Petition for Writ of Certiorari — Jeremy Johnson, Petitioner v. Andre D. Boyd

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APPENDIX TABLE OF CONTENTS

Page

United States Court of Appeals for the Fifth Circuit, Opinion, July 24, 2023 ............................. App. 1

United States Court of Appeals for the Fifth Circuit, Judgment, July 24, 2023 ........................ App. 25

United States District Court for the Western

District of Texas, Order, August 21, 2020 ...... App. 27

App. 1

United States Court of Appeals

for the Fifth Circuit

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No. 20-50945

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ANDRE D. BOYD,

Plaintiff—Appellant,

versus

SHERIFF PARNELL MCNAMARA; RICKY ARMSTRONG,

Administrator, McLennan County Jail; ROBERT

DILLARD, Grievance Officer, McLennan County Jail;

OFFICER JEREMY JOHNSON,

Defendants—Appellees.

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Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:19-CV-634

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(Filed Jul. 24, 2023)

Before ELROD, HO, and OLDHAM, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Plaintiff Andre Boyd was repeatedly tased while

he was a pretrial detainee at the McLennan County

jail in Waco, Texas. Boyd insists that he did nothing

to warrant the use of force—that he was neither

threatening nor resisting the officer who tased him.

App. 2

The principal question on appeal is whether Boyd has

presented sufficient evidence to defeat summary judgment on his ensuing civil rights claims.

He has. The evidence is at least consistent with

Boyd’s account of what took place, and our precedents

conclusively establish that the use of a taser on a nonthreatening and cooperative subject is an unconstitutionally excessive use of force. We therefore reverse in

part and remand.1

I

The following facts are recounted, as they must be

at summary judgment, in the light most favorable to

Boyd. “In other words, the story that follows is onesided because the posture of the case requires it to be.”

Doe v. Purdue Univ., 928 F.3d 652, 656 (7th Cir. 2019).

Boyd arrived at the McLennan County jail with an

injury to his left hand “arising from his arrest.” He submitted a request for medical attention and was seen by

a member of the jail’s staff a few days later. While observing the examination, Officer Jeremy Johnson discovered that Boyd’s identification armband had been

damaged. Johnson asked Boyd to surrender the broken

band, and Boyd complied “without incident” before

1

Defendants’ motion to dismiss for lack of jurisdiction based

on the timeliness of Boyd’s notice of appeal is denied. We construe

Boyd’s Rule 59(e) motion as one successfully seeking an extension

of time to file a notice of appeal. See Rivers v. Lumpkin, No. 1811490, 2022 WL 1517027 (5th Cir. May 13, 2022).

App. 3

being escorted back to the cell where he and other detainees were being held.

Boyd later approached the bars separating him

from Johnson to ask Johnson if he was going to be

“charged” for the armband. Johnson responded that

Boyd would be disciplined based on Johnson’s belief

that Boyd had intentionally shaved the rivet holding

the band together. Boyd protested that the damage to

the armband was unintentional, contending that it had

been ripped when it got caught on his bunk. According

to Boyd, Johnson proceeded to “call [Boyd] all types of

lies, saying he could tell the rivet had been shaved,” to

which Boyd responded, “don’t call me no ‘motherf-----g

liar.’ ”

What happened next is captured on video. The following is Boyd’s account of what that video depicts:

Johnson instructed Boyd to walk to the cell

door and submit himself to be handcuffed and

escorted out of the dayroom [cell]. Boyd complied. As both videos reflect, Boyd walked

calmly to the cell door, turned around so that

he was facing away from the door, and placed

his hands behind his back. Officer Johnson removed handcuffs from his belt, opened the cell

door, and then forcefully grabbed Boyd’s left

hand—i.e., the hand with the fractured pinky

finger that Johnson watched the nurse examine just moments earlier. Boyd, understandably, pulled his hand away in pain. He stepped

away from Johnson, pointed to his left hand,

and pleaded with Johnson not to grab that

hand again and to instead grab his wrist

App. 4

when securing the handcuffs. Boyd then returned to his previous position, with his back

to Johnson and his hands behind his back,

ready to be handcuffed. Four seconds passed,

with Boyd continuing to stand with his back

to Johnson and his hands behind his back,

speaking to Johnson over his left shoulder.

Instead of handcuffing the compliant Boyd,

Johnson fired his taser. He struck Boyd in the

back of his left shoulder. Immediately afterwards, Johnson “drive stun” tased Boyd in the

back of his right thigh. As Johnson’s Taser

Use Form indicates, the taser strikes were entirely on the backside of Boyd’s body.

The force of the taser being pressed against

the back of Boyd’s thigh pushed him into the

dayroom cell, with Johnson (who is significantly larger than the 5’ 4” Boyd), continuing

to press the taser against his thigh. When the

taser’s five-second cycle completed, Johnson

stepped away from Boyd. Boyd managed to remove one taser barb from his back, and then

stood still with his back to Johnson, hands behind his back. Two other officers then entered

the cell, one of whom placed handcuffs on the

still-compliant Boyd . . . and escorted him out.

Blue Br. 6–8 (citations and figure omitted).

Defendants’ account varies from Boyd’s in two important ways. Defendants contend that, after Johnson

grabbed his injured hand and Boyd jerked it away,

Boyd not only twisted his head to speak to Johnson

over his left shoulder, but also moved his right arm out

App. 5

of Officer Johnson’s reach. More significantly, Defendants maintain that Boyd became agitated and threatening toward Johnson after Johnson grabbed his hand,

stating that Boyd gestured in an agitated manner and

yelled at Johnson.

The video evidence is consistent with both parties’

accounts, though obstructions and the lack of audio

make it impossible to determine what was said between Boyd and Johnson in the seconds preceding

Johnson’s decision to tase Boyd. The video does, however, clearly show that Boyd had his back to Johnson

when Johnson fired his taser, and while Boyd appears

to be twisting his body to speak to Johnson over his left

shoulder, there is nothing overtly threatening about

Boyd’s stance. Boyd’s hands remain behind his back,

suggesting that he had submitted himself to be handcuffed before the taser was deployed.

After exhausting his administrative remedies,

Boyd filed a pro se complaint against Johnson and

other jail officials in the Western District of Texas,

bringing claims under 42 U.S.C. § 1983. As relevant

here, the operative complaint alleged that (1) Johnson’s use of the taser constituted excessive force;

(2) Defendants were deliberately indifferent to Boyd’s

medical needs; (3) Defendants, in their official capacities as policy makers for McLennan County, have a

policy, custom, or practice of using excessive force

against black and Hispanic inmates; and (4) Defendants, in their individual capacities, instituted that unconstitutional policy.

App. 6

Defendants moved to dismiss and asked the district court to stay all discovery pending resolution of

their qualified immunity defenses. The district court

issued an order notifying the parties that it would

treat Defendants’ motion as a motion for summary

judgment and allowed additional time for discovery.

But when Boyd issued his discovery requests, Defendants again moved to stay discovery or, in the alternative, limit the scope of discovery to the issue of

qualified immunity. The district court opted for the latter route, ordering discovery “limited to that which is

necessary to address the qualified immunity issue.”

The limited scope of discovery prevented Boyd

from compelling responses related to his policy and

practice allegations. Among these were requests seeking “[a]ll incident reports dealing with excessive use of

force and tasers between 2018-2019,” Defendant “Armstrong’s [personnel] reports and incident[ ] reports

dealing with the use of force in jail,” and Defendant

“McNamara’s reports and incident reports on use of

force at the jail and taser reports between 2018-19.”

Following this limited discovery, the district court

granted summary judgment for Defendants. With respect to Boyd’s excessive-force claim, the district court

held that “there was no violation of Plaintiff ’s constitutional rights” because Boyd was “actively resisting”

Johnson’s attempt to handcuff him when he was tased

and because “Johnson’s determination that he was

threatened was not objectively unreasonable.” Turning to Boyd’s deliberate indifference claim, the district court held that there was “no summary judgment

App. 7

evidence whatsoever that any Defendant had subjective knowledge of a substantial risk of serious harm to

Plaintiff but responded with deliberate indifference to

that risk.” And as to Boyd’s policy and practice claims,

the district court held that Boyd failed to meet his burden to present “adequate summary judgment evidence

of any official or unofficial policy” depriving him of his

federal rights.

Boyd now appeals.

II

In reviewing the district court’s summary judgment decision, we must consider the evidence in the

record in the light most favorable to Boyd, drawing all

reasonable inferences in support of the conclusion that

Boyd has raised a jury issue on his claims. Bluebonnet

Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754

F.3d 272, 276 (5th Cir. 2014).

Because video evidence is available, 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 omitted) (quoting Scott v. Harris,

550 U.S. 372, 381 (2007)).2 Inasmuch as that video evidence is inconclusive, however, the ordinary summary

2

We share the dissenting opinion’s concern about judicial

Monday-morning quarterbacking of difficult, split-second decisions by officers in the field. But Supreme Court precedent rightly

requires us to view video evidence when considering an appeal

from the grant of summary judgment. See Scott v. Harris, 550

U.S. 372, 381 (2007).

App. 8

judgment standard applies. Aguirre v. City of San

Antonio, 995 F.3d 395, 410 (5th Cir. 2021) (“When

video evidence is ambiguous or in fact supports a

nonmovant’s version of events, or when there is any

evidence challenging the video’s accuracy or completeness, the modified rule from Scott has no application.”

(citations omitted)).

Applying these standards on a careful review of

the available evidence, we conclude that a rational jury

could find that Boyd did not pose a threat and was cooperative at the time he was tased. It follows that

Boyd’s excessive force claim survives summary judgment.

A

We begin with what a rational jury could find.

Close inspection of the video evidence supports Boyd’s

contention that he was nonthreatening and compliant throughout his interaction with Johnson. Starting with the question of whether Boyd posed a threat,

nothing about Boyd’s posture or movements suggest

that Boyd was or was about to become dangerous. To

the contrary, Boyd stood with his back to Johnson and

his hands in the handcuffing position for a full four seconds before Johnson deployed his taser.

Boyd’s earlier actions likewise support the conclusion that Boyd was not a security risk. Cf. Salazar, 37

F.4th at 282 (“But when a suspect has put officers and

bystanders in harm’s way to try to evade capture, it

is reasonable for officers to question whether the

App. 9

now-cornered suspect’s purported surrender is a ploy.”).

While Boyd initially wrenched his hand away from

Johnson in apparent pain from having his injured finger grabbed, at no point does the video show Boyd raising a fist at or approaching Johnson. Instead, after

pointing to his injured hand, Boyd quickly turned back

around and reassumed the handcuffing position. And

while there is no accompanying audio, Johnson has

never asserted that Boyd verbally threatened to harm

him.

We also note that “this was not a situation where

an officer arrived at the scene with little or no information and had to make a split-second decision.” Darden

v. City of Fort Worth, 880 F.3d 722, 732 (5th Cir. 2018).

Johnson had been standing next to Boyd when his fractured finger was examined by the jail nurse, so a rational jury could find that Johnson knew why Boyd

reacted in pain when his finger was grabbed. Boyd had

also just submitted to Johnson’s authority in turning

over his armband and in following Johnson’s instruction to turn around to be handcuffed. Johnson further

knew that, as a pretrial detainee, Boyd was highly unlikely to be concealing a weapon on his person. A jury

viewing this evidence could thus conclude that Johnson had nothing to fear from Boyd.

For much the same reason, a rational jury could

conclude that Boyd was not resisting Johnson but was

instead pleading with Johnson not to grab his injured

hand. Again, Boyd had been facing away from Johnson

with his hands behind his back for four seconds before he was tased, as if inviting Johnson to apply the

App. 10

restraints. A jury could therefore determine that Boyd

is telling the truth when he says that where the video

shows him turning his head, he was telling Johnson

how to apply the handcuffs without hurting him. In

which case, Boyd would have been facilitating rather

than hindering Johnson’s efforts.

Our task at this early stage is only to determine

what a rational jury could find. And in this case, “the

district court’s view is not the only view a jury could

take of the evidence.” Fairchild v. Coryell County, 40

F.4th 359, 363 (5th Cir. 2022). Viewing the facts in the

light most favorable to Boyd, we conclude that a rational jury could find Boyd credible in his assertion

that he did not threaten or resist Johnson.

B

Having determined what a rational jury could

find, we now ask whether those findings would legally

support a verdict for Boyd. Because Johnson has asserted qualified immunity, Boyd must show the violation of a constitutional right and that “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) (quoting Pearson v. Callahan, 555

U.S. 223, 232 (2009)).

An official violates clearly established law if

“then-existing precedent” establishes that the officer’s

conduct constituted a constitutional violation. City of

Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021). To provide

such clarity, the precedent must be sufficiently specific:

App. 11

“[i]t is not enough that a rule be suggested by thenexisting precedent.” Id.

Boyd has identified three authorities from this

court that are sufficiently specific to put Johnson on

notice that his actions, on at least one permissible

reading of the evidence, constituted unconstitutionally

excessive force.3

He points first to Ramirez v. Martinez, in which we

held that it was a violation of clearly established law

to tase the plaintiff even though the plaintiff pulled his

arm from the officer’s grasp, exchanged profanities

with the officer, and questioned the officer’s presence

at his place of business. 716 F.3d 369 (5th Cir. 2013).

The plaintiff alleged that he arrived at his business to

find officers with their guns drawn and pointed at his

employees. Id. at 372. He then approached one of the

officers to ask what was happening and, after the two

exchanged profanities, the officer told the plaintiff to

3

The cases cited by Boyd address claims of excessive force

during an arrest brought under the Fourth Amendment’s prohibition against unreasonable seizures rather than the Fourteenth

Amendment’s Due Process Clause. The latter is the locus of the

right of a pretrial detainee to be free from excessive force and is

therefore the source of the right at issue here. Nevertheless, the

standard for excessive force is the same under either provision:

“whether the force was objectively unreasonable in light of the

‘facts and circumstances of each particular case.’ ” Lombardo v.

City of St. Louis, 141 S. Ct. 2239, 2241 n.2 (2021) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). We have previously

relied on Fourth Amendment excessive force cases to determine

whether a right had been clearly established for purposes of a

Fourteenth Amendment excessive force claim. See Fairchild, 40

F.4th at 366–67.

App. 12

turn around and put his hands behind his back. Id. The

plaintiff refused, pulling his arm away from the officer

when the officer attempted to grab hold of it. Id. The

officer immediately tased the plaintiff, who at that

point stopped resisting. Id. Even so, other officers

joined in to help force the plaintiff to the ground and

onto his stomach, at which point the officer who originally tried to arrest the plaintiff tased him a second

time. Id. at 373.

We held that the plaintiff ’s act of “[p]ulling his

arm out of [the officer’s] grasp, without more, [was] insufficient to find an immediate threat to the safety of

the officers.” Id. at 378. We also held that the defendant

officer could not reasonably conclude that the plaintiff

posed a threat merely because he exchanged profanities with the officer and questioned the officer’s presence at his place of business. Id.

Boyd next cites Hanks v. Rogers, which held that

an officer violates clearly established law when he resorts to a sudden use of force on a plaintiff who is only

passively resisting. 853 F.3d 738 (5th Cir. 2017). In that

case an officer ordered the plaintiff to drop to his knees,

whereupon the plaintiff put his hands behind his back

and looked over his shoulder while asking whether he

was under arrest. Id. at 742. After the officer repeated

his instruction several times, the plaintiff—still with

his hands behind his back—“made a small lateral step

with his left foot.” Id. The officer then “rushed toward

[the plaintiff ] and administered a blow to [the plaintiff ’s] upper back or neck.” Id. at 743.

App. 13

We held that this officer “applied clearly excessive

and unreasonable force” under clearly established law.

Id. at 746. In doing so, we stated that an officer applies

unconstitutionally excessive force “if he abruptly resorts to overwhelming physical force rather than continuing verbal negotiations with an individual who

poses no immediate threat or flight risk, who engages

in, at most, passive resistance, and whom the officer

stopped for a minor traffic violation.” Id. at 747.

Finally, in Trammel v. Fruge, we held that an officer’s use of force was excessive under clearly established law despite the plaintiff ’s failure to follow the

officer’s instructions. 868 F.3d 332 (5th Cir. 2017). The

visibly intoxicated plaintiff told the officer that he was

not going to jail and refused to obey the officer’s command to place his arms behind his back. Id. at 337. Instead, when the officer grabbed the plaintiff ’s right

arm, the plaintiff “immediately pulled back and told

[the officer] that it hurt and not to grab him there.” Id.

Another officer then grabbed the plaintiff ’s left arm,

but the plaintiff “again pulled away.” Id. The officers

then executed a knee strike before tackling the plaintiff to the ground. Id.

We held that these actions constituted excessive

force and that the officers were not entitled to qualified

immunity because “the law at the time of [the plaintiff ’s] arrest clearly established that it was objectively

unreasonable for several officers to tackle an individual who was not fleeing, not violent, not aggressive,

and only resisted by pulling his arm away from an officer’s grasp.” Id. at 343.

App. 14

These three cases put Johnson on notice that

he could not constitutionally fire a taser at a nonthreatening, compliant subject. They likewise show

that Boyd’s act of jerking his hand away from Johnson, yelling in apparent pain, and turning his head

did not, standing alone, constitute the kind of threatening behavior or belligerence that justifies the use of

force. See Id. at 341 (“[W]here an individual’s conduct

amounts to mere ‘passive resistance,’ use of force is not

justified.”); Ramirez, 716 F.3d at 378; Hanks, 853 F.3d

at 747.

Defendants respond by attempting to distinguish

these cases from the facts here, relying on the rule that

precedent does not clearly establish a right for qualified immunity purposes unless its facts are sufficiently

similar to the facts at hand. Bond, 142 S. Ct. at 11.

With respect to Ramirez, Defendants argue that the

circumstances of that case did not involve the unique

security risks that arise in the prison context. Hanks

and Trammel, they say, suffer from the same deficiency,

but are further distinguishable by the fact that they do

not involve the use of a taser.

These distinctions generate no uncertainty about

the unconstitutionality of Johnson’s actions. We have

often explained that “[t]he law can be clearly established ‘despite notable factual distinctions between the

precedents relied on and the cases then before the

Court, so long as the prior decisions gave reasonable

warning that the conduct then at issue violated constitutional rights.’ ” Ramirez, 716 F.3d at 379 (quoting

Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en

App. 15

banc)). The touchstone of the inquiry is “fair notice.”

Ducksworth v. Landrum, 62 F.4th 209, 218 (5th Cir.

2023) (Oldham, J., concurring in part and dissenting in

part) (citation omitted). See also Hope v. Pelzer, 536

U.S. 730, 741 (2002) (“[T]he salient question that the

Court of Appeals ought to have asked is whether the

state of the law in 1995 gave respondents fair warning

that their alleged treatment of Hope was unconstitutional.”); Cutler v. Stephen F. Austin State Univ., 767

F.3d 462, 471 (5th Cir. 2014) (“What is crucial is that

the Defendants had ‘fair warning.’ ”). Distinctions between cases are thus relevant only if they make the

applicability of prior precedent unclear.

The distinctions that Defendants identify do not.

With respect to the prison context, it is certainly true

that we must always consider “the perspective of a

jailer who is often forced to make split-second decisions

in tense situations.” Fairchild, 40 F.4th at 363. That is

a straightforward application of the general rule to a

specific context. But the general rule still applies. In

the jail context as in others, “it [is] well-established . . .

that officers may not ‘use gratuitous force against a

prisoner who has already been subdued or incapacitated.’ ” Cowart v. Erwin, 837 F.3d 444, 454 (5th Cir.

2016) (alterations omitted). See also Fairchild, 40 F.4th

at 361 (“[T]he jailers’ continuing to apply . . . force

more than two minutes after [plaintiff ] was subdued

would violate clearly establish law.”); Aucoin v. Cupil,

958 F.3d 379, 380 (5th Cir. 2020) (“So when a prison

inmate engages in willful misconduct, a prison guard

may use reasonable force to restrain him—but after

App. 16

the inmate submits, there is no need, and thus no justification, for the further use of force.”).

Here, a jury could rationally conclude that the situation was not tense, and that Johnson had ample

time to decide whether it was necessary to use force

against Boyd. It could also conclude that there was no

threat to prison order that could have justified Johnson’s decision to tase Boyd.

Neither are Hanks and Trammel rendered inapplicable simply because they did not involve the use of

a taser. We have previously rejected the argument that

prior precedent does not clearly establish law in a taser

case simply because that precedent did not involve a

taser, explaining that “[l]awfulness of force . . . does not

depend on the precise instrument used to apply it,” and

“[q]ualified immunity will not protect officers who apply excessive and unreasonable force merely because

their means of applying it are novel.” Newman v. Guedry, 703 F.3d 757, 763–64 (5th Cir. 2012).

C

Defendants also assert in a footnote that “it is not

clear” whether our precedents, as opposed to the Supreme Court’s, can clearly establish the law for purposes of qualified immunity. A proverbial mountain of

binding authority is to the contrary.4 We routinely rely

4

Williams v. City of Yazoo, 41 F.4th 416, 426 (5th Cir. 2022)

(relying on Fifth Circuit precedent for the proposition that “[i]t is

clearly established that an official who refuses to treat or ignores

the complaints of a detainee violates their rights”); Crittindon v.

App. 17

LeBlanc, 37 F.4th 177, 188 (5th Cir. 2022) (relying on Fifth Circuit precedent for the proposition that “it is without question that

holding without legal notice a prisoner for a month beyond the

expiration of his sentence constitutes a denial of due process”);

Sims v. Griffin, 35 F.4th 945, 951–952 (5th Cir. 2022) (relying on

Fifth Circuit precedent for the proposition that “a prisoner can

show his clearly established rights under the Eighth Amendment

were violated if a prison official . . . refused to treat [the prisoner],

ignored his cries for help, and overall evinced a wanton disregard

for [his] serious medical needs”); Bevill v. Fletcher, 26 F.4th 270,

280 (5th Cir. 2022) (relying on Fifth Circuit precedent for the

proposition that using “government positions to violate Plaintiff ’s

First Amendment rights would be objectively unreasonable in

light of clearly established law at the time” (citation omitted));

Aguirre v. City of San Antonio, 995 F.3d 395, 416 (5th Cir. 2021)

(noting that the court “need not rely” on Supreme Court precedent

to conclude that the defendants’ actions violated clearly established law because “Plaintiffs’ claim that the Officers unconstitutionally employed deadly force in the absence of any threat of

death or serious injury to the Officers or the public presents facts

very similar to those found in” a Fifth Circuit decision); Timpa v.

Dillard, 20 F.4th 1020, 1034 (5th Cir. 2021) (relying on Fifth Circuit precedent for the proposition that “the law has long been

clearly established that an officer’s continued use of force on a restrained and subdued subject is objectively unreasonable”); Roque

v. Harvel, 993 F.3d 325, 336 (5th Cir. 2021) (relying on Fifth Circuit precedent for the proposition that “by May 2, 2017, the day

that [the defendant] shot [the plaintiff ], it was clearly established

that after incapacitating a suspect who posed a threat, an officer

cannot continue using deadly force”); Dyer v. Houston, 964 F.3d

374, 384 (5th Cir. 2020) (holding that Fifth Circuit precedent defined “clearly established law in sufficient detail to have notified

the Officers that their actions were unconstitutional”); Amador v.

Vasquez, 961 F.3d 721, 730 (5th Cir. 2020) (relying on Fifth Circuit precedent for the proposition that “[e]very reasonable officer

would have understood that using deadly force on a man holding

a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment”); Darden v. City of Fort Worth, 880

F.3d 722, 733 (5th Cir. 2018) (relying on Fifth Circuit precedent

App. 18

for the proposition that “[t]he law is clear that the degree of force

an officer can reasonably employ is reduced when an arrestee is

not actively resisting” and that “at the time of the alleged misconduct it was clearly established that violently slamming or striking

a suspect who is not actively resisting arrest constitutes excessive

use of force”); Jauch v. Choctaw County, 874 F.3d 425, 436 (5th

Cir. 2017) (relying on Fifth Circuit precedent for the proposition

it is clearly established law that “prolonged detention without the

benefit of a court appearance violates the detainee’s Fourteenth

Amendment right to due process”); Hanks v. Rogers, 853 F.3d 738,

747 (5th Cir. 2017) (relying on Fifth Circuit precedent for the

proposition that “clearly established law demonstrated that an officer violates the Fourth Amendment if he abruptly resorts to

overwhelming physical force rather than continuing verbal negotiations with an individual who poses no immediate threat or

flight risk, who engages in, at most, passive resistance, and whom

the officer stopped for a minor traffic violation”); id. at 749 (relying on Supreme Court precedent only for the alternative holding

that the obvious case exception applies); Trammell v. Fruge, 868

F.3d 332, 343 (5th Cir. 2017) (relying on Fifth Circuit precedent

for the proposition that “the law at the time of [the plaintiff ’s]

arrest clearly established that it was objectively unreasonable for

several officers to tackle an individual who was not fleeing, not

violent, not aggressive, and only resisted by pulling his arm away

from an officer’s grasp”); Cowart v. Erwin, 837 F.3d 444, 454 (5th

Cir. 2016) (relying on Fifth Circuit precedent in stating “that in

2009, the time of the incident, it was well-established, in sufficiently similar situations, that officers may not ‘use gratuitous

force against a prisoner who has already been subdued . . . [or]

incapacitated’ ” (omission and alteration in original) (citation

omitted)); Cutler v. Stephen F. Austin State Univ., 767 F.3d 462,

472 (5th Cir. 2014) (relying on Fifth Circuit authority to expand

on Supreme Court precedent so as to give the defendants the requisite “fair warning” to clearly establish the right at issue in that

case); Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013) (relying on Fifth Circuit precedent to conclude that the plaintiff ’s

“version of the events violated clearly established law”); Newman

v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012) (relying on Fifth Circuit authorities for the proposition that “[i]t is beyond dispute

that [the plaintiff ’s] right to be free from excessive force during

App. 19

on our own cases to determine whether a rule of law

has been clearly established. See, e.g., Fairchild, 40

F.4th at 368 (“Within the Fifth Circuit, the law has

long been clearly established that an officer’s continued use of force on a restrained and subdued subject is

objectively unreasonable.” (citation omitted)); Hamilton v. Kindred, 845 F.3d 659, 663 (5th Cir. 2017) (“At

the time of the incident, it was clearly established in

the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew

a constitutional violation was taking place and had a

reasonable opportunity to prevent the harm.”); Cooper

v. Brown, 844 F.3d 517, 524 (5th Cir. 2016) (“Cooper’s

right was clearly established. Our caselaw makes

certain that once an arrestee stops resisting, the degree of force an officer can employ is reduced.”); Hinojosa v. Livingston, 807 F.3d 657, 669 (5th Cir. 2015)

(“Our precedent clearly establishes that the Eighth

Amendment guarantees inmates a right to be free from

exposure to extremely dangerous temperatures without adequate remedial measures.”).

an investigatory stop or arrest was clearly established in August

2007”); Wernecke v. Garcia, 591 F.3d 386, 399–400 (5th Cir. 2009)

(“As of June 1, 2005, Fifth Circuit precedent clearly established

that the Fourth Amendment governs social workers’ investigations of allegations of child abuse.”); Lytle v. Bexar County, 560

F.3d 404, 417–18 (5th Cir. 2009) (relying on Fifth Circuit authorities for the proposition that “[i]t has long been clearly established

that, absent any other justification for the use of force, it is unreasonable for a police officer to use deadly force against a fleeing

felon who does not pose a sufficient threat of harm to the officer

or others” and that this rule holds “in the more specific context of

shooting a suspect fleeing in a motor vehicle”).

App. 20

Finally, we flatly reject counsel’s contention at oral

argument that we are bound by the district court’s determination that no constitutional violation occurred.

The fact that “other federal, or state, courts, and the

fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear” if this circuit has been

clear. Safford Unif. Sch. Dist. No. 1 v. Redding, 557 U.S.

364, 378 (2009).

In conclusion, we hold that a rational jury could

find that Johnson’s decision to tase Boyd was not justified by any exigency, in which case Johnson’s qualified immunity defense would not shield him from

liability because our precedents clearly establish that

resort to force in such circumstances is unconstitutional.

III

Boyd also asks that we reverse the district court’s

grant of summary judgment on his policy and practice

claims. The district court denied Boyd’s motion to compel discovery relating to his allegation that Defendants

instituted and carried out an unconstitutional policy or

practice of excessive force. It was inappropriate for the

court to then dismiss those claims on the ground that

Boyd failed to present “adequate summary judgment

evidence of any official or unofficial policy” depriving

him of his rights. We therefore reverse the grant of

summary judgment and remand on those claims. On

App. 21

remand, the district court should reopen discovery for

a reasonable time.

We agree, however, with the district court’s conclusion that Boyd failed to present adequate summary

judgment evidence of his deliberate-indifference claim,

and therefore affirm the dismissal of that claim.

***

If a jury finds, as it could, that Johnson tased a

non-threatening, compliant inmate, then he is not entitled to qualified immunity. We therefore REVERSE

summary judgment on Boyd’s excessive force claim

against Johnson and REMAND that claim to the district court for trial. We likewise REVERSE and REMAND the district court’s grant of summary judgment

on Boyd’s policy and practice claims to afford Boyd the

opportunity to discover evidence relevant to those

claims. But we AFFIRM the dismissal of Boyd’s deliberate indifference claim. The motion to dismiss the appeal for lack of jurisdiction is DENIED.

ANDREW S. OLDHAM, Circuit Judge, concurring in part

and dissenting in part:

I agree with the majority that we should remand

Andreas Boyd’s policy and practice claims and affirm

the dismissal of his deliberate indifference claim. But

I respectfully disagree with the majority opinion’s

analysis of the excessive force claim. As to the latter,

I have two principal reservations.

App. 22

First, the majority opinion relies exclusively on

circuit precedent to clearly establish the law. But the

Supreme Court has never authorized this approach.

See Nerio v. Evans, 974 F.3d 571, 576 n.2 (5th Cir. 2020)

(citing District of Columbia v. Wesby, 138 S. Ct. 577,

591 n.8 (2018) (“We have not yet decided what precedents—other than our own—qualify as controlling authority for purposes of qualified immunity.”)); see also

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per

curiam); Reichle v. Howards, 566 U.S. 658, 665 (2012).

Absent a clear instruction from our Nation’s highest

court regarding the relevance of circuit precedent, we

cannot expect everyday officers to draw the necessary

inferences from our large, ever-growing, and oftencontradictory precedents. See Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011) (noting that the contours of the

right must be “sufficiently clear” so that “every reasonable official would have understood that what is doing violates that right” (quotation omitted) (emphasis

added)); Brosseau v. Haugen, 543 U.S. 194, 198 (2004)

(per curiam) (noting that the “focus” of qualified immunity is to provide “fair notice” to officers); Malley v.

Briggs, 475 U.S. 335, 341 (1986) (noting that qualified

immunity protects “all but the plainly incompetent

or those who knowingly violate the law” (emphasis

added)). If all circuit precedent is fair game, then how

is an officer supposed to choose, in a dangerous splitsecond moment, which case to follow? Compare, e.g.,

Salazar v. Molina, 37 F.4th 278 (5th Cir. 2022) (tasing

ok, even when the suspect stopped the car, surrendered, and laid on the ground with his arms above his

head and his legs crossed), and Ramirez v. Escajeda, 44

App. 23

F.4th 287 (5th Cir. 2022) (tasing ok, even when the person was unresponsive and hanging from a basketball

hoop with a rope around his neck), with Ramirez v.

Martinez, 716 F.3d 369 (5th Cir. 2013) (tasing not ok

when officer told the suspect to put his hands behind

his back and the suspect refused and pulled his arm

away).

Second, I am increasingly concerned that our excessive-force cases are governed by Justice Stewart’s

unsatisfying standard of “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,

concurring). Justice Stewart regretted that statement

later in life. See Al Kamen, Retired High Court Justice

Potter Stewart Dies at 70, WASH. POST (Dec. 8, 1985).

And that regret is understandable because the statement suggests that constitutional questions hinge on

in-chambers video viewings and intuition. But query

how our Fourth Amendment approach is different, especially when we combine in-chambers video viewings

with the deeply indeterminate corpus of circuit precedent. We certainly have an obligation to watch these

videos, see ante at 6 n.2; but when we are bound only

by conflicting circuit precedent, it is unclear to me if

and how we are bound at all.

***

The Supreme Court has told us not to substitute

the “20/20 vision of hindsight” for “the perspective of a

reasonable officer on the scene,” who must make “splitsecond judgments—in circumstances that are tense,

uncertain, and rapidly evolving.” Graham v. Connor,

App. 24

490 U.S. 386, 396–97 (1989); see also Kingsley v. Hendrickson, 576 U.S. 389, 399 (2015) (noting that these

concerns are particularly important in the prison setting); Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir.

2019) (“[T]he law must be so clearly established that—

in the blink of an eye, in the middle of a high-speed

chase—every reasonable officer would know it immediately.”). Yet I worry that in-chambers bodycam movie

days, especially when combined with our reliance on

circuit precedent, lead to predictably unpredictable interpretations of the “hazy border between excessive

and acceptable force.” Brosseau, 543 U.S. at 201 (quotation omitted)); see also Scott v. Harris, 550 U.S. 372,

383–84 2007) (noting that there is “no obvious way to

quantify” risks to decide whether force is reasonable);

Bell v. Wolfish, 441 U.S. 520, 559 (1979) (“The test of

reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application.”).

With deepest respect and admiration for my learned

and esteemed colleagues, I think it is unwise to give a

panel of three judges the power to set clearly established law and thereby bind every law enforcement officer in three States, governing every conceivable

emergency situation in every community from El Paso

to Pascagoula. And I think it is particularly unwise

when the underlying legal standard is so open-ended

and our precedents are so contradictory. If the Supreme

Court wants to vest this power in us, so be it. But unless and until the Court does, I would not assert it.

App. 25

United States Court of Appeals

for the Fifth Circuit

-----------------------------------------------------------------------

No. 20-50945

-----------------------------------------------------------------------

ANDRE D. BOYD,

Plaintiff—Appellant,

versus

SHERIFF PARNELL MCNAMARA; RICKY ARMSTRONG,

Administrator, McLennan County Jail; ROBERT

DILLARD, Grievance Officer, McLennan County Jail;

OFFICER JEREMY JOHNSON,

Defendants—Appellees.

----------------------------------------------------------------------------------------------------------------------------------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:19-CV-634

----------------------------------------------------------------------------------------------------------------------------------------------

Before ELROD, HO, and OLDHAM, Circuit Judges.

JUDGMENT

(Filed Jul. 24, 2023)

This cause was considered on the record on appeal

and was argued by counsel.

App. 26

IT IS ORDERED and ADJUDGED that the judgment of the District Court is AFFIRMED IN PART,

REVERSED IN PART and REMANDED to the District Court for further proceedings in accordance with

the opinion of this Court.

ANDREW S. OLDHAM, Circuit Judge, concurring in part

and dissenting in part.

App. 27

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ANDRE D. BOYD

§

(McLennan County #184012) §

§ W-19-CA-634-ADA

V.

§

SHERIFF PARNELL

§

MCNAMARA, et al.

§

ORDER

(Filed Aug. 21, 2020)

Before the Court are Plaintiff ’s Complaint (#1),

Defendants’ Motion to Dismiss construed as a Motion for Summary Judgment (#24), Plaintiff ’s response

(#27), Defendants’ reply (#29), Plaintiff ’s Motion for

Summary Judgment (#25)1, Defendants’ response (#30),

Defendants’ Motion for Summary Judgment (#35), supplement to the motion (#50), Plaintiff ’s response (#54)

and supplement (#55), Defendants’ reply (#56), Plaintiff ’s Motion for Leave to File an Amended Motion Rule

15(a) (#57)2, and Defendants’ response (#58). Plaintiff,

1

Plaintiff ’s summary judgment motion is essentially a motion for default judgment because he argues that Defendants

missed the deadline to answer and therefore, he is entitled to

judgment. However, Defendants filed a timely motion to dismiss

and thus Plaintiff ’s motion is denied.

2

Plaintiff did not understand that it was his responsibility

to attach evidence to his response to the motion for summary

judgment. His motion for leave seeks to remedy that by attaching

the appropriate evidence. Rather than dismiss the case for Plaintiff ’s failure to abide by the Rules of Civil Procedure, the Court

App. 28

proceeding pro se, has been granted leave to proceed in

forma pauperis.

STATEMENT OF THE CASE

At the time he filed his complaint pursuant to 42

U.S.C. § 1983, Plaintiff was confined in the McLennan

County Jail. Plaintiff alleges that on August 28, 2019,

he had a verbal altercation with Officer Johnson. Officer Johnson then tried to handcuff Plaintiff and

Plaintiff contends that he grabbed Plaintiff ’s previously injured left arm. Plaintiff asserts that he pulled

his arm away because it hurt so badly and that Officer

Johnson then tased him. Plaintiff asserts that the use

of the taser was excessive force. Plaintiff also contends

that he did not receive adequate medical care after the

incident. Plaintiff sues Officer Jeremy Johnson, Sheriff

Parnell McNamara, Jail Administrator Ricky Armstrong, and Grievance Officer Robert Dillard. Plaintiff

seeks injunctive relief and over $1 million in damages.

DISCUSSION AND ANALYSIS

A. Factual Background

Plaintiff is a pretrial detainee at the McLennan

County Jail. He alleges that he had a fractured left

pinky finger. On August 28, 2019 Plaintiff indicates

that he went with Officer Johnson to see the nurse.

Once he got back into the cell, Johnson allegedly asked

will grant Plaintiff ’s motion and has considered all of the evidence provided by both Plaintiff and Defendants.

App. 29

to see Plaintiff ’s “broken armband.” Plaintiff indicates

he tried to explain how it had broken and Johnson told

him he was a liar. Plaintiff then contends that he told

Johnson not to call him a liar and they began to argue.

Johnson then told Plaintiff to come back out of the cell.

Plaintiff indicates he walked to the door and turned

around, submitting his hands for restraints. Plaintiff

contends that Johnson then grabbed Plaintiff ’s injured

left pinky finger and squeezed it. Plaintiff asserts that

he pulled his left arm away from Johnson and turned

his head over his shoulder and yelled at the officer.

Plaintiff indicates that Johnson then tased him. Plaintiff believes he then took a few steps away from Johnson and pulled one of the taser barbs free from his skin.

Plaintiff indicates he was then “drive stunned” by

Johnson with the taser. Following that incident, Plaintiff contends he was taken to another holding cell.

In his original complaint, Plaintiff contended that

he was denied all medical treatment and was never

taken to the infirmary. However, in Plaintiff ’s response

to the summary judgment motion he admits that the

nurse was present following the incident. She removed

the taser probes from Plaintiff ’s body and evaluated

him, determining that he did not need further medical

treatment.

Plaintiff contends that he filed grievances regarding the incident and Defendant Dillard and Defendant

Armstrong, by denying his grievances, indicated their

endorsement of Defendant Johnson’s actions.

App. 30

Plaintiff contends that at no time did he ever turn

toward Johnson, nor did he threaten him. Plaintiff

does, however, admit turning his head toward Johnson

and yelling at him. Plaintiff contends Johnson used excessive force by tasing him for the sole purpose of hurting him. However, Plaintiff also admits that he

received a disciplinary case for the incident and that

he pleaded guilty to violating jail rules and waived a

hearing.

B. Summary Judgment Standard

A court will, on a motion for summary judgment,

render judgment if the evidence shows that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Int’l

Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1263 (5th

Cir. 1991), cert. denied, 502 U.S. 1059 (1992). When a

motion for summary judgment is made and supported,

an adverse party may not rest upon mere allegations

or denials but must set forth specific facts showing

there is a genuine issue for trial. Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995); Fed. R. Civ.

P. 56.

Both movants and non-movants bear burdens of

proof in the summary judgment process. Celotex Corp.

v. Catrett, 477 U.S. 317 (1986). The movant with the

burden of proof at trial must establish every essential

element of its claim or affirmative defense. Id. at 322.

In so doing, the moving party without the burden of

App. 31

proof need only point to the absence of evidence on an

essential element of the non-movant’s claims or affirmative defenses. Id. at 323-24. At that point, the burden

shifts to the non-moving party to “produce evidence in

support of its claims or affirmative defenses . . . designating specific facts showing that there is a genuine

issue for trial.” Id. at 324. The non-moving party must

produce “specific facts” showing a genuine issue for

trial, not mere general allegations. Tubacex v. M/V

Risan, 45 F.3d 951, 954 (5th Cir. 1995).

In deciding whether to grant summary judgment,

the Court should view the evidence in the light most

favorable to the party opposing summary judgment

and indulge all reasonable inferences in favor of that

party. The Fifth Circuit has concluded “[t]he standard

of review is not merely whether there is a sufficient

factual dispute to permit the case to go forward, but

whether a rational trier of fact could find for the nonmoving party based upon the evidence before the

court.” James v. Sadler, 909 F.2d 834, 837 (5th Cir.

1990) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

C. Video Evidence

As an initial matter, Defendants submitted video

of the incident which shows the interaction between

Plaintiff and Johnson. Plaintiff challenges the authenticity of Defendants’ video evidence. Plaintiff asserts

that Defendants’ video evidence is somehow fabricated, but he never denies that what it depicts is what

App. 32

actually occurred. In fact, in his affidavit in the response to the motion for summary judgment, Plaintiff

states that “all of this is on the video.” In other words,

Plaintiff admits that all of the alleged incident is depicted in the video.

Instead, Plaintiff asserts that Defendants estimated time of the incident, the time the taser deployed, and the time stamps on the video are all off

by a few minutes. The reality is that this does not indicate any nefariousness on the part of Defendants.

Johnson’s report indicated the incident occurred at approximately 10:30, and the other times are all within

about 5 minutes of that estimate. Furthermore, the

video clearly shows Plaintiff turn toward Johnson immediately after Johnson begins trying to restrain him,

despite Plaintiff ’s claim that he never turned to face

Johnson. While the video does not include sound, it

does show that Plaintiff is verbally and physically

demonstrative after turning toward Johnson. There is

no indication, whatsoever, that there are any meaningful inconsistencies between the video and the other evidence.

D. Supervisory Liability

Plaintiff fails to allege any personal involvement

by Defendants McNamara or Armstrong. To the extent Plaintiff is asserting these Defendants are liable

due to their supervisory positions those claims are

dismissed. Supervisory officials cannot be held vicariously liable in § 1983 cases solely on the basis of their

App. 33

employer-employee relationship. Monell v. Department

of Social Services, 436 U.S. 658, 693 (1978); Lozano v.

Smith, 718 F.2d 756, 768 (5th Cir. 1983). If a supervisor

is not personally involved in the alleged constitutional

deprivation, he may be held liable only if there is a sufficient causal connection between the supervisor’s

wrongful conduct and the constitutional violations.

Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).

In order to demonstrate a causal connection, the supervisor would have to “implement a policy so deficient

that the policy itself is a repudiation of constitutional

rights and is the moving force of the constitutional violation.” Id. at 304.

Although Plaintiff makes conclusory claims that

the use of excessive force against minority pretrial detainees is an unofficial policy, custom, or practice of

McLennan County, he fails to show adequate evidence

of any such unofficial policy. By Plaintiff ’s own admission, there were 53 tasing incidents at McLennan

County Jail in 2019, and 29 were against white inmates while 24 were against black inmates. Plaintiff

contends that some of the 29 incidents actually involved Hispanic inmates who are coded as white. But

Plaintiff fails to explain the demographics of the population of McLennan County Jail, so the Court cannot

determine that the tasing incidents are in any way disproportionate. Further, Plaintiff does not provide any

evidence regarding the excessiveness of the force used

in any of these incidents. Thus, there is simply no adequate summary judgment evidence of any official or

App. 34

unofficial policy that would make Defendants Armstrong and McNamara liable as supervisors.

E. County Liability

Relatedly, to the extent Plaintiff brings claims

against Defendants in their official capacities, those

claims are the same as if Plaintiff brought his claims

against McLennan County. A political subdivision cannot be held responsible for a deprivation of a constitutional right merely because it employs a tortfeasor; in

other words a local government unit cannot be held responsible for civil rights violations under the theory of

respondent superior. Johnson v. Moore, 958 F.2d 92, 94

(5th Cir. 1992). The standard for holding a local government unit responsible under § 1983 requires that

there be a custom or policy that caused the plaintiff to

be subjected to the deprivation of a constitutional

right. Id. Collins v. City of Harker Heights, Tex., 916

F.2d 284, 286 (5th Cir. 1990). Thus, McLennan County

would violate an individual’s rights only through implementation of a formally declared policy, such as direct orders or promulgations, or through informal

acceptance of a course of action by its employees based

upon custom or usage. Bennett v. City of Slidell, 728

F.2d 762, 768 (5th Cir. 1984). As explained, although

Plaintiff contends there is an unofficial policy of excessive force against minority pretrial detainees, he

fails to provide anything more than conclusory evidence of such a policy. Furthermore, as discussed below, Plaintiff fails to plead any facts supporting an

allegation that he was deprived of any constitutional

App. 35

right whatsoever, much less any custom or policy of

McLennan County that deprived him of a constitutional right. Accordingly, the claims against Defendants in their official capacities are dismissed.

F. Qualified Immunity

A government official performing a discretionary

function is entitled to qualified immunity unless his

actions violate a clearly established right of which a

reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where, as here, a defendant invokes qualified immunity in a motion for

summary judgment, it is the plaintiff ’s burden to show

that the defendant is not entitled to qualified immunity. See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir.

2010). That is, the plaintiff must present evidence sufficient to create a genuine dispute of material fact as

to whether (1) the official’s conduct violated a constitutional right of the plaintiff, and (2) the constitutional

right was clearly established so that a reasonable official in the defendant’s situation would have understood that his conduct violated that right. See id.;

Pearson v. Callahan, 555 U.S. 223, 232 (2009).

1. Excessive Force

Because Plaintiff was a pretrial detainee at the

time in question, his rights derive from the Fourteenth

Amendment, not the Eighth Amendment. See Hare v.

City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en

banc) (stating that pretrial detainee’s rights “flow from

App. 36

both the procedural and substantive due process guarantees of the Fourteenth Amendment”). Section 1983

imposes liability for violations of rights protected by

the Constitution, not for violations of duties of care

arising out of tort law. Baker v. McCollan, 443 U.S. 137

(1979). As the United States Fifth Circuit Court of

Appeals has observed, “ ‘[i]t is fundamental to our federal jurisprudence that state law tort claims are not

actionable under federal law; a plaintiff under section

1983 must show deprivation of a federal right.’ ” Price

v. Roark, 256 F.3d 364, 370 (5th Cir. 2001) (quoting

Nesmith v. Taylor, 715 F.2d 194, 196 (5th Cir. 1983)).

The Fourteenth Amendment protects a pretrial

detainee from “the use of excessive force that amounts

to punishment.” Graham v. Connor, 490 U.S. 386, 395

n.10 (1989). In this context, punishment can consist of

actions that are: (a) “taken with an expressed intent to

punish” or (b) “not rationally related to a legitimate

nonpunitive governmental purpose” or “excessive in

relation to that purpose.” Kingsley v. Hendrickson, 576

U.S. 389 (2015). To prove the use of excessive force, a

pretrial detainee “must show only that the force purposely or knowingly used against him was objectively

unreasonable.” Id. Objective reasonableness turns on

the facts and circumstances of a particular case and

must be determined according to the perspective of a

reasonable officer at the time of the use of force. Id.

Relevant considerations include “the relationship between the need for the use of force and the amount of

force used; the extent of the plaintiffs injury; any effort

made by the officer to temper or to limit the amount of

App. 37

force; the severity of the security problem at issue;

the threat reasonably perceived by the officer; and

whether the plaintiff was actively resisting.” Id.

Plaintiff has failed to overcome his burden to produce evidence in response to the qualified immunity

claim of Defendants. The video evidence has been fully

considered and, contrary to Plaintiff ’s assertion, shows

no undue force was used against Plaintiff. Plaintiff reacted strongly to Johnson’s attempt to apply hand restraints and turned emphatically toward Johnson. As

everyone agrees, Johnson then tased Plaintiff once,

and upon seeing that one of the barbs had come unattached, then drive stunned Plaintiff in the thigh. Plaintiff was then restrained and no additional force was

used. Consequently, the video evidence confirms that

there was no violation of Plaintiff ’s constitutional rights.

Plaintiff essentially wants the Court to determine

that any use of a taser on a pretrial detainee is unconstitutionally excessive force, and that is simply not

the law. Plaintiff admits he was arguing with Johnson

and being disruptive. Johnson testifies that because of

this he sought to move Plaintiff away from other detainees. When Johnson attempted to restrain Plaintiff,

Plaintiff jerked away and turned around demonstratively and continued yelling and arguing with Johnson. While Plaintiff indicates that he did not intend

to threaten Johnson, Johnson’s determination that

he was threatened was not objectively unreasonable.3

3

It is entirely possible that Plaintiff ’s claim for damages regarding alleged excessive force are barred by the Supreme Court’s

App. 38

Furthermore, his deployment of the taser—one shot

and a drive stun—was not excessive force, and Plaintiff

was actively resisting. Plaintiff admits that he pulled

away from Johnson, but contends that his actions

were passive, not active resistance. This is incorrect.

Deliberately pulling away from restraints and turning to yell at Johnson was assuredly active resistance.

The summary judgment evidence shows Plaintiff was

tasered due to his, aggressive and non-compliant behavior and the amount of force used was objectively

reasonable. Plaintiff does not appear to have suffered

any injury other than the discomfort of being tased.

Plaintiff ’s allegations are therefore insufficient to

show that he was subject to any excessive force.

2. Deliberate Indifference

To establish deliberate indifference regarding his

medical care, Plaintiff must show “that a prison official ‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any

similar conduct that would clearly evince a wanton disregard for any serious medical needs.’ ” Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006) (quoting Domino

v. Tex. Dept of Criminal Justice, 239 F.3d 752, 756 (5th

Cir. 2001)). Allegations of unsuccessful medical treatment, mere negligence, neglect, or medical malpractice

decision in Edwards v. Balisok, 520 U.S. 641, 648 (1997). If the

Court’s determination of excessive force called into question

Plaintiff ’s disciplinary case, such a claim might be barred. Defendants do not, however, make this assertion in their motion for

summary judgment.

App. 39

do not give rise to a § 1983 action. See Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (per curiam).

Pretrial detention deliberate-indifference claims

are analyzed based on whether they concern a “condition of confinement” or an “episodic act of omission.”

Olabisiomotosho v. City of Houston, 185 F.3d 521, 526

(5th Cir. 1999). To succeed on an “episodic act or omission” claim, Plaintiff must show that Defendants acted

with subjective deliberate indifference to his constitutional rights, meaning “the official had subjective

knowledge of a substantial risk of serious harm to a

pretrial detainee but responded with deliberate indifference to that risk.” Id. (quotation omitted). “Actions

and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference.” Alderson v. Concordia Parish Corr.

Facility, 848 F.3d 415, 420 (5th Cir. 2017) (citations

omitted).

Plaintiff argues that the nurse who evaluated him

and determined he did not need additional medical

care was deliberately indifferent. As an initial matter,

Plaintiff does not name the nurse as a defendant and

fails to make any claim that any of the named Defendants were involved in his medical treatment. Nonetheless, Plaintiff ’s main argument appears to be that the

nurse failed to adhere to jail policies which he contends

required that he be taken for further medical evaluation because he had been tased. Unfortunately for

Plaintiff, the mere allegation that jail policies were not

followed does not state a claim. Myers v. Klevenhagen,

App. 40

97 F.3d 91, 94 (5th Cir. 1996) (per curiam). There is no

factual dispute that Plaintiff was evaluated after the

use of force incident and that the medical professional

determined he did not need further care. There is

simply no summary judgment evidence whatsoever

that any Defendant had subjective knowledge of a substantial risk of serious harm to Plaintiff but responded

with deliberate indifference to that risk.

3. Solitary Confinement

Plaintiff alleges that he was placed in solitary confinement for several hours following the tasing incident as punishment, in violation of his rights as a

pretrial detainee. As an initial matter, Plaintiff makes

no claim that Defendants were personally involved in

any decision to place him in solitary confinement. Furthermore, Plaintiff has presented no evidence that,

given his actions, and the disciplinary case to which he

pleaded guilty, any Defendant was acting excessively

in placing him in solitary confinement following the incident. Plaintiff ’s temporary confinement for disruptive behavior serves a legitimate, penological purpose

and does not constitute a constitutional violation. It is

settled law that disciplinary segregation does not present the type of “atypical, significant deprivation in

which a State might conceivably create a liberty interest.” Sandin v. Conner, 515 U.S. 472, 486 (1995);

Dehghani v. Vogelgesang, 229 Fed. App’x. 282, 284 (5th

Cir. 2007) (Dehghani’s eight days in solitary confinement do not give rise to a constitutional claim). Plaintiff has failed to show any reason that Defendants are

App. 41

not entitled to summary judgment regarding Plaintiff ’s several hour detention in solitary confinement.

4. Verbal Threats and Abusive Language

While unclear, to the extent Plaintiff is contending

that Johnson’s argument with Plaintiff, including calling Plaintiff a liar, is a constitutional violation, his

claim is dismissed. Verbal harassment, without more,

does not amount to a constitutional violation. Bender

v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993). For example, in Calhoun v. Hargrove, 312 F.3d 730, 734 (5th

Cir. 2002), the Fifth Circuit held that verbal abuse and

requiring an inmate to beg for food did not provide a

basis for an actionable claim under § 1983. “[M]ere

threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations.” McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.

1983). See also Johnson v. Glick, 481 F.2d 1028, 1033

n.7 (2nd Cir. 1973) (the use of words, no matter how

violent, does not comprise a § 1983 violation).

G. Grievances

Plaintiff claims that Defendant Dillard and Defendant Armstrong failed to properly investigate his

grievances. Plaintiff does not have a constitutional

right to have his grievances processed and resolved to

his liking. Geiger v. Jowers, 404 F.3d 371, 373-74 (5th

Cir. 2005). To the extent Plaintiff is asserting Defendants are liable due to their supervisory position those

claims are dismissed for the reasons explained above.

App. 42

Supervisory officials cannot be held vicariously liable

in § 1983 cases solely on the basis of their employeremployee relationship. Monell v. Department of Social

Services, 436 U.S. 658, 693 (1978); Lozano v. Smith, 718

F.2d 756, 768 (5th Cir. 1983). As explained, Plaintiff

has not shown there was any constitutional violation

whatsoever, thus denial of a grievance does not show

endorsement of unconstitutional actions.

CONCLUSION

It is therefore ORDERED that Plaintiff ’s Motion

for Summary Judgment (#25) is DENIED.

It is further ORDERED that Defendants’ Motion

to Dismiss construed as a Motion for Summary Judgment (#24) and Defendants’ Motion for Summary Judgment (#35) are GRANTED.

It is further ORDERED that Plaintiff ’s claims

against Defendants are DISMISSED WITH PREJUDICE.

It is finally ORDERED that all other pending motions are DISMISSED.

SIGNED on August 21, 2020

/s/ Alan D. Albright

ALAN D ALBRIGHT

UNITED STATES

DISTRICT JUDGE