The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
ALDOFO O’CON,
Plaintiff,
¥, 2:24-CV-32-Z-BV
BRADEN URQUHART and
BRENNON ECKERT,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Rule 56 Motion for Summary Judgment (“Motion”)
(ECF No. 20). After four months and counting, Plaintiff has failed to respond. Because Defendants
have demonstrated that they are entitled to judgment as a matter of law as to all of Plaintiff's
claims, the Court GRANTS the Motion.
BACKGROUND
Defendant Deputy Braden Urquhart pursued a routine call for missing Apple Air Pods at
Plaintiff's residence. ECF No. 22-1 at 4-10. The owner of those Air Pods lost them at the gym but
tracked them to Plaintiffs residence on the evening of February 15, 2022. Jd. When the owner
arrived, Plaintiff “became upset and made a statement alluding to a threat of shooting [the owner]
if he did not leave Plaintiff's residence.” ECF No. 21 at 8 (citing ECF No. 22-1 at 4-10). Jd.
The owner then called Urquhart, who then notified Sergeant Joshua Bernal about the dispute.
ECF No. 22-1 at 4-10. Urquhart and Bernal knocked on Plaintiff's door multiple times, identifying
themselves as “being with the Randall County Sheriff's Office.” ECF No. 21 at 8.
Plaintiff did not answer. But “[o]nce dispatch found Plaintiff's phone number,
Urquhart called and spoke with Plaintiff, who confirmed his address as the one in question.” /d.
(citing ECF No. 22-1 at 4-10). Plaintiff refused to speak about the Air Pods issue. ECF No. 22-1
at 4-10. After Urquhart reaffirmed that they would handle the issue that night, Plaintiff invited
Urquhart and Bernal to meet him in his garage. /d.
In the garage, “Plaintiff confessed that he in fact had the Air Pods, at which point Urquhart
asked Plaintiff to give them to him so he could return them to the owner.” ECF No. 21 at 9.
Plaintiff was verbally combative, refused, and demanded that the officers leave his property.
ECF No. 22-1 at 4-10. The officers explained that if Plaintiff relinquished the Air Pods, they would
leave. Jd. “Plaintiff stated he would retrieve the Air Pods if Urquhart stepped out of the garage,
but Urquhart believed Plaintiff would shut the garage if he exited.” ECF No. 21 at 9 (citing ECF
No. 22-1 at 4-10). Accordingly, Urquhart again asked Plaintiff for the Air Pods so he and Bernal
could leave. ECF No. 22-1 at 4—10. Plaintiff continued moving further within his garage. Jd.
That movement was significant because dispatch had previously notified Urquhart that
Plaintiff had a license to carry a firearm. Jd. That knowledge, combined with Plaintiff's prior threat
to the Air Pods owner, encouraged Bernal to believe that Plaintiff might have tried to retrieve a
firearm. Jd. Urquhart insisted with polite requests that the entire issue would dissipate if Plaintiff
merely relinquished the Air Pods. See ECF No. 22-1 at 20, 14:08 (Urquhart stating that “[i]f [the
Air Pods] are in the car, you grab them, cool, we’ll be done, we’ll get out of your hair and you can
go to sleep”). Instead, Plaintiff “continued to yell and impede Urquhart in his duties, so Urquhart
attempted to place Plaintiff under arrest for interference with the officers’ public duties.”
ECF No. 21 at 10 (citing ECF No. 22-1 at 4-10).
Urquhart then took Plaintiff's right wrist and attempted to place it behind his back, and
after Plaintiff pulled away, Urquhart placed his right wrist in a lock to gain compliance. ECF No.
22-1 at 4-10. Plaintiff continued to resist, leaning back into the garage wall to avoid handcuffs. Jd.
So Urquhart lifted Plaintiff's right let in the air and drew Plaintiff away from the wall. /d. Plaintiff
continued to resist, failing to cooperate with the officers’ repeated orders to turn on his stomach
and place his hand behind his back. Jd. Instead, he made a grabbing-and-holding motion under his
vehicle. Jd. Urquhart ordered Plaintiff to release whatever he was grabbing and then struck him in
the right bicep with a closed fist to facilitate the release. Jd. Plaintiff still held on. Jd. So Urquhart
performed a knee strike to his right torso, finally forcing Plaintiff to release whatever he was
holding. Jd.
Urquhart and Bernal then moved to turn Plaintiff onto his stomach. As Bernal attempted to
grab Plaintiff's arm to this end, he grabbed Bernal’s right thumb to twist it. Jd. Bernal withdrew
his arm and struck Plaintiff “in order to prevent any further attempts of harm from Plaintiff to the
officers.” ECF No. 21 at 11. Urquhart then “performed an arm bar” to successfully force Plaintiff
into handcuffs. Jd. Plaintiff initially refused Urquhart and Bernal’s efforts to place him in their
patrol vehicle, but eventually gave way. ECF No. 22-1 at 4-10.
Meanwhile, Defendant Eckert was a jailer with the Randall County Sheriff's Office who
booked Plaintiff. ECF No. 22-2 at 44-45. He was not at the scene of the arrest and interacted with
Plaintiff only briefly at the jail. Jd. Plaintiff does not allege any maltreatment or issues at the
Randall County Jail after his arrest. ECF No. 1.
LEGAL STANDARD
Summary judgment is appropriate if the movant shows there is no genuine dispute as to
any material fact and that he is entitled to judgment as a matter of law. FED. R. Civ. P. 56(a).
The movant meets its initial burden by showing that the “evidence in the record would not permit
the nonmovant to carry its burden of proof at trial.” Smith v. Brenoettsy, 158 F.3d 908, 911
(5th Cir. 1998). Facts are considered “material” only if they “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“In determining whether a genuine issue as to any material fact exists, [courts] must view the
evidence in the light most favorable to the nonmoving party.” Fahim v. Marriot Hotel Servs., Inc.,
551 F.3d 344, 348-49 (Sth Cir. 2008).
When, as here, a nonmovant failed to respond to a movant’s summary judgment motion,
courts cannot grant summary judgment as unopposed for failure to respond. Bustos v. Martini
Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010). But “[t]he failure to respond to a summary judgment
motion leaves the movant’s facts undisputed.” Flowers v. Deutsche Bank Nat. Tr. Co., 614 Fed.
Appx. 214, 215 (Sth Cir. 2015) (citing Eversley v. Mbank Dallas, 843 F.2d 172, 174
(Sth Cir. 1988)). In such cases, courts “need only decide whether those undisputed facts are
material and entitle the movant to judgment as a matter of law.” Flowers, 614 Fed. Appx. at 215.
ANALYSIS
Plaintiff asserts one Section 1983 claim for excessive force and a Section 1988 claim for
attorneys’ fees should he prevail. ECF No. 1 at 7-8.! Defendants, as a former deputy and jailer,
properly assert qualified immunity as an affirmative defense. Harlow v. Fitzgerald, 457 U.S.
800, 815 (1982).
Government officials like Defendants are entitled to qualified immunity on summary
judgment unless “(1) [Plaintiff] has adduced sufficient evidence to raise a genuine [dispute] of
' Defendants claim that Plaintiff also asserted an unreasonable arrest and seizure claim, ECF No. 21 at 7, but Plaintiff's
complaint alleges only one count for excessive force, ECF No. | at 7-8. Thus, the Court will not review Defendants’
response to that unpled claim here.
material fact suggesting [the officers’] conduct violated an actual constitutional right, and (2) the
officers’ actions were objectively unreasonable in light of clearly established law at the time of the
conduct in question.” Poole v. City of Shreveport, 691 F.3d 624, 627 (Sth Cir. 2012)
(internal marks omitted). “Although [qualified immunity is] nominally an affirmative defense, the
plaintiff has the burden to negate the defense once properly raised.” Brumfield v. Hollins, 551 F.3d
322, 326 (Sth Cir. 2008).
“(T]he Fourth Amendment right to be free from excessive force . . . is clearly established.”
Id. Assessing an excessive force claim requires a “test of reasonableness” under the Fourth
Amendment that is “not capable of precise definition or mechanical application.” Graham v.
Connor, 490 U.S. 386, 396 (1989) (internal marks and citations omitted). Instead, this inquiry
“requires careful attention to the facts and circumstances of each particular case.” Jd. Guideposts
for excessive force include (1) the severity of the crime at issue; (2) whether the suspect poses an
immediate threat to the safety of the officers or others; and (3) whether he is actively resisting
arrest or attempting to evade arrest by flight. Jd.
The first Graham factor (severity of the crime at issue) cuts in Plaintiffs favor. Urquhart
was investigating a missing pair of Air Pods that Defendants do not even allege were stolen.
See ECF No. 21 at 7-8 (explaining that Urquhart notified Bernal “of possible stolen property”).
Urquhart arrested Plaintiff only “for interference with the officers’ public duties,” not for any other
underlying crime. ECF No. 21 at 10; see TEX. PENAL CODE § 38.15(a)(1) (interference with
public duties). And the severity of that foregoing crime “is minor.” Zinger v. Salvaggio,
610 F. Supp. 3d 919, 950 (W.D. Tex. 2022).
The second Graham factor (whether suspect poses an immediate threat) cuts in
Defendants’ favor. That is because Urquhart’s force was apposite to counteract a credible firearm
threat. Before Urquhart arrived, Plaintiff already told the Air Pod owner “to get off my property
or [Plaintiff] will shoot me.” ECF No. 22-2 at 41. Urquhart confirmed that Plaintiff was licensed
to carry a firearm. ECF No. 22-1 at 4-10. And during their struggle to handcuff Plaintiff on the
floor, Plaintiff grabbed underneath his vehicle and refused to release an object. Jd. When pressed
to identify what he was grabbing, Plaintiff did not respond. Jd. Only at that point did Urquhart
deliver a knee strike to dislodge Plaintiff from the object he was grabbing. Jd. That was a
reasonable application of force given Plaintiff's prior threat to the Air Pod owner, grabbing an
unidentified object underneath his vehicle, and refusing to identify that object to Urquhart.
The third Graham factor (whether suspect actively resists arrest) also cuts in Defendants’
favor. Plaintiff was combative from the moment he met the officers in his garage. He confessed to
custody of the owner’s missing Air Pods but refused to relinquish them to police. ECF No. 22-1
at 4-10. He was verbally combative toward the officers and demanded that they leave his property.
Id.; see ECF No. 21 at 10 (noting that Plaintiff “continuously placed his hands in his pockets and
became increasingly aggressive to both Urquhart and Bernal while telling them to get off his
property”). After Urquhart attempted to place Plaintiff under arrest for impeding his duties,
Plaintiff actively resisted. He removed his wrist from Urquhart’s grip, pulled his arm back, and
resisted going to the ground. ECF No. 22-1 at 4-10. On the ground, Plaintiff resisted Urquhart’s
instructions to identify the object he was holding underneath his car and to release that object. Jd.
Even after placed in handcuffs, Plaintiff refused to enter the police vehicle. Jd. At no point did
Plaintiff comply when placed under arrest.
Thus, the foregoing does not amount to excessive force. Indeed, the Fifth Circuit has upheld
no constitutional violation under facts arguably more favorable to the plaintiff. Solis v. Serrett,
31 F. 4th 975, 983 (Sth Cir. 2022). In Solis, the officers arrested Solis for public intoxication, which
was a “minor offense” for purposes of the Graham factors. Trammell v. Fruge, 868 F.3d 332, 340
(5th Cir. 2017). She posed no immediate threat to anyone’s safety, wearing only “an evening dress
with laced sandals and armed only with her cell phone.” Solis, 31 F.4th at 982. In fact, the only
Graham factor cutting in the officers’ favor was the third — active resistance of arrest. Jd. at
982-83. Solis was “generally hostile to the officers from the beginning of the traffic stop,”
“argued with officers,” and backed away when placed under arrest. Jd.
Here, the only factor in Plaintiff's favor is the minor severity of the crime at issue. But his
prior threats to shoot the Air Pod owner, combined with the ambiguity of what he was grabbing
underneath his vehicle, posed significantly more of a threat than a woman in an evening dress and
sandals. Further, Plaintiff violently resisted arrest and did not merely retreat from the officers.
In summary, the Fifth Circuit is clear that Urquhart’s conduct cannot amount to excessive force.
Because Urquhart did not apply excessive force when arresting Plaintiff, Plaintiff cannot
overcome Defendants’ qualified immunity defense. Plaintiff has not demonstrated that either
Defendant “violated an actual constitutional right,” which is the first of two elements Plaintiff must
establish to prevail against qualified immunity. Poole, 691 F.3d at 627. Of course, the right to be
free from excessive force is clearly established. Hollins, 551 F.3d at 326. But Plaintiff has not
proven excessive force under the Graham factors. That failure means that Plaintiff cannot prevail
on his Section 1983 excessive force claim against Defendants.
CONCLUSION
Defendants’ Motion is GRANTED on qualified immunity grounds. Therefore, the Court
grants summary judgment to Defendants on Plaintiff's outstanding Section 1983 (excessive force)
and Section 1988 (attorney’s fees) claims.
SO ORDERED. ee
November , 2024. unfaeone
W J. KACSMARYK
ITED STATES DISTRICT JUDGE