Ann Deshotels v. Gregory Norsworthy

Case: 11-30110 Document: 00511662381 Page: 1 Date Filed: 11/10/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 10, 2011

No. 11-30110 Lyle W. Cayce

Clerk

ANN DESHOTELS; KIMBERLY ANN DESHOTELS; JAMIE JOURDAN

DESHOTELS PUCHEU; MATTHEW RISHER DESHOTELS,

Plaintiffs-Appellants

v.

MIKE MARSHALL; TRAVIS MILLER; ANTHONY MANCUSO; JEFF

PITTMAN; JEFF MORGAN; CITY OF LAKE CHARLES; ST. PAUL FIRE &

MARINE INSURANCE COMPANY,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

Before JOLLY, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Seldon Deshotels died shortly after an altercation with law enforcement

officers from the Lake Charles Police Department and the Calcasieu Parish

Sheriff’s Office. His surviving wife and children, Plaintiffs-Appellants, filed suit

against the officers and their employers, among others, asserting claims under

42 U.S.C. § 1983 and state law. The district court granted summary judgment

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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dismissing various claims against appellees Mike Marshall, Travis Miller, Jeff

Pittman, Jeff Morgan, and Anthony Mancuso. For the following reasons, we

AFFIRM.

BACKGROUND

The incident giving rise to this case occurred on November 1, 2007, in Lake

Charles, Louisiana. At approximately 9:20 p.m., Cherie Norsworthy looked out

her back door and saw Seldon Deshotels in her garage. Deshotels, a clinical and

anatomical pathologist, had recently moved to Lake Charles for employment

purposes and was living in the nearby Nelson Pointe apartment complex. Ms.

Norsworthy did not recognize Deshotels, but assumed he was there to see her

husband.1 When she opened the door and asked if he was “looking for Greg,”

Deshotels “kind of panicked” and quickly exited the garage. Alarmed by

Deshotels’s reaction, Ms. Norsworthy went back into the house and yelled for her

husband.

When Ms. Norsworthy told her husband what happened, he instructed

her to call the police and then immediately left the house to look for Deshotels.

Ms. Norsworthy contacted the Calcasieu Parish Sheriff’s Office (CPSO). Mr.

Norsworthy searched the neighborhood on his four-wheeler and eventually

located Deshotels running toward the Nelson Pointe apartment complex.

Norsworthy, a trained martial artist, caught up with Deshotels near the gate to

the apartment complex, jumped on his back, and applied a choke hold that

rendered Deshotels temporarily unconscious. Both men fell to the ground and

Norsworthy released the choke hold. Deshotels regained consciousness shortly

thereafter.

At about the same time, Jessica Cobb and two friends were driving into

the apartment complex parking lot. Cobb testified that when they approached

1

The Norsworthys did not know, and had never met, Deshotels.

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the gate, she saw Deshotels laying on his stomach and Norsworthy sitting on his

back. Norsworthy yelled to Cobb that Deshotels had broken into his house and

asked her to call the police. Cobb called 911 and was connected to the Lake

Charles Police Department (LCPD). She told the 911 operator that a homeowner

was restraining a man who broke into his house and that they were near the

gate to the Nelson Pointe apartment complex.

Both CPSO and LCPD dispatched officers to respond to the incident.

LCPD officer Jeff Pittman was the first law enforcement officer at the scene.

When he arrived, Deshotels was sitting on the ground and Norsworthy was

standing nearby. Norsworthy identified himself as the complainant and

Deshotels as the burglary suspect. As Pittman approached the two men,

Deshotels got up and began running toward Nelson Road. Pittman chased and

quickly caught Deshotels, bringing him to the ground face down. Pittman

straddled Deshotels’s lower back and pulled on his left arm in an attempt to

apply handcuffs. Deshotels resisted, pulling his arms down and underneath his

chest. As Pittman struggled with Deshotels, CPSO deputies Mike Marshall and

Travis Miller and LCPD officers Jeff Morgan and Kevin O’Rourke arrived and

began assisting. Marshall attempted to gain control of Deshotels’s right arm and

Miller placed his knee on Deshotels’s right shoulder. Deshotels was kicking his

legs, so officer Morgan crossed one leg over the other and pushed them down

towards Deshotels’s back. Officer O’Rourke warned Deshotels to stop resisting

or he would be tased. When Deshotels failed to surrender his hands, O’Rourke

conducted a five second “drive-stun” tase to Deshotels’s right shoulder.2 Despite

being tased, Deshotels continued to pull his arms under his chest. O’Rourke

moved to Deshotels’s left side and conducted another drive-stun tase to

2

With a drive-stun tase, an officer shocks a suspect by applying the Taser directly to

the suspect’s body.

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Deshotels’s lower back. After the second tasing, the officers secured Deshotels’s

arms and applied handcuffs.3

Once the handcuffs were on, Pittman and Marshall attempted to lift

Deshotels off the ground. They noticed that Deshotels’s body was limp and that

he was unable to support his own weight. At about the same time, LCPD officers

John Thacker, Robert McCauley, and Larry Moss arrived at the scene. They

observed Deshotels being dragged as “dead weight” in the direction of a police

car. They noticed that Deshotels’s face looked blue and that he did not appear

to be breathing. Thacker instructed Pittman to remove Deshotels’s handcuffs

and lay him on the ground. The officers removed Deshotels’s handcuffs, laid him

on his back, and at some point, called an ambulance.

The parties dispute what, if anything, the officers did to assist Deshotels

before the ambulance arrived. McCauley testified that Deshotels’s tongue

appeared to be blocking his airway. He stated that Moss held Deshotels’s head

while he used a pen to move Deshotels’s tongue in an attempt to clear the

blockage. Moss testified that he assisted McCauley until a paramedic arrived

and was standing next to Deshotels.

Appellants point to the deposition testimony of Walter Siefford, an

EMT/paramedic who responded to the incident. Siefford testified that when he

arrived at the scene, Deshotels was lying on his back and a single officer,

presumably McCauley, was attempting to pry his mouth open with a pen.4

Siefford stated that the officer repeatedly asked him to help Deshotels. Siefford

further testified that Deshotels’s mouth was full of vomit and that there was

3

It is not clear when Deshotels’s left hand was cuffed and under control. Marshall

testified that Deshotels’s left hand was cuffed and in Pittman’s control before Deshotels was

tased. O’Rourke testified that Pittman cuffed Deshotels’s left hand between the first and

second tasing. Pittman testified that neither hand was cuffed until after the second tasing.

4

According to Siefford, seven to eight officers were congregated near the parking lot

gate.

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vomit on his face and in the area around his head. McCauley, Moss, and Thacker

all testified that they did not see Deshotels vomit and did not see vomit on or

around Deshotels.

Deshotels was eventually transported to Women’s and Children’s Hospital

where he was later pronounced dead. He was fifty-six years old. According to an

autopsy conducted by the Parish Coroner, Dr. Terry Welke, Deshotels was

asthmatic and had a blood alcohol level of .12. The reported cause of death was

excited delirium. Appellants commissioned a second autopsy, which was

performed by Dr. Collie Trant, a board certified forensic pathologist. Dr. Trant

concluded that the cause of death was asphyxia caused by a misapplied choke

hold, compression of the chest and abdomen during the struggle with the

officers, and airway obstruction by gastric contents.

Appellants filed suit on September 18, 2008, naming as defendants, among

others, Marshall, Miller, Pittman, Morgan, and O’Rourke, in their individual

capacities, and Calcasieu Parish Sheriff Anthony Mancuso in his individual and

official capacities. Appellants brought claims under § 1983 and state law for

excessive force and for failing to render appropriate medical assistance.

Appellants also brought § 1983 bystander liability claims, asserting that

Marshall, Miller, Pittman, and Morgan are liable for failing to prevent O’Rourke

from tasing Deshotels.

In opinions filed October 27, 2010, and January 4, 2011, the district court

granted summary judgment dismissing Appellants’ excessive force and

bystander liability claims against Marshall, Miller, Pittman, and Morgan. The

district court also granted summary judgment dismissing Appellants’ official and

individual capacity excessive force claims against Calcasieu Parish Sheriff

Anthony Mancuso. The court denied summary judgment on Appellants’ excessive

force claims against O’Rourke. The court also denied summary judgment on

Appellants’ claims against Marshall, Miller, Pittman, and Morgan for failing to

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render appropriate medical assistance. Those claims are currently pending

before the district court. The judgments accompanying the October 27 and

January 4 opinions were certified as final and appealable under Rule 54(b) of the

Federal Rules of Civil Procedure.

DISCUSSION

This court reviews the grant of summary judgment de novo, applying the

same standard used by the district court. Hill v. Carroll Cnty., Miss., 587 F.3d

230, 233 (5th Cir. 2009). Summary judgment is appropriate when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(a). “A fact is ‘material’ if its resolution in

favor of one party might affect the outcome of the lawsuit under governing law.”

Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting

Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)). “An issue

is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict

for the nonmoving party.” Id. (quoting Hamilton, 232 F.3d at 477). In

determining whether a fact issue exists, the court views “the facts and the

inferences to be drawn therefrom in the light most favorable to the nonmoving

party.” Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412

(5th Cir. 2003).

Section 1983 Claims Against Marshall, Miller, Pittman, and Morgan

1. Excessive Force

The district court concluded that Marshall’s, Miller’s, Pittman’s, and

Morgan’s actions to subdue and handcuff Deshotels were objectively reasonable

and that the officers are entitled to qualified immunity from Appellants’ § 1983

excessive force claims. Appellants argue that they have raised a fact issue as to

whether the officers’ actions were reasonable and that the district court

therefore erred.

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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.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether qualified

immunity applies, the court conducts the two-part analysis set forth in Saucier

v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 555 U.S.

223 (2009). The court decides “(1) whether facts alleged or shown by plaintiff

make out the violation of a constitutional right, and (2) if so, whether that right

was clearly established at the time of the defendant’s alleged misconduct.” Pasco

v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009). “The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would

be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009) (quoting

Saucier, 533 U.S. at 202). If the answer to either of the two above questions is

“no,” qualified immunity applies and the government official is immune from

suit. The plaintiff bears the burden of overcoming the qualified immunity

defense. Bennett v. City of Grand Prairie, Tex., 883 F.2d 400, 408 (5th Cir. 1989).

After the Supreme Court’s decision in Pearson, 555 U.S. 223, courts have

discretion as to which of the two qualified immunity prongs to address first.

Turning to the first prong of the qualified immunity analysis, this court

must determine whether the facts, taken in the light most favorable to

Appellants, show that the officers violated a constitutional right. “[A]ll claims

that law enforcement officers have used excessive force—deadly or not—in the

course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should

be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”

Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 487 (5th Cir. 2001) (quoting

Graham v. Connor, 490 U.S. 386, 395 (1989)) (alteration in original). To prevail

in an excessive force claim, “a plaintiff must show that he was seized and that

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he ‘suffered (1) an injury that (2) resulted directly and only from the use of force

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

unreasonable.’” Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (quoting

Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)). Determining

whether an officer’s use of force was objectively reasonable “requires careful

attention to 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, 490 U.S. at 396. Courts must be

mindful that police officers are often required to make split-second judgments

“in circumstances that are tense, uncertain, and rapidly evolving” and must

evaluate an officer’s use of force “from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.” Id. at 396–97.

To support a fact issue, Appellants point to Marshall’s deposition

testimony stating that he was not concerned for his or the other officers’ safety

during the struggle with Deshotels and that he believed they could have

handcuffed Deshotels without the use of a Taser. Appellants also point to

Miller’s testimony that he agreed with O’Rourke’s use of a Taser and that he

would have used his Taser had O’Rourke not done so first. Appellants further

note that Deshotels did not attempt to strike or kick the officers and that the

LCPD use of force report characterized Deshotels’s behavior as “empty hand

defensive resistance.”

Appellants’ evidence tends to focus on whether O’Rourke’s use of a Taser

constituted excessive force, an issue not before the court. The relevant inquiry

is whether Marshall’s, Miller’s, Pittman’s, and Morgan’s individual actions to

subdue and handcuff Deshotels were reasonable under the circumstances. See

Meadours v. Ermel, 483 F.3d 417, 421–22 (5th Cir. 2007) (holding that each

officer’s individual actions should be considered in determining whether

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qualified immunity applies). The facts show that the officers were responding to

a burglary in progress, “a crime normally and reasonably expected to involve a

weapon.”5 United States v. Barnett, 505 F.3d 637, 640 (7th Cir. 2007). When

Pittman approached the scene, Deshotels immediately fled, and when caught,

actively resisted Pittman’s attempts to apply handcuffs. Marshall, Miller, and

Morgan arrived to see Pittman struggling with a large, unruly suspect. (At the

time of the autopsy, Deshotels was 5'10" tall and 240 lbs.) The officers repeatedly

instructed Deshotels to show them his hands and to stop resisting. Despite the

commands, Deshotels continued to resist the officers by pulling his arms under

his chest. Though the officers had not seen a weapon on Deshotels, they had also

not confirmed that he was unarmed. To secure Deshotels, Pittman straddled his

back and pulled on his left arm. Miller kneeled on Deshotels’s right shoulder

while Marshall seized Deshotels’s right forearm. Morgan folded one of

Deshotels’s legs over the other to stop him from kicking. In light of the above

described circumstances, the officers’ actions were objectively reasonable and

they are entitled to qualified immunity from Appellants’ § 1983 excessive force

claims.

2. Bystander Liability

Appellants argue that Marshall, Miller, Pittman, and Morgan are liable

for failing to prevent O’Rourke’s alleged use of excessive force when he tased

Deshotels.6 In support of these claims, Appellants rely on this court’s holding in

Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995), that “an officer who is present

5

CPSO deputies Marshall and Miller were initially dispatched to respond to a trespass

at the Norsworthy’s house. As they were driving to the Norsworthy’s, Pittman passed them

in his patrol car with his lights and siren on. The dispatch informed the deputies that Pittman

was responding to a burglary in progress at the Nelson Pointe complex. They assumed that

their call and Pittman’s were related and decided to follow him to the apartment complex.

6

As mentioned above, Appellants’ § 1983 excessive force claim against O’Rourke is

currently pending at the district court. There has been no determination whether O’Rourke’s

use of a Taser constituted excessive force and we offer no opinion on that question.

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at the scene and does not take reasonable measures to protect a suspect from

another officer’s use of excessive force may be liable under section 1983.” The

court determined that liability under § 1983 can attach when the bystander

officer “had a reasonable opportunity to realize the excessive nature of the force

and to intervene to stop it.” Id. Appellants maintain that Marshall, Miller,

Pittman, and Morgan had an opportunity to realize that O’Rourke was going to

tase Deshotels and to intervene and stop him.7

As discussed above, to overcome the officers’ defense of qualified

immunity, Appellants must show that the officers “violated clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Manis v. Lawson, 585 F.3d 839, 845 (5th Cir. 2009). Exercising the

discretion provided in Pearson, 555 U.S. 223, we first consider whether the

officers’ conduct violated clearly established law. If the answer is “no,” the

officers are entitled to qualified immunity and the court need not decide whether

Appellants’ facts make out the violation of a constitutional right.

For a right to be clearly established, the “contours of the right must be

sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Saucier, 533 U.S. at 202. “As we have held, pre-

existing law must dictate, that is, truly compel (not just suggest or allow or raise

a question about), the conclusion for every like-situated, reasonable government

agent that what defendant is doing violates federal law in the circumstances.”

Pasco, 566 F.3d at 579–80 (internal quotations omitted); see also Saucier, 533

7

In support, Appellants point to testimony that Deshotels was verbally warned that

he would be tased unless he stopped resisting. O’Rourke testified that before he tased

Deshotels he told him “stop resisting or I’m going to deploy the Taser on you.” Marshall

testified that O’Rourke said “Taser, Taser, Taser,” before he tased Deshotels. Brady Hendrix,

an eyewitness, testified that he heard an officer tell Deshotels “if you keep moving, you will

get tased.” Appellants argue that if these warnings were sufficient for Deshotels to cease

struggling and avoid being tased, they were also sufficient to alert the officers that O’Rourke

planned to use his Taser and to do something to stop him.

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U.S. at 202 (“The relevant, dispositive inquiry in determining whether a right

is clearly established is whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.”). “[Q]ualified immunity

operates to ensure that before they are subjected to suit, officers are on notice

their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal

quotations omitted).

Thus, the inquiry is whether, under the law in effect at the time of the

arrest, the officers could have reasonably believed that they were not required

to intervene and prevent O’Rourke’s alleged use of excessive force. The answer

to that question is clearly “yes.” The facts in Hale are significantly different from

the facts in this case. In Hale, the plaintiff produced evidence that he was beaten

by a police officer while the bystander officer stood by and laughed, making no

effort to intervene. Hale, 45 F.3d at 919. Nothing in Hale provided police officers

“fair notice” that officers actively engaged in restraining a large, potentially

dangerous suspect are required to intervene and prevent another officer’s use of

excessive force. See Manis, 585 F.3d at 845–46 (“If the law at the time of a

constitutional violation does not give the officer ‘fair notice’ that his conduct is

unlawful, the officer is immune from suit.”). Nor do Appellants provide any other

authority, and we could not find any, supporting that proposition. Accordingly,

the officers’ actions were objectively reasonable in light of clearly established law

and they are entitled to qualified immunity.

State Law Claims Against Marshall, Miller, Pittman, and Morgan

Appellants argue that the district court erred in dismissing their state law

excessive force claims against Marshall, Miller, Pittman, and Morgan. In

Louisiana, excessive force claims are analyzed under a reasonableness standard

similar to that used to evaluate § 1983 excessive force claims. Kyle v. City of New

Orleans, 353 So. 2d 969, 972–73 (La. 1977). “Whether the force used is

reasonable depends upon the totality of the facts and circumstances in each

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case.” Id. at 973. Factors to be considered include “the known character of the

arrestee, the risks and dangers faced by the officers, the nature of the offense

involved, the chance of the arrestee’s escape if the particular means are not

employed, the existence of alternative methods of arrest, the physical size,

strength, and weaponry of the officers as compared to the arrestee, and the

exigencies of the moment.” Id. Given the similarity between these factors and

those used to evaluate § 1983 excessive force claims, we conclude that the

officers’ use of force was reasonable under Louisiana law for the same reasons

the use of force was reasonable under the Fourth Amendment. See Deville v.

Marcantel, 567 F.3d 156, 173 (5th Cir. 2009) (“These considerations are

sufficiently similar to the Graham factors that our decision on this claim mirrors

our decision of plaintiffs’ § 1983 excessive force claim . . . .”); see also Winston v.

City of Shreveport, 390 F. App’x 379, 385–86 (5th Cir. 2010). We affirm the

district court’s dismissal of Appellants’ state law excessive force claims.

Appellants also argue that the district court erred in dismissing claims

that the officers were negligent under Louisiana law because they “had notice

of O’Rourke’s intentions with regard to the use of his Taser and . . . failed to take

any action whatsoever to prohibit O’Rourke’s excessive use of force.” Appellants’

brief, however, provides no authority discussing bystander liability claims under

Louisiana law or whether Louisiana law enforcement officers have a duty to

prevent another officer’s use of excessive force. Accordingly, that argument is

waived. See Kohler v. Englade, 470 F.3d 1104, 1114 (5th Cir. 2006) (holding

appellant’s claim waived for inadequate briefing because it was not supported

with any legal authority); Salazar-Regino v. Trominski, 415 F.3d 436, 452 (5th

Cir. 2005) (holding that a claim supported by only one citation was waived for

inadequate briefing), vacated on other grounds sub nom. Salazar-Regino v.

Moore, 549 U.S. 1093 (2006); L & A Contracting Co. v. S. Concrete Servs. Inc., 17

F.3d 106, 113 (5th Cir. 1994) (“Southern cites no authority in its one-page

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argument on the attorney fee question, however, and we consider the challenge

abandoned for being inadequately briefed.”).

Vicarious Liability Excessive Force Claim Against Sheriff Mancuso

In Louisiana, sheriffs are vicariously liable in their official capacity for the

torts of their deputies committed in the course and scope of employment. Jenkins

v. Jefferson Parish Sheriff’s Office, 402 So. 2d 669, 669 (La. 1981); Riley v.

Evangeline Parish Sheriff’s Office, 94-C-0202, p. 1 (La. 4/4/94); 637 So. 2d 395,

395. Appellants argue that the state law excessive force claims against deputies

Marshall and Miller were erroneously dismissed and therefore it follows that the

vicarious liability excessive force claim against Calcasieu Parish Sheriff Anthony

Mancuso was also erroneously dismissed. As discussed above, the state law

excessive force claims against deputies Marshall and Miller were correctly

dismissed by the district court. Therefore, there is no basis for a vicarious

liability excessive force claim against Sheriff Mancuso. The district court’s ruling

on this issue is affirmed.

CONCLUSION

For the foregoing reasons, we affirm the district court’s grant of summary

judge dismissing Appellants’ § 1983 and state law excessive force and bystander

liability claims against officers Marshall, Miller, Pittman, and Morgan. We also

affirm the dismissal of the state law excessive force claims against Sheriff

Mancuso.

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