     Case: 17-30393      Document: 00514256468         Page: 1    Date Filed: 12/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals

                                    No. 17-30393
                                                                                      Fif h Circuit

                                                                                    FILED
                                  Summary Calendar                          December 1, 2017
                                                                               Lyle W. Cayce
ARCHIE JOHNSON,                                                                     Clerk


              Plaintiff - Appellant

v.

MAXIMILAN HOLLINS,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:15-CV-2463


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Archie Johnson was handcuffed and briefly detained for disturbing the
peace in violation of Louisiana law. He sued Maximilan Hollins, the police
officer who handcuffed him, alleging claims under 42 U.S.C. § 1983 and state
law. A jury found probable cause existed for the arrest, and the district court
entered judgment against Johnson. Johnson then filed a motion for a contempt



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 17-30393
order and sanctions against Officer Hollins, contending that Officer Hollins
engaged in various acts of misconduct. The district court denied both motions.
Johnson appealed the district court’s adverse judgments, and now we
AFFIRM.
                                               I.
       Angela Martin was involved in a car accident with Dianne Courson
outside of a Spirit store in Bastrop, Louisiana. Martin called her friend Archie
Johnson to ask for help. Johnson arrived on the scene. Shortly after, Officer
Maximilian Hollins arrived. Officer Hollins investigated the accident and
concluded that Courson was at fault. Courson became upset and disputed the
finding. She asked to speak to Officer Hollins’s supervisor. He invited her to go
to the police station. Johnson told Courson that she was at fault, which Officer
Hollins says caused Courson to become more upset. 1 Officer Hollins then told
Johnson that because he had not witnessed the accident and was upsetting a
witness, he needed to leave. 2 Johnson did not leave. Instead, he kept talking to
Courson, telling her she was at fault. Officer Hollins then told both Johnson
and Courson to leave. Only Courson complied. Officer Hollins again told
Johnson that he needed to leave, and when Johnson did not leave, Officer
Hollins grabbed Johnson’s arm, pushed it behind his back, and put handcuffs
on his wrists. Shortly after, the Spirit store clerk, Diana Mitchell, came out
and told Officer Hollins to let Johnson go because Johnson was on his way to a
funeral. Officer Hollins let him go. A video recording from the parking lot of
the Spirit store shows that the arrest lasted less than 20 seconds. Johnson was
never charged with a crime.


       1 At trial, Johnson agreed that he repeatedly told Courson that she was at fault,
though he maintains that he was courteous throughout the encounter. He maintains that
there was no argument, just a “debate[].”
       2 Johnson testified at trial that he was not ordered to stop talking and leave until after

Courson had already left.
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                                 No. 17-30393
      Before the incident with Officer Hollins, Johnson had torn his rotator
cuff. At trial, he testified that he was tolerating the pain before his encounter
with Officer Hollins. He testified that Officer Hollins’s maneuver exacerbated
his condition, caused excruciating pain, and eventually required him to have
surgery.
      Johnson brought a pro se lawsuit against the City of Bastrop and Officer
Hollins, alleging claims arising under 42 U.S.C. § 1983 for false arrest,
retaliation against his exercise of free speech rights, and excessive force. He
also asserted related state-law claims. Both sides moved for summary
judgment. The district court denied Johnson’s motion and granted summary
judgment against Johnson on his excessive force claim and state-law claims as
well as his claims against the City. See Johnson v. City of Bastrop, No. 15-2463,
2016 WL 7116191, at *1 (W.D. La. Dec. 6, 2016). The remaining claims went
to a jury trial. The jury returned a verdict finding that Officer Hollins had
probable cause to arrest Johnson for disturbing the peace. See La. Stat. Ann.
§ 14:103(A). The district court denied Johnson’s motion for judgment as a
matter of law on his false arrest and retaliation claims and entered a judgment
in favor of Officer Hollins. Johnson then filed motions for contempt and
sanctions, alleging that Officer Hollins intimidated a witness, conspired to
have another witness commit perjury, and concealed relevant evidence. The
district court denied both motions. See Johnson v. City of Bastrop, No. 15-2463,
2017 WL 3381340, at *7 (W.D. La. Aug. 3, 2017).
      Johnson now appeals the judgment against him pursuant to the jury
verdict on his false arrest and retaliation claims, the district court’s grant of
summary judgment against him on his excessive force claim, and the denial of




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                                       No. 17-30393
his motions for a contempt order and sanctions. 3 We consider each of his
arguments in turn.
                                              II.
                                              A.
       Johnson contends that the district court erred by denying his motion for
judgment as a matter of law on his false arrest and retaliation claims. 4 “[O]ur
standard of review with respect to a jury verdict is especially deferential.”
EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013) (en banc)
(alteration in original) (quoting SMI Owen Steel Co. v. Marsh USA, Inc., 520
F.3d 432, 437 (5th Cir. 2008) (per curiam)). “Although we review the denial of
a motion for judgment as a matter of law de novo, we apply the same legal
standard as the district court.” Id. To be entitled to judgment as a matter of
law, Johnson must show that the “facts and inferences point ‘so strongly and
overwhelmingly in [his] favor that reasonable jurors could not reach a contrary
conclusion.’” MM Steel, L.P. v. JSW Steel (USA) Inc., 806 F.3d 835, 843 (5th
Cir. 2015) (quoting Boh Bros. Constr., 731 F.3d at 451). In doing so, we must
consider all the evidence in a light most favorable to Officer Hollins, drawing
all factual inferences in his favor. See SEC v. Life Partners Holdings, Inc., 854
F.3d 765, 785 (5th Cir. 2017).
       Johnson’s false arrest and retaliation claims depend on a showing that
probable cause for his arrest did not exist. See Haggerty v. Tex. S. Univ., 391
F.3d 653, 655 (5th Cir. 2004) (explaining that a showing of no probable cause
is necessary to raise a false arrest claim); see also Mesa v. Prejean, 543 F.3d



       3 Johnson failed to brief the issues of municipal liability and his state-law claims. Any
such arguments are forfeited. See Norris v. Causey, 869 F.3d 360, 373 n.10 (5th Cir. 2017).
       4 Johnson fashions this argument as an appeal of the district court’s denial of his

motion for summary judgment. Given that a jury trial occurred on his false arrest and
retaliation claims, we construe this argument as a challenge to the district court’s denial of
his motion for judgment as a matter of law.
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264, 273 (5th Cir. 2008) (explaining that where probable cause to believe a
person has committed a crime exists, “any argument that the arrestee’s speech
as opposed to her criminal conduct was the motivation for her arrest must fail,
no matter how clearly that speech may be protected by the First Amendment”).
“Probable cause exists ‘when the totality of the facts and circumstances within
a police officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was
committing an offense.’” Haggerty, 391 F.3d at 655–66 (quoting Glenn v. City
of Tyler, 242 F.3d 307, 313 (5th Cir. 2001)). 5
       Johnson was arrested for disturbing the peace. 6 See La. Stat. Ann.
§ 14:103(A). The relevant Louisiana statute provides that disturbing the peace
occurs when an enumerated action would “foreseeably disturb or alarm the
public,” including:
       Addressing any offensive, derisive, or annoying words to any other
       person who is lawfully in any street, or other public place; or call
       him by any offensive or derisive name, or make any noise or
       exclamation in his presence and hearing with the intent to deride,
       offend, or annoy him, or to prevent him from pursuing his lawful
       business, occupation, or duty; . . . .
La. Stat. Ann. § 14:103(A)(2). Under the statute, language “combined with the
intent to deride, offend, or annoy, or to prevent the pursuit of an officer’s lawful
business, occupation, or duty, is sufficient for an arrest for disturbing the
peace.” Merritt v. City of Oakdale, 817 So. 2d 487, 491 (La. Ct. App. 2002). 7



       5  Officer Hollins has not argued that he is immune from suit pursuant to qualified
immunity. We therefore consider only whether Officer Hollins violated Johnson’s
constitutional rights.
        6 While Johnson was not charged or prevented from leaving the scene, neither party

argues that he was not arrested in a constitutional sense. We therefore assume he was.
        7 We (and at least one district court) have considered whether arrest or prosecution

for disturbing the peace under local ordinances analogous to § 14:103(A) is constitutional. See
Netherland v. Eubanks, 302 F. App’x 244, 246–47 (5th Cir. 2008) (per curiam); Roy v. City of
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                                     No. 17-30393
       Viewing the testimony presented at trial in a light most favorable to
Officer Hollins, a reasonable jury could find the existence of probable cause to
believe that Johnson disturbed the peace. The jury could have believed Officer
Hollins’s testimony that Johnson continued to antagonize Courson after he was
told to stop and leave, preventing Officer Hollins from performing his duties—
namely, calming down the situation and investigating what happened. That
Johnson was arrested after Courson left is irrelevant—probable cause existed
to believe that Johnson had already interfered with the investigation. While
Johnson presented evidence that he was not being disruptive, it is insufficient
to overcome the deference the jury verdict is due. Thus, the district court’s
refusal to render judgment as a matter of law on Johnson’s false arrest and
retaliation claims was not erroneous.
                                            B.
       Johnson also contends that the district court erred by granting summary
judgment on his excessive force claim. “We review a grant of summary
judgment de novo, applying the same standard as the district court.” Vela v.
City of Houston, 276 F.3d 659, 666 (5th Cir. 2001) (emphasis added) (citing
Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir.
1999)). A court must enter summary judgment if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is material if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). And a dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. This
means that a party cannot survive summary judgment with just “a scintilla of



Monroe, No. 16-1018, 2017 WL 4706905, at *3 (W.D. La. Oct. 19, 2017). In this case, Johnson
does not raise any such arguments.
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                                      No. 17-30393
evidence” in its favor. Id. at 252. Although we view the evidence in the light
most favorable to the non-movant, the non-movant must still “come forward
with specific facts indicating a genuine issue for trial” and cannot merely rely
on the allegations in the complaint. Vela, 276 F.3d at 666 (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986)).
       “[T]o state a violation of the Fourth Amendment prohibition on excessive
force, the plaintiff must allege: (1) an injury that (2) resulted directly and only
from the use of force that was excessive to the need, and (3) the use of force
that was objectively unreasonable.” Bush v. Strain, 513 F.3d 492, 500–01 (5th
Cir. 2008) (citing Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)).
The objective reasonableness of the force “depends on the facts and
circumstances of the particular case,” id. at 501 (citing Ikerd v. Blair, 101 F.3d
430, 434 (5th Cir. 1996)), and we look at “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,” id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Where a suspect “committed no crime, posed no threat to anyone’s safety, and
did not resist the officers or fail to comply with a command,” the Graham
factors do not justify force used against him. Newman v. Guedry, 703 F.3d 757,
764 (5th Cir. 2012). Where facts are disputed, we view the facts in the light
most favorable to the non-movant. Sierra Club, Inc. v. Sandy Creek Energy
Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010).
       Viewing the facts in a light most favorable to Johnson, we find that the
district court did not err in granting summary judgment on Johnson’s excessive
force claim. 8 We conclude that no genuine issue of material fact exists over


       8Officer Hollins argued below that he was entitled to qualified immunity. The district
court considered only whether any underlying constitutional violation occurred. We need not
reach the qualified immunity question because we do not find a constitutional violation.
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                                     No. 17-30393
whether Officer Hollins’s use of force was objectively reasonable. Several
factors lead us to this conclusion. While the severity of the criminal offense was
minimal in this case, so was the force used to detain Johnson. We have
frequently found the use of handcuffs to be a de minimis use of force. See, e.g.,
Freeman v. Gore, 483 F.3d 404, 416–17 (5th Cir. 2007). As the district court
noted, this handcuffing technique is “a fairly common,” “ordinarily accepted,”
and generally “non-excessive way to detain an arrestee.” Johnson, 2016 WL
7116191, at *5; see Fisher v. City of Las Cruces, 584 F.3d 888, 896 (10th Cir.
2009) (“[I]n nearly every situation where an arrest is authorized, . . .
handcuffing is appropriate.”). Further, whether the technique injured Johnson
or not, we find nothing in the surrounding circumstances that would put a
reasonable officer on notice that Johnson was particularly susceptible to injury
from the standard maneuver. Compare Rodriguez v. Farrell, 280 F.3d 1341,
1352–53 (11th Cir. 2002) (finding no genuine issue of material fact over
whether excessive force was used when the officer twisted the plaintiff’s arm
behind his back to handcuff him, even though the maneuver ultimately
resulted in the arm’s amputation, when the officer had no notice of the
plaintiff’s vulnerability), with Fisher, 584 F.3d at 892–93 (finding a genuine
issue of material fact over whether excessive force was used when the plaintiff
was shot in the stomach and bicep and he begged with the officers not use the
behind-the-back-handcuffing maneuver). Finally, any non-physical injury
Johnson may have suffered due to the time spent handcuffed lasted at most 20
seconds and was therefore de minimis. See Freeman, 483 F.3d at 417 (finding
that a 30 to 45 minute detention based on failure to follow a command was de
minimis). 9


      9 Johnson argued below that any amount of force used against him was excessive
because no probable cause existed to support his arrest. This argument improperly conflates
Johnson’s “separate and distinct” false arrest claim with his excessive force claim. See
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                                     No. 17-30393
                                            C.
       Johnson finally contends that the district court abused its discretion in
denying his motions for a contempt order and sanctions. Johnson’s arguments
both below and on appeal are difficult to follow. He appears to argue on appeal
that Officer Hollins violated the criminal provisions of 18 U.S.C. §§ 1503,
1512(b)(1), and 1513(e). Specifically, he claims that Officer Hollins intimidated
Martin (“mean mugged” her as he drove past her house) and retaliated against
her by giving her traffic tickets for running a stop sign and driving without a
license. Further, he claims that the district court erred by failing to grant relief
under Rule 60(b)(3) of the Federal Rules of Civil Procedure based on fraud and
misconduct allegedly committed by Officer Hollins. Johnson contends that
Officer Hollins collaborated with Mitchell (the Spirit store clerk) to commit
perjury as shown by inconsistencies in Mitchell’s testimony at trial. Further,
Johnson argued that Officer Hollins and defense counsel concealed the Spirit
store video tape.
       As Johnson is a pro se litigant, the district court generously construed
Johnson’s scattered arguments. Johnson, 2017 WL 3381340, at *1–7. It
concluded that a contempt order would be inappropriate and it would not refer
Officer Hollins for prosecution because Johnson could not cite a specific court
order that Officer Hollins violated or intended to violate. Id. at *3. With regard
to Johnson’s requested motion for sanctions, the district court found that
Johnson failed to present evidence that Officer Hollins or his attorney engaged
in any wrongful conduct. Id. at *4–7. Specifically it found that Johnson
provided no evidence that Officer Hollins or his attorney conspired with
Mitchell to engage in perjury. Id. at *4. With regard to the allegedly suppressed



Freeman, 483 F.3d at 417. “[W]e must . . . analyze the excessive force claim without regard
to whether the arrest itself was justified.” Id.
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                                 No. 17-30393
video tape, the district court observed that it was made available to Johnson
before trial and was displayed to the jurors at trial. Id. at *7. In light of the
district court’s thorough and thoughtful analysis, we conclude that the district
court did not abuse its discretion in denying Johnson’s motions. See Piggly
Wiggly Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177 F.3d 380, 382 (5th Cir.
1999) (“We review a district court’s refusal to hold a party in civil contempt
under the abuse of discretion standard.”); Smith v. Smith, 145 F.3d 335, 341
(5th Cir. 1998) (holding that criminal contempt is reviewed for abuse of
discretion); Diaz v. Methodist Hosp., 46 F.3d 492, 496 (5th Cir. 1995) (holding
that the standard of review for denial of relief under Rule 60(b)(3) is abuse of
discretion).
                                      III.
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment on Johnson’s excessive force claim, the district court’s
denial of judgment as a matter of law on Johnson’s false arrest and retaliation
claim, and the district court’s denial of Johnson’s motions for a contempt order
and sanctions.




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