Beroid v. Lafleur

Case: 22-30489 Document: 00516721801 Page: 1 Date Filed: 04/21/2023

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 22-30489 April 21, 2023

Summary Calendar

____________ Lyle W. Cayce

Clerk

Chance Dwayne Beroid,

Plaintiff—Appellant,

versus

Christopher Lafleur, Jefferson Davis Parish Deputy Sheriff;

Ferroll Leblanc, Jefferson Davis Parish Deputy Sheriff; Naquan

Senegal, Jefferson Davis Parish Deputy Sheriff,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:21-CV-516

______________________________

Before Stewart, Duncan, and Wilson, Circuit Judges.

Per Curiam: *

This appeal arises from Chance Dwayne Beroid’s (“Beroid”) suit

against Officers Christopher LaFleur, Ferroll Leblanc, and Naquan Senegal

(collectively “the officers”) for allegedly violating his Fourth Amendment

_____________________

*

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

Case: 22-30489 Document: 00516721801 Page: 2 Date Filed: 04/21/2023

22-30489

rights. Because Beroid failed to plead facts sufficient to survive a motion to

dismiss, we AFFIRM.

I. Background

According to Beroid’s complaint 1, he alleged that Officers LaFleur,

Leblanc and Senegal were dispatched to his parents’ house after receiving a

call from his fiancée about an argument the two were having. After the

situation settled down, Beroid’s fiancée left, and he remained at his parents’

house where he intended to stay for the evening. Beroid alleged that the

officers remained outside for thirty to forty-five minutes before approaching

the door a second time. Beroid’s mother answered and was asked if he was

still home. He came to the door and Officer LaFleur ordered him to grab his

shoes and to come with them because there was a warrant for his arrest. He

denied the existence of a warrant and refused to go with the officer. He

retreated further into the house. Beroid alleged that the officers then “barged

into the house” and attempted to grab him by the shirt. His shirt slipped off

which prompted him to step a few feet further into the house.

Beroid alleged that moments after entering the house and without

warning, Officer LaFleur shot him with a taser which forced him to drop to

the ground. Once on the ground, Officer LaFleur demanded that Beroid put

his hands behind his back. Officer Senegal told him that if he did not comply

with Officer LaFleur’s instruction he would “light [him] up again.” As

Beroid was handcuffed he explained that the charges underlying the warrant

_____________________

1

As part of his complaint, Beroid included camera footage taken from the officers’

body cameras, dashboard camera, and backseat camera. Because the district court’s

characterization of the video footage is at issue in this case, the facts summarized in this

section come directly from the complaint. However, we note that there are a number of

inconsistencies between the facts as alleged in the complaint and the video footage.

2

Case: 22-30489 Document: 00516721801 Page: 3 Date Filed: 04/21/2023

22-30489

were dropped and repeatedly asked what the charges were for and from what

year. Officer LaFleur eventually responded that he did not know the details

about the charges but that the warrant was confirmed by the Jennings Police

Department. Beroid was taken to the Sherriff’s Office where he met with

EMT personnel to be treated for the injuries he sustained during his arrest.

He alleged that he overheard the officers tell the EMT personnel that he had

been “fighting” and that he overheard conversation between the officers

corroborating “a false version of the incident.”

Beroid sued all three officers under 42 U.S.C. § 1983 alleging

violations of his Fourth Amendment right “to be secure in his person from

unreasonable seizure through excessive force” and his “constitutional right

under the Fourteenth Amendment to bodily integrity and to be free from

excessive force by law enforcement.” The officers filed a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6). The district court granted

the officers’ motion and determined that Beroid failed to show that the

officers acted unreasonably in their use of force. It also determined that the

officers were entitled to qualified immunity. This appeal ensued.

II. Standard of Review

We review a district court’s grant of a motion to dismiss de novo.

Butts v. Aultman, 953 F.3d 353, 357 (5th Cir. 2020). When reviewing a

motion to dismiss, we accept all well-pleaded facts as true and view those

facts in the light most favorable to the plaintiff. See Alexander v. City of Round

Rock, 854 F.3d 298, 303 (5th Cir. 2017). To avoid dismissal, “a complaint

must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Butts, 953 F.3d at 357 (quoting Masel v.

Villarreal, 924 F.3d 734, 743 (5th Cir. 2019)). A claim is facially plausible

“when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

3

Case: 22-30489 Document: 00516721801 Page: 4 Date Filed: 04/21/2023

22-30489

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

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

III. Discussion

Beroid presents four issues on appeal. He asks us to decide whether

the district court erred in: 1) relying on its own characterization of the video

footage at the pleadings stage; 2) granting the motion to dismiss and

determining qualified immunity was applicable; 3) determining that the

complaint failed to set forth a prima facie Fourth Amendment claim and

otherwise overcome the officers’ qualified immunity claim; and 4) declining

to exercise supplemental jurisdiction over Beroid’s state law claims. We

address each in turn.

A. Fourth Amendment Claims

Beroid argues that Officer LaFleur shot him with a taser “without

warning and without attempting to use de-escalation skills, negotiations, or

commands.” He adds that Officers Senegal and Leblanc “stood idly by.”

He contends that this violated his Fourth Amendment rights because “the

officers acted unreasonably excessively [sic] [.]”

To advance a successful claim under § 1983, “a plaintiff must (1)

allege a violation of a right secured by the Constitution or laws of the United

States and (2) demonstrate that the alleged deprivation was committed by a

person acting under color of state law.” James v. Tex. Collin Cnty., 535 F.3d

365, 373 (5th Cir.2008) (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d

871, 874 (5th Cir. 2000)). There is no dispute that the officers acted under

the color of state law when they effectuated Beroid’s arrest. Beroid’s

arguments focus on prong two, that the officers violated his clearly

4

Case: 22-30489 Document: 00516721801 Page: 5 Date Filed: 04/21/2023

22-30489

established Fourth Amendment “right to be free from excessive force.” 2 To

prevail on an excessive force claim under the Fourth Amendment, Beroid

“must establish ‘(1) [an] 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.’” Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th Cir.

2020) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).

With respect to the first prong, “although a de minimis injury is not

cognizable, the extent of injury necessary to satisfy the injury requirement is

directly related to the amount of force that is constitutionally permissible

under the circumstances.” Byrd v. Cornelius, 52 F.4th 265, 274 (5th Cir.

2022) (quoting Alexander, 854 F.3d at 309) (citations and quotation marks

omitted). “Any force found to be objectively unreasonable necessarily

exceeds the de minimis threshold, and, conversely, objectively reasonable

force will result in de minimis injuries only.” Id. (citation and quotation

marks omitted).

Beroid claimed he suffered burn marks on his arm and back from being

tased as well as anxiety and other psychological injuries and psychiatric

distress. His injuries are cognizable only if the officers’ use of force was

unreasonable. See Ratliff, 948 at 287.

In determining whether the use of force was reasonable, we must

assess the totality of the circumstances. See Elizondo v. Green, 671 F.3d 506,

510 (5th Cir. 2012); see also Massey v. Wharton, 477 F. App’x. 256, 262 (5th

Cir. 2012) (per curiam) (analyzing several important factors including

_____________________

2

See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that “all 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, rather than under a substantive due process’

approach”) (internal quotation and citation omitted).

5

Case: 22-30489 Document: 00516721801 Page: 6 Date Filed: 04/21/2023

22-30489

“whether he [was] actively resisting arrest or attempting to evade arrest by

flight”) (internal citation omitted). 3 Further, “[t]he 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.” Graham

v. Connor, 490 U.S. 386, 396 (1989) (internal citation and quotation marks

omitted). Thus, not every push or shove violates the Fourth Amendment.

Id. (internal citation and quotation omitted). Instead, “the calculus of

reasonableness 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.” Id at 396–97 (internal citation and

quotation marks omitted).

Beroid argues that Officer LaFleur acted unreasonably when he tased

him because at that point in time he was not aware that he was under arrest

because officers did not use the precise phrase “you are under arrest” and he

was not warned that he would be shot with a taser. Our cases involving the

use of a taser to effectuate an arrest focus on whether the officers faced active

resistance. See Cloud v. Stone, 993 F.3d 379, 384 (5th Cir. 2021) (citing Pratt

v. Harris Cnty., 822 F.3d 174, 182 (5th Cir. 2016)) (“[A] suspect’s active

resistance to arrest may justify this degree of force.”). For example, in Poole

v. City of Shreveport, in affirming the district court’s grant of summary

judgment we determined that the use of a taser during an arrest was

_____________________

3

See Graham, 490 U.S. at 396 (“Because “[t]he test of reasonableness under the

Fourth Amendment is not capable of precise definition or mechanical application,” Bell v.

Wolfish, 441 U.S. 520, 559 (1979), [ ] its proper application 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.”) (emphasis

added).

6

Case: 22-30489 Document: 00516721801 Page: 7 Date Filed: 04/21/2023

22-30489

reasonable because the plaintiff verbally and physically resisted arrest. See

691 F.3d 624, 631–32 (5th Cir. 2012). There, we concluded that the officers

were entitled to use “some degree of physical coercion or threat thereof to”

effectuate the seizure to execute the arrest warrant including the use of a taser

if the situation so requires. Id. at 627–28 (quoting Graham, 490 U.S. at 396).

We also have caselaw emphasizing that reciting “you’re under arrest”

is not necessary to put a suspect on notice that he is being arrested and

resistance can be met with reasonable force. In Tucker v. City of Shreveport,

we reversed the district court’s denial of summary judgment and determined

that the level of force that officers used during the plaintiff’s arrest was

reasonable. 998 F.3d 165, 185 (5th Cir. 2021). We further concluded that

even though the officers did not utter the words “you are under arrest,”

lights and sirens coupled with being told to put his hands behind his back

were enough to put the plaintiff on notice that he was being arrested. We

determined that by refusing to pull over and then physically and verbally

resisting arrest, the officers were reasonable in their use of force to take him

down to the ground to complete the arrest. Id. at 178–79. By contrast, there

are a number of cases where we have determined excessive force was used

when officers tased a suspect offering only passive resistance or no resistance

at all. 4 This is not such a case.

Mindful that we must accept all well-pleaded facts as true and

construe those facts in the light most favorable to Beroid, see Alexander, 854

_____________________

4

See e.g., Darden v. City of Fort Worth, 880 F.3d 722, 730 (5th Cir. 2018) (reversing

dismissal of claims against officer because evidence including video evidence showed that

the plaintiff was not resisting and was instead complying with officers during arrest

therefore use of a taser was excessive force); Ramirez v. Martinez, 716 F.3d 369, 380 (5th

Cir. 2013); Newman v. Guedry, 730 F.3d 757, 763 (5th Cir. 2022) (holding that use of a taser

was unreasonable because the plaintiff’s behavior did not rise to the level of “active

resistance”).

7

Case: 22-30489 Document: 00516721801 Page: 8 Date Filed: 04/21/2023

22-30489

F. 3d at 303, we hold that Beroid has not pleaded facts establishing excessive

force. First, he argues that he was never told that he was under arrest, but

his complaint alleges that Officer LaFleur told him to grab his shoes because

there was a warrant for his arrest. This was sufficient to put Beroid on notice

that he was being arrested. See Tucker, 998 F.3d at 185.

Next, he argues that Officer LaFleur violated his Fourth Amendment

right when he shot him with a taser without warning even though he “was

not committing a crime, was unarmed, and was not actively resisting arrest.”

We disagree. Beroid was on notice that he was being arrested therefore his

refusal to comply and his subsequent retreat into the house was active

resistance. As we have repeatedly held, the use of a taser is a reasonable level

of force when a suspect is resisting arrest. Thus, Officer LaFleur’s use of

force was reasonable in this situation. See Stone, 993 F.3d at 384; see also

Buchanan v. Gulfport Police Dep’t, 530 F. App’x 307, 314 (5th Cir. 2013) (per

curiam) (“[W]here a suspect resists arrest or fails to follow police orders,

officers [did] not violate his right against excessive force by deploying their

tasers to subdue him.”).

Beroid further argues that the district court relied on its own

characterization of the video footage in reaching its decision to dismiss the

case. We disagree. But regardless, setting aside the video footage and

focusing only on the language in the amended complaint, as we have done

here, we hold that Beroid has failed to establish that there was use of

excessive force thus his injury was de minimis. See Byrd, 52 F.4th at 274.

Beroid also argues that Officers Leblanc and Senegal violated his

constitutional rights when they “stood idly by and otherwise made no

attempt to use other, less forceful tactics to arrest [him].” However, Officers

Leblanc and Senegal did not deploy their taser and given that there were no

constitutional right violations for them to be aware of and protect, they are

8

Case: 22-30489 Document: 00516721801 Page: 9 Date Filed: 04/21/2023

22-30489

also not liable under the theory of bystander liability. See Hale v. Townley, 45

F.3d 914, 919 (5th Cir. 1995) (holding “that [ ] officer[s] who [were] present

at the scene and [did] not take reasonable measures to protect a suspect from

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

B. Qualified Immunity

To determine whether qualified immunity applies, we engage in a

two-part inquiry “asking: first, whether taken in the light most favorable to

the party asserting the injury . . . the facts alleged show the officer’s conduct

violated a constitutional right; and second, whether the right was clearly

established.” Byrd, 52 F.4th at 271 (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001) (quotation marks omitted)). We have repeatedly denied qualified

immunity “in cases in which ‘officers face verbal resistance but no fleeing

suspect.’” Tucker, 998 F.3d at 175 (quoting Bone v. Dunnaway, 657 F. App’x

258, 263 (5th Cir. 2016) (per curiam)). Since Beroid does not contest the

legality of his arrest, we only focus on the officers’ use of force during his

arrest. See Poole, 691 F.3d at 629.

Beroid argues that his complaint demonstrates that the officers

violated his Fourth Amendment rights and the only reason the motion to

dismiss was granted was because the district court, adopting the

recommendation of the magistrate judge, substituted the facts alleged in the

complaint with its own characterization of the video footage. He argues that

but for this error, the officers would not be entitled to qualified immunity.

We are not persuaded by this argument because we have routinely

held that “on a motion to dismiss, the court is entitled to consider any

exhibits attached to the complaint, including video evidence.” Hartman v.

Walker, 685 F. App’x 366, 368 (5th Cir. 2017) (per curiam); Tucker, 998 F.3d

at 170 (determining officers were entitled to qualified immunity “because

there [was] video and audio recording of the event, [and] we are not required

9

Case: 22-30489 Document: 00516721801 Page: 10 Date Filed: 04/21/2023

22-30489

to accept factual allegations that are blatantly contradicted by the record”)

(internal quotation marks and citation omitted); see also Villarreal v. Wells

Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016) (“The court may [ ] also

consider documents that a defendant attaches to a motion to dismiss . . . if

they are referred to in the plaintiff’s complaint and are central to [his]

claim.”) (internal quotation marks and citation omitted). Beroid elected to

attach video footage to his complaint and directed the court’s attention to

that footage throughout his complaint but now argues that the district court

mischaracterized it. We disagree. After reviewing the video footage to

determine the merits of this argument, we conclude that the district court’s

characterization of the footage was accurate. The footage does contradict

Beroid’s claims that he did not resist arrest. Thus, the district court did not

err in considering this video footage. See Tucker, 998 F.3d at 170.

Because we have already determined that Beroid has failed to establish

a constitutional violation, we hold that the district court did not err in

determining that the officers were entitled to qualified immunity in this case.

See Byrd, 52 F.4th at 271.

C. Denial of Supplemental Jurisdiction

Because Beroid’s § 1983 claim was properly dismissed and there are

no other federal claims, we hold that the district court did not abuse its

discretion by declining extension of supplemental jurisdiction to Beroid’s

state law claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may

decline to exercise supplemental jurisdiction over a claim under subsection

(a) if . . . (3) the district court has dismissed all claims over which it has

original jurisdiction”).

IV. Conclusion

For these reasons, we AFFIRM the district court’s order granting

the officers’ motion to dismiss and dismissing Beroid’s suit.

10