Tafolla v. Wacker

United States District Court

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHRISTOPHER A, TAFOLLA §

§ CIVIL ACTION NO. 3:24-CV-0331-S

§

J. RODERMUND §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Officer J. Rodermund’s Motion and Brief to Dismiss

(“Motion”) [ECF No. 26]. The Court has reviewed the Motion, Plaintiff Christopher A. Tafolla’s

Response to the Motion (“Response”) [ECF No. 29], Plaintiff's Brief in Support of the Response

(“Response Brief} [ECF No. 30], Defendant’s Reply Brief Supporting the Motion [ECF No. 31]

and the applicable law. For the following reasons, the Court DENIES the Motion.

1, BACKGROUND

This is a Section 1983 case alleging excessive force. On February 27, 2022, Plaintiff claims

he was driving down a street when he saw two police cars blocking an exit he was trying to use.

App. Supporting Mot. (“Defendant’s Appendix”) [ECF No. 34] 6.' According to Plaintiff, he

pulled up to the police cars to see if they would move, but when they did not, Plaintiff “[rjeversed

and turned to go a diff[e]rent way.” /d. Plaintiff alleges that as he “approached a stop sign,” one of

the police officers tried to pull Plaintiff over, /d. Instead of pulling over, however, Plaintiff engaged

in a vehicle pursuit with that police officer. /d.; Pl.’s First Am. Compl. (“Amended Complaint”)

its analysis, the Court takes judicial notice of Plaintiffs factual assertions in another case Plaintiff

previously brought in the Fort Worth Division of the Northern District of Texas, Tafolla v. Wacker, Civ. A.

No, 4:22-CV-00450-P, which were filed with the Court in Defendant’s Appendix. See Norris v. Hearst Tr.,

500 F3d 454, 461 n.9 (Sth Cir, 2007) (“[I]t is clearly proper in deciding a 12(b){6) motion to take judicial

notice of matters of public record,” (citation omitted)). Plaintiff opposes consideration of any previous

factual allegations made outside of the current live pleading in this case. Resp. Br. 3-4 (citations omitted).

The Court need not address Plaintiff's argument because the Court’s holding would remain the same

regardless of whether it considered Plaintiff's factual assertions in this previous case.

[ECF No. 21] Plaintiff alleges that sometime during this pursuit, he “slowed down[,] got on

the sidewalk[, and] went around the other cars slowly.” Def.’s App. 6. At this moment, one of the

police officers allegedly drove his police car into Plaintiff's car. /d. Plaintiff then continued the car

chase, /d. at 6-7. At one point, Plaintiff stopped at a railroad track due to a passing train, so he

jumped out of his car and ran into a field behind a restaurant. /d. at 7; Am. Compl. J 10. Defendant

drove his police car “through the fence behind” the restaurant and then chased Plaintiff. Am.

Compl. { 11. Plaintiff ran into another field, where he alleges that no other people were present.

id. 13. Once in the field, Plaintiff asserts that he stopped running and “put his hands up in

surrender.” fd. J 14. Then, according to Plaintiff, Defendant tackled Plaintiff, “got on top of him,

and “proceeded to repeatedly punch [Plaintiff] in his head, ribs, and back.” Id. ff] 15, 19. Defendant

allegedly “taunted” Plaintiff by stating “you like that” while punching him and then, when Plaintiff

asked why he was being hit, Defendant replied that he “should not have run.” Id. 21-23. Plaintiff

claims that he was not holding a weapon when Defendant tackled him, id. | 16, did not have

anything in either of his hands, id., was not resisting arrest once he was tackled, id. 4 18, and “did □

not strike Defendant . . . or fight back in any way,” id. 20. At one point during his arrest, Plaintiff

overheard other police officers say that Plaintiff was trying to approach a “stolen semi.” Def.’s

App. 8. Plaintiff denies any knowledge of a “stolen semi.” Jd. Eventually, Plaintiff was taken to

the emergency room “where he lost consciousness.” Am. Compl. 34. Plaintiff states he suffered

“severe injuries including spine tenderness, abrasions of multiple sites, rib tenderness, a minimally

displaced right lateral eighth rib fracture and loss of height of the T4 or T5 of his vertebral body,”

Id, § 35.

As a result of the alleged facts describe above, Plaintiff brings against Defendant a

constitutional claim pursuant to 42 U.S.C. § 1983 for excessive use of force in violation of the

Fourth Amendment. Am. Compl. 37-75.

Il. LEGAL STANDARD

To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a

plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell

Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this “facial plausibility” standard, a plaintiff

must “pleadj| factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation omitted). The court must accept well-pleaded facts as true and view them in the light most

favorable to the plaintiff. Sonnier v. State Farm Mut, Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir.

2007) (citation omitted). However, the court does not accept as true “conclusory allegations,

unwarranted factual inferences, or legal conclusions.” Ferrer vy. Chevron Corp., 484 F.3d 776, 780

(5th Cir. 2007) (citation omitted). A plaintiff must provide “more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(citation omitted). “Factual allegations must be enough to raise a right to relief above the

speculative level ... on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” /d. (citations omitted). At the motion to dismiss stage, the court does not evaluate

the plaintiffs likelihood of success. See Mann v. Adams Realty Co., 556 F.2d 288, 293 (Sth Cir.

1977), It only determines whether the plaintiff has stated a claim upon which relief can be granted.

See id.

Hi. ANALYSIS

Defendant seeks dismissal of Plaintiff's Section 1983 claim against him based on qualified

immunity.” Accepting well-pleaded facts as true and viewing them in the light most favorable to

the plaintiff, the Court concludes that Plaintiff has plausibly aileged a Section 1983 excessive force

claim against Defendant and that Defendant is not entitled to qualified immunity at this stage of

this litigation. “Qualified immunity protects officers from suit unless their conduct violates a

clearly established statutory or constitutional right.” Edmiston v. Borrego, 75 FAth 551, 558

(5th Cir. 2023) (cleaned up), cert. denied sub nom. Crandel v. Hall, 144 8. Ct. 1002 (2024), When

an official asserts qualified immunity, “[i]t is the plaintiffs burden to demonstrate that qualified

immunity is inappropriate.” Guerra v. Castillo, 82 FAth 278, 285 (Sth Cir. 2023) (alteration in

original) (citation omitted), The plaintiff must plead facts sufficient to create the reasonable

inference “(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.” Edmiston, 75 F.4th at 558 (citation

omitted). The Court addresses each prong of the qualified immunity analysis in turn.

A, Violation of a Constitutional Right

Plaintiff has plausibly alleged that Defendant violated the Fourth Amendment by using

excessive force against Piaintiff. To plead an excessive force claim, a plaintiff must plead (1) an

injury (2) that resulted directly and only from a use of force that was clearly excessive, and (3) the

excessiveness of which was clearly unreasonable. Beroid v. Lakleur, No. 22-30489, 2023 WL

3034706, at *2 (Sth Cir. Apr. 21, 2023) (citing Ratliff. Aransas County, 948 F.3d 281, 287 (Sth Cir.

2020)). “Our precedents recognize that inquiries regarding whether a use of force was ‘clearly

2 In the Motion, Defendant requests that all discovery be stayed pending a ruling on his qualified immunity

defense, Mot. 21 (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Because the Court denies the Motion,

Defendant’s request for a stay of discovery is now moot. The Court will require the parties to attend a

Federal Rule of Civil Procedure 16 Scheduling Conference by separate order,

excessive’ or ‘clearly unreasonable . . . are often intertwined,’ and we consider those questions

together... .” Darden v. City of Fort Worth, 880 F.3d 722, 728 (Sth Cir. 2018) (first alteration in

original) (quoting Hanks v. Rogers, 853 V.3d 738, 744 (Sth Cir. 2017)).

As to the first element, Defendant does not dispute that Plaintiff plausibly alleged that he

suffered injuries, and indeed, the Amended Complaint alleges in detail Plaintiffs “severe injuries.”

Am, Compl. 35. Accordingly, Plaintiff has plausibly alleged the first element of an excessive

force claim.

As to the second and third elements, the Court concludes that Plaintiff has plausibly alleged

that Defendant’s use of force against Plaintiff was clearly excessive and clearly unreasonable.

The Court’s inquiry into the excessiveness and reasonableness of the use of force depends on “the

facts and circumstances of each particular case.” Darden, 880 F.3d at 728 (quoting Deville vy.

Marcantel, 567 F.3d 156, 167 (Sth Cir. 2009)). “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Jd. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). This

analysis “must embody 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.” Harmon v. City of Arlington,

16 F4th 1159, 1163 (Sth Cir. 2021) (quoting Graham, 490 U.S. at 396-97), “In making this

determination, a court should consider the totality of the circumstances, ‘including [the following

Graham factors:] the severity of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.” Darden, 880 F.3d at 728-29 (quoting Graham, 490 U.S. at 396). The Court

examines each of the Graham factors in turn.

The first Graham factor, the severity of the crime at issue, weighs in favor of finding that

Defendant’s use of force was not excessive. When the police attempted to pull Plaintiff over,

Plaintiff drove away and led the police on a vehicle pursuit. Def.’s App. 6; Am. Compl. 78.

Leading law enforcement on a vehicle pursuit is a severe offense, especially where, as Plaintiff

admits, he was driving around other cars. See Salazar v. Molina, 37 F.4th 278, 281-82 (Sth Cir.

2022) (citation omitted); Def.’s App. 6.

For the next two Graham factors, the Court considers Defendant’s alleged use of force in

two separate phases: Defendant’s initial tackle of Plaintiff taking him to the ground and then his

subsequent repeated punching of Plaintiff once Plaintiff had been taken down. The Court first

addresses the second and third Graham factors as to Defendant’s tackle of Plaintiff.

The second Graham factor, whether Plaintiff posed an immediate threat, weighs in favor

of finding that Defendant’s tackle of Plaintiff was not excessive. “|W]hat preceded the surrender

matters,” and “when a suspect has put officers and bystanders in harm’s way to try to evade capture,

it is reasonable for officers to question whether the now-cornered suspect’s purported surrender is

a ploy.” Salazar, 37 F.4th at 282. And a suspect on the run, even when he appears to surrender,

cannot expect to the “same Fourth Amendment protection from . . . force he would have received

had he promptly surrendered in the first place.” Ramirez v. Martin, No. 22-10011, 2022 WL

16548053, at *3 Gth Cir. Oct. 31, 2022) (alteration in original) (quoting Salazar, 37 F.4th

at 282-83). Plaintiff led the police on a pursuit by vehicle and then on foot, and thus it was

reasonable for Defendant to question Plaintiff’s surrender, still perceive Plaintiff as an immediate

threat, and thus decide that tackling Plaintiff to the ground was necessary. See id. at *3 (finding

that the second Graham factor weighed in the officer’s favor where the officer pushed to the ground

a suspect who had engaged in a vehicle pursuit but then surrendered).

For many of the same reasons, the third Graham factor, whether Plaintiff was actively

resisting arrest or attempting to evade arrest by flight, weighs in favor of finding that Defendant’s

tackle of Plaintiff was not excessive. See Escobar v. Montee, 895 F.3d 387, 395-96 (Sth Cir. 2018)

(observing that “the third Graham factor... largely folds into the second” where the suspect had

led police on a chase and then surrendered); Salazar, 37 ¥.4th at 284 (acknowledging that the

“second and third Graham factors implicate the same facts” in a case where the suspect led police

on a vehicle pursuit and then surrendered). Officers are “constitutionally justified or entitled to

qualified immunity for taking suspects to the ground in response to forms of physical resistance,”

Buehler v. Dear, 27 FAth 969, 988 (Sth Cir. 2022) (citation omitted), and other forms of

non-compliance, see Priest v. Grazier, 860 F. App’x 343, 347 (Sth Cir, 2021) (citation omitted)

(holding that officers were entitled to qualified immunity where they pulled the plaintiff out of the

car and forced him to the ground when he “did not comply with their repeated instructions” to get

out of the car). Here, Piaintiff had evaded arrest and led the police on an extended pursuit by

vehicle and then on foot. He could not reasonably expect to receive the same protection from force

he would have received had he initially complied with the police officer’s attempt to pull him over.

See Ramirez, 2022 WL 16548053, at *3. Accordingly, in considering all three Graham factors, the

Court finds that Defendant’s tackle of Plaintiff was neither excessive nor unreasonable. See id.

at *3-4.,

However, once Plaintiff was tackled to the ground, Defendant allegedly continued to punch

Plaintiff in the head, ribs, and back. The last two Graham factors weigh in favor of finding that

this use of force was excessive and unreasonable. “Force must be reduced once a suspect has been

subdued.” Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 335 (Sth Cir. 2020) (citation

omitted). And the Fifth Circuit has noted that being “‘subdued’ does not mean ‘handcuffed,’” but

rather means that “the suspect lacks any means of evading custody—for example, by being pinned

to the ground by multiple police officers.” /d. (citation omitted).

Taking Plaintiff’s factual allegations as true, after Defendant tackled Plaintiff to the ground

and got on top of him, Plaintiff was subdued. And according to Plaintiff, he never struck back at

Defendant and had no weapon on him. As to the second Graham factor, Plaintiff was no longer an

immediate threat once subdued. He had already surrendered and been subdued, was not suspected

of committing a violent crime, and allegedly had no weapon on him. See Cooper v. Brown,

844 F.3d 517, 522-23 (Sth Cir. 2016) (finding that the plaintiff was no longer an immediate threat

where he was not suspected of committing a violent crime, had surrendered, and had no weapon

on him). And as to the third Graham factor, Plaintiff was allegedly no longer resisting or evading

arrest once he was taken down. See id. at 523. At this point, Defendant was required to reduce his

use of force. Joseph, 981 F.3d at 335 (citation omitted). Instead, Defendant appears to have

escalated it. Based on his pleadings, the Court concludes that Plaintiff has plausibly alleged that

this increased use of force was excessive and unreasonable and thus in violation of the Fourth

Amendment. See Anderson v. McCaleb, 480 F. App’x 768, 772-73 (5th Cir. 2012) (reversing

a grant of summary judgment in police officers’ favor where, after a pursuit by vehicle and on foot,

the officers continued to punch and tase the plaintiff even after the plaintiff surrendered and was

taken to the ground by an initial tase); Shefeik v. Busby, 836 F. App’x 315, 315-17 (Sth Cir. 2021)

(reversing a grant of summary judgment in police officers’ favor where the plaintiff presented

‘uncontradicted evidence that after a pursuit by vehicle and on foot, the officers severely beat the

plaintiff in the face even after he surrendered and was partially handcuffed); cf Ramirez, 2022 WL

16548053, at *3 (finding that an officer’s use of force was not excessive, as once the plaintiff

surrendered, the officer “pushed [the plaintiff] to the ground and then refrained from using

additional force once [the plaintiff] was subdued” (citation omitted)).

In finding that Plaintiff plausibly alleged a constitutional violation, the Court notes that

Plaintiff may not be able to prove his allegations and that Defendant may well prevail at the

summary judgment stage once evidence is presented. However, the Court’s task at the motion to

dismiss stage is to examine only the Plaintiffs complaint to determine whether Plaintiff plausibly

pleaded a constitutional violation, taking all alleged facts as true. Here, with respect to the

Defendant’s alleged repeated punching of Plaintiff after Plaintiff had already been tackled to the

ground, Plaintiff has plausibly pleaded a Fourth Amendment violation.

B. Clearly Established Law

However, plausibly pleading that Defendant used excessive force does not alone defeat a

qualified immunity defense. Plaintiff must also demonstrate that, at the time of the incident—here,

February 27, 2022—the law was “clearly established” that Defendant’s alleged use of force was

excessive. Joseph, 981 F.3d at 336 (citing Saucier v. Katz, 533 U.S. 194, 199 (2001)). Under this

second prong of the qualified immunity analysis, courts “determine whether the defendant’s

actions violated clearly established statutory or constitutional rights of which a reasonable person

would have known.” Griggs v. Brewer, 841 F.3d 308, 312-13 (Sth Cir. 2016) (citation omitted);

see also Mullenix v. Luna, 577 U.S. 7, 11 (2015) (“A clearly established right is one that is

sufficiently clear that every reasonable official would have understood that what he is doing

violates that right.” (cleaned up)). “And a defendant cannot be said to have violated a clearly

established right unless the right’s contours were sufficiently definite that any reasonable official

in the defendant’s shoes would have understood that he was violating it.” Plumhoff v. Rickard,

572 U.S, 765, 778-79 (2014) (citation omitted). Accordingly, “[Plaintiff] must identify a case that

put [Defendant] on notice that his specific conduct was unlawful.” Salazar, 37 F.4th at 285

(quoting Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021)).

Plaintiff directs the Court in his Amended Complaint and Response Brief to Cooper,

844 F.3d 517, a Fifth Circuit opinion issued in 2016. Am. Compl. J] 48-55 (citing Cooper,

844 F.3d at 521-23 & n.2); Resp. Br. 8-9 (same). In Cooper, the plaintiff was pulled over by a

police officer on suspicion of driving under the influence. 844 F.3d at 521. During the stop, the

plaintiff fled on foot into a neighborhood. Jd. The defendant police officer subsequently arrived as

backup with a police dog. Jd. The dog discovered the plaintiff’s hiding spot in the neighborhood

and then proceeded to bite the plaintiff for “one to two minutes.” Jd. While the dog’s attack was

occurring, the plaintiff did not attempt to flee or strike the dog, and the plaintiff had his hands on

the dog’s head. Jd. The defendant testified that “he could see [the plaintiff’s] hands and could

appreciate that he had no weapon.” /d. Despite the plaintiff’s compliance, the defendant did not

order the dog to stop biting the plaintiff until the plaintiff was in handcuffs. Jd. Under these facts,

the Fifth Circuit held that the police officer’s use of force was excessive. Jd. at 522-24, While the

Fifth Circuit found that driving under the influence is a serious offense, it found that the plaintiff

did not pose an immediate threat to the officer and that the plaintiff was not actively resisting arrest

or attempting to flee once the dog bit him. The Fifth Circuit, therefore, held that “permitting a

dog to continue biting a compliant and non-threatening arrestee” was objectively unreasonable. Id.

at 524, And the Fifth Circuit concluded that the plaintiff’s right was clearly established, observing

that “[o]ur caselaw makes certain that once an arrestee stops resisting, the degree of force an officer

can employ is reduced.” Id.

The Court agrees with Plaintiff that, like the officer’s continued use of force in Cooper,

Defendant’s alleged continued punching of Plaintiff once he was subdued and no longer resisting

10

or evading arrest violated clearly established law, However, because Cooper concerns a dog bite,

the Court finds it instructive to look at other cases because it need not “limit [its] analysis to the

cases cited by Plaintiff]].” Joseph, 981 F.3d at 338. Surveying case law at the time of the incident

here, the Court concludes that the law was clearly established that an officer’s alleged continued

punching of a suspect even after the suspect was subdued and no longer resisting or evading arrest

is clearly excessive and violates the Fourth Amendment. See Joseph, 981 F.3d at 336-43; Anderson,

480 F. App’x at 773; Shefeik, 836 F. App’x at 315-172

In Joseph, a Fifth Circuit opinion from 2020, a school official called the police on a

mentally ill man, the decedent in this case, who was suspiciously standing outside the school gate.

981 F.3d at 326. Two school resource officers approached the decedent, but he immediately ran

away from the officers. fd. One of the officers radioed other officers in the area to report the

decedent. /d. Other police officers, who had heard the radio transmission, saw the decedent near a

convenience store and “gave loud verbal commands for [him] to come to them.” /d. Instead, the

decedent entered the store, and the officers followed him in. Jd. One of the officers instructed the

decedent to get on the ground, but instead, the decedent “jumped over the checkout counter.” Jd.

The decedent immediately went to the ground and “covered his face with his hands and assumed

the fetal position.” Jd. Multiple officers physically subdued him by placing their bodies onto the

decedent or holding him down. Jd. Then, multiple officers attempted to drag the decedent from

behind the checkout counter. Jd. at 327. Through all this, one of the officers tased the decedent

multiple times, struck him with a baton twice, and punched him in the head three times. Jd.

Unpublished opinions “cannot clearly establish the law but can illustrate or guide us to such authority, by

restating what was clearly established in precedents they cite or elsewhere.” Joseph, 981 F.3d at 341 n.105

(cleaned up). Therefore, the Court considers Anderson, 480 F. App’x 768, and Shefeik, 836 F. App’x 315,

not as precedential opinions that clearly establish the law but rather as illustrative opinions that restate

already clearly established law and apply it to similar facts.

li

at 326-27. A second officer also kicked the decedent “twelve to thirteen times.” Jd. at 327. Medical

personnel took the decedent to the hospital, where he died from his injuries two days later. Jd.

The Fifth Circuit affirmed the district court’s holding that genuine issues of material fact

existed as to whether the two officers’ use of force was excessive. Id. at 341-42. In its holding, the

Fifth Circuit concluded that the two officers “violated clearly established law by failing to attempt

less forceful alternatives and by continuing to inflict force despite [the decedent] committing no

crime, posing no threat, and giving no active resistance.” /d. at 341. In support of its holding, the

Fifth Circuit pointed to the clearly established law that “[o]fficers engage in excessive force when

they physically strike a suspect who is not resisting arrest.” Jd. at 342 (citing Darden, 880 F.3d

at 732).

In Anderson, an unpublished Fifth Circuit opinion from 2012, two police officers attempted

to stop the plaintiff while he was driving his car. 480 F. App’x at 769. The plaintiff, however, drove

to the back of an apartment complex, exited his car, and ran, /d, According to the plaintiff’s

testimony, he eventually stopped running and “turned around and held out his hands in an attempt

to surrender,” while he was “holding an iPod,” which the officers believed “resembled a weapon.”

Id. One of the officers shot the plaintiff with a taser, and the plaintiff fell to the ground. Jd. After

this takedown, the other officer “got on top of [the plaintiff] and hit him with a closed fist,” while

the first officer “continued to use the taser, shocking him five or six times.” /d. The plaintiff

testified that this use of force occurred before he was handcuffed and also “testified that he did not

resist the officers’ attempt to arrest him” after surrendering. Id. The Fifth Circuit held that, taking

the plaintiff's evidence as true, the officers’ conduct violated clearly established law as they

“should have known that [they] could not continue to shock [the plaintiff] with the taser after he

was no longer resisting arrest” and that “[they] could not beat [the plaintiff] after he stopped

12

resisting arrest.” /d. at 773 (citing Bush v. Strain, 513 F.3d 492, 501-02 (5th Cir. 2008)).

Accordingly, the Fifth Circuit reversed the district court’s grant of summary judgment on the

officers’ qualified immunity defense and remanded the case. Id. at 772.

In Shefeik, an unpublished Fifth Circuit opinion from 2021, the plaintiff surrendered

following “a lengthy car chase and brief foot pursuit” with police officers. 836 F. App’x at 315.

But according to the plaintiff’s testimony, the police officers “nevertheless beat him in the face

with a flashiight, causing severe injuries.” /d. The Fifth Circuit observed that although the

defendant officers provided dashcam footage of the arrest, it did not show the officers’ interaction

with the plaintiff once he surrendered, which occurred off camera. /d. at 315-16. Accordingly, the

Fifth Circuit held that this dashcam footage did not contradict the plaintiff’s testimony that the

“deputies severely beat[] him in the face after he surrendered and was partially handcuffed.” Jd.

at 316. And thus, it held that a fact issue existed as to whether the officers’ use of force was

excessive, vacated the district court’s grant of summary judgment on the qualified immunity

defense, and remanded. /d@. at 316-17. Further, the Fifth Circuit found that if, as the plaintiff

claimed, the officers “continued applying force despite his lack of resistance,” such actions would

violate clearly established law. Jd, at 317 n.2, It noted that “[o]ur precedent clearly establishes that

‘once a suspect has been handcuffed and subdued, and is no longer resisting, an officer’s

subsequent use of force is excessive.’ Jd. (quoting Carroll v. Ellington, 800 F.3d 154, 177

(5th Cir. 2015)),

4 It is inconsequential to the Court's analysis that Plaintiff does not allege that he was handcuffed while

Defendant beat him. As the Court has already observed, it is clearly established law that “[florce must be

reduced once a suspect has been subdued.” Joseph, 981 F.3d at 335 (emphasis added) (citation omitted).

“Subdued” can mean being handcuffed but also can mean “being pinned to the ground by multiple officers.”

id. (citation omitted). Here, Plaintiff alleges that Defendant tackled him to the ground and got on top of him

and thus, the Court finds that Plaintiff plausibly alleges he was subdued.

13

Considering Cooper, Joseph, Anderson, and Shefeik, the Court concludes that at the time

of Plaintiff’s arrest, it was clearly established law that an officer cannot repeatedly punch a suspect

once that suspect is already subdued and no longer resisting or evading arrest. Cooper, 844 F.3d

at 524; Joseph, 981 F.3d at 341-42; Anderson, 480 F. App’x at 773; Shefeik, 836 F. App’x

at 316-17. But here, once Defendant tackled Plaintiff to the ground and subdued him, Defendant

allegedly began punching Plaintiff in the head, ribs, and back. And according to Plaintiff,

Defendant did so even though Plaintiff allegedly was no longer resisting arrest and not holding a

weapon. A reasonable officer would have known that this continued, escalating use of force

violated Plaintiff’s Fourth Amendment right. Accordingly, the Court concludes that Plaintiff has

plausibly alleged that Defendant is not entitled to qualified immunity at this stage.

In the Motion, Defendant also argues that Plaintiff is not entitled to punitive damages solely

because Plaintiff fails to state an excessive force claim against Defendant. See Mot. 20-21. As the

Court is not dismissing Plaintiff’s excessive force claim, the Court denies the Motion as to punitive

damages at this time.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss [ECF

No. 26].

SO ORDERED.

SIGNED March 19, 2025.

Chek

UNITED STATES DISTRICT JUDGE

1A