     Case: 12-30867       Document: 00512156294         Page: 1     Date Filed: 02/26/2013




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

                                                                            FILED
                                                                         February 26, 2013

                                     No. 12-30867                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



MICHELLE STOGNER,

                                                  Plaintiff-Appellant
v.

CHRIS STURDIVANT, Livingston Parish Sheriff’s Officer; BRANT
MELERINE, Town of Livingston Police Department Officer,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CV-125


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Plaintiff Michelle Stogner is the widow of Donel Stogner (“Stogner”), who
died after a traffic stop and ensuing altercation with Defendants Chris
Sturdivant, a Livingston Parish Sheriff’s Deputy, and Brandt Melerine, a
Livingston Police Officer. Plaintiff filed suit alleging an excessive force claim
under § 1983 and state law claims for battery, excessive force, failure to perform


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30867

duties in a safe and reasonable manner, and torture. The district court awarded
summary judgment to Defendants on the basis of qualified immunity. Plaintiff
appeals. For the reasons that follow, we AFFIRM.
      The traffic stop and subsequent events were captured by Deputy
Sturdivant’s dashboard camera. The traffic stop was conducted by Sturdivant.
After Sturdivant and Stogner pulled over to the side of the road, both men exited
their vehicles and proceeded to converse amicably. Sturdivant noticed a small
plastic bag in Stogner’s hand. When Sturdivant inquired about the bag and
asked Stogner to release it, Stogner denied he was holding anything and resisted
efforts to show his hand and then to be handcuffed. After about six minutes,
Officer Melerine and another officer arrived at the scene, where Melerine helped
Sturdivant restrain Stogner on the ground. The officers finally handcuffed him.
A fourth officer who had arrived noticed that Stogner was not breathing. The
officers attempted to remove the plastic bag from Stogner’s mouth, administered
CPR, and called for an ambulance. Stogner was transported to the hospital,
where he was pronounced dead. The bag contained methamphetamine. The
evidence is that Stogner had cardiomegaly (an over-sized heart) and 95%
narrowing of his left anterior descending coronary artery; that 4,400 nanograms
per millileter of metamphetamine were found in Stogner’s blood during an
autopsy, which is approximately 4,000 ng/ml more than necessary to induce
violent and irrational behavior; and that Stogner’s pre-existing heart conditions
and the metamphetamine abuse contributed to Stogner’s death.
      The issue on appeal is whether Sturdivant and Melerine are entitled to
qualified immunity. We review the district court’s grant of summary judgment
de novo, applying the same standards as the district court. Hillman v. Loga, 697
F.3d 299, 302 (5th Cir. 2012).     As a general rule, summary judgment is
appropriate where “the movant shows that there is no genuine dispute to any
material fact.”   Fed. R. Civ. P. 56(a).   Where the officer pleads qualified

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                                       No. 12-30867

immunity in good faith, the burden then shifts to the plaintiff, who “bears the
burden of negating the defense and cannot rest on conclusory allegations and
assertions but must demonstrate genuine issues of material fact regarding the
reasonableness of the officer’s conduct.” Michalik v. Hermann, 422 F.3d 252, 262
(5th Cir. 2005). In order to meet her burden, the plaintiff must show that “the
officers’ actions were objectively unreasonable, in light of clearly-established law
at the time, and in light of the information the officers possessed.” Wagner v.
Bay City, Tex., 227 F.3d 316, 321 (5th Cir. 2000). “Qualified immunity thus
protects an official whose conduct was objectively reasonable, even if the conduct
infringed upon a constitutional right of the plaintiff.” Id. (internal quotations
and citation omitted).
       Having reviewed the dashboard video, we agree with the district court’s
reasoning and thus conclude that Sturdivant’s and Melerine’s actions were not
objectively unreasonable. The crux of Plaintiff’s argument is that there is a
genuine issue of material fact as to whether and how her husband resisted
arrest. Plaintiff does not dispute that Defendants’ actions were in themselves
legally permissible.1 Rather, her central complaint is that Defendants’ actions
were not commensurate with her husband’s actions because her husband did not
actively resist arrest and, relatedly, did not pose a physical threat to the officers;
thus, she contends that Defendants’ actions were objectively unreasonable.2


       1
         For instance, although it is arguable whether a choke-hold was ever used on Stogner
(the video shows Sturdivant wrapping his arms around Stogner’s neck to prevent him from
swallowing the plastic bag), choke-holds in themselves are not legally impermissible. See
Wagner, 227 F.3d at 324 (5th Cir. 2000) (holding choke-hold not objectively unreasonable
where suspect physically resisted arrest). Likewise, application of force to the throat to
prevent destruction of evidence is not in itself legally impermissible. See United States v.
Harrison, 432 F.2d 1328, 1330 (D.C. Cir. 1970) (holding police did not act with undue force or
brutality by grabbing defendant by the throat to prevent him from swallowing an envelope
with ten heroin capsules).
       2
         Throughout her appeal briefs, Plaintiff argues a distinction between “passive
resistance” and “active resistance,” the latter presumably encompassing instances when a

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                                        No. 12-30867

However, the dashboard video demonstrates otherwise. Stogner repeatedly
refused to comply with Sturdivant’s requests to “spit [the bag] out” and to place
his hands behind his back. Sturdivant struggled to restrain Stogner, a relatively
large man, against the hood of his patrol car and on the ground. At no point
from the beginning of Sturdivant’s initial request to release the plastic bag until
the end of the struggle did Stogner attempt to comply with Sturdivant; indeed,
Sturdivant had to exert considerable force to keep Stogner even minimally still.
We cannot conclude from this evidence that Sturdivant’s conduct was objectively
unreasonable.
       Likewise, the video does not show that Melerine acted with objective
unreasonableness in attempting to restrain Stogner. At the moment that
Melerine arrived, Sturdivant had not succeeded in handcuffing Stogner, and
Sturdivant and Stogner were still engaged in a struggle. Melerine’s application
of force to Stogner’s body was not clearly unreasonable in light of that struggle.
       For these reasons, we conclude that Sturdivant’s and Melerine’s actions
were not objectively unreasonable, and thus the officers were entitled to
qualified immunity. This conclusion also decides Plaintiff’s state law claims, all
of which require unreasonable conduct. Plaintiff acknowledges this result,
stating in her appeal brief that “the state law claims against Deputy Sturdiavnt
and Officer Melerine arise from the same set of facts” as that of the § 1983 claim,
and thus resolution of the § 1983 claim preordains resolution of the state law
claims.




suspect physically strikes an officer. Plaintiff cites no authority for why “active resistance”
is a prerequisite for the reasonableness of officers’ conduct in circumstances such as these, and
we are not convinced that this distinction alters the outcome. Similarly, we are not convinced
that Stogner’s presenting a physical threat to officers was a prerequisite for the
reasonableness of the officers’ conduct, especially where he was otherwise resisting arrest and
where the officers were lawfully permitted to prevent the destruction of evidence.

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                                No. 12-30867

      Accordingly, the district court properly awarded summary judgment to
Defendants Sturdivant and Melerine on Plaintiff’s § 1983 claim and her state
law claims. We emphasize that we agree with the district court that Stogner’s
death is unfortunate, but “given Mr. Stogner’s intransigence in the face of
Sturdivant’s lawful requests, the Court cannot deny Deputy Sturdivant [and
Officer Melerine] the qualified immunity [they are] entitled to under the law.”
      AFFIRMED.




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