Livingston v. State Of Texas

UNITED STATES DISTRICT COURT September 30, 2022

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

VICTORIA DIVISION

JARVIS LIVINGSTON, §

§

Plaintiff, §

§

v. § Civil Action No. 6:21-CV-00007

§

STATE OF TEXAS; JOHN DOE LOPEZ §

in his personal capacity; JANE DOE §

MENDOZA in her personal capacity; §

JOHN DOE ASSISTANT DISTRICT §

ATTORNEY in his personal capacity; §

KARL VAN SLOOTEN in his personal §

capacity; CITY OF YOAKUM; ANITA R. §

RODRIGUEZ; CARL O’NEILL; SEAN §

MOONEY; GLENN KLANDER; BILLY §

GOODRICH; AMANDA ORACK; and §

FRANK RHODEHAMEL, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

In the late hours of July 5, 2019 and into the morning of July 6, 2019, Officers Sarah

Mendoza, Frank Rhodehamel, and Ben Lopez (hereinafter collectively “the Officers”)

arrested Plaintiff Jarvis Livingston (hereinafter “Livingston”) in Yoakum, Texas.

Responding to a fight in progress, the Officers detained Livingston after he exhibited

aggressive behavior and refused to comply with their orders. Livingston continued to

resist as the Officers put him in handcuffs using basic hands-on techniques. Unable to

calm the situation due to Livingston’s continued belligerence, Officer Lopez placed

Livingston under arrest for public intoxication and transported him to the Lavaca County

Jail where he persisted in his refusal to cooperate with law enforcement. (Dkt. No. 48 at

5).

Livingston brings this lawsuit under 42 U.S.C. § 1983, alleging false arrest and

excessive force. (Dkt. No. 1). Livingston, proceeding pro se and in forma pauperis,

provided a More Definite Statement with details of his claims. (Dkt. No. 7). After a Spears

hearing,1 Magistrate Judge Jason B. Libby issued a Memorandum and Recommendation

(“M&R”) that recommended retaining Livingston’s claims of false arrest and excessive

force against three police officers and dismissing all other claims under the screening

criteria of 28 U.S.C. § 1915(e)(2)(B). (Dkt. No. 10). No objections were filed. The

undersigned accepted the M&R on October 12, 2021. (Dkt. No. 30).

The only remaining defendants, Officers Sarah Mendoza, Frank Rhodehamel, and

Ben Lopez (the “Officers”), move for summary judgment, arguing that they did not

violate Livingston’s constitutional rights and are entitled to qualified immunity. (Dkt.

No. 48 at 11-18). Livingston filed a Response, (Dkt. No. 54), and an Affidavit, (Dkt. No.

55). The Officers filed a Reply. (Dkt. No. 56). Livingston filed a Sur-Reply, (Dkt. No. 57),

which the Officers have moved to strike. (Dkt. No. 58).

The Court TERMINATES the referral of those motions to Magistrate Judge Libby.

For the following reasons, the Court GRANTS the Officers’ Motion for Summary

Judgment, (Dkt. No. 48), and DISMISSES this case WITH PREJUDICE. The Officers’

Motion to Strike, (Dkt. No. 58), is DENIED as moot.

1 A Spears hearing is “an evidentiary hearing in the nature of a motion for more definite

statement.” Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985) (internal quotations omitted).

I. BACKGROUND

A. LIVINGSTON’S ALLEGATIONS

Livingston’s Complaint asserts that there was a conspiracy to violate his civil

rights by the State of Texas, officials with the City of Yoakum, and officers from the

Yoakum Police Department, who arrested him for being “drunk in public.” (Dkt. No. 1

at 3-4). His Complaint references several theories, including references to a conspiracy,

(id. at 23-24, 29-30, 48, 54), but provides few details in support of his claims. In his More

Definite Statement, (Dkt. No. 7 ), Livingston explains that he had been arrested for public

intoxication and resisting arrest at the Golden Oaks Apartments in Yoakum, Texas by

“Police Officer John Doe Lopez,” (id. at 2), and Officer “Jane Doe Mendoza,” (id. at 4), but

he provides no other details in support of his claim of conspiracy or the other theories

referenced in his Complaint. To screen the pleading under 28 U.S.C. § 1915(e)(2)(B),

Judge Libby held a Spears hearing. (Dkt. No. 13).

At the Spears hearing, Livingston clarified that he was at his aunt’s house on the

night of July 5, 2019, in Yoakum, Texas, when his brother and his cousin got into “an

argument.” (Id. at 11–12). After “somebody” called the police to report a fight, (id. at 11),

a “lady cop” identified as Officer Mendoza arrived at his aunt’s residence and proceeded

to grab Livingston by the wrist, (id. at 12). Livingston claims that he “pulled back” from

her grasp because he hadn’t done anything wrong. (Id.). According to Livingston, two

male officers arrived—Officer Lopez and a John Doe Officer2—who then grabbed

2 Later identified as Officer Frank Rhodehamel. (Dkt. No. 33 at 1).

Livingston by the arms, advising him that he was being detained but was not under

arrest. (Id. at 12–13). The John Doe Officer then tried to “wrestle” Livingston to the

ground, but Livingston refused to comply because he had done nothing wrong. (Id. at

14). Livingston was taken to the Lavaca County Jail on charges of resisting arrest. (Id. at

14, 17). He was also charged with public intoxication. (Id. at 26). Although the original

charges against Livingston were eventually dismissed, other charges were later filed

against him for interference with a peace officer’s public duties. (Id. at 20). Those charges

were also eventually dismissed. (Dkt. No. 18-1); (Dkt. No. 18-2); (Dkt. No. 19 at 1).

Livingston contends that his arrest was unlawful and that the John Doe Officer

used excessive force against him. (Dkt. No. 13 at 15–16). Livingston seeks $30 million in

damages from the Officers for violating his rights under the Fourth Amendment. (Dkt.

No. 7 at 7); (Dkt. No. 13 at 37). Based on these allegations, the Court authorized service

of process for Officer Sarah Mendoza, Officer Ben Lopez, and the John Doe Officer, (Dkt

No. 20), who was later identified as Officer Frank Rhodehamel, (Dkt. No. 33).

B. THE SUMMARY JUDGMENT MOTION AND EVIDENCE

The Officers move for summary judgment arguing that Livingston fails to

establish that he was arrested without probable cause or that an unreasonable amount of

force was used. (Dkt. No. 48 at 6). Arguing further that their actions were not objectively

unreasonable in light of Livingston’s conduct, the Officers assert that, regardless, they are

entitled to qualified immunity. (Id.). In support, Officer Rhodehamel and Officer

Mendoza provide affidavits, (Dkt. No. 48-1); (Dkt. No. 48-2), which are accompanied by

patrol vehicle recordings of the incident, (Dkt. No. 48-3), and Officer Lopez’s probable

cause affidavit in support of the charges against Livingston for resisting arrest, (Dkt. No.

48-4). The Officers have also provided additional exhibits in a flash drive on file with the

Clerk’s office. (Dkt. No. 50, Exh. 2-A); (Dkt. No. 50, Exh. 3). Finally, the Officers also

provide excerpts from Livingston’s deposition, (Dkt. No. 48-5), and an expert-witness

affidavit from retired law enforcement officer Lynn Wilborn, (Dkt. No. 48-6).

The Officers maintain that Officer Rhodehamel was the first officer who

responded to a 911 call of an “active disturbance” or fight at the Golden Oaks Apartments

in Yoakum, shortly before midnight on Friday July 5, 2019. (Dkt. No. 48 at 1); (Dkt. No.

48-1 at 1); (Dkt. No. 48-6 at 2). Rhodehamel “[i]mmediately” encountered an individual

who was later identified as Livingston’s younger brother, TJ Hights (hereinafter

“Hights”), next to a vehicle parked on the street and attempted to question him. (Dkt.

No. 48-1 at 1). Hights was not cooperative and would not provide details about the fight.

(Id. at 2).

Officer Mendoza was the second officer who responded to the 911 call. (Dkt. No.

48 at 1); (Dkt. No. 48-2 at 1). As she parked her patrol car, Officer Mendoza observed

Officer Rhodehamel speaking to Hights, when Livingston “approach[ed] from behind

two parked cars in an aggressive manner both verbally and physically.” (Id.). According

to Officer Rhodehamel, Livingston came running from the yard of the apartments and

was “shouting” at him to “leave his brother alone.” (Dkt. No. 48-1 at 1-2).

Officer Mendoza exited her patrol car and positioned herself in front of Livingston

as he came between the two parked cars, to attempt to physically prevent him from

reaching Officer Rhodehamel and also verbally tried to calm Livingston down. (Dkt. No.

48-2 at 2). Livingston continued trying to reach Officer Rhodehamel and attempted to

push Officer Mendoza out of the way. (Id.). When Rhodehamel observed Livingston fail

to comply with Officer Mendoza’s repeated commands, he intervened to prevent

Livingston from hurting Mendoza. (Dkt. No. 48-1 at 2). While the officers attempted to

escort Livingston to the front of the apartment complex, Livingston would not comply

with repeated commands to calm down and continued to behave in “an aggressive and

belligerent manner.” (Id.).

Audio from the recording system of Officer Mendoza’s patrol vehicle confirms

that Livingston was shouting and cursing at the officers while refusing repeated

commands to “stop” and “calm down.” (Dkt. No. 50, Exh. 2A at 02:20–02:40). Livingston

continues his tirade for over ten minutes while he refuses their instructions to put his

hands behind his back—resisting their efforts to detain him and frustrating their

investigation of the reported disturbance at the apartment complex. (Id. at 02:40–15:00).

Video from the recording system of Officer Lopez’s patrol vehicle shows Officers

Mendoza and Rhodehamel struggling with Livingston near a vehicle in front of the

apartment complex when Officer Lopez arrives. (Dkt. No. 50, Exh. 3 at 00:24-00:30). Soon

after Lopez arrives, the officers decide to place Livingston in handcuffs so they can

address the initial 911 call. (Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2). The officers state that

Livingston actively resisted and prevented them from placing his hands behind his back.

(Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2); (Dkt. No. 48-4 at 1). Livingston is heard on the

audio recording resisting and refusing to comply. (Dkt. No. 50, Exh. 2-A at 03:08–05:00).

As he continued resisting the officers, Livingston reportedly moved his body in a forceful

manner, causing Officer Rhodehamel to fall. (Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2).

After a “short scuffle,” Livingston was placed in handcuffs. (Dkt. No. 48 at 3); (Dkt. No.

48-1 at 2); (Dkt. No. 48-2 at 2). The officers report that no force “beyond a basic hands-on

technique” was used to place Livingston in handcuffs, (Dkt. No. 48 at 3), and that no “OC

Spray, taser or baton was ever used.” (Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2).

Once handcuffed, Livingston continued to actively resist the officers and their

efforts to get him into the back of a patrol car. (Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2).

He also continued to yell and argue with Hights, his brother, as he stood near the patrol

car. (Dkt. No. 48-4 at 2). All three officers believed that Livingston was intoxicated. (Dkt.

No. 48-1 at 2); (Dkt. No. 48-2 at 2); (Dkt. 48-4 at 2). On the audio recording, Officer

Mendoza comments that Livingston looks and smells intoxicated. (Dkt. No. 50, Exh. 2-A

at 14:39). In his affidavit, Officer Lopez states that he “could smell the odor of alcoholic

beverage emitting from [Livingston’s] breath as he yelled and cursed at Officer

Rhodehamel for putting his hands on him.” (Dkt. No. 48-4 at 2). Officer Lopez could

also “see that [Livingston’s] eyes were blood shot, he was slurring his words, and he was

very aggressive towards the Officers.” (Id.).

Because Officer Lopez believed that Livingston may have been a danger to himself

or others based on his behavior, Lopez advised Livingston that he was under arrest for

public intoxication. (Dkt. No. 48-4 at 2). At this point, Livingston began to resist even

more. (Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2). On the audio recording, Livingston insists

that he is not drunk, while continuing to shout and curse at the officers, threatening to

“sue the fuck out of all [them].” (Dkt. No. 50, Exh. 2A at 12:50–15:00). When Livingston

resisted efforts to place him in the back of a patrol car, Officer Lopez told Livingston that

they were going to use “the WRAP restrain system” to transport him. (Dkt. No. 48-4 at

2). The Wrap was never used. (Dkt. No. 48 at 5); (Dkt. No. 48-2 at 2). Although

Livingston told the officers that he would get into the car, he continued to resist by

refusing to put his legs in the vehicle. (Dkt. No. 48-4 at 2); (Dkt. No. 50, Exh. 2-A at 16:24–

17:50). Officer Lopez concluded that Livingston was “resisting arrest, search, or

transport.” (Dkt. No. 48-4 at 2).

II. LEGAL STANDARDS

Motions for summary judgment are governed by Rule 56 of the Federal Rules of

Civil Procedure, which provides that a reviewing court “shall grant summary judgment

if the movant shows that 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). A fact is

“material” if its resolution in favor of one party might affect the outcome of the suit under

governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91

L.Ed.2d 202 (1986). An issue is “genuine” if the evidence is sufficient for a reasonable

jury to return a verdict for the nonmoving party. Id. In its determination, “a court must

view the evidence in the light most favorable to the opposing party.” Tolan v. Cotton, 572

U.S. 650, 657, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam) (quoting Adickes v.

S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L.Ed.2d 142 (1970)).

If the movant demonstrates the absence of a genuine issue of material fact, the

burden ordinarily shifts to the non-movant to provide “specific facts showing the

existence of a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (emphasis omitted).

However, “[a] good-faith assertion of qualified immunity alters the usual summary

judgment burden of proof, shifting it to the plaintiff to show that the defense is not

available.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (internal quotation marks

omitted).

“Qualified immunity is a complete defense, and [a defendant is] entitled to

summary judgment on the basis of qualified immunity unless [the plaintiff] can show

triable issues as to whether [the defendant] violated a clearly established right of which

a reasonable officer would have been aware.” Brewer v. Hayne, 860 F.3d 819, 824 (5th Cir.

2017). When a defendant pleads qualified immunity, the plaintiff “must rebut the defense

by establishing a genuine fact [dispute] as to whether the official’s allegedly wrongful

conduct violated clearly established law.” Dyer v. Houston, 964 F.3d 374, 380 (5th Cir.

2020) (alteration in original). A plaintiff cannot satisfy this burden with conclusory

allegations based on speculation or unsubstantiated assertions of wrongdoing. See

Mitchell v. Mills, 895 F.3d 365, 370 (5th Cir. 2018). In addition, courts are not obliged to

accept factual allegations that are “blatantly contradicted” by video recordings taken at

the scene. Buehler v. Dear, 27 F.4th 969, 979 (5th Cir. 2022) (internal quotation marks

omitted); see also Tucker v. City of Shreveport, 998 F.3d 165, 179 (5th Cir. 2021)

(“Nevertheless, because there is video and audio recording of the event, we are not

required to accept factual allegations that are blatantly contradicted by the record.”)

(internal quotation marks omitted).

The Court is mindful that because Livingston represents himself, his pleading is

entitled to a liberal construction, meaning it is subject to “less stringent standards than

formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,

596, 30 L.Ed.2d 652 (1972) (per curiam). Even under this lenient standard, pro se litigants

are expected to “properly plead sufficient facts that, when liberally construed, state a

plausible claim to relief, serve defendants, obey discovery orders, present summary

judgment evidence, file a notice of appeal, and brief arguments on appeal.” E.E.O.C. v.

Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (footnotes and citations omitted). Courts

are not required “to scour the record in search of evidence to defeat a motion for summary

judgment; [courts] rely on the nonmoving party to identify with reasonable particularity

the evidence upon which he relies.” Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d

548, 555 n.7 (5th Cir. 2016) (internal quotations omitted).

III. DISCUSSION

A. QUALIFIED IMMUNITY

The Officers invoke the defense of qualified immunity, which protects government

officials from personal liability for monetary damages “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73

L.Ed.2d 396 (1982). Qualified immunity is designed to give public servants “breathing

room to make reasonable but mistaken judgments” and protects “all but the plainly

incompetent or those who knowingly violate the law.” Messerschmidt v. Millender, 565

U.S. 535, 546, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012) (internal quotation marks

omitted). Qualified immunity shields public officials from claims for monetary damages

unless a plaintiff shows “(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citing

Harlow, 457 U.S. at 818, 102 S.Ct. at 2738).

Courts have discretion to decide the order in which to consider the two-prong

inquiry when determining whether qualified immunity is warranted. Pearson v. Callahan,

555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (“The judges of the district

courts and the courts of appeals should be permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at hand.”). For reasons discussed

in more detail below, the Court concludes that the officers in this case are entitled to

qualified immunity under the first prong of the inquiry because Livingston does not

demonstrate that the officers lacked probable cause for his arrest or that excessive force

was used against him in violation of his constitutional rights.

B. FALSE ARREST

Livingston contends that the Officers violated his constitutional rights because

there was no probable cause to arrest him for public intoxication or resisting arrest, noting

that all the charges against him were dismissed in state court. (Dkt. No. 13 at 18–20);

(Dkt. No. 54 at 4); (Dkt. No. 55 at 3 ¶¶ 47–49). The Officers counter that Livingston’s

claim fails because there was probable cause to arrest him for at least one, if not all, of the

following violations of Texas law: resisting arrest; interfering with a peace officer’s public

duties; disorderly conduct; and public intoxication. (Dkt. No. 48 at 11). In support, the

Officers point to their own statements and the affidavit from retired law enforcement

officer Lynn Wilburn. (Id. at 11 n.54). In his affidavit, Wilburn states that a reasonable

peace officer would conclude that there was probable cause for an arrest for these

offenses. (Dkt. No. 48-6 at 2–4). The Court agrees with the Officers. Based on the facts

that were known to the Officers on the night of the incident, there was probable cause to

arrest Livingston for each of enumerated offenses.

Livingston’s claim of false arrest arises under the Fourth Amendment, which

protects “[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “Because

arrests are ‘seizures’ of ‘persons,’ they must be reasonable under the circumstances.”

District of Columbia v. Wesby, ____ U.S. ____, ____, 138 S. Ct. 577, 585, 199 L.Ed.2d 453

(2018). “A warrantless arrest is reasonable if the officer has probable cause to believe that

the suspect committed a crime in the officer’s presence.” Id at 586.

Probable cause for a warrantless arrest exists if, at the moment the arrest is made,

the facts and circumstances within the arresting officer’s knowledge and of which the

officer has reasonably trustworthy information are sufficient to warrant a prudent man

in believing that the person arrested had committed or was committing an offense. See

Beck v. State of Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L.Ed.2d 142 (1964); Flores v. City

of Palacios, 381 F.3d 391, 402 (5th Cir. 2004). “If an officer has probable cause to believe

that an individual has committed even a very minor criminal offense in his presence, he

may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of

Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001); see also Tex.

Code Crim. Proc. Ann. art. 14.01(b) (“A peace officer may arrest an offender without a

warrant for any offense committed in his presence or within his view.”). The existence

of probable cause for any offense is sufficient to defeat a claim of false arrest, even if the

offense giving rise to probable cause is not the same as or even closely related to the

offense articulated by the officer at the scene. See Devenpeck v. Alford, 543 U.S. 146, 153–

55, 125 S.Ct. 588, 593–95, 160 L.Ed.2d 537 (2004).

1. Resisting Arrest

Because of the aggressive and belligerent manner in which Livingston actively

resisted the Officers, all three of the Officers concluded that there was sufficient probable

cause to arrest Livingston for resisting arrest. (Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2);

(Dkt. No. 48-4 at 1-2). A person commits the offense of resisting arrest in violation of

Texas law “if he intentionally prevents or obstructs a person he knows is a peace officer

or a person acting in a peace officer’s presence and at his direction from effecting an

arrest, search, or transportation of the actor or another by using force against the peace

officer or another.” Tex. Penal Code § 38.03(a). Evidence provided by the Officers shows

that Livingston physically confronted the officers, yelling and cursing at them in an

abusive manner. (Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2); (Dkt. No. 50, Exh. 2-A at 02:00–

15:00); (Dkt. No. 50, Exh. 3 at 00:24–00:30). The audio recording of this encounter records

Livingston interrupting the officers’ efforts to investigate the reported 911 call and

causing the situation to become more chaotic by disobeying the officers’ repeated

commands while shouting and cursing at them. (Dkt. No. 50, Exh. 2-A at 02:00-15:00).

Livingston continues to behave in a combative, belligerent manner by resisting the

Officers’ efforts to place him in handcuffs and place him in the back of a patrol car. (Id.).

Although Livingston states that he was “not doing anything wrong” and that the

officers aggressively “manhandle[d]” him for no reason, (Dkt. No. 55 at 2 ¶ 14), a court

need not accept a version of events that is “blatantly contradicted” by video and audio

recordings of the confrontation. See Buehler, 27 F.4th at 979. Livingston admitted at the

Spears hearing that he pulled away from Officer Mendoza’s grasp and scuffled with the

officers at the scene of the reported disturbance on the night of July 5, 2019, which was

captured in the recording. (Dkt. No. 13 at 12–14); (Dkt. No. 50, Exh. 3 at 00:24–00:30).

Pulling out of an officer’s grasp is sufficient to constitute resisting arrest in violation of

Texas law. See Ramirez v. Martinez, 716 F.3d 369, 376 (5th Cir. 2013) (collecting cases).

Thus, the evidence reflects that Livingston physically resisted the officers’ efforts to

detain him in handcuffs while they investigated the 911 call and that the officers could

have reasonably believed that there was probable cause to arrest Livingston for violating

Section 38.03(a) of the Texas Penal Code. (Dkt. No. 48-6 at 4).

2. Interfering with a Peace Officer’s Public Duties

The same evidence supports a finding that there was probable cause to arrest

Livingston for interfering with their public duty to investigate the 911 call of an active

disturbance. A person commits the offense of interference with a Texas peace officer’s

public duties “if the person with criminal negligence interrupts, disrupts, impedes, or

otherwise interferes with . . . a peace officer while the peace officer is performing a duty

or exercising authority imposed or granted by law[.]” Tex. Penal Code § 38.15(a)(1).

Failure to comply with a police officer’s instructions at the scene of an offense is sufficient

probable cause for an arrest for interference with a peace officer’s public duties. See

Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017); see also Berrett v. State, 152 S.W.3d 600,

603–05 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (finding sufficient evidence of

interference with public duties where the defendant repeatedly pulled away and moved

his arm out of the officer’s reach to prevent being placed in handcuffs despite the officer’s

multiple commands to place his hands behind his back).

Livingston appears to argue that the officers lacked probable cause to arrest him

for interfering with their official duties because he was merely exercising his First

Amendment right to free speech. (Dkt. No. 57 at 7-8). Indeed, it is a defense to

prosecution for interference with public duties if “the interruption, disruption,

impediment, or interference alleged consisted of speech only.” Tex. Penal Code §

38.15(d). But the record does not support Livingston’s claim that his conduct amounted

to no more than protected speech because it reflects that Livingston refused to obey

repeated commands to calm down and physically resisted efforts to detain him. See

Barnes v. State, 206 S.W.3d 601, 605 (Tex. Crim. App. 2006) (concluding that a defendant’s

acts of defiance were more than mere speech and were sufficient evidence of interference

with public duties). Thus, the evidence is enough that a reasonable officer could have

believed there was probable cause to arrest Livingston on charges of interfering with a

peace officer’s public duties.

3. Disorderly Conduct

Moreover, the evidence reflects that a reasonable officer had probable cause to

arrest Livingston for disorderly conduct. Livingston engaged in an abusive, profanity-

laden tirade directed at the officers, which resulted in a physical confrontation and a loud

disturbance on the night of July 5, 2019. (Dkt. No. 50, Exh. 2-A at 2:00–15:00); (Dkt. No.

30 at 00:24–00:30). A person engages in disorderly conduct if he “intentionally or

knowingly” uses “abusive, indecent, profane, or vulgar language in a public place, and

the language by its very utterance tends to incite an immediate breach of the peace[.]”

Tex. Penal Code § 42.01(a)(1). Texas courts have defined and interpreted the term

“breach of the peace” to mean an act that disturbs or threatens to disturb the tranquility

enjoyed by the citizens. See Ross v. State, 802 S.W.2d 308, 315 (Tex. App.—Dallas 1990, no

pet.). On the audio recording, Livingston is heard loudly berating the officers, refusing

to obey their repeated commands to calm down, arguing with them, and creating a

disturbance in the middle of the night outside an apartment complex where a fight had

been reported. (Dkt. No. 50, Exh. 2A at 02:00–15:00); (Dkt. No. 30 at 00:24–00:30). Under

these circumstances, a reasonable officer could have believed there was probable cause

to arrest Livingston on charges of disorderly conduct in violation of Section 42.01(a)(1) of

the Texas Penal Code.

4. Public Intoxication

Finally, Livingston’s combative behavior and his demeanor also gave the officers

reason to suspect that he was intoxicated. (Dkt. No. 48-1 at 2); (Dkt. No. 48-2 at 2); (Dkt.

48-4 at 2). A person commits the offense of public intoxication if he “appears in a public

place while intoxicated to the degree that [he] may endanger [himself] or another.” Tex.

Penal Code § 49.02(a). The recording from the patrol vehicle shows that Officer Mendoza

observes signs of intoxication during Livingston’s tantrum and advises him of as much,

telling him that he looks and smells intoxicated. (Dkt. No. 50, Exh. 2-A at 14:40). Shortly

after making this observation, Officer Mendoza speaks with a witness at the scene of the

disturbance who advises her that “everyone” was drinking that night. (Id. at 19:00–20:15).

Officer Lopez also reportedly smelled alcohol on Livingston’s breath as he yelled at the

officers and behaved in a combative, confrontational manner. (Dkt. 48-4 at 2). Under the

circumstances, the officers could have reasonably concluded that Livingston was a

danger to himself or others as a result of intoxication and that there was probable cause

to arrest him for public intoxication. See Gibson v. Rich, 44 F.3d 274, 277–78 (5th Cir. 1995).

***

To defeat qualified immunity, Livingston argues that he was not drunk and notes

that there was no “breathalyzer or sobriety test” done to prove that he was intoxicated.

(Dkt. No. 55 at 3 ¶ 31); (Dkt. No. 57 at 6). But the inquiry is not whether there was

sufficient proof of an offense. Rather, the inquiry is whether the officers had probable

cause to believe Livingston was intoxicated. Even if the officers were mistaken about

whether there was probable cause, they are still entitled to qualified immunity under

these circumstances. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040-41,

97 L.Ed.2d 523 (1987) (“We have recognized that it is inevitable that law enforcement

officials will in some cases reasonably but mistakenly conclude that probable cause is

present, and we have indicated that in such cases those officials —like other officials who

act in ways they reasonably believe to be lawful—should not be held personally liable.”).

Livingston contends further that he was falsely arrested because all the charges

lodged against him were dismissed by the state prosecutor. (Dkt. No. 54 at 4). Yet the

fact that charges were dismissed “is of no consequence” when considering a claim of false

arrest. Babb v. Dorman, 33 F.3d 472, 479 (5th Cir. 1994). “The Constitution does not

guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of

action for every defendant acquitted—indeed, for every suspect released.” Baker v.

McCollan, 443 U.S. 137, 145, 99 S. Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). “The claim for

false arrest does not cast its primary focus on the validity of each individual charge;

instead, [the court must] focus on the validity of the arrest.” Wells v. Bonner, 45 F.3d 90,

95 (5th Cir. 1995). Livingston has not met his burden to defeat qualified immunity on his

false arrest claim. See Dyer, 964 F.3d at 380.

As outlined above, the record shows that there was probable cause to arrest

Livingston for several offenses on the night of July 5, 2019. Because Livingston has not

met his burden to demonstrate that there was no probable cause to arrest him for any

offense, he fails to establish that a constitutional violation occurred or to negate the

Officers’ entitlement to qualified immunity. Therefore, Livingston’s false-arrest claim

fails as a matter of law and the Officers’ Motion for Summary Judgment on this issue is

granted.

C. CLAIM OF EXCESSIVE FORCE DURING AN ARREST

Livingston argues that excessive force was used when the officers placed their

hands on him and attempted to restrain him. (Dkt. No. 48-5 at 5, 7-11). In particular,

Livingston appears to claim that Officer Rhodehamel put his arm around his neck and

tried to force him to the ground without cause because he was not resisting. (Id. at 5);

(Dkt. No. 13 at 14). The Officers argue that they used only the minimal amount of force

necessary to gain control of Livingston, even though a greater degree of force would have

been justified under the circumstances. (Dkt. No. 48 at 14-15).

To prevail on an excessive-force claim under the Fourth Amendment, a plaintiff

must show that he suffered (1) “an injury” that (2) resulted “directly and only from” an

officer’s use of force that was “clearly excessive” and (3) “objectively unreasonable.”

Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022) (quoting Joseph ex rel. Estate of Joseph v.

Bartlett, 981 F.3d 319, 332 (5th Cir. 2020)). The Supreme Court has outlined the following

considerations that inform the need for force in the Fourth Amendment context: (1) the

severity of the crime committed; (2) whether the suspect posed an immediate threat to

the safety of officers or others; and (3) whether the suspect was actively resisting arrest

or attempting to evade arrest by flight. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct.

1865, 1872, 104 L.Ed.2d 443 (1989).

The Fourth Amendment inquiry objective and is determined “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Id.; see also Lombardo v. City of St. Louis, Mo., ____ U.S. ____, ____, 141 S. Ct.

2239, 2241, 210 L.Ed.2d 609 (2021) (per curiam) (a reviewing court must ask “whether the

officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting them.’’) (quoting Graham, 490 U.S. at 397, 109 S.Ct. at 1872). This “calculus

of reasonableness” must include “allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary in a particular situation.”

Graham, 490 U.S. at 396–97, 109 S.Ct. at 1872; see also Plumhoff v. Rickard, 572 U.S. 765, 775,

134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014).

Livingston fails to meet the first criterion for making an excessive-force claim

because he does not allege or show that he suffered any injury as a result of force applied

by the Officers during his arrest. Although a plaintiff need not demonstrate a significant

injury, he must have suffered some harm that was more than de minimis to demonstrate

that excessive force was used. Westfall v. Luna, 903 F.3d 534, 549 (5th Cir 2018) (“Although

we no longer require ‘significant injury’ for excessive force claims, the injury must be

more than de minimis.” (Citation omitted)).

Livingston admitted during his deposition that the officers did not use a taser or

chemical spray and that he was not kicked or hit with a baton during his arrest. (Dkt.

No. 48-5 at 9–11). To the extent that he appears to have complained at one point that

handcuffs were placed on his wrist too tightly, Livingston does not dispute Officer

Lopez’s statement that he loosened the handcuffs when asked. (Dkt. No. 48-4 at 1). Even

if Livingston endured momentary discomfort from the handcuffs, minor or incidental

injuries that occur in connection with the use of restraints typically do not give rise to a

constitutional violation. See, e.g., Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001)

(holding that “handcuffing too tightly, without more, does not amount to excessive

force”); Westfall, 903 F.3d at 550 (“This court has held the following types of injuries to

be de minimis: abrasions, back and neck pain, and contusions.”). Because the evidence

does not establish that Livingston suffered an actionable injury, he cannot prevail on a

claim of excessive force in connection with his arrest. See Westfall, 903 F.3d at 549–50.

Livingston also does not show that the amount of force used was unreasonable or

excessive to the need under the second and third prongs of the inquiry. See Betts, 22 F.4th

at 582. As noted above, the record reflects that the Officers responded to a 911 call

reporting a fight in progress in the middle of the night without having any knowledge of

the number of combatants or whether weapons were involved. (Dkt. No. 48-6 at 2).

Based on the evidence of Livingston’s aggressive demeanor a reasonable officer could

have concluded that he posed a potential threat to their safety and that some force was

warranted after he refused their repeated commands to calm down and stop interfering

with their investigation of the 911 call. (Dkt. No. 50, Exh. 2-A at 2:00–15:00). “Facing an

uncooperative arrestee, officers properly use measured and ascending actions that

correspond to [an arrestee’s] escalating verbal and physical resistance.” Betts, 22 F.4th at

582. The evidence from the recording system from Officer Mendoza’s patrol vehicle,

which captures Livingston’s aggressive demeanor and repeated refusal to cooperate,

confirms that officers attempted to reason with him and that they did not immediately

resort to force “without attempting to use physical skill, negotiation, or even commands.”

Id. at 583 (internal quotations omitted). Given the facts, Livingston has also not carried

his burden to defeat qualified immunity as to his excessive force claim. See Dyer, 964 F.3d

at 380.

ek

Absent a showing that Livingston sustained any injury or that force was used

unreasonably under the circumstances, Livingston does not demonstrate that the officers

used force in a manner that was excessive to the need for gaining his compliance. Because

Livingston does not show that a constitutional violation occurred, the Officers are entitled

to qualified immunity from Livingston’s claims and summary judgment in their favor.

IV. CONCLUSION

For the above reasons, the Court GRANTS the Motion for Summary Judgment

filed by Officers Sarah Mendoza, Frank Rhodehamel, and Ben Lopez. (Dkt. No. 48).

Having considered all the submissions and found no genuine issue of material fact, the

Court DENIES as moot the Motion to Strike Livingston’s Sur-Reply. (Dkt. No. 58).

It is SO ORDERED.

Signed on September 29, 2022.

R J

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

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