Frosch v. Alsobrook

Case: 24-40662 Document: 47-1 Page: 1 Date Filed: 06/03/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 24-40662

FILED

June 3, 2025

____________

Lyle W. Cayce

Ricky Allen Frosch, Clerk

Plaintiff—Appellee,

versus

Colton Alsobrook,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:22-CV-236

______________________________

Before Stewart, Dennis, and Haynes, Circuit Judges.

Per Curiam: *

Plaintiff Ricky Frosch sues Corporal Colton Alsobrook for excessive

use of force. The district court denied Alsobrook’s motion for summary

judgment based on qualified immunity. Viewing the evidence in the light

most favorable to Frosch, Alsobrook slammed Frosch’s head into a wall while

Frosch was compliant and restrained. Then, when Frosch later became

unconscious, Alsobrook used his body weight to take Frosch to the ground.

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 24-40662

These uses of force resulted in a head laceration and broken collar bone.

Accepting the district court’s conclusions as to the genuineness of the factual

disputes, Alsobrook used excessive force, and Alsobrook is not entitled to

qualified immunity. We AFFIRM.

I. Factual Background

Officers were called to Frosch’s home on a domestic disturbance call.

The officers handcuffed and arrested Frosch. Frosh did not go quietly—he

head butted and kicked the officers during the arrest, and during the ride to

the station, he threatened the officers. The officers notified the jail that they

were transporting a “combative” inmate. Once they arrived at the jail, the

officers gave Alsobrook a rundown of Frosch’s behavior.

Alsobrook helped move Frosch from the car to the jail during the

booking process. Frosch was fully compliant and restrained during this

process. 1 He did not threaten anyone, nor did he resist the officers.

When Alsobrook ordered Frosch to face the wall, Frosch did so.

Alsobrook then pushed Frosch’s head against the wall, causing a head

wound.

While pressed against the wall, Alsobrook and other officers raised

Frosch’s hands above his head, restricting Frosch’s breathing. Frosch

explained, “I couldn’t breathe and I was trying to gasp for air . . . and the

lights went out and I was out.” He woke up laying on the ground in the

booking area. He later learned that while he was unconscious, Alsobrook

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1

Alsobrook has a different recollection of the events. However, this is an

interlocutory appeal of a denial of qualified immunity at summary judgment, so the district

court was required to resolve all disputed factual questions in Frosch’s favor, Rogers v.

Bromac Title Servs., L.L.C., 755 F.3d 347, 353 (5th Cir. 2014), and we must accept the

district court’s conclusions as to the genuineness of a material factual dispute, Wagner v.

Bay City, 227 F.3d 316, 320 (5th Cir. 2000).

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No. 24-40662

used his 300 pounds of body weight to take Frosch to the ground, breaking

Frosch’s collarbone.

Frosch sued Alsobrook, along with several other defendants,

asserting, among other claims, excessive use of force. Alsobrook moved for

summary judgment, asserting qualified immunity. The district court granted

the motion as to all claims aside from the excessive-use-of-force claim,

relying in part on a declaration filed by Frosch. Alsobrook now appeals.

II. Jurisdiction

We have jurisdiction to review an interlocutory appeal of the denial of

qualified immunity. Davis v. Hodgkiss, 11 F.4th 329, 332 (5th Cir. 2021) (per

curiam). This comes with jurisdiction to review the admissibility of evidence.

Mersch v. City of Dallas, 207 F.3d 732, 734–35 (5th Cir. 2000).

III. Discussion

A. Evidentiary Disputes

Alsobrook asserts that Frosch’s declaration is barred by the sham

affidavit doctrine and because it was disclosed after the discovery deadline.

We review the district court’s exclusion or admission of evidence for an

abuse of discretion, subject to harmless-error review. Guillory v. Domtar

Indus. Inc., 95 F.3d 1320, 1329 (5th Cir. 1996).

1. Sham Affidavit

While we cannot consider the genuineness of the factual disputes

(including the district court’s determination of that in this context), we can

and should review whether the evidence was admissible. Mersch, 207 F.3d at

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734–35. 2 If statements in an affidavit “are so markedly inconsistent with a

prior statement as to constitute an obvious sham,” then the district court may

refuse to consider the statements. Winzer v. Kaufman County, 916 F.3d 464,

472 (5th Cir. 2019) (per curiam) (quotation marks and citation omitted). The

standard is high—the statements must be “inherently inconsistent.” Id.

Alsobrook asserts that this high bar is met because Frosch previously

testified that when he was ordered to face the wall, he did not know what

remarks he was making, but his later declaration stated that he never

threatened to kill or harm anyone at the jail. The district court concluded

that these statements were not inherently inconsistent, so it did not apply the

sham affidavit rule.

In this context, we defer to the district court’s determination of the

facts. But even if we reviewed it ourselves, we would not conclude that the

district court abused its discretion. Frosch’s earlier testimony is not

inherently inconsistent with his declaration. Saying you don’t remember

your discussion but you know you did not discuss a certain item is not

inherently inconsistent. See Seigler v. Wal-Mart Stores Tex., L.L.C., 30 F.4th

472, 477 (5th Cir. 2022) (“[T]he sham-affidavit doctrine is not applicable

when discrepancies between an affidavit and other testimony can be

reconciled . . . .”). We agree with the district court that the later declaration

“constitutes a more expansive statement that clarifies, rather than conflicts

with, prior testimony” (quotation omitted). The district court thus did not

abuse its discretion.

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2

See also Hardesty v. Cochran, 621 F. App’x 771, 777 (5th Cir. 2015) (per curiam)

(considering sham affidavit doctrine in an interlocutory appeal of the denial of qualified

immunity).

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2. Untimely Disclosure

Alsobrook next asserts that the declaration should be excluded

because it was disclosed after the discovery deadline. However, the affidavit

was created in response to Alsobrook’s arguments at summary judgment, so

it did not exist during discovery. Commonly accepted practice allows post-

discovery disclosure of evidence created for summary judgment purposes.

See, e.g., Cortes-Castillo v. One Time Constr. Tex. LLC, No. 3:21-CV-2093,

2022 WL 4281601, at *2 (N.D. Tex. Sept. 15, 2022) (Ramirez, J.) (collecting

cases). This practice makes sense—a party does not know exactly what

arguments the other party will raise in its motion until its brief is filed. See id.

Accordingly, the district court did not abuse its discretion in admitting the

declaration.

B. Qualified Immunity

This case comes to us on an interlocutory appeal of the denial of

qualified immunity, which cabins our review. We review de novo the denial

of summary judgment based on qualified immunity to the extent it turns on

issues of law. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Armstrong v.

Ashley, 918 F.3d 419, 422 (5th Cir. 2019). To the extent the district court

decision turned on the sufficiency of the evidence, we lack jurisdiction to

review. Kinney v. Weaver, 367 F.3d 337, 346–47 (5th Cir. 2004) (en banc). In

other words, we may “review the materiality of any factual disputes, but not

their genuineness.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).

In analyzing qualified immunity, we ask two questions: First, whether

the officer violated a constitutional right. Morrow v. Meachum, 917 F.3d 870,

874 (5th Cir. 2019). Second, whether the right was clearly established at the

time of the violation. Id.

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1. Violation of a Constitutional Right

Frosch brings an excessive-force claim against Alsobrook. Excessive

force that violates the Fourth Amendment 3 requires showing “(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.”

Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012).

Frosch suffered an injury due to Alsobrook’s use of force; however,

Alsobrook asserts that his actions were reasonable. The reasonableness of

Alsobrook’s use of force depends on the “facts and circumstances of each

particular case, including 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.”

Graham v. Connor, 490 U.S. 386, 396 (1989); see Byrd v. Cornelius, 52 F.4th

265, 270 (5th Cir. 2022) (same). 4

Accepting the district court’s determination that a fact dispute exists,

Kinney, 367 F.3d at 346–47, we conclude that Frosh has established a

violation of a constitutional right. Frosch was restrained with handcuffs, and

he was compliant during the booking process; he did not resist or threaten

officers. Despite Frosch’s compliance, Alsobrook pushed Frosch against the

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3

Before the district court, Frosch asserted in the alternative that the Due Process

Clause applies, rather than the Fourth Amendment. Compare Tyson v. Sabine, 42 F.4th

508, 515 (5th Cir. 2022) (analyzing excessive force during arrest under Fourth

Amendment), with Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir. 1993) (analyzing

excessive force against pretrial detainees under the Due Process Clause). On appeal,

neither party asserts that the Due Process Clause, rather than the Fourth Amendment,

applies in this context, so we assume the Fourth Amendment applies.

4

We do not limit the inquiry to the danger the officer faced at the moment of the

perceived threat. Barnes v. Felix, 605 U.S. ___ (2025).

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wall and, once Frosch was unconscious, onto the floor with enough force to

result in a head laceration and broken collarbone. 5

Using force that causes a head laceration and broken collar bone to a

restrained and compliant individual violates their right to be free from

excessive force. It is “certain that once an arrestee stops resisting, the degree

of force an officer can employ is reduced.” Cooper v. Brown, 844 F.3d 517,

524 (5th Cir. 2016). Use of force that inflicts injury on a “restrained and

subdued” individual is unreasonable and excessive. Bush v. Strain, 513 F.3d

492, 502 (5th Cir. 2008).

2. Clearly Established

Having found a violation of a constitutional right, we next ask whether

that right was clearly established. The answer is yes.

Indeed, we have held that “the test is clear enough” that the

defendant “should have known that he could not forcefully slam [the

plaintiff’s] face . . . while she was restrained and subdued.” Id. In Curran v.

Aleshire, the plaintiff student struck the officer, so the officer slammed the

student’s head into a wall. 800 F.3d 656, 658 (5th Cir. 2015). A few minutes

later and after the plaintiff was handcuffed, the officer slammed her head

again. Id. Based on these facts, we had “little difficulty” in concluding

qualified immunity did not apply; use of force against a non-resisting person

is an “obvious” violation of the right to be free from excessive use of force.

Id. at 661 (quotation omitted).

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5

Alsobrook’s main arguments rely on the exclusion of the declaration discussed

above. Having found no abuse of discretion in allowing the declaration, many of

Alsobrook’s qualified immunity arguments become irrelevant.

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We thus conclude that our caselaw puts the right in question beyond

reasonable debate, so Alsobrook is not entitled to qualified immunity based

on our limited review.

IV. Conclusion

For the reasons above, we AFFIRM.

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