth

Cir. 1988); Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996). To the extent,

however, that a prisoner-plaintiff's allegations are verified under penalty of perjury, they

“are deemed competent summary judgment evidence.” A/-Raid v. Ingle, 69 F.3d 28, 32 (Sth

Cir. 1995).

B. Qualified Immunity

Section 1983 “provides a claim against anyone who ‘under color of any ordinance,

regulation, custom, or usage, of any State’ violates another’s constitutional nights.” Whitley

v. Hanna, 726 F.3d 631, 638 (Sth Cir. 2013). “A plaintiff makes out a [Section] 1983 claim if

he ‘shows a violation of the Constitution or of federal law, and then shows that the violation

was committed by someone acting under color of state law.’” Rich v. Palko, 920 F.3d 288,

293-94 (5th Cir. 2019) (quoting Brown v. Miller, 519 F.3d 23, 236 (Sth Cir. 2008)).

But even if a defendant can be shown to have violated another’s constitutional rights,

the defendant may not be liable under Section 1983. Defendants who perform discretionary

duties—such as police officers and jailers—may invoke the affirmative defense of qualified

immunity in response to a plaintiff's Section 1983 suit. Qualified immunity applies “when

an official’s conduct ‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” White v. Pauly, 580 U.S. 73, 78-79 (2017)

(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).

In analyzing whether an individual defendant is entitled to qualified immunity, the

court considers whether the plaintiff has alleged any violation of a clearly established right,

and, if so, whether the individual defendant’s conduct was objectively reasonable. Siegert v.

Gilley, 500 U.S. 226, 231 (1991); Duckett v. City of Cedar Park, 950 F.2d 272, 276-80 (Sth Cir.

1992). In so doing, the court should not assume that plaintiff has stated a claim, 1.e.,

asserted a violation of a constitutional right. Svegert, 500 U.S. at 232. Rather, the court

must be sure that, if the facts alleged by plaintiff are true, a violation has clearly occurred.

Connelly v. Comptroller, 876 F.2d 1209, 1212 (Sth Cir. 1989). Even if defendants are alleged

to have acted in unison, the court must address the actions of each individually to determine

whether qualified immunity applies. Cass v. City of Abilene, 814 F.3 721, 730-31 (Sth Cir.

2016); Meadours v. Ermel, 483 F.3 417, 421-22 (Sth Cir. 2007); Stewart v. Murphy, 174 F.3d

530, 537 (Sth Cir. 1999).

A mistake in judgment does not cause an officer to lose his qualified immunity

defense. The Supreme Court explained long ago that “[t]he qualified immunity standard

gives ample room for mistaken judgments by protecting all but the plainly incompetent or

those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting

Malley v. Briggs, 475 U.S. 335, 341-43 (1986)). And “an allegation of malice is not sufficient

to defeat immunity if the defendant acted in an objectively reasonable manner.” Malley, 475

U.S. at 341. Further, that the officer himself may have created the situation does not

change the analysis. That he could have handled the situation better does not affect his

entitlement to qualified immunity. Young v. City of Killeen, 775 F.2d 1349, 1352-53 (Sth Cir.

1985).

“To be clearly established, a right must be sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Reichle v. Howards,

566 U.S. 658, 664 (2012) (internal quotation marks and modifications omitted). “There are

two ways to demonstrate clearly established law.” Batyukova v. Doege, 994 F.3d 717, 726

(5th Cir. 2021). In the typical case, the plaintiff “identiflies] a case or body of relevant case

law in which an officer acting under similar circumstances .. . was held to have violated the

(Constitution].” Jd. (quotation marks and citations omitted). This approach “doJ[es] not

require a case directly on point,” but “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.731, 741 (2011). In rare

cases, however, “the unlawfulness of the officer’s conduct is sufficiently clear even though

existing precedent does not address similar circumstances.” Dist. of Columbia v. Wesby, 138

S. Ct. 577, 590 (2018); cf Taylor v. Riojas, 141 S. Ct. 52, 53-54 (2020) (“Confronted with the

particularly egregious facts of this case, any reasonable officer should have realized that [the

plaintiff's] conditions of confinement offended the Constitution.”).

The Supreme Court has repeatedly instructed lower courts “not to define clearly

established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)

(internal quotation marks and citation omitted). Likewise, the Supreme Court has stated

that the purpose of the doctrine is to “give[ ] government officials breathing room to make

reasonable but mistaken judgments.” Stanton v. Sims, 571 U.S. 3, 6 (2013). “Accordingly,

‘qualified immunity represents the norm,’ and courts should deny a defendant immunity

only in rare circumstances.” Angulo v. Brown, 978 F.3d 942, 949 (Sth Cir. 2020) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). When a defendant invokes qualified

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immunity in his answer, the burden shifts to the plaintiff to show that the defense 1s

unavailable. Valderas v. City of Lubbock, 937 F.3d 384, 389 (Sth Cir. 2019).

Defeating an invocation of qualified immunity requires that the plaintiff “point to

summary judgment evidence (1) that [the official] violated a federal statutory or

constitutional right and (2) that the unlawfulness of the conduct was clearly established at

the time.” Cloud v. Stone, 993 F.3d 379, 383 (5th Cir. 2021) (internal quotation marks

omitted). So, while the “plaintiff's factual assertions are taken as true to determine whether

they are legally sufficient to defeat the defendant’s motion for summary Judgment,” Baldwin

v. Dorsey, 964 F.3d 320, 325 (5th Cir. 2020), the plaintiff bears a heavy burden in

overcoming a defendant’s good-faith invocation of qualified immunity. Mendez v. Poitevent,

623 F.3d.326, 331 Gth:Cir. 2016).

Although Supreme Court precedent does not require a case directly on point, existing

precedent must place the statutory or constitutional question beyond debate. Pauly, 580

U.S. at 79. That is, the clearly established law on which a plaintiff relies should not be

defined at a high level of generality but must be particularized to the facts of the case. /d. at

79-80. Thus, failure to identify a case in which an officer acting under similar

circumstances was held to have violated a plaintiff's rights will most likely defeat the

plaintiff's ability to overcome a qualified immunity defense. /d.; Surratt v. McClarin, 851

F.3d 389, 392 (Sth Cir. 2017).

Ce Excessive Use of Force

Claims of excessive use of force during an arrest are governed by the Fourth

Amendment’s reasonableness standard. Garza v. Briones, 943 F.3d 740, 744 (Sth Cir. 2019),

no cert. (quoting Plumhoff v. Rickard, 572 U.S. 765, 774 (2014)). Under this standard, the

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“plaintiff must show (1) an injury, (2) which resulted directly and only from the use of force

that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” /d.

(quoting Manis v. Lawson, 585 F.3d 839, 843 (Sth Cir. 2009)).

Courts must consider the totality of the circumstances when evaluating the

reasonableness of a use of force. Garza, 943 F.3d at 745; see also Martin v. Seal, 510 F. App’x

309, 313 (5th Cir. 2013) (holding that the question of whether force used by an officer was

reasonable must be evaluated in the context in which the force was deployed); /kerd v. Blair,

101 F.3d 430, 434 (Sth Cir. 1996); Williams v. Bramer, 180 F.3d 703, 704 (Sth Cir. 1999).

Courts should not Monday-morning-quarterback an officer’s split-second decision. Graham

v. Connor, 490 U.S. 386, 396-97 (1989); see also Hill v. Carroll Cty., Miss., 587 F.3d 230, 234

(5th Cir. 2009). Instead, courts should view excessive-force claims “from the perspective of

a reasonable officer on the scene” considering only those facts the officers knew at the time.

Garza, 943 F.3d at 745 (quoting first Escobar v. Montee, 895 F.3d 387, 394 (Sth Cir. 2018),

then citing Pauly, 580 U.S. at 77-78). “Further, only the objective reasonableness of force

matters for Fourth Amendment purposes—an officer’s subjective motivation and intent are

irrelevant.” Hill, 587 F.3d at 234.

The injury must “overcome the de minimis requirement” to be cognizable. Alexander

v. City of Round Rock, 854 F.3d 298, 309 (Sth Cir. 2017). The courts must consider the

relationship between the amount of force allowed by the constitution as compared to the

extent of the injury itself. /d. (citing /kerd v. Blair, 101 F.3d 430, 434-35 (Sth Cir. 1996)).

When evaluating the second element of the claim, a plaintiff does not have to prove

that the “excessive force was the sole cause” of the injury or death, nor that such injury or

death was foreseeable. Goode v. Baggett, 811 F. App’x 227, 231 (Sth Cir. Apr. 24, 2020)

12

(citing first Dunn v. Denk, 79 F.3d 401, 403 (Sth Cir. 1996), and then Darden v. City of Fort

Worth, 880 F.3d 722, 728 (5th Cir. 2018)). Asa result, pre-existing conditions do not factor

into the analysis. Baggett, 811 F. App’x at 231. Essentially, the excessive force alleged need

only be a “contributory cause” of the injury. /d. (quoting Darden, 880 F.3d at 728).

Finally, the third element is evaluated by balancing “the nature and quality of the

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

governmental interests at stake.” Baggett, 811 F. App’x at 231-32 (quoting Goodman v.

Harris Cty., 571 F.3d 388, 397 (Sth Cir. 2009)). Rather than a mechanical application, courts

should balance the following factors: “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.” Graham, 490 U.S. at 396. These

considerations are broadly known as the Graham factors.

4, Analysis

Plaintiff did not timely respond to Defendants’ motions for summary judgment. But

the allegations in his original complaint and his responses to the Court’s questionnaire were

declared under penalty of perjury, and his testimony at the Spears hearing was given under

oath. Thus, the Court considers these pleadings as competent summary judgment evidence.

Even so, taking all of Plaintiff's factual allegations as true, the Court finds that no genuine

issues of material fact remain to necessitate trial. Plaintiff not pointed to any evidence

in the record to raise a genuine fact issue to negate Defendants’ well-pleaded qualified-

immunity defense. In short, he has not carried the burden of proving that Defendants’

actions were objectively unreasonable in light of clearly established law at the time of the

alleged encounter.

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A. Video Evidence

The first problem for Plaintiff is that the defendants produced an authenticated video

recording of the encounter. See Dkt. Nos. 62; 66. And, as noted by the United States

Magistrate Judge, the video footage directly contradicts many of Plaintiff's assertions. See

Dkt. Nos. 27, 48. Specifically, the video footage contradicts Plaintiff's claims that he

stopped and surrendered before Defendant Miller tackled him, that he lost consciousness at

any time during the use of force, and that the defendants continued using force after he was

restrained. See id.. Miller BWC. So, the Court does not accept Plaintiff's version of the

facts where the record evidence clearly contradicts those allegations. Waddleton v, Rodriguez,

750 F. App’x 248, 253-54 (5th Cir. 2018) (citing Scott v. Harris, 550 U.S. 372, 378-79

(2007)).

B. Injury

It is undisputed that Plaintiff suffered some injury as a result of his encounter with

the defendants. The parties agree that Plaintiff suffered a small laceration on his right

eyebrow, which was closed with medical glue. Otherwise, Defendants contend that

Plaintiff's injuries were far more minor than he alleges.

Plaintiff asserts, without any supporting facts or evidence, that he suffered a severe

concussion, permanent brain and nerve damage, and fractured ribs as a result of the

defendants’ force. See, e.g., Dkt. No. 21 at 2. He also claims that he has ongoing pain and

limited mobility in his shoulder, neck, and back.

Defendants Benson and McNeill submitted authenticated medical records showing

that a CT scan of Plaintiff's head after the incident was negative, with no acute abnormality

or injury. Interestingly, Plaintiff submitted a similar medical report—also showing that the

l4

CT scan ruled out any significant head injury. See Dkt. No. 74-1. Plaintiff also submitted a

different medical report showing that an X-ray of his ribs in a follow-up appointment

showed no fracture. Still, Plaintiff contends that he suffered broken ribs and permanent

damage to his brain and nervous system. Dkt. Nos. 21 at 2; 74 at 13.

The Court does not have to accept Plaintiff's conclusory allegations, offered without

any specific factual or evidentiary support. See Schultea v. Wood, 47 F.3d 1427, 1433 (Sth

Cir. 1995): see also Hemphill, 805 F.3d at 538 (explaining that summary judgment “may not

be thwarted by conclusional allegations, unsupported assertions, or presentation of only a

scintilla of evidence”). Even so, for the purpose of their motion, the Defendants Miller and

Weems do not dispute that Plaintiffs injury is more than de minimis. See Dkt. No. 60 at 7

n.1. Defendants Benson and McNeill argue that Plaintiff's injurers were minor, but likewise

focus their arguments on the reasonableness of the force used.

In any event, even if the Court accepts Plaintiffs unsupported conclusions about the

extent of his injuries as true, it does not alter the outcome of this case. The degree of injury

is relevant to but not dispositive of the excessive-force claim. Hudson v. McMillian, 503 U.S.

1, 7 (1992); Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (explaining that “[i]njury and force,

however, are only imperfectly correlated, and it is the latter that ultimately counts”). Thus,

any remaining dispute over the extent of Plaintiff's injuries would not necessitate trial,

because the force used by the officers was reasonable in the context of Plaintiffs dangerous

flight and active resistance.

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Nature of Defendants’ force

i. The force used by Defendants Benson and McNeill was objectively

reasonable.

Considering the totality of the circumstances, the force used by Defendants Benson

and McNeill was reasonable. The unrefuted summary judgment evidence shows that

Plaintiff was driving a vehicle associated with two felony property crimes, including

breaking into a local business and stealing motorbikes. These crimes alone were not

necessarily violent or dangerous. But when police attempted to stop Plaintiffs vehicle, he

fled, leading officers on a pursuit over curbs, through caliche fields, and into oncoming

traffic on the access road to the highway. Plaintiffs flight was a new crime, observed

firsthand by the officers, and it put himself, the public, and the officers—including Benson

and McNeill—in danger. Thus, the first Graham factor—the severity of the crime at issue—

supports Defendants’ position.

Once Plaintiff's vehicle was forcibly stopped, he continued to flee on foot. While he

ran, Defendant McNeill observed him throw something over a nearby fence. And after

Plaintiff was taken to the ground, he continued to actively resist by trying to get up, turning

and wriggling his body, and tucking his right arm under his body. Defendant McNeill also

explains that “[b]ecause the Plaintiff was keeping his arms underneath him after he was

taken to the ground and moving them around [he] was concerned that [Plaintiff] was

concealing a weapon.” Dkt. No. 65 at 7. As long as Plaintiff was actively resisting and

concealing his arm, it was reasonable for the officers to perceive him as an immediate threat

to their safety. As a result, the second and third Graham factors also weigh in favor of

granting Defendants Benson and McNeill’s motion.

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Defendant Benson pretty quickly secured Plaintiff's left arm and held it—applying

pressure while the other defendants struggled to secure Plaintiff's right arm. Throughout

most of the struggle, Defendant Benson knelt near Plaintiff's left shoulder with his knee over

Plaintiffs head and neck. Defendant Benson explains that “[his] knee was above

[Plaintiff s] head, but not touching it. This way if the Plaintiff attempted to get up his head

would strike [Benson’s] knee. This was necessary because of [Plaintiff's] continued attempts

to get up as [Defendants] tried to restrain him.” Dkt. No. 65 at 45. Benson applied pressure

downward to keep control of Plaintiff's arm and prevent him from getting up. /d.

Defendant McNeill pushed on Plaintiff's side and pulled on Plaintiff's right arm as

Plaintiff resisted. The only force applied by Defendants Benson and McNeill was in

pressing, pushing, or pulling on the Plaintiff's arms and torso in their efforts to handcuff

him. Neither of these officers struck Plaintiff in any way during the encounter, nor did they

use more force than necessary to complete the arrest. Moreover, like the other defendants,

Benson and McNeill immediately stopped all force as soon as Plaintiff's arms were secured

in handcuffs.

Given these circumstances, the force used by Defendants Benson and McNeill was

objectively reasonable in the context of their attempt to secure a potentially dangerous,

recently fleeing, and actively resisting suspect. The Graham factors easily support

Defendants Benson and McNeill’s assertion of qualified immunity.

Moreover, Plaintiff has failed to identify a case in which an officer acting under

similar circumstances was held to have violated a plaintiffs nghts, so he cannot overcome

Defendants Benson and McNeill’s qualified immunity defense. To the contrary, the Fifth

Circuit has consistently found the type of pressure and force used by Defendants Benson

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and McNeill to be reasonable in the context of securing an actively resisting suspect. See

Collier v. Montgomery, 569 F.3d 214, 219 (Sth Cir. 2009); Hutcheson v. Dallas Cty., 994 F.3d

477, 480 (2021).

In short, Plaintiff has failed to demonstrate that either Defendant Benson or

Defendant McNeill used excessive force in violation of his clearly established constitutional

rights during his arrest.

il. The force used by Defendants Miller and Weems was reasonable.

Defendant Miller was the first officer to catch up to Plaintiff as he ran. Miller tackled

Plaintiff to stop him as he attempted to evade the quickly surrounding law enforcement

vehicles and run into the street. Miller BWC 0.00:34—42. But “it [is] neither clearly

excessive nor objectively unreasonable for [Jofficers to give chase and . . . tackle [a suspect]

in order to stop him from fleeing.” Griffin v. City of Sugar Land, Texas, 2019 WL 175098, at

*8 (S.D. Tex. Jan. 11, 2019); see also Nolen v. Minden Police Dep't, 48 Fed. App’x 481, 2002

WL 31049579, at *2 (5th Cir. Sept. 6, 2002). In other words, Plaintiffs decision to flee and

then resist arrest invited the officers’ reasonable use of force. Griffin v. City of Sugarland,

Texas, 787 F. App’x 244, 245 (Sth Cir. 2019).

Then, as Plaintiff tried to bring his leg under him to get back up, Defendant Miller

pulled Plaintiff's leg and secured it in a folded position. This force, too, was objectively

reasonable as Plaintiff was actively resisting the officers’ attempts to arrest him. See

Hutcheson, 994 F.3d at 479-480. Just like Defendants Benson and McNeill, Defendant

Miller’s force in pressing and pulling to effectuate Plaintiff's arrest was not unreasonable.

The Graham factors likewise support Defendant Miller’s assertion of qualified immunity.

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Unlike the other defendants, Defendant Weems did strike Plaintiff during the

struggle, over the course of about 20 seconds. Miller BWC 0.00:55-1:15. First, he lightly

kicked, or nudged Plaintiffs side with his tennis shoe, a few times. /d. Then he moved to

Plaintiff's head and delivered more light kicks while Plaintiff actively resisted the other

officers’ efforts to secure his right arm. /d. Finally, as the other officers were placing the

handcuffs, Defendant Weems held his foot on Plaintiff's head for about 3 seconds. /d. at

0.01:15-18. But just as with the other defendants, Weems immediately stepped back and

stopped all force as soon as the handcuffs clicked into place. Id. at 0.01:18.

Again, “it [is] neither clearly excessive nor objectively unreasonable for [an] officer]

to punch and kick [a suspect] or... to knee [the suspect] and point a gun at him in an effort

to make [him] stop resisting and submit to being handcuffed.” Griffin, 2019 WL 175098, at

*8. This is especially true, as here, when the “situation [is] tense and chaotic, and the

officers could reasonably . . . fear[] for their safety.” /¢. Moreover, the Court considers that

the situation rapidly evolved from surveillance on a vehicle associated with a property crime

to a pursuit on and off-road (and for a time, the wrong way on a one-way road), to a

physical struggle with a suspect who was both actively resisting and attempting to flee.

Weems did not know whether Plaintiff was armed, and he acted in an effort to

distract the plaintiff so that the other officers could safely complete the arrest. Weems’s

brief use of force—kicking—was “the sort of ‘split-second judgment’ in a difficult situation

that qualified immunity is designed to protect.” Griggs v. Brewer, 841 F.3d 308, 316 (Sth Cir.

2016) (citing Graham, 490 U.S. at 396-97). Additionally, the summary judgment evidence

does not indicate that Weems’s kicks were malicious, especially because he ceased all force

as soon as the goal—arrest—was accomplished and Plaintiff stopped resisting.

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In sum, the force used by Defendants Miller and Weems was reasonable in the

context of securing a fleeing, potentially dangerous, and actively resisting suspect. Plaintiff

has not demonstrated that Defendant Miller or Defendant Weems violated his clearly

established constitutional rights; thus, these defendants are entitled to qualified immunity.

D. Bystander Liability

Plaintiff also asserts that each defendant is responsible for failing to intervene and

stop the others’ alleged excessive force under a theory of bystander liability. In the Fifth

Circuit, “an officer may be liable under § 1983 under a theory of bystander liability where

the officer ‘(1) knows that a fellow officer is violating an individual’s constitutional rights;

(2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.’” Whitley

v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (citing Hale v. Townley, 45 F.3d 914 (Sth Cir.

1995)). In short, Courts must “consider whether an officer ‘acquiesce[d] in” the alleged

constitutional violation.’” /d. at 647.

A bystander-liability claim stemming from the use of excessive force turns on

whether the bystander has ‘“‘a reasonable opportunity to realize the excessive nature of the

force and to intervene to stop it.” Hale, 45 F.3d at 919. Mere presence at the scene of

alleged use of excessive force, however, does not give rise to bystander liability. See Whitley,

726 F.3d at 646-47; Vasquez v. Chacon, No. 3:08-CV-2046-M, 2009 WL 2169017, at *6

(N.D. Tex. July 20, 2009) (citing Nowell v. Acadian Ambulance Serv., 147 F. Supp. 2d 495, 507

(W.D. La. 2001), affd 390 F. App’x. 305, 2010 WL 3023273 (Sth Cir. 2010)). Making this

determination involves consideration of both the duration of the alleged use of force and the

location of the detainee relative to the bystanders. See generally Vasquez, 2009 WL 2169017,

at *6.

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Because the Court already found that none of the defendants violated Plaintiff's

constitutional rights during their brief struggle to arrest him, the bystander-liability analysis

is simple. Plaintiff has not demonstrated the first required element—that any of the

defendants realized that the force used by another officer was excessive—because the Court

has found the force used by each other officer to be reasonable under the circumstances.

This alone defeats Plaintiff's bystander-liability claim. But even if any of the officers did use

excessive force during the encounter, Plaintiff has also failed to show the other required

elements as to any of the defendants.

As described above, the scene of the struggle was tense and chaotic. First, none of

the other defendants had a reasonable opportunity to stop Defendant Miller from tackling

Plaintiff, because they had not reached Plaintiff yet. Moreover, during the scuffle, each

officer was focused on Plaintiff and their own efforts to complete his arrest. As long as

Plaintiff was actively resisting, none of the officers had a reasonable opportunity to stop and

analyze the actions of any of the other officers. And, as shown in the video footage, at least

two of the other defendants had their backs to Defendant Weems when he kicked Plaintiff,

and none of the defendants were looking in his direction at any point. See Miller BWC

0.00:40-0.01:18.

There is no evidence in the record to suggest that any defendant saw another officer's

misconduct and chose not to act. To the contrary, the video evidence and the verified

statements of the defendants indicate that each defendant was reacting only to Plaintiff's

resistance and attempts to evade arrest. And the whole situation was brief, but intense. The

force lasted only 40 seconds—the same amount of time that Plaintiff was actively resisting.

Thus, the brevity of the use of force also weighs against any finding of bystander liability.

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In short, Plaintiff has failed to show that any defendant used excessive force or that

any defendant had a reasonable opportunity to realize that another officer was using

excessive force and acquiesce to it. Plaintiff has failed to overcome the defendants’

assertions of qualified immunity, and the defendants are entitled to summary judgment on

Plaintiff's bystander-liability claims.

5. Conclusion

Defendants have asserted in good faith the defense of qualified immunity, and

Plaintiff has failed to point to any evidence in the record to show that their actions violated

his constitutional rights or that they were unreasonable in light of clearly established law.

Because the video evidence blatantly contradicts most of Plaintiff's version of events, there

remains no genuine dispute over the facts material to Defendants’ motions.

For these reasons, the Court finds that Defendants’ motion for summary judgment

should be granted, that Plaintiff take nothing on his claims against Defendants, and that all

remaining claims should be dismissed with prejudice.

All relief not expressly granted is denied, and any other pending motions are denied.

The Court will enter judgment accordingly.

Dated March 3, 2024.

ER WESLEY HENDRIX

United States District Judge

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