Ramos v. Erwin

UNITED STATES DISTRICT COURT March 19, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

ALBERTO RAMOS, §

§

Plaintiff, §

§ CIVIL ACTION NO. 4:23-cv-2517

VS. §

§

SCOTT ERWIN et al, §

§

Defendants. §

MEMORANDUM & ORDER

This is a § 1983 suit arising from Plaintiff Alberto Ramos’ encounter with five Houston

Police Department Officers. Ramos brings claims for false arrest and excessive force. Before the

Court are three Motions to Dismiss: one filed by Defendants Gino Dago and Scott Irwin,1 ECF

No. 12, one filed by Defendants Hallie Smith and Frederick Morrison, ECF No. 16, and one filed

by Defendant Jennifer Gilbreath, ECF No. 29. The Motions are nearly identical in substance, and

differ only to the extent that different officers were allegedly involved in different phases of the

confrontation with Ramos.2 For the reasons set forth below, the Court finds that the three

Motions to Dismiss should be DENIED IN PART.

1 The case caption lists “Scott Erwin” as a defendant. Upon filing his Motion to Dismiss, Mr. Irwin informed the

Court of the correct spelling of his name. Defs. Dago and Irwin Mot. 1 n.1, ECF No. 12.

2 Another minor difference is that Gilbreath’s Motion was filed after the resolution of Ramos’ charges in state

criminal court whereas the other Defendants’ Motions were filed before this resolution. The implications of the

resolution of Ramos’ charges are discussed in section III.A. infra.

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I. BACKGROUND

At this stage, the Court accepts the well-pleaded facts alleged in Ramos’ complaint as

true, and views them in the light most favorable to Ramos. Johnson v. Johnson, 385 F.3d 503,

529 (5th Cir. 2004). When deciding a motion to dismiss, a court may also consider matters of

public record. Norris v. Hearst Tr., 500 F.3d 454, 461 (5th Cir. 2007); Cinel v. Connick, 15 F.3d

1338, 1343 n.6 (5th Cir. 1994). Defendants included the indictments and probable cause findings

related to Ramos’ state criminal charges as exhibits to their Motions to Dismiss. ECF Nos. 12-1,

12-2, 16-1, 16-2, 16-3, 16-4, 16-5, 16-6, 29-1, 29-2. Defendant Gilbreath included Ramos’

judgment of conviction as an exhibit to her Motion to Dismiss. ECF No. 29-3. Ramos filed a

status report that included his judgment of acquittal as to two of the state court charges, and

judgment of conviction as to the third. Pl.’s Status Report, Jan. 6, 2024, ECF No. 27. No parties

have objected to the Court’s consideration of these matters of public record. Accordingly, the

Court finds that it may consider the referenced documents at this juncture. With those

preliminary matters clarified, the Court will now summarize the relevant facts, as alleged in

Ramos’ complaint.

On the morning of July 11, 2021, Defendant Scott Irwin was notified of a 911 call

alleging that a “Hispanic” male had committed an assault. Compl. ¶ 2, ECF No. 1. Irwin received

no other physical descriptors of the alleged perpetrator. Id. at ¶ 3. When Irwin saw Ramos—a

Hispanic man—walking on a public sidewalk by himself, he drove next to Ramos and asked him

to tell his “side of the story.” Id. at ¶ 29. Ramos was confused, as he had just enjoyed a night out

dancing with his sisters. Id. at ¶ 31. Irwin then got out of his police vehicle and ordered Ramos to

stop moving away from him. Id. at ¶ 32–33. Ramos complied with the order and stopped

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moving. Id. ¶ 34–35. Then, Irwin “suddenly grabbed Ramos’ arm and began tackling him to the

ground.” Id. at ¶ 37.

Shortly thereafter, Defendant Jennifer Gilbreath arrived on the scene, and helped Irwin

tackle Ramos. Id. at ¶ 46. She then helped Irwin place handcuffs on Ramos. Id. ¶ 5. Ramos

alleges that these events all happened “mere seconds” after Irwin initially approached him. Id. at

¶ 38, 103. Once he was placed in handcuffs, Ramos “cried out in confusion, distress, and pain,

asking the officers to stop and let him go.” Id. at ¶ 5. In response, Gilbreath threatened to tase

Ramos’ chest. Id.

At least nine other police officers then arrived on the scene and placed the handcuffed

Ramos in the back of a police vehicle, while observing that Ramos’ mental state was

deteriorating and that he was repeatedly complaining that he was in pain. Id. at ¶ 6. At some

point during the encounter, the officers placed a “spit mask” on Ramos. Id. at ¶ 68.

Later, Defendants Gino Dago, Hallie Smith, and Fredrick Morrison pulled Ramos out of

the police vehicle and, as Ramos screamed out in pain, the officers hogtied him—that is, they

placed him on his stomach and tied his wrists and ankles in a four-point restraint. Id. at ¶ 7, 71–

76. Ramos had to be hospitalized for the injuries he received from being hogtied, and he

continues to suffer serious mental and emotional consequences stemming from being hogtied. Id.

at ¶ 8.

In addition to the facts alleged in Ramos’ complaint, documents in the public record

indicate that, following the above-described events, Ramos was charged with two counts of

assault on an officer, as well as harassment of a public servant. See ECF No. 27. Following a jury

trial in state criminal court, Ramos was found not guilty of assault on an officer, and guilty of

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harassment of a public servant (namely, spitting on Gilbreath). Id. A state court judge sentenced

him to two years of probation. Id.

Ramos brought 42 U.S.C. § 1983 claims against Defendants Irwin, Gilbreath, Smith,

Morrison, and Dago, suing each officer in their individual capacity. Id. at ¶ 12. Ramos alleges

violations of the Fourth and Fourteenth Amendments. Id. at ¶ 13. He seeks declaratory relief, in

addition to compensatory and punitive damages, and reasonable fees and costs pursuant to 42

U.S.C. § 1988. Dago and Irwin filed a Motion to Dismiss on September 27, 2023. Smith and

Morrison filed a Motion to Dismiss on October 16, 2023. Gilbreath filed a Motion to Dismiss on

February 12, 2024. The three Motions each seek dismissal of all of Ramos’ claims.

II. LEGAL STANDARD

A court may dismiss a complaint for “failure to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint

‘does not need detailed factual allegations,’ but must provide the plaintiff’s grounds for

entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to

relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This must be more than “[a]n

unadorned, the-defendant-unlawfully-harmed-me accusation” or “a sheer possibility that a

defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a claim is

plausible on its face only “when the pleaded factual content allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

In the Fifth Circuit, motions to dismiss under Rule 12(b)(6) are viewed with disfavor and

are rarely granted. Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Lowrey v.

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Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). “The motion to dismiss should not be

granted unless the plaintiff would not be entitled to relief under any set of facts that he could prove

consistent with the complaint.” Johnson, 385 F.3d at 529.

III. ANALYSIS

Defendants urge dismissal based on two general grounds. First, Defendants argue that

Ramos’ claims are Heck-barred. Second, Defendants argue that they are entitled to qualified

immunity.

A. Whether Ramos’ claims are Heck-barred

Defendants submit that Plaintiff’s suit should be dismissed pursuant to the doctrine set

forth in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court explained that §

1983 suits cannot proceed where “a judgment in favor of the plaintiff would necessarily imply

the invalidity of [the § 1983 plaintiff’s] conviction or sentence.” Id. at 487. If a judgment in the §

1983 action would so imply, “the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.” Id.

Ramos brings three § 1983 claims: false arrest and excessive force claims stemming from

Defendants Irwin and Gilbreath tackling and arresting him seconds after seeing him, and an

excessive force claim stemming from Defendants Dago, Smith, and Morrison hogtying him.

Defendants originally pointed to the three criminal charge Ramos faced in connection with the

events underlying his § 1983 suit to argue that his claims were Heck-barred. However, two of

those charges resulted in acquittal, and therefore cannot bar Ramos’ § 1983 claim. See id.; Pl.’s

Status Report, Jan. 6, 2024 (Judgment of state criminal case). Still, Defendants contend that

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Ramos’ conviction for harassment of a public servant—namely, spitting on Gilbreath—requires

this Court to dismiss the case. For the reasons that follow, the Court finds and holds that none of

Ramos’ claims are Heck-barred.3

1. False arrest claim

Ramos bases his § 1983 false arrest claim on allegations that Defendants Irwin and

Gilbreath lacked probable cause when they arrested him following the 911 call “solely because

he fit the general and overbroad description of ‘Hispanic male.’” Compl. ¶ 87–90. Ramos never

received criminal charges related to the 911 call, and his state criminal charge is based on

conduct that occurred after his initial arrest. Therefore, a judgment in favor of Ramos as to his

false arrest claim would not necessarily imply the invalidity of his state criminal conviction. This

claim is not Heck-barred.

2. Excessive force claims

The Fifth Circuit has made clear that § 1983 excessive force claims are not Heck-barred

where the alleged excessive force and alleged criminal misconduct occur at temporally distinct

times. Aucoin v. Cupil, 958 F.3d 379, 382 (5th Cir. 2020) (“Put simply, there is no Heck bar if

the alleged violation occurs ‘after’ the cessation of the plaintiff’s misconduct that gave rise to his

prior conviction.”); Poole v. City of Shreveport, 13 F.4th 420, 426–27 (5th Cir. 2021) (holding

that § 1983 excessive force claim was not Heck-barred as it was “temporally and conceptually

distinct” from criminal offense); Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008) (concluding

that § 1983 excessive force claim was not Heck-barred because the “excessive force occurred

after the arrestee has ceased his or her resistance” and therefore did “not necessarily imply the

3 In so holding, the Court rejects Defendants’ argument that Ramos has judicially admitted to kicking and spitting on

officers. Ramos’ pleadings exclusively refer to the facts underlying his state criminal charges as “alleged.” See

generally ECF Nos. 20, 30.

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invalidity of a conviction for the earlier resistance”); Ballard v. Burton, 444 F.3d 391, 400 (5th

Cir. 2006) (holding that § 1983 excessive force claim was “conceptionally different” from simple

assault conviction, and accordingly not Heck barred, where allegedly criminal conduct had

ceased when officer used allegedly excessive force). The reasoning underlying these decisions is

that if the factual bases for a § 1983 claim and criminal conviction are “temporally and

conceptually distinct,” a finding that the officer utilized excessive force is not necessarily

inconsistent with a finding that the § 1983 plaintiff committed a crime. Poole, 13 F.4th at 426–27

(quoting Bush, 513 F.3d at 497).

Ramos’ excessive force claim stemming from Irwin and Gilbreath’s conduct at the time

of his initial arrest was “temporally and conceptually distinct” from the conduct underlying

Ramos’ criminal conviction. Construing the well-pleaded allegations in Ramos’ favor, as the

Court is obligated to do at this stage, the Court infers that Ramos spat on Gilbreath after

Defendants Irwin and Gilbreath tackled him. Great Plains Tr. Co. v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 311 (5th Cir. 2002). This inference is reasonable given Ramos’

allegations that “[m]ere seconds passed between the time when Irwin exited his police vehicle

and the time when Gilbreath helped him tackle Ramos to the ground.” Compl. ¶ 47. Therefore, a

judgment in Ramos’ favor on his § 1983 excessive force claim related to the tackling would not

be inconsistent with his state criminal conviction. The facts underlying the excessive force claim

and state criminal charge represent two entirely distinct events.

Turning to his second excessive force claim (related to the hogtying), Ramos alleges that

the officers placed him in the back of a police vehicle, put a spit mask on him, and later removed

him from the car and hogtied him. Id. at ¶¶ 59, 68, 70–76. Ramos’ criminal misconduct had

necessarily concluded when Defendants hogtied him, because at that point, he was wearing a spit

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mask that would have prevented him from spitting on Gilbreath. Therefore, the factual bases for

Ramos’ excessive force claim connected to the hogtying, and for his criminal conviction, are

“temporally and conceptually distinct.” Bush, 513 F.3d at 497. His excessive force claim is not

Heck-barred.

B. Whether Defendants are entitled to qualified immunity

All five officers argue that they are entitled to qualified immunity. “The doctrine of

qualified immunity protects government officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It is Plaintiff’s burden to establish that the

doctrine of qualified immunity does not apply. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194

(5th Cir. 2009). To do so, Plaintiff must (1) allege facts sufficient to “make out a violation of a

constitutional right,” and (2) show that the constitutional right “was clearly established at the

time of [the official’s] alleged misconduct.” Heckford v. City of Pasadena, No. 4:20-CV-04366,

2022 WL 209747, at *3 (S.D. Tex. Jan. 21, 2022) (Ellison, J.) (quoting Pearson, 555 U.S. at

232).

A constitutional right is “clearly established” if no reasonable officer would have thought

the officer’s acts passed constitutional muster. In other words, “qualified immunity is warranted

unless no reasonable officer would have acted as the officer did.” Heckford, 2022 WL 209747, at

*3 (Ellison, J.) (citing Mason v. Faul, 929 F.3d 762, 764 (5th Cir. 2019)). A right is clearly

established so long as it provides “fair warning”; that is, it can be clearly established “despite

notable factual distinctions between the precedents relied on and the cases then before the Court,

so long as the prior decisions gave reasonable warning that the conduct then at issue violated

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constitutional rights.” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (quoting Hope v.

Pelzer, 536 U.S. 730, 740 (2002)); see also White v. Pauly, 580 U.S. 73, 79 (2017) (explaining

that there need not be “a case directly on point” for a right to be clearly established so long as

“existing precedent [has] placed the statutory or constitutional question beyond debate” (quoting

Mullenix v. Luna, 577 U.S. 7, 12 (2015))). Indeed, the Supreme Court has emphasized that “a

general constitutional rule already identified in the decisional law may apply with obvious clarity

to the specific conduct in question” even where facts of the case at hand do not closely align with

relevant precedent. Taylor v. Riojas, 592 U.S. 7, 9 (2020) (quoting Hope, 536 U.S. at 741).

1. Personal involvement

As a preliminary matter, to overcome qualified immunity, Ramos “must specifically

identify each defendant’s personal involvement in the alleged wrongdoing.” Jimerson v. Lewis,

No. 22-10441, 2024 WL 640247, at *3 (5th Cir. Feb. 15, 2024) (quoting Thomas v. Humfield, 32

F.3d 566, 1994 WL 442484, at *5 (5th Cir. 1994)). Defendants correctly assert that Ramos’

complaint alleges that only Gilbreath and Irwin tackled and arrested Ramos, see Compl. ¶¶ 37–

49, and that only Dago, Smith, and Morrison hogtied Ramos, see id. at ¶¶ 70–76. Accordingly,

the Court concludes that Defendants’ Motions to Dismiss should be GRANTED IN PART.

Ramos’ “tackling” excessive force claim and false arrest claim are DISMISSED with respect to

Defendants Dago, Smith, and Morrison; Ramos’ “hogtying” excessive force claim is

DISMISSED with respect to Defendants Gilbreath and Irwin.

2. False arrest

Count I of Ramos’ complaint alleges that Irwin and Gilbreath arrested him without

probable cause. Compl. ¶¶ 85–92. The Complaint alleges that the officers lacked probable cause

because (1) at the time of the initial arrest, the only information that Irwin and Gilbreath had was

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that a 911 caller stated that a “Hispanic male” assaulted a “Hispanic” woman on the street; and

(2) they did not ask Ramos any investigative questions before arresting him. Id. at ¶ 16, 30, 39,

40–49, 55–57.

a. Constitutional violation

The Court agrees with Ramos that Irwin and Gilbreath lacked probable cause at the time

of the arrest.4 A suspect’s race and sex alone cannot provide reasonable suspicion—and, thus,

not the higher standard of probable cause5—for an officer to stop them. United States v. Alvarez,

40 F.4th 339, 343 (5th Cir. 2022) (concluding that officer lacked reasonable suspicion to stop

Defendant, explaining that “[o]ur cases require officers to have information more specific than ‘a

Hispanic male who once rode away from police on a bicycle with large handlebars in a particular

area,’ especially in Corpus Christi, Texas.”). This conclusion is buttressed by the fact that 44.8%

of people in Houston identify as Hispanic or Latino. U.S. Census Bureau Quickfacts: Houston

City, Texas, UNITED STATES CENSUS BUREAU,

https://www.census.gov/quickfacts/fact/table/houstoncitytexas/RHI725222. Condoning Ramos’

4 In their reply briefs, Defendants appear to argue for the first time that Ramos was not arrested until after he spit on

Gilbreath, and that Irwin and Gilbreath’s stopping, grabbing, tackling, and handcuffing of Ramos only constituted a

Terry stop that can be supported by “reasonable suspicion,” rather than “probable cause.” See ECF Nos. 22, 31.

Defendants’ reply briefs also raise the argument that, in addition to Ramos’ race and sex, his geographic and

temporal proximity to the alleged crime, and apparent intoxication, support a finding of reasonable suspicion. Id.

However, “[f]ailure to raise an argument in a motion waives the argument; raising it for the first time in a reply

memorandum is too late.” Loyalty Conversion Sys. Corp. v. Am. Airlines, Inc., 66 F. Supp. 3d 795, 811 (E.D. Tex.

2014) (collecting cases); cf. Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (“This court does not ordinarily

review issues raised for the first time in a reply brief. . . . It robs the [opposing party] of the opportunity to

demonstrate that the record does not support [movant’s] factual assertions and to present an analysis of the pertinent

legal precedent that may compel a contrary result.”). In any event, even if Defendants made these arguments in their

Motions, they would fail. Construing all reasonable inferences in Ramos’ favor, the arrest occurred prior to any

alleged resistance. Moreover, for reasons discussed infra, even if the initial interaction were a Terry stop and not a

full-blown arrest, Irwin and Gilbreath’s conduct nevertheless violated the Fourth Amendment, as they lacked

reasonable suspicion. Case law is clear that race, sex, and geographic and temporal proximity to a crime do not give

rise to reasonable suspicion. And Defendants did not observe that Ramos was under the influence of drugs until after

he was tackled and handcuffed. See Compl. ¶ 64–65 (noting officer’s observations following the initial take-down);

see also id. at ¶¶ 23, 40 (noting that Irwin did not observe Ramos committing any crimes before grabbing him).

5 Facts that do not give rise to reasonable suspicion also do not give rise to probable cause, as “[r]easonable

suspicion is a less demanding standard than probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990).

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arrest would be akin to ratifying the open-ended policing practices that decades of Fourth

Amendment jurisprudence have sought to stamp out. See, e.g., Terry v. Ohio, 392 U.S. 1, 22

(1968).

Rather than contesting this well-established precept, Defendants argue that Ramos’ act of

resisting arrest supplied probable cause for the arrest. Defendants point to the state Magistrate

Judge’s determination that there was probable cause to arrest Ramos based on his conduct during

his encounter with the officers, and urge the Court to apply the independent-intermediary

doctrine. That doctrine provides that an arresting officer has not violated the Fourth Amendment

where an independent intermediary authorized the arrest, even if the officer lacked probable

cause. Shaw v. Villanueva, 918 F.3d 414, 417 (5th Cir. 2019); Winfrey v. Rogers, 901 F.3d 483,

496 (5th Cir. 2018). The rationale behind this doctrine is that, in such a scenario, the independent

intermediary’s authorization “breaks the chain of causation for false arrest, insulating the

initiating party.” Mayfield v. Currie, 976 F.3d 482, 486 (5th Cir. 2020) (quoting Deville v.

Marcantel, 567 F.3d 156, 170 (5th Cir. 2009)).

Defendants’ arguments mischaracterize the facts as alleged in Ramos’ complaint. Ramos

alleges that Irwin and Gilbreath arrested him almost immediately after seeing him on the street,

based only on the fact that he was a “Hispanic male.” Compl. ¶ 16, 30, 39, 40–49, 55–57. The

charges—and the Magistrate Judge’s probable cause finding—focused solely on Ramos’ actions

that followed his initial arrest. See ECF No. 12-1 at 11 (Probable Cause Finding and Order

describing order of events as “Ofc. Apprehend. def resists”). Under the alleged facts, no

independent intermediary can be said to have broken the causal chain. Ramos has alleged facts

sufficient to make out a violation of a constitutional right, thereby satisfying the first prong of the

qualified immunity analysis.

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b. Clearly established law

Ramos has also demonstrated that his Fourth Amendment right is clearly established. At

the time of Ramos’ arrest, decades of Fifth Circuit precedent6 had made clear that race and sex

alone cannot support a police stop, let alone an arrest. See Alvarez, 40 F.4th at 343; Goodson v.

City of Corpus Christi, 202 F.3d 730, 737 (5th Cir. 2000) (suspect matching description of “tall,

heavy-set, white man dressed as a cowboy” did not give officer reasonable suspicion to stop and

frisk); United States v. Jones, 619 F.2d 494, 497 (5th Cir. 1980) (suspect matching description of

“black male, 5 feet 6 inches to 5 feet 9 inches tall and weighing between 150 and 180 pounds,

with a medium afro hair style, who was wearing jeans and a long denim jacket” did not supply

6 Defendants submit that only Supreme Court precedent can “clearly establish” constitutional rights for purposes of

qualified immunity. Defendants point to D.C. v. Wesby, where the Supreme Court noted, “[w]e have not yet decided

what precedents—other than our own—qualify as controlling authority for purposes of qualified immunity.” 583

U.S. 48, 66 n.6 (2018). While the Supreme Court has not explicitly held that circuit authority may clearly establish

the law, it has “assum[ed] without deciding that a court of appeals decision may constitute clearly established law

for purposes of qualified immunity.” City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503, 202 L. Ed. 2d 455

(2019). And, the Fifth Circuit has consistently applied its own precedent to assess whether the law is clearly

established the law in qualified immunity analyses. See, e.g., Aguirre v. City of San Antonio, 995 F.3d 395, 415 (5th

Cir. 2021) (citing Trammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017)); Brown v. Lynch, 524 F. App’x 69, 81 (5th

Cir. 2013); Easter v. Powell, 467 F.3d 459, 465 (5th Cir. 2006).

In addition to precedential support, practical considerations militate in favor of relying on binding circuit

authority in qualified immunity analyses. Paradoxical situations could ensue if only Supreme Court precedent could

“clearly establish” constitutional rights. For instance, circuit courts might uniformly hold that certain conduct

violates a constitutional right. The lack of a circuit split would disincentivize the Supreme Court from taking up a

case that would align it with lower courts and “clearly establish” the law. A troubling situation would then result:

courts would invariably agree that certain officer behavior violates the constitution, but all officers who have

engaged in that behavior would be entitled to qualified immunity and insulated from the demands of the federal

constitution.

Further, from July 2022 to June 2023, the Fifth Circuit issued just over 2,700 opinions. U.S. CT. OF

APPEALS FOR THE FIFTH CIR., JUDICIAL WORKLOAD STATISTICS, CLERK’S ANNUAL REPORT 11 (2023),

https://www.ca5.uscourts.gov/docs/default-source/default-document-library/clerk's-annual-report-july-2022-to-june-

20232041ab0547c26210bd33ff0000240338.pdf?sfvrsn=9883c92d_0. In roughly that same time period, the Supreme

Court issued only 141 opinions. The Statistics, 137 HARV. L. REV. 490 (2023) (compiling Court statistics from

October 2022 through October 2023). Necessarily, then, the Supreme Court has spoken, and will speak, on far fewer

factual scenarios, as compared with circuit courts. Given the Supreme Court’s instruction to conduct qualified

immunity analyses at a low level of generality, Mullenix, 557 U.S. at 12, if binding circuit authority could not

clearly establish constitutional rights, it would be nearly impossible to find cases that could provide officers “fair

warning” that various conduct violates the constitution.

Therefore, it accords with precedent and reason for this Court to rely on Fifth Circuit authority to assess

whether Ramos’ constitutional rights were clearly established for purposes of qualified immunity.

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probable cause for arrest); United States v. Rias, 524 F.2d 118, 119, 121 (5th Cir. 1975) (suspects

fitting description of “two black males in a black or blue Chevrolet” did not provide officer

reasonable suspicion to stop vehicle). Defendants are not entitled to qualified immunity on

Ramos’ false arrest claim.

3. Excessive force

Count III alleges that Defendants used excessive force when they grabbed and tackled

Ramos after he peacefully complied with Irwin’s command to stop moving. Id. at ¶¶ 100–105.

Count II of Ramos’ complaint alleges that Defendants used excessive force against Ramos when

bringing him out of the back of a police vehicle and hogtying him. Compl. ¶¶ 93–99.

Individuals have a Fourth Amendment right to be free from excessive force in the course

of an investigatory stop or arrest. Graham v. Connor, 490 U.S. 386, 394 (1989); Tennessee v.

Garner, 471 U.S. 1, 7–22 (1985); Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). To

sustain a claim for excessive force under § 1983, a plaintiff must plead an “(1) injury (2) which

resulted directly and only from a use of force that was clearly excessive, and (3) the

excessiveness of which was clearly unreasonable.” Freeman v. Gore, 483 F.3d 404, 416 (5th Cir.

2007) (quoting Tarver, 410 F.3d at 751). While excessive force claims need not allege

“significant injury,” “the injury must be more than de minimis.” Tarver, 410 F.3d at 752 (citing

Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.1999)).

The elements of an excessive force claim tend to blend in practice: the Fifth Circuit has

explained that an injury is more than de minimis if it is objectively unreasonable, such that “even

relatively insignificant injures and purely psychological injuries will prove cognizable when

resulting from an officer’s unreasonably excessive force.” Brown, 524 F. App’x at 79. Courts

measure the excessiveness and unreasonableness of the force “from the perspective of a

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reasonable officer on the scene,” Smith v. Heap, 31 F.4th 905, 912 (5th Cir. 2022) (quoting

Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th Cir. 2020)), based on “the severity of the crime

at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others,

and whether he [was] actively resisting arrest or attempting to evade arrest by flight,” Graham,

490 U.S. at 396.

a. Initial take-down

i. Constitutional violation

Ramos’ complaint alleges that Irwin grabbed Ramos and, with Gilbreath’s assistance,

tackled and sat on him, immediately after Ramos complied with Irwin’s order to stop moving.

Compl. ¶ 33–48. Defendants submit that Ramos’ excessive force claim fails because any injuries

Ramos suffered as a result of the initial encounter were de minimis. However, Ramos’ complaint

alleges that, following this initial encounter (and before he was hogtied), he was “confused,

distressed, in pain, and scared,” and that the “emotional delirium” resulting from the take-down

“appeared to have physical effects on his body,” as he was “sweating profusely” and his

breathing began to alternate “between hyperventilating and slow, labored, coarse-sounding

breaths.” Id. at ¶¶ 50, 64. The Court cannot assess the legal significance of these injuries in a

vacuum. As noted, an injury that may appear minor in isolation is nevertheless cognizable if it is

the result of an officer’s objectively unreasonable use of force. Brown, 524 F. App’x at 79;

Freeman, 483 F.3d at 416 (“The determination of whether a plaintiff’s alleged injury is sufficient

to support an excessive force claim is context-dependent and is ‘directly related to the amount of

force that is constitutionally permissible under the circumstances.’” (quoting Ikerd v. Blair, 101

F.3d 430, 435 (5th Cir.1996))). Therefore, to assess whether Ramos’ injuries from the initial

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encounter are constitutionally cognizable, the Court must assess whether Irwin and Gilbreath’s

use of force was objectively unreasonable.

Here, all three Graham factors cut in Ramos’ favor. First, at the time Irwin and Gilbreath

took down Ramos, he had not committed a crime; he was merely walking on a public sidewalk.

Compl. ¶¶ 22–23. Second, Ramos complied with Irwin’s command to stop moving, and “showed

no physical aggression” toward Irwin. Id. at ¶¶ 33–35. Therefore, he did not pose a threat to the

safety of the officers. Lastly, Ramos was not resisting or evading arrest when Defendants

grabbed and tackled him. To the contrary, Ramos had just complied with Irwin’s command and

stopped moving. Id. Any resistance that occurred after Irwin and Gilbreath grabbed and tackled

Ramos cannot factor into the Court’s analysis.

All in all, the Graham factors lead the Court to conclude that Irwin and Gilbreath’s use of

force was objectively unreasonable, and that Ramos’ resulting injuries were more than de

minimis. Therefore, Ramos has adequately pled a constitutional violation.

ii. Clearly established law

The Fifth Circuit has repeatedly stated that an officer may not pull someone to the ground

if they are only passively resisting—it follows that an officer may not pull someone to the

ground if they are not resisting. See Trammell, 868 F.3d at 341 (explaining, “where an

individual’s conduct amounts to mere ‘passive resistance,’ use of force is not justified”); Hanks

v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017) (holding that it was clearly established “that an

officer violates the Fourth Amendment if he abruptly resorts to overwhelming physical force

rather than continuing verbal negotiations with an individual who poses no immediate threat or

flight risk, who engages in, at most, passive resistance, and whom the officer stopped for a minor

[offense]”).

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In a case particularly instructive here, the Fifth Circuit held that an officer was not

entitled to qualified immunity where the officer stopped the plaintiff for speeding, and then

tackled the plaintiff to the ground even though he was not evading or resisting arrest. Aguilar v.

Robertson, 512 F. App’x 444, 450 (5th Cir. 2013). The court explained that, though there was no

case with directly analogous facts, “the law is clear that once the plaintiff stops resisting or is in

the deputy’s control, the permissible degree of force lessens.” Id. The Aguilar court cited Bush v.

Strain, an earlier case in which the Fifth Circuit held that it is clearly established that “forcefully

slam[ming] [an individual’s] face into a vehicle while she was restrained and subdued” violates

the Fourth Amendment. 513 F.3d at 502.

To be sure, these cases have slight factual differences from Ramos’—the Aguilar plaintiff

was riding a motorcycle and had committed a traffic violation when pulled over, while Ramos

was on foot and had committed no crime when stopped; the officer in Bush slammed the

plaintiff’s face into a vehicle, while Irwin and Gilbreath tackled Ramos to the ground. However,

the deluge of authority7 and obviousness of the violation is such that no reasonable officer in

Irwin and Gilbreath’s position would have concluded that it was constitutionally permissible to

grab and tackle an individual to the ground where the individual had committed no crimes and

7 Defendants’ citation to Tucker v. City of Shreveport is inapposite. 998 F.3d 165 (5th Cir. May 18, 2021). There, an

officer pulled the plaintiff to the ground, despite the fact that that the plaintiff did not appear to demonstrate

significant physical resistance to arrest. Id. at 180–81. The Fifth Circuit determined that the plaintiff’s constitutional

right to be free from excessive force was not clearly established. However, the Tucker court based its holding on a

number of factors that are not present in this case. In granting qualified immunity at the summary judgment stage,

the Tucker court pointed out that, (1) the plaintiff was visibly agitated at the time of the take-down such that the

officers were concerned for their safety—for instance, he moved his arms in erratic and unpredictable ways, and

shouted a series of angry, strident remarks at the officers, including “perceived racism, interspersed with cursing”;

and (2) video footage and officer testimony indicated that the plaintiff tensed up and moved away from the officers

as they attempted to handcuff him. Id. at 179. Under those circumstances, the Tucker court concluded that applicable

precedent did not provide “fair warning” to the officers that pulling the plaintiff to the ground would violate his

Fourth Amendment rights. Id. at 180. By contrast, at the time of the take-down in this case, Ramos stood still, and

showed no signs of agitation or verbal or physical resistance. Compl. ¶¶ 34–37. Given these significant factual

differences, the Tucker court’s reasoning does not extend to the facts of this case.

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immediately complied with orders. Therefore, Defendants Irwin and Gilbreath are not entitled to

qualified immunity on Ramos’ excessive force claim.

b. Hogtying

i. Constitutional violation

Here, the only contested issue is whether Ramos suffered any injury from being hogtied

that was more than de minimis. Defendants attempt to draw parallels to cases in which the Fifth

Circuit found that minor wrist swelling from tight handcuffs was only a de minimis injury that

could not support § 1983 liability. Tarver, 410 F.3d at 751–52; Glenn v. City of Tyler, 242 F.3d

307, 314 (5th Cir. 2001).

This suggestion that Ramos alleges only de minimis injuries strains credulity. Ramos

alleges that when Defendants first attempted to hogtie Ramos, he “screamed in pain.” Compl. ¶

74. After Defendants succeeded in hogtying him, Ramos alleges that he had trouble breathing,

suffered severe bruising and injury to his arm and ribcage, and ultimately had to be hospitalized

for the injuries Defendants inflicted. Id. at ¶ 80–82, 8. To this day, Ramos continues to suffer

“long-term mental and emotional consequences” as a result of being hogtied. Id. at ¶ 8.

Moreover, Defendants hogtied Ramos (1) after he was already handcuffed and wearing a spit

mask in the back of a police vehicle, while eleven officers were present on the scene, and (2)

while he appeared to be under the influence of an unknown drug, and in a fragile physical and

mental state. Id. at ¶¶ 61, 63–76.

Under these circumstances, Ramos’ injuries were more than de minimis, and the force

Defendants used was objectively unreasonable. While the first Graham factor perhaps cuts in

Defendants’ favor, as the crime at issue—harassment of a public servant—is a Third Degree

Felony, the other two weigh overwhelmingly in favor of Ramos. When Defendants hogtied

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Ramos, he was restrained in the back of a police car, and was outnumbered eleven to one. At that

point, Ramos did not pose a threat to the safety of the officers or others, and was unable to resist

or evade arrest. Cf. Goode v. Baggett, 811 F. App’x 227, 232 (5th Cir. 2020) (hogtying

individual who was unarmed and handcuffed, and outnumbered five to one, was objectively

unreasonable). Thus, the Court concludes that Ramos’ complaint adequately pleads that

Defendants Dago, Smith, and Morrison used excessive force in violation of the Fourth

Amendment.

ii. Clearly established law

The Court also concludes that Ramos’ right to be free from excessive force was clearly

established in this case. In 1998, the Fifth Circuit asserted that “the combination of (1) drug use,

(2) positional asphyxia, (3) cocaine psychosis, and (4) hog-tying or carotid choke holds . . .

violated law clearly established prior to November 1994.” Gutierrez v. City of San Antonio, 139

F.3d 441, 446 (5th Cir. 1998). Within the past four years, and prior to Ramos’ incident with

Defendants, the Fifth Circuit reaffirmed the principle that hogtying an individual who appears to

be under the influence of drugs violates a clearly established constitutional right. Goode, 811 F.

App’x at 232; Aguirre, 995 F.3d at 420 (citing Gutierrez and holding that officers used excessive

force when they placed individual in “maximal prone restraint position” that was “tantamount to

and as dangerous as a hog-tie” where individual “was not resisting, posed no immediate safety

threat, and was presenting reasons to believe he was on drugs and in a drug-induced psychosis”).

In this case, despite clear indications that Ramos was under the influence of drugs,

Defendants Dago, Smith, and Morrison hogtied him. See Compl. ¶¶ 64–66 (alleging that

Defendant Irwin stated out loud that “he thought Mr. Ramos’ mental state was deteriorating” and

that “he thought Mr. Ramos might be experiencing an overdose”; and that subsequent incident

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reports and probable cause determinations noted that Ramos “appeared to be under the influence

of some unknown drug”). Guitierrez, Goode, and Aguirre all stand for the proposition that it

violates an individual’s constitutional rights to hogtie them when there is reason to believe they

are on drugs. Each case standing alone could have supplied Defendants with “fair notice” that

their conduct was unconstitutional; together, the three cases uncontrovertibly provided such

notice. Therefore, Ramos has shown that the violative nature of the officers’ conduct was clearly

established at the time of the incident. Defendants Dago, Smith, and Morrison are not entitled to

qualified immunity on Ramos’ excessive force claim.

IV. CONCLUSION

For the forgoing reasons, Defendants’ Motions to Dismiss (ECF Nos. 12, 16, 29) are

DENIED IN PART. Ramos’ “tackling” excessive force claim and false arrest claim are

dismissed with respect to Defendants Dago, Smith, and Morrison. Ramos’ “hogtying” excessive

force claim is dismissed with respect to Defendants Gilbreath and Irwin. Ramos’ remaining

claims may proceed.

IT IS SO ORDERED.

SIGNED at Houston, Texas, on this the 18th day of March, 2024.

KEITHP.ELLISON —s—s

UNITED STATES DISTRICT JUDGE

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