Vernon Linicomn v. City of Dallas

Case: 17-10101 Document: 00514628263 Page: 1 Date Filed: 09/05/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10101 United States Court of Appeals

Fifth Circuit

FILED

VERNON LINICOMN, September 5, 2018

Lyle W. Cayce

Plaintiff - Appellant Clerk

v.

MAURICO HILL; CHERYL MATTHEWS; DOES 1-3, Inclusive,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before KING, DENNIS, and COSTA, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Vernon Linicomn brought this 42 U.S.C. § 1983 action asserting that

Dallas, Texas, police officers violated his Fourth Amendment rights by forcibly

entering his house without a warrant, without his consent, and without reason

to believe that any person inside was in imminent danger of harm; and by

assaulting and arresting him with excessive force. Two of the officers, Maurico

Hill and Cheryl Matthews, filed a motion for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c), which the district court granted. Vernon

now appeals.

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I

A

We review a district court’s grant of a Rule 12(c) motion for judgment on

the pleadings de novo. Machete Prods., L.L.C. v. Page, 809 F.3d 281, 287 (5th

Cir. 2015). A Rule 12(c) motion may dispose of a case when there are no

disputed material facts and the court can render a judgment on the merits

based on “the substance of the pleadings and any judicially noticed facts.” Id.

An adequate pleading must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A pleading

offering only “labels and conclusions,” “naked assertions,” or “a formulaic

recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 557 (2007)). To avoid dismissal, a plaintiff must plead “sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010)

(quoting Iqbal, 556 U.S. at 678). We must construe the complaint in the light

most favorable to the plaintiff. Id.

Public officials are entitled to qualified immunity unless the plaintiff can

plead specific allegations demonstrating (1) the violation of a constitutional

right that (2) was clearly established at the time of the alleged misconduct.

Pearson v. Callahan, 555 U.S. 223, 232 (2009). A right is “clearly established”

when “[t]he contours of the right [are] sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Rice v.

ReliaStar Life Ins. Co., 770 F.3d 1122, 1130 (5th Cir. 2014) (quoting Anderson

v. Creighton, 483 U.S. 635, 640 (1987)).

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B

Vernon Linicomn alleged the following facts in his pleadings. 1 He was

awarded primary custody of his two minor children in his divorce from their

mother, Linda, who suffers from mental disorders that render her unfit to be

a custodial parent. After the divorce, and prior to the incident involved in this

lawsuit, Linda falsely reported to the City of Dallas’s Police Department on

numerous occasions that the welfare of the children was endangered while they

resided with Vernon. However, although the police responded on each

occasion, no action was taken against Vernon because each of the reports

proved to lack substance or justification.

On October 23, 2011, at approximately 4:40 p.m., Linda called 911

regarding the welfare of the children and told dispatch that Vernon was

“abusing” the children. Officers Gilbert and Oliver went to Vernon’s house,

knocked on the door, but received no response; they departed without taking

further action. At 9:20 p.m. that same night, Linda again called the police

department and reported a “disturbance” pertaining to the children at

Vernon’s residence. The Defendants, Officers Hill and Matthews, responded 2

and arrived at Vernon’s house between 9:30 and 10:41 p.m. 3 Upon arrival, the

officers met Linda and Dallas paramedics and firefighters outside. Linda

informed the officers that her daughter was “lethargic and sick” inside

Vernon’s house. The paramedics stated that they had been unable to gain

1 At the motion to dismiss stage, we take the facts, as alleged or admitted by Vernon,

as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 589 (2007).

2 We note that the Defendants, Officers Hill and Matthews, claim that they were not

aware of Linda’s prior false reports to the Dallas Police Department, including Linda’s report

earlier on the day of the incident giving rise to this litigation.

3 The pleadings are inconsistent with respect to when the officers arrived at Vernon’s

house.

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entry to Vernon’s house. The officers tried to contact Vernon by calling his cell

phone and knocking repeatedly at his front door. Vernon did not respond.

Officer Hill contacted his supervisor, Sergeant Melquiades Irizarry, who

arrived on the scene soon after. Sergeant Irizarry spoke with Linda and

directed Hill to announce through the police public address system that they

would enter the house—with or without Vernon’s cooperation. Eventually,

Vernon answered the door. Vernon advised Sergeant Irizarry and Officer Hill,

who were standing at the threshold of the doorway, that his daughter was

asleep and did not need medical assistance. Meanwhile, Officer Matthews

stood off to the side of the door with her back to Vernon and the other officers.

The officers did not have a warrant to enter Vernon’s house.

Vernon refused to allow anyone entry without a warrant. Sergeant

Irizarry placed his hand on Vernon’s shoulder and asked him to step aside so

that paramedics could enter and verify that Vernon’s daughter was safe.

Vernon pushed Sergeant Irizarry’s hand away. Officer Hill then clasped

Vernon’s right arm and shoulder. Vernon pushed Officer Hill away, retreated,

and tried to close the door to the house. Officer Hill and Sergeant Irizarry

prevented Vernon from closing the door, and Vernon ran toward the back of

the house. Officer Hill ran after Vernon. Officer Matthews entered the house

but remained near the front door. Inside the house, a struggle ensued. Officer

Hill grabbed Vernon and tried to take him to the floor. Vernon resisted.

Sergeant Irizarry sprayed Vernon with pepper spray. Vernon was then

handcuffed, escorted outside, and treated by paramedics. The officers spoke

with Vernon’s children and confirmed that they had been asleep and were not

ill. The children also confirmed that Linda had a history of making

exaggerated claims about their welfare.

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C

Vernon filed suit in Texas state court against Officers Hill and

Matthews, 4 alleging assault and battery as well as claims under 42 U.S.C.

§ 1983 for violations of his Fourth Amendment rights. The state court

dismissed the assault and battery claims, and Officers Hill and Matthews

removed the case to federal court. Officers Hill and Matthews affirmatively

asserted the defense of qualified immunity, and the district court ordered

Vernon to reply to that defense under Federal Rule of Civil Procedure 7(a). The

district court ultimately granted the officers’ motion for a judgment on the

pleadings under Federal Rule of Civil Procedure 12(c), dismissing Vernon’s

§ 1983 claims with prejudice. Vernon appeals that judgment. For the following

reasons, we AFFIRM.

II

The district court granted the officers’ Rule 12(c) motion for judgment on

the pleadings, holding that Vernon’s amended complaint and Rule 7(a) reply

to the Officers’ answers did not overcome the officers’ qualified immunity

defense. 5 Vernon challenges that order, arguing that his pleadings sufficiently

demonstrate that the officers acted objectively unreasonably and violated his

clearly established Fourth Amendment rights by (1) entering his house without

a warrant and (2) using excessive force by assaulting and pepper spraying him.

4 Vernon also sued the City of Dallas and three unidentified officers (Does 1–3).

However, Vernon abandoned his claims against the City in the district court by failing to

name it as a defendant in his amended complaint. MacArthur v. Univ. Tex. Health Ctr., 45

F.3d 890, 896 (5th Cir. 1995). The district court ultimately dismissed the claims against Does

1–3, after Vernon did not show good cause for his failure to effect service on them. See Fed.

R. Civ. P. 4(m) and 6(b). Vernon has abandoned these claims by failing to brief them on

appeal. MacArthur, 45 F.3d at 896.

5 The court assumed, arguendo, that Vernon sufficiently alleged violations of his

constitutional rights, deciding only whether the Officers’ conduct was objectively reasonable

in light of the clearly established law at the time.

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A

The Supreme Court has held that we have discretion to address either

prong of the qualified immunity analysis first. See Pearson, 555 U.S. at 236

(holding that the two-step, qualified-immunity sequence set forth in Saucier v.

Katz, 533 U.S. 194 (2001), “should not be regarded as mandatory in all cases”).

Further, the Court recognized that, even where defendants are clearly entitled

to qualified immunity under the second prong, undertaking the two-step

procedure “is often beneficial . . . [because it] promotes the development of

constitutional precedent and is especially valuable with respect to questions

that do not frequently arise in cases in which a qualified immunity defense is

unavailable.” Id. We believe this to be the case here. Accordingly, although

we ultimately conclude that the officers were entitled to a judgment on the

pleadings based on the second prong of the qualified-immunity inquiry, we

begin our analysis with the first prong. See id.

1

Under the first prong of the qualified-immunity analysis, we consider

whether the officers’ actions violated Vernon’s Fourth Amendment rights. See

Trammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017) (citing Saucier, 533 U.S.

at 201). Vernon argues that the officers entered his house without a warrant

and absent exigent circumstances or any other exception to the warrant

requirement.

“Physical entry of the home is the chief evil against which the wording

of the Fourth Amendment is directed.” United States v. U.S. Dist. Ct., 407 U.S.

297, 313 (1972). A warrantless search of a person’s home is presumptively

unreasonable, unless an exception to the warrant requirement applies. Carroll

v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015) (citing Brigham City v. Stuart,

547 U.S. 398, 404 (2006)). One exception is the existence of exigent

circumstances justifying immediate action. Rice, 770 F.3d at 1130–31 (citing

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Stuart, 547 U.S. at 403). Whether exigent circumstances exist to justify a

warrantless search depends on whether, given the totality of the

circumstances, the search was objectively reasonable. See Stuart, 547 U.S. at

404. Officers cannot manufacture exigency through their own action or

inaction. United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). In

assessing whether the officers created the exigency, we focus on the

“reasonableness of [their] investigative tactics leading up to the warrantless

entry.” Id. at 720.

Exigent circumstances exist where, inter alia, officers must enter a home

to provide emergency assistance to preserve life or prevent serious injury.

Officers may enter a home “without a warrant to render emergency assistance

to an injured occupant or to protect an occupant from imminent injury.”

Stuart, 547 U.S. at 403 (finding exigent circumstances where officers looked

through a window and witnessed a bloody fight inside the house). “Officers do

not need ironclad proof of a likely serious, life-threatening injury to invoke the

emergency aid exception.” Michigan v. Fisher, 558 U.S. 45, 48 (2009) (internal

quotation marks omitted). The Supreme Court has found exigent

circumstances where the responding officers “encountered a tumultuous

situation in the house—and . . . also found signs of a recent injury.” Id. at 49;

see also Stuart, 547 U.S. at 400–01.

We have declined to apply the emergency aid exception absent strong

evidence of an emergency at the scene or an imminent need for medical

attention. In Gates v. Tex. Dep’t of Protective & Reg. Servs., 537 F.3d 404, 422

(5th Cir. 2008), we concluded that there were no exigent circumstances

justifying the warrantless entry of social workers into a home to investigate

whether children were being abused and neglected. This conclusion was based

on several findings: the alleged abuser was not at home and the children were

not in immediate danger; the purpose of the entry was to interview the children

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and not to guard them against immediate danger; and one of the social workers

testified that he did not witness any exigent circumstances or emergencies at

the home. Id. at 422–23. Additionally, in United States v. Troop, we held that

it was unreasonable for border patrol agents to conclude that the persons they

tracked to a house needed immediate aid based solely on the fact that their

footprints showed signs of fatigue. 514 F.3d 405, 410 (5th Cir. 2008). We found

that signs of fatigue alone, absent evidence “of medical distress requiring

immediate aid, such as loss of blood, signs of physical illness, or evidence that

the individual had been carried or dragged,” did not constitute exigent

circumstances justifying immediate entry into the house. Id.

The officers argue that they acted reasonably in entering Vernon’s house,

claiming that they were unaware of Linda’s mental illness and history of

making groundless 911 calls and therefore had reason to take her call seriously

that day, as she was the children’s mother. Even so, under the facts alleged

and admitted by Vernon, their warrantless entry was still not justified by

exigent circumstances. Linda’s 911 call that night alleged that there was a

“disturbance” at Vernon’s address. But the officers had the burden of proving

the existence of exigency, and failed to corroborate her call. See Welsh v.

Wisconsin, 466 U.S. 740, 750 (1984) (“Before agents of the government may

invade the sanctity of the home, the burden is on the government to

demonstrate exigent circumstances that overcome the presumption of

unreasonableness that attaches to all warrantless home entries.”); see also

United States v. Rico, 51 F.3d 495, 500–01 (5th Cir. 1995) (officers have the

burden of proving the existence of exigency). The record reflects that the

officers spoke to Linda outside Vernon’s house, but the officers allege only that

Linda informed them that her daughter was “lethargic and sick” before they

decided to enter. The officers’ responsive pleadings do not demonstrate that

they inquired into the basis for Linda’s assertion that the children were

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“lethargic and sick,” or the circumstances surrounding Vernon’s possession of

the children on that day. Moreover, the officers do not contend that Linda told

them Vernon hurt either child or in any way caused his daughter’s condition;

nor do they claim that they were aware of Linda’s first 911 call that day,

alleging that Vernon was abusing the children. Cf. Gates, 537 F.3d at 422

(finding “no immediate danger” to the children where the alleged abuser was

not home); Wernecke v. Garcia, 591 F.3d 386, 389, 396 (5th Cir. 2009) (holding

that the warrantless entry of a state official to investigate the medical neglect

of a child was justified by exigent circumstances, where the investigator had a

temporary-custody order based on a court’s finding that the child’s physical

health and safety were in “immediate danger,” the child was known to have

Hodgkin’s disease, and the child’s parents had refused to consent to radiation

treatment).

The officers arrived at Vernon’s house up to one hour and twenty-one

minutes after Linda placed the call. Unlike the tumultuous situations the

officers encountered in Stuart and Fisher, the officers arrived at Vernon’s

house to find a relatively calm scene outside with no external signs of struggle

indicating the need to prevent violence or restore order.

Although Vernon did not answer his cell phone and did not initially

respond to the repeated knocks at his front door, his failure to respond did not

constitute exigency. See Troop, 514 F.3d at 411 (holding that when a person

does not answer the door, officers should “change[] their strategy by retreating

cautiously, seeking a search warrant, or conducting further surveillance.”

(citing United States v. Gomez-Moreno, 479 F.3d 350, 355–56 (5th Cir. 2007)));

see also United States v. Hill, 649 F.3d 258, 266 (4th Cir. 2011) (an officer’s

belief that there was someone inside the house who was not answering the door

“is simply not sufficient evidence to support a warrantless entry into a private

home without some articulable fact that justified urgent entry by police”). And

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when Vernon eventually did come to the front door, he told the officers that his

daughter “was asleep, not ill, and not in need of assistance.” 6 The officers have

not demonstrated that they observed or received any information, aside from

Linda’s 911 call, indicating that Vernon’s daughter’s condition had devolved

beyond “lethargic and sick,” or that she needed immediate emergency aid. 7 Cf.

United States v. Flores-Castaneda, 384 F. App’x 364, 367 (5th Cir. 2010)

(finding imminent danger justifying warrantless entry where smugglers held

hostages inside a home; they had a cell phone and possible weapons; the

officers heard movement inside, but no one opened the door for two minutes;

and a man inside the residence spotted the officers, turned, and ran back into

the interior of the house). Thus, the officers did not show that they reasonably

believed their warrantless entry was justified by exigent circumstances.

Finally, the officers contend that they were justified in entering Vernon’s

home to prevent him from obtaining a weapon inside. However, the officers do

not allege that they had any information indicating the presence of a weapon

inside the home, nor did they articulate such a suspicion before entering. And

the pleadings demonstrate that Vernon attempted to close the door and retreat

into his house as a result of the officers’ request to enter without a warrant.

Vernon’s retreat in response to the officers’ actions did not give rise to exigent

circumstances. Cf. Jones, 239 F.3d at 720 (finding that the suspect, not the

6 In their answer to the amended complaint, the officers stated that Vernon appeared

“irate and upset” upon answering the door, and Vernon admitted the allegation. But an

appearance of anger, without more, does not establish exigency. Cf. Thacker v. City of

Columbus, 328 F.3d 244, 254 (6th Cir. 2003) (finding that the totality of the circumstances

justified entry to secure the safety of the police, paramedics, and other people possibly inside

the home where “[s]omeone had placed a 911 call reporting an emergency—a cutting or

stabbing—at the residence. [The plaintiff] answered the door shirtless, with blood on his legs

and boxer shorts. It was apparent that [the plaintiff] himself was injured . . . [he] acted

belligerently and used profanity. . . . [and] [h]e appeared intoxicated.”).

7 As explained above, Officers Hill and Matthews claim they had no knowledge of

Linda’s call earlier that day, alleging that Vernon was abusing the children. See supra note

2.

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officers, created the exigency where the suspect left the door open with a

handgun in plain view). In sum, as Vernon adequately alleged in his amended

complaint, “[a]t the time of Defendants’ warrantless entry, Defendants

observed no crime being committed, and observed no fact or circumstance

tending to give rise to an objectively reasonable concern for the safety of

Plaintiff’s children,” apart from Linda’s uncorroborated statement that her

child was “lethargic and sick.” We therefore conclude that Vernon has facially

pleaded sufficient facts to support a plausible claim that the officers violated

his Fourth Amendment rights when they entered his house without a warrant

and absent proof or showing of exigent circumstances. See In re Great Lakes,

624 F.3d at 210 (quoting Iqbal, 556 U.S. at 678).

2

Though we find plausible Vernon’s allegations that the officers’

warrantless entry into his house violated his Fourth Amendment right, we

cannot conclude, under the second prong of the qualified immunity analysis,

that this right was clearly established under the circumstances of this case at

the time of the officers’ entry. See Trammell, 868 F.3d at 343. The law is

clearly established when there is “controlling authority—or a ‘robust

consensus of persuasive authority’—that defines the contours of the right in

question with a high degree of particularity.” Hogan v. Cunningham, 722 F.3d

725, 735 (5th Cir. 2013) (citing Morgan v. Swanson, 659 F.3d 359, 371–72 (5th

Cir. 2011) (en banc)). The Supreme Court “does not require a case directly on

point for a right to be clearly established, [but] existing precedent must have

placed the statutory or constitutional question beyond debate.” See Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548,

551 (2017)). An officer is entitled to qualified immunity “unless all reasonable

officials in the defendant’s circumstances would have then known that the

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defendant’s conduct violated the United States Constitution.” Thompson v.

Upshur Cty., 245 F.3d 447, 457 (5th Cir. 2001).

Vernon argues that, under Troop, the Officers should have known that

no exigent circumstances existed to justify their warrantless entry into his

house. In Troop, we found that signs of fatigue in footsteps “alone [were]

insufficient to demonstrate exigent circumstances requiring an immediate

entry into the house,” noting the lack of evidence “of medical distress requiring

immediate aid, such as loss of blood, [or] signs of physical illness.” 514 F.3d at

410. Here, however, the officers acted in response to Linda’s 911 call asking

for assistance checking on her sick and lethargic child. Because Linda’s call

could reasonably be construed as evidence that her daughter was physically

ill, Troop does not clearly establish that the officers’ actions were unreasonable

in light of clearly established law. While Troop may be relevant to the question

of whether the exigent circumstances exception applies, it is not “controlling

authority . . . that defines the contours of the right in question with a high

degree of particularity.” Hogan, 722 F.3d at 735. Nor does Troop “place[] the

statutory or constitutional question beyond debate.” See Kisela, 138 S. Ct. at

1152.

Vernon does not cite to any controlling authority establishing that the

officers’ entry into his house would have violated a clearly established right

under the circumstances. Accordingly, we affirm the district court’s decision

to grant the officers’ motion for judgment on the pleadings on the basis of

qualified immunity.

B

The district court concluded that the officers used reasonable force in

light of the clearly established law at the time. The court noted Vernon’s

admission that he was not pepper sprayed by the officers, but by Sergeant

Irizarry. It further concluded that Officer Matthews did not touch Vernon,

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except to assist him outside of the house to receive medical care. Finally, the

court found that Vernon failed to allege any facts to negate the assertion that

Officer Hill’s use of force was reasonable to prevent him from accessing any

weapons inside his house.

Vernon argues that his pleadings demonstrate that he was assaulted and

pepper sprayed and suffered great bodily harm as a result of the officers’

unreasonable use of force. To prevail on an excessive force claim, the plaintiff

must show (1) an injury (2) that resulted directly and only from the use of force

that was clearly excessive to the need and that (3) the force used was

objectively unreasonable. Goodson v. City of Corpus Christi, 202 F.3d 730, 740

(5th Cir. 2000). Excessive force claims are fact-intensive, and courts must

consider “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.” Deville v.

Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Graham v. Connor, 490

U.S. 386, 396 (1989)). “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.” Hogan v. Cunningham, 722 F.3d 725, 734

(5th Cir. 2013) (quoting Graham, 490 U.S. at 396). We evaluate the

reasonableness of each officer’s actions separately. Poole v. City of Shreveport,

691 F.3d 624, 628 (5th Cir. 2012).

We agree with the district court’s findings and conclusions as to the

officers’ use of force. First, Vernon conceded that he was pepper sprayed by

the officers’ supervisor, Sergeant Irizarry. Sergeant Irizarry is not a defendant

in this case. 8 Vernon’s allegations of being pepper sprayed therefore do not

In Vernon’s original petition in state court, he alleged that Doe 1 “entered Plaintiff’s

8

home without a warrant” and “assaulted Plaintiff, causing great bodily harm.” To the extent

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“focus[] specifically on the conduct of” Officers Hill and Matthews and cannot

help him overcome their defense of qualified immunity. See Reyes v. Sazan,

168 F.3d 158, 161 (5th Cir. 1999) (a plaintiff must allege facts focusing

specifically on the conduct of the individuals who caused the plaintiff’s injury).

Second, Vernon did not allege any facts demonstrating that Officer Matthews

used any force on him at all. And he admitted the allegations contained in

Officer Matthews’s answer to his complaint, which does not describe Officer

Matthews as having any contact with Vernon until she helped escort him

outside for medical treatment.

Finally, Vernon claims that Officer Hill used excessive force in

restraining him. However, his claim is undermined by his admission of the

facts in Officer Hill’s answer to his complaint. 9 Vernon admitted that Officer

“Hill clasped [Vernon’s] right arm and shoulder” after Vernon pushed Sergeant

Irizarry’s hand away. Vernon next admitted that Officer Hill “grabbed [him]

and attempted to take him to the ground” after he pushed Officer Hill’s hand

away and ran into the house. Vernon further admitted that he and Officer Hill

struggled in the hallway. Lastly, Vernon admitted that Officer Hill handcuffed

and escorted him outside for medical treatment after Vernon was pepper

sprayed by Sergeant Irizarry. In light of Vernon’s admission that Officer Hill

used force only after Vernon made physical contact with him and Sergeant

Irizarry, and again after Vernon fled to the back of his house and engaged in a

physical struggle with Officer Hill, we conclude that Vernon’s pleadings do not

sufficiently establish that Officer Hill’s use of force was objectively

unreasonable. See Poole, 691 F.3d at 629 (finding that officers responded to

that Vernon intended to name Sergeant Irizarry as Doe 1, he has abandoned this claim, as

discussed above. See supra note 3.

9 Vernon admitted the facts in Officer Hill’s answer to his complaint “with the

exception that he [had] no information and belief with respect to the beliefs or mental status

of the officers.”

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plaintiff’s “escalating verbal and physical resistance” with “measured and

ascending” actions where plaintiff persistently resisted the officers’

commands); Galvan v. City of San Antonio, 435 F. App’x 309, 311 (5th Cir.

2010) (finding the same where officers reacted with verbal warnings, then

pepper spray, then hand-and-arm manipulation techniques, then a Taser, after

plaintiff ran from officers, responded aggressively when they caught him, and

engaged in a physical struggle). Accordingly, we affirm the district court’s

judgment as to this claim.

***

For these reasons, we AFFIRM the district court’s judgment.

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