McNeal v. City of Katy

Case: 23-20054 Document: 00516970821 Page: 1 Date Filed: 11/16/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

November 16, 2023

No. 23-20054

____________ Lyle W. Cayce

Clerk

Donna McNeal,

Plaintiff—Appellant,

versus

City of Katy; J. Noe Diaz; Officer Rucker; Officer

Garcia; Officer Domer; Officer Snowden; Officer

Reyna; Officer Wiley; Officer Alvarez,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:21-CV-1163

______________________________

Before Jones, Barksdale, and Elrod, Circuit Judges.

Per Curiam: *

Plaintiff Donna McNeal appeals the district court’s grant of summary

judgment to Officers Domer and Garcia, arguing that the district court im-

properly granted the officers qualified immunity. She further appeals the dis-

trict court’s grant of summary judgment in favor of Police Chief Diaz and the

City of Katy on her § 1983 claims against those defendants. Because we hold

_____________________

*

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

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No. 23-20054

that (1) Domer and Garcia are entitled to qualified immunity, (2) McNeal has

forfeited her claims against Chief Diaz, and (3) McNeal has failed to establish

a genuine dispute as to any material fact concerning her Monell claim against

the City, we AFFIRM.

I

Because video evidence is available in this case, we are required to

“view the facts in the light depicted by the videotape.” Salazar v. Molina, 37

F.4th 278, 280 (5th Cir. 2022) (alteration adopted) (quoting Scott v. Harris,

550 U.S. 372, 381 (2007)). Inasmuch as that video evidence is inconclusive,

however, the ordinary summary judgment standard applies. Aguirre v. City

of San Antonio, 995 F.3d 395, 410 (5th Cir. 2021). Thus, the following facts

are recounted as depicted by the footage captured by Officer Domer and

Officer Garcia’s body cameras. To the extent the video evidence is

inconclusive, the disputed facts have been recounted—as they must be at

summary judgment—in the light most favorable to McNeal. Id.

A

On March 16, 2019, Officers Garcia and Domer separately responded

to a call concerning a disturbance at Los Cucos Mexican Restaurant in Katy,

Texas. Garcia and Domer pursued two vehicles containing individuals

involved in the disturbance. Upon locating the vehicles, observing two

individuals acting suspiciously, and smelling marijuana, Garcia and Domer

detained those two people.

During this detention, Garcia began communicating with Donna

McNeal, who was standing nearby, between the open driver’s door and the

driver’s seat of a parked white SUV while another individual sat in the

driver’s seat. The SUV was parked perpendicular to a second vehicle, a red

sedan, with the SUV driver’s side door adjacent to the sedan’s right rear

bumper. Owing to the relative position of the vehicles, the encounter took

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place in close quarters. During the confrontation, McNeal, in a raised tone,

stated “You better leave me the f—alone. Leave me alone. You don’t know

nothing about me.”

Officer Garcia repeatedly asked McNeal to calm down, to which she

replied, “I don’t have to calm down.” McNeal repeatedly yelled at Garcia,

demanding that he not touch her. Garcia also implored McNeal to not “turn

this into a bigger problem.” Subsequently, Garcia calmly asked McNeal

multiple times if she was at Los Cucos. Garcia then reframed the question,

asking what was “going on at Los Cucos.” McNeal responded, beckoning

and looking at someone off-camera, “that motherf— tried to make us pay for

s— we didn’t get.” McNeal, Garcia, and the unnamed driver then spoke

over one another, though McNeal can be heard stating, repeatedly, that she

was not “with them”—presumably referencing the other individuals

detained—and thus Garcia “ha[d] no business talking to [her].”

After McNeal reiterated her demand that Garcia not “talk” to her,

she slowly began to turn away from Garcia and towards the driver, who was

sitting mere inches from her. In response, Garcia reached out and grabbed

McNeal’s right forearm and attempted to place handcuffs on her. McNeal

intercepted the handcuffs, holding them in her right hand, and tried to

wriggle her arm free, though Garcia appears to have pulled her closer to his

person. McNeal alleges that at this point, “Garcia grabbed Ms. McNeal and

threw her to the ground.” While Appellees argue that McNeal fell on her

own accord, the video footage is not conclusive on this point. Thus, for the

purposes of summary judgment review, we presume that Garcia threw

McNeal to the ground, causing her to hit her head on the sedan’s bumper

before her elbow broke her fall on the ground. As Garcia grabbed at McNeal,

Domer—who to this point had stood at the back of the SUV detaining

another individual—lurched towards McNeal with his arm out, seemingly

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trying to break her fall. Upon impact, McNeal exclaimed “Oh sh—!” Once

on the ground, McNeal reached for her head and yelled “Oh my G—!”

With McNeal on the ground, Domer tried to grab her wrists, place her

arms behind her back, and handcuff her. As McNeal again resisted being

handcuffed by flexing her biceps and preventing her arms from being placed

behind her, Domer took both of McNeal’s arms over her head, dragging her

on the ground toward the back of the SUV. Once she was clear of the car,

Domer stopped dragging her and again attempted to handcuff her. In

response, McNeal did not resist, stating only that she would “put [her arms]

back” behind her and imploring Domer to not “squish” or twist her arms.

With McNeal face-down on the ground, Domer secured her by handcuffing

her with her arms behind her, then helping her off the ground.

Now on her feet, McNeal again disavowed a relationship with the

individuals detained and yelled at the officers not to touch her. Garcia then

escorted McNeal to the back of his police cruiser. After speaking with

McNeal—who declined Garcia’s offer to secure medical assistance—other

detained individuals, officers on the scene, and members of McNeal’s family

over the course of several minutes, Garcia released McNeal. No charges were

filed against McNeal.

B

McNeal filed suit under 42 U.S.C. § 1983 in state court, asserting vi-

olations of her Fourth, Fourteenth, and Eighth Amendment rights against

Katy Police Chief J. Noe Diaz; Katy Police Officers Rucker, Garcia, Domer,

Snowden, Reyna, Wiley, and Alvarez; and the City of Katy. Appellees re-

moved the action to federal court the following month. Chief Diaz and the

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City of Katy jointly filed for summary judgment, as did the Officers. The

district court granted summary judgment on all claims. 1

II

“This court reviews a grant of a motion for summary judgment de

novo, and applies the same standard as the district court, viewing the evidence

in the light most favorable to the nonmovant.” Clark v. Dep’t of Pub. Safety,

63 F.4th 466, 469 (5th Cir. 2023) (citation omitted) (italics added). Because

video evidence is available, we are required to “view the facts in the light

depicted by the videotape.” Salazar, 37 F.4th at 280 (alteration adopted)

(quoting Scott, 550 U.S. at 381). Inasmuch as that video evidence is incon-

clusive, however, the ordinary summary judgment standard applies. Aguirre,

995 F.3d at 410. Ultimately, summary judgment is proper “if the movant

shows that 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).

III

On appeal, McNeal expressly waives all claims against Officers Snow-

den, Reyna, Wiley, and Alvarez, appealing only claims against Chief Diaz,

Officers Domer and Garcia, and the City of Katy. Likewise, while McNeal

does not expressly waive claims raised under the Eighth and Fourteenth

Amendments, she fails to mention them, much less brief them, which forfeits

those claims. DeVoss v. Sw. Airlines Co., 903 F.3d 487, 489 n.1 (5th Cir. 2018)

(concluding that failure to adequately brief a claim on appeal forfeits it).

Thus, we focus on McNeal’s claims against Diaz, Domer, Garcia, and the

City.

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1

The parties consented to trial before a magistrate judge.

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A

McNeal appeals the district court’s grant of qualified immunity to

Domer and Garcia. We affirm, because the officer’s actions did not violate

clearly established law.

“The doctrine of 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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation

and quotation marks omitted). “Qualified immunity includes two inquiries.

The first question is whether the officer violated a statutory or constitutional

right. The second question is whether the right at issue was clearly

established at the time of the alleged misconduct.” Morrow v. Meachum, 917

F.3d 870, 874 (5th Cir. 2019) (alteration adopted) (quotation marks omitted)

(quoting Pearson, 555 U.S. at 232).

“To prevail on an excessive force claim, a plaintiff must show:

(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.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)

(citation omitted). “Fourth Amendment jurisprudence has long recognized

that the right to make an arrest or investigatory stop necessarily carries with

it the right to use some degree of physical coercion or threat thereof to effect

it.” Graham v. Connor, 490 U.S. 386, 396 (1989). Thus, a reasonable amount

of force may be used to detain a subject even if that subject is not being

arrested.

To “gauge the objective reasonableness of the force used by a law

enforcement officer, we must balance the amount of force used against the

need for force[,]” paying “careful attention to the facts and circumstances of

each particular case.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.

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2004) (alteration adopted) (citation and quotation marks omitted). The

Supreme Court’s decision in Graham v. Connor guides the reasonableness

inquiry, pointing us to several factors: “[T]he 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.” 490 U.S. at 396.

McNeal argues that Officers Garcia and Domer both used excessive

force in violation of clearly established law during their interaction with her.

First, she argues that Officer Garcia used excessive force when he

“intentionally grabbed and jerked Ms. McNeal towards the vehicle, causing

her head to strike against a car.” Further, she argues that Officer Domer

used excessive force when he dragged her by both arms out from between the

two vehicles. Specifically, McNeal argues that both uses of force were

unconstitutional because any use of force would have been unconstitutional

in these circumstances because “there was no filed criminal complaint” and

McNeal was not under arrest.

None of McNeal’s cited cases establish, much less clearly establish,

that the officers used excessive force. Citing Ware v. Reed, 709 F.2d 345 (5th

Cir. 1983), she argues that “the use of nearly any amount of force may result

in a constitutional violation when a suspect ‘poses no threat to [the officers’]

safety or that of others, and [the suspect] does not otherwise initiate action

which would indicate to a reasonably prudent police officer that the use of

force is justified.’” She also cites Ikerd v. Blair, 101 F.3d 430 (5th Cir. 1996),

for the proposition that a constitutional violation occurs where the amount of

force used is more than necessary. In Ikerd, the Court held that a reasonable

jury could conclude that an officer who violently jerked a ten-year-old child

out of her living room chair and dragged her across a room used excessive

force when the officer came into the home to arrest the child’s father. Id.

These cases fall short of clearly establishing that Officers Domer and Garcia

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used excessive force when detaining McNeal. See Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011) (instructing courts not to “define clearly established law

at a high level of generality”).

Indeed, this Court’s precedent forecloses McNeal’s argument.

Consider, for example, Solis v. Serrett, 31 F.4th 975 (5th Cir. 2022), in which

our Court recently concluded that qualified immunity applied in similar

circumstances. There, this Court held that it was not objectively

unreasonable for officers to restrain an individual’s arms and force her to the

ground in a “takedown” maneuver to handcuff her because the individual

was belligerent prior to her arrest for public intoxication and resisted arrest—

albeit mildly—by struggling against the officers as they tried to grab her arms.

Id. at 983. While the Court acknowledged that the individual “did not pose

an immediate threat to the safety of the officers or others,” it reasoned that

the officers’ action could still be perceived as reasonable. Id. at 981–83.

Accordingly, the Court held that “even viewing the facts in the light most

favorable to Solis, we cannot say that the officers violated her constitutional

right to be free from excessive force.” Id. at 983.

Solis and other similar precedents support the district court’s

determination that the force Garcia and Domer deployed in this case did not

clearly violate McNeal’s Fourth Amendment rights. See, e.g., Craig v.

Martin, 49 F.4th 404, 411 (5th Cir. 2022) (holding “it was not objectively

unreasonable” for an officer to “push[] [an arrestee] to the ground while

maintaining a hold on [his] left arm and releasing it as she slowly descends to

the ground” following the arrestee’s vocal but non-physical belligerence).

Moreover, upon review of both officers’ body camera footage, we conclude

that no reasonable juror could conclude that either officer deployed excessive

force against McNeal. Scott, 550 U.S. at 381.

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B

McNeal also appeals the dismissal of her claims against Chief Diaz.

We affirm, as McNeal forfeited her claim.

In her opening brief, as Appellees note, McNeal fails to make an argu-

ment regarding Chief Diaz’s liability. Rather, McNeal only scantly refer-

ences Chief Diaz in the Statement of Facts, noting that he had a duty to in-

vestigate the incident, did so, was new to the Katy Police Department, and

later promoted Domer. In reply, McNeal attempts to remedy her oversight,

arguing that Diaz had “the authority to retrain, discipline, or ratify the ac-

tions of Officers Garcia and Domer” but failed to do so, thus ratifying their

allegedly illegal conduct and giving rise to liability. This effort is too little too

late. “An appellant abandons all issues not raised and argued in its initial brief

on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (emphasis in

original).

C

Finally, McNeal appeals the district court’s grant of summary

judgment against the City of Katy.

Under the Supreme Court’s decision in Monell, “[m]unicipalities can

be held liable for violating a person’s constitutional rights under § 1983.”

Est. of Bonilla by & through Bonilla v. Orange County, 982 F.3d 298, 308 (5th

Cir. 2020) (citation omitted); see also Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 694 (1978). We need not discuss Monell’s elements let alone whether

McNeal established them, however: “without a predicate constitutional

violation, there can be no Monell liability.” Loftin v. City of Prentiss, 33 F.4th

774, 783 (5th Cir. 2022) (citing Garza v. Escobar, 972 F.3d 721, 734 (5th Cir.

2020)). Because we hold that McNeal has failed to establish any

constitutional violation, “the associated Monell claims must also fail.” Id.

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* * *

We AFFIRM.

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