# McCaslin v. Elmore

> District Court, N.D. Texas · April 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10671951

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** April 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10671951

## How later opinions describe it (automated extraction)

- explaining that “a suspect’s active resistance to arrest may justify [tasing]”
- explaining that “certain injuries are so slight that they will never satisfy the injury element’

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
LANCE MCCASLIN,
Plaintiff,
V. 2:23-CV-200-Z-BQ
BENJAMIN ELMORE and
JOSHUA GARZA,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants’ Motion to Dismiss the Original Complaint
(“Original Motion”) (ECF No. 9) and Motion to Dismiss Plaintiff's Amended Complaint
(“MTD”) (ECF No. 22). The Original Motion is DENIED as MOOT because Plaintiff amended
his complaint. See Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (Sth Cir. 1985) (“[T]he
general rule [is] that an amended complaint . . . supersedes the original and renders it of no legal
effect... .”).
The MTD is also DENIED. That said, Defendants have not forfeited their qualified
immunity (“QI”) defense. They may move the Court for limited discovery on QI and raise the
defense again at the summary judgment stage. See Analysis, Section III, infra.
BACKGROUND
Plaintiff alleges a Section 1983 “excessive force” claim in violation of his Fourth
Amendment rights against Defendant police officers. ECF No. 20 at 4 11-18.
Plaintiff specifically claims “physical and mental injuries” because Defendants tased his leg.
Id. at | 8-9. Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6),
asserting QI. See generally ECF No. 23.

The Amended Complaint alleges the following: Plaintiff “was driving to his work at the
Post Office” while his wife followed behind. ECF No. 20 at 4 1-2. Meanwhile, a deputy pulled
behind Plaintiff's wife but not Plaintiff. /d. at { 3. Plaintiff proceeded to the post office, where he
found “numerous other officers, including the Defendants . . . in the parking lot.” /d. at 4 4.
Then “Plaintiff stopped his vehicle, and multiple officers approached him, with their pistols
drawn and pointed at Plaintiff.” /d at 4] 5. “Suddenly and without warning, numerous officers
forcefully extracted Plaintiff from his vehicle.” /d. at § 6. Defendants then “used [their] taser|s]
on Plaintiffs leg despite [the fact] that Plaintiff was not resisting and attempting to ascertain and
comply with the officers’ orders.” /d. at § 7.
LEGAL STANDARD
I. The Fifth Circuit views Rule 12(b)(6) motions with disfavor.
Defendants move to dismiss the Amended Complaint under Federal Rule of Civil
Procedure 12(b)(6). Under that standard, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.”” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Courts
should “construe facts in the light most favorable to the nonmoving party” — here, Plaintiff —
“as a motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.’”
Turner y. Pleasant, 663 F.3d 770, 775 (Sth Cir. 2011) (quoting Harrington v. State Farm Fire &
Cas. Co., 563 F.3d 141, 147 (Sth Cir. 2009)).
I. Body camera footage is not properly before the Court at this stage.
Defendants urge the Court to consider police body camera footage neither referenced in
nor attached to the Amended Complaint. ECF No. 23 at 13-14 (citing, inter alia, Tellabs, Inc. v.
Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007) (holding that courts may consider “other

sources courts ordinarily examine . . . in particular, documents incorporated into the complaint
by reference, and matters of which a court may take judicial notice.”)); see Scanlan v. Tex. A &
M Univ., 343 F.3d 533, 536 (Sth Cir. 2003) (holding the same).
“While Plaintiff did not attach these videos to his Amended Complaint,” Defendants
argue, “he specifically references the events illustrated in the first 30 seconds of . . . [the] body-
worn camera footage and references events depicted in both videos throughout his Amended
Complaint.” ECF No. 23 at 13. “Therefore,” they conclude, “the arrest footage captured by
Officer Elmore and Officer Garza’s body-worn cameras is properly before the Court.” /d. at 14.
No it is not. The Amended Complaint does not mention, reference, attach, or otherwise
allude to the footage. Hence, it is not the kind of evidence the Supreme Court permits at the Rule
12(b)(6) stage. See Tellabs, Inc., 551 U.S. at 322 (requiring the complaint to refer to or otherwise
attach documents). Defendants’ novel theory would instead introduce documents /ogically
related to the pleadings; such a construction, aside from being difficult to tame, would
impermissibly invite summary judgment analysis at the MTD stage.
The MTD is also an improper vehicle for introducing the footage. Only once has the Fifth
Circuit considered documents attached to a motion to dismiss but not to the pleadings.
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498—99 (Sth Cir. 2000). But even there,
“the Court restricted such consideration to documents that are referred to in the plaintiffs
complaint and are central to the plaintiffs claim.” Scanlan, 343 F.3d at 536 (citing
Collins, 224 F.3d at 498-99). Because the Amended Complaint makes no reference to the
footage, as noted supra, the MTD cannot provide a separate basis for introducing it.
In summary, the Court will review only the Amended Complaint to evaluate Plaintiffs
Section 1983 claim and Defendants’ QI defense.

ANALYSIS
Plaintiff alleges that Defendants are liable under Section 1983 based on a Fourth
Amendment “excessive force” theory. ECF No. 20 at 2—3. Defendants assert QI in response.
ECF No. 23 at 8-16. Once Defendants raise QI, “the plaintiff has the burden of demonstrating
that (1) the official violated a statutory or constitutional right, and (2) the right was ‘clearly
established’ at the time.” McClelland v. Katy Ind. Sch. Dist., 63 F.4th 996, 1005 (Sth Cir. 2023)
(quotation marks omitted).
I. Plaintiff adequately alleges a constitutional violation — excessive force.
“To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must
first show that []he was seized.” Flores v. City of Palacios, 381 F.3d 391, 396 (Sth Cir. 2004)
(citing Graham y. Connor, 490 U.S. 386, 388 (1989)). “Next []he must show that []he suffered
(1) an injury that (2) resulted directly and only from the use of force that was excessive to the
need and that (3) the force used was objectively unreasonable.” Flores, 381 F.3d at 396.
Defendants contest each element except seizure.
A. Plaintiff alleged a satisfactory injury.
The Amended Complaint must allege at least “some injury.” /kerd v. Blair, 101 F.3d
430, 435 (Sth Cir. 1996). And that injury must be more than de minimis. See Flores, 381 F.3d
at 397-98 (explaining that “certain injuries are so slight that they will never satisfy the injury
element’). The Fifth Circuit requires courts to consider “the context in which the injury occurs.”
Tkerd, 101 F.3d at 434. Here, Plaintiff alleges that he was “forcefully extracted . . . from his
vehicle,” was tased on the leg despite “not resisting,” and “suffered physical and mental injuries
from Defendants’ tasings.” ECF No. 20 at {| 6-9.

Defendants argue these alleged injuries are de minimis. ECF No. 23 at 9. They specifically
invoke Buchanan v. Gulfport Police Dept., where the Fifth Circuit held that a thrice-tased plaintiff
failed to establish a cognizable injury. 530 Fed. Appx. 307, 314 (Sth Cir. 2013).
But “the amount of injury required to prevail in an excessive force action depends on the
context in which the injury occurs.” /kerd, 101 F.3d at 434. And the difference between Buchanan
and the Amended Complaint is active versus passive resistance. In Buchanan, the plaintiff failed
to comply with multiple officer warnings and was not subdued by the tasing — he twice removed
the taser leads from his body, picked up a bat, and charged at the officer.
Buchanan, 530 Fed. Appx. at 313-314. The Amended Complaint, by contrast, provides that
“suddenly and without warning,” multiple officers approached Plaintiff with pistols drawn,
forcefully extracted him from his vehicle, and then tased him on the leg — all while Plaintiff
attempted to comply without resistance. ECF No. 20 at 5-7.
Plaintiffs alleged injuries more closely parallel — if not surpass — the purely
psychological injuries in Flores. There, the Fifth Circuit found an injury where plaintiff's car was
shot once, and she suffered only psychological injuries. Flores, 381 F.3d at 394, 397-98.
Plaintiff here alleges both physical and mental injuries, and given the context discussed above,
that is sufficient to satisfy the injury element.
B. The alleged force was unreasonable under the circumstances.
Defendants claim that “[b]ecause Plaintiff alleges he was tased, he must state facts
allowing the Court to determine whether officers faced active resistance” under the reasonability
element. ECF No. 23 at 10 (citing Cloud v. Stone, 993 F.3d 379, 384 (Sth Cir. 2021) (explaining
that “a suspect’s active resistance to arrest may justify [tasing]”)).

Plaintiff plainly alleged he was “not resisting” the officers, ECF No. 20 at { 7, so
Defendants’ assertion is puzzling. And the Fifth Circuit is clear that tasing without resistance is
“excessive force.” See Cloud, 993 F.3d at 385 (“By contrast, we have found excessive force when
officers tased someone offering only passive resistance or no resistance at all.”). Taking the facts
alleged in the Amended Complaint as true — as /qbal requires — there is little question that the
alleged force was unreasonable.
C. The tasings caused Plaintiff's alleged physical and mental injuries.
Defendants tangentially challenge causation. They claim that “Plaintiff alleges without
detail that he suffered physical and mental injuries from Defendants’ tasings but does not state a
claim that his injuries were caused by excessive force... .” ECF No. 23 at 11. But Plaintiff
clearly alleges causation. See ECF No. 20 at | 9 (“MCCASLIN suffered physical and mental
injuries from Defendants’ tasings.”). Plaintiff satisfied this element, too.
I. The right not to be tased was “clearly established” on December 11, 2021.
To satisfy the second QI prong, Plaintiff must demonstrate that the right was “clearly
established” at the time of the violation. Newman v. Guedry, 703 F.3d 757, 763 (Sth Cir. 2012).
“T]he 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 (1987).
Plaintiff has a “right to be free from excessive force during an investigatory stop or arrest.”
Newman, 703 F.3d at 163. And the right to be free from tasing was clearly established as early as
2012, especially when the plaintiff “committed no crime, posed no threat to anyone’s safety, and
did not resist the officers or fail to comply with a command” — as the Amended Complaint
alleges here. /d. Under these parallel circumstances, “the officers’ conduct was objectively
unreasonable in light of clearly established law at the time of the [tasings].” /d. at 764.

In summary, Plaintiffs right to not be tased was “clearly established” by December 11,
2021. See ECF No. 20 at { 1 (date of the tasings). The facts alleged in the Amended Complaint,
therefore, are sufficient to overcome both prongs of the QI analysis.
II. Defendants may still pursue limited QI discovery and reassert that defense at
summary judgment.
But the analysis isn’t over. “[A] defendant’s entitlement to qualified immunity must be
determined ‘at the earliest possible stage of the litigation.” Carswell v. Camp, 54 F.4th 307, 310
(Sth Cir. 2022) (quoting Ramirez v. Guadarrama, 3 F.4th 129, 133 (Sth Cir. 2021) (per curiam)).
“That’s because qualified immunity is more than ‘a mere defense to liability.””
Camp, 54 F.4th at 310 (quoting Pearson y. Calahan, 555 U.S. 223, 237 (2009)). “It’s also an
immunity from suit.” Camp, 54 F.4th at 310 (quotation marks omitted). “And one of the most
important benefits of [QI] is ‘protection from pretrial discovery, which is costly, time-consuming,
and intrusive.’” /d. (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (Sth Cir. 2012)).
To ensure that QI can be decided at the earliest possible time, the Fifth Circuit has
authorized “discovery narrowly tailored to rule on [defendants’] immunity claims.”
Backe, 691 F.3d at 649; see Lion Boulos v. Wilson, 834 F.2d 504, 508-509 (Sth Cir. 1987) (first
articulating this limited discovery procedure). Limited QI discovery is “a careful procedure.”
Zapata v. Melson, 750 F.3d 481, 484 (Sth Cir. 2014).
This “careful procedure” doesn’t permit a deferred MTD ruling simply because additional
discovery would resolve the QI issue. Camp, 54 F.4th at 312. Instead, if “the pleadings are
sufficient to overcome QI,” as is the case here, “the district court must deny the motion to dismiss
without the benefit of pre-dismissal discovery.” /d. (emphasis original). That’s because “a
defendant’s entitlement to qualified immunity should be determined at the earliest possible stage
of the litigation—full stop.” /d. (quotation marks omitted).

QI isn’t lost to Defendants, though. They may still “move the district court for discovery
limited to the factual disputes relevant to whether QI applies, then reassert QI in a summary
judgment motion.” /d.; see Hutcheson y. Dallas Cty., 994 F.3d 477, 481 (Sth Cir. 2021)
(“Before limited discovery is permitted, a plaintiff seeking to overcome QI must assert facts that,
if true, would overcome that defense.”). “Why does the defendant alone enjoy this choice?”
Camp, 54 F.4th at 312. “Because only the defendant-official enjoys qualified immunity from
suit.” Jd. (citing Iqbal, 556 U.S. at 685).
CONCLUSION
Defendants’ MTD is DENIED, but they have not forfeited their QI defense. They may
still move the Court for limited discovery on QI and raise the defense again at the summary
judgment stage.
SO ORDERED.
April £6 2024 Uaifacenn
LO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671951. Public record. Not legal advice.