Templeton v. Jarmillo

Case: 21-50299 Document: 00516235536 Page: 1 Date Filed: 03/11/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

March 11, 2022

No. 21-50299

Lyle W. Cayce

Clerk

James Templeton,

Plaintiff—Appellant,

versus

Officer Edward Jarmillo, Austin Police Department,

Badge #8408; Officer Steven Kielcheski, Austin Police

Department, Badge #7314; Officer James Starns, Austin

Police Department, Badge #7338; Officer Gadiel Alas,

Austin Police Department, Badge #7835; Officer Tara

Dicken, Austin Police Department, Badge #4761; Officer

Amy Boudreau, Austin Police Department, Badge #8370,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC 1:19-CV-848

Before Southwick, Haynes, and Higginson, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

The plaintiff was handcuffed, detained, and involuntarily committed

after the Austin Police Department conducted a welfare check on him at his

home. He brought multiple claims under Section 1983 against the officers

and other city employees. All the claims were dismissed. The plaintiff

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No. 21-50299

appealed only as to the dismissal of his claims against the arresting officers

for the use of excessive force. We AFFIRM.

FACTUAL AND PROCEDURAL HISTORY

On November 17, 2017, officers with the Austin Police Department

performed a welfare check on Plaintiff James Templeton. They did so based

on a recommendation from a licensed clinical social worker at the Austin

Travis County Mental Health and Mental Retardation Center’s (d/b/a

Integral Care) crisis hotline. Templeton was not home when the officers

arrived, so the officers allegedly concealed themselves in his driveway and

emerged once Templeton arrived. When they emerged, they pointed their

guns at him, instructed him to get onto his knees, handcuffed him, and frisked

him for officer safety.

While handcuffing Templeton, the officers allegedly “wrenched his

arm behind him causing him extreme pain” and “twisted his hands 180

[degrees] and closed the handcuffs tightly so he could not rotate his hands.”

Templeton claims the pain caused his legs to buckle and his shoulder to

spasm. He says he cried out in pain and asked the officers to remove the

handcuffs, but instead, they pulled his arms to lift him to his feet, causing him

more pain. The complaint states that Templeton was taken into “emergency

detention” and also was subjected to involuntary civil commitment.

In August 2019, Templeton brought multiple claims under 42 U.S.C.

§ 1983 against the officers and city employees involved in his arrest,

detention, and commitment. Claims against all defendants were dismissed

in stages based on their different motions. Solely before us on this appeal are

Templeton’s claims against multiple police officers. Related to his

handcuffing, he claimed the officers violated his Fourth Amendment right to

be free from excessive force. The officers claimed they were entitled to

qualified immunity and moved for judgment on the pleadings. In July 2020,

the district court granted this motion, dismissing Templeton’s excessive

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force claims against the officers. Templeton then moved for the district court

to alter its judgment, a motion the district court denied in August 2020. Final

judgment was entered as to all defendants and all claims in March 2021.

Templeton timely appealed the initial order dismissing his claims and the

subsequent order denying Templeton’s motion to amend judgment.

DISCUSSION

We review a dismissal on the pleadings de novo. Hughes v. Tobacco

Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001). The standard for dismissing a

complaint under Rule 12(c) is the same as a dismissal for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). Great Plains Tr. Co. v.

Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312–13 (5th Cir. 2002). The

standard requires the complaint to “contain sufficient factual matter,

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

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

550 U.S. 544, 570 (2007)).

To overcome the officers’ qualified immunity defense, Templeton

must allege facts showing that the officers (1) “violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time

of the challenged conduct.” Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011).

Because the officers invoked a qualified immunity defense, the burden shifts

to Templeton to show the officers violated his clearly established rights. Cass

v. City of Abilene, 814 F.3d 721, 729, 732–33 (5th Cir. 2016).

A right is clearly established when it is defined “with sufficient clarity

to enable a reasonable official to assess the lawfulness of his conduct.”

McClendon v. City of Columbia, 305 F.3d 314, 331 (5th Cir. 2002). The court

must determine “whether the violative nature of particular conduct is clearly

established.” Al-Kidd, 563 U.S. at 742 (emphasis added). So, although a

plaintiff does not need to identify a case “directly on point” to meet this

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burden, he must identify caselaw that “place[s] the statutory or

constitutional question beyond debate.” Id. at 741.

The district court determined Templeton did not meet this burden

because Templeton failed to cite any caselaw that would show the officers

violated his clearly established rights. Templeton initially cited only general

caselaw that a person has a right to be free from excessive force during an

arrest, then cited Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007).

Overcoming qualified immunity requires showing clearly established law

supporting the plaintiff’s claim, and that demands “that the legal principle

clearly prohibit the officer’s conduct in the particular circumstances before

him.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018). Citing

caselaw generally referring to the prohibition on officers’ using excessive

force does not suffice. See Cass, 814 F.3d at 732–33.

Templeton did a better job of briefing on his motion to alter judgment.

There, he cited one of our opinions in which we held that a claim that

handcuffs were applied too tightly, and the arrestee’s pleas to loosen the

handcuffs were ignored, could be a plausible claim of excessive force and

survive a motion to dismiss. Heitschmidt v. City of Houston, 161 F.3d 834, 836,

839–40 (5th Cir. 1998). A factor in our holding was that police had secured

the premises, leaving “no justification for requiring Heitschmidt to remain

painfully restrained.” Id. at 840.

The district court held it was too late to inject new caselaw, and even

if it were not, the new precedent was insufficient to show clearly established

law. The district court accepted that Heitschmidt was factually “somewhat

similar” to events in the present case but held it was “not sufficient to

overcome” other Fifth Circuit precedent that the use of handcuffs for some

period of time even when they caused pain to a suspect was not excessive

force.

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In reviewing the district court’s decision on this issue, we find it

helpful to start by distinguishing a party’s raising new issues for the first time

on rehearing, or on appeal, or in a reply brief, and citing new authority in

support of existing issues. For example, in order to preserve an argument for

appeal, the argument (or issue) not only must have been presented in the

district court, a litigant also “must press and not merely intimate the

argument during proceedings before the district court.” FDIC v. Mijalis, 15

F.3d 1314, 1327 (5th Cir. 1994). In the present case, there is no doubt that the

plaintiff presented and pressed the argument that the use of the handcuffs

constituted excessive force. Indeed, that is the essence of this case. Yet, it

was not until the effort to get the district court to reconsider the earlier

judgment on the pleadings that a particularly on-point Fifth Circuit

precedent was discovered. A new precedent is not a new argument; it is new

support for an existing argument.

Among the explicit pronouncements that new authority may be cited

on appeal is from the First Circuit: “Whether or not an issue is preserved in

the trial court does not depend on what authorities the arguing party cites to

that court.” Alston v. Town of Brookline, 997 F.3d 23, 44 (1st Cir. 2021). The

Alston court then cited approvingly two opinions from other circuits on which

it relied. Id. (citing Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 773

n.20 (7th Cir. 2010) (“finding issue preserved because it was raised below

and noting that ‘litigant may cite new authority on appeal’”) and United

States v. Rapone, 131 F.3d 188, 196 (D.C. Cir. 1997) (“distinguishing between

raising new issue and citing new authority on appeal”)). Making an issue

clear, or as the First Circuit stated the point in Alston, presenting the issue

“face up and squarely in the trial court,” is necessary. Alston, 997 F.3d at 44.

Citing and analyzing the best discovered authority on the issue supports the

presentation, but it is not the same thing as identifying the issue.

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Some of our precedents have evaluated authority not cited in district

court without suggesting a need to overcome some barrier to doing so. See,

e.g., Lester v. Exxon Mobil Corp., 879 F.3d 582, 589–90 (5th Cir. 2018).

Certainly, this court is not restricted to analyzing the issues properly

presented only on the authorities cited by the parties. We also conclude that

if the parties cite new, relevant authority on an issue already before the court,

it may be considered.

Though holding that the citation of Heitschmidt had come too late, the

district court analyzed what its impact on the case would be. As we

summarized already, the court seemingly concluded that the case was

something of an outlier. We agree that clearly established law in the Fifth

Circuit is contrary to Templeton’s claims. Tight handcuffing alone, even

where a detainee sustains minor injuries, does not present an excessive force

claim. See, e.g., Freeman, 483 F.3d at 416–17; Glenn v. City of Tyler, 242 F.3d

307, 314 (5th Cir. 2001); Lockett v. New Orleans City, 607 F.3d 992, 999 (5th

Cir. 2010). At least one point being made by the district court was that

regardless of what a single precedent states, that opinion cannot clearly

establish law if there is considerable contrary authority.

In Glenn, for example, the plaintiff alleged officers “handcuffed her so

tightly that her right hand became swollen” and, like Templeton, she

complained to the officers that the handcuffs were too tight. Glenn, 242 F.3d

at 311. The Court determined that the handcuffing did not amount to

excessive force because the plaintiff did not allege the officer acted

maliciously and “handcuffing too tightly, without more, does not amount to

excessive force.” Id. at 314. In another precedent, the plaintiff alleged

officers handcuffed her too tightly, “twisted her arms behind her back while

handcuffing her[,] and jerked her all over the carport,” which left bruises on

her hands and arms that required medical treatment. Freeman, 483 F.3d at

410, 416–17 (quotation marks omitted). We relied on Glenn to conclude such

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allegations did not amount to excessive force because the injuries were minor

and incidental to the use of handcuffs during arrest. Id. at 416–17. In one

additional precedent, we held that a plaintiff who alleged “he suffered acute

contusions of the wrist” from handcuffing did not state an excessive force

claim because he alleged no more than de minimis injury from the handcuffing

and also did not allege the officers had any malice in handcuffing him. Tarver

v. City of Edna, 410 F.3d 745, 751–52 (5th Cir. 2005) (quotation marks

omitted).

Templeton alleges he experienced pain in his shoulder from tight

handcuffing that occurred over a matter of minutes. This allegation is

insufficient to raise an excessive force claim. Disagreeing at least with the

implications of the district court’s analysis of Heitschmidt, we conclude it is

no outlier. Far differently than the brief handcuffing in the present case,

Heitschmidt was painfully handcuffed for over four hours, prevented from

using the bathroom, and suffered “serious and permanent” injury from the

handcuffing. Heitschmidt, 161 F.3d at 836, 839–40. Those are not the

allegations here. Facts matter in excessive force claims. Based on the alleged

facts in the complaint, Templeton failed to state a claim that the officers

violated his clearly established rights.

AFFIRMED.

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