                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT



                                       No. 01-10610



ESTATE OF SHANE G. SORRELLS, Etc.; Et al.,                 Plaintiffs,


ESTATE OF SHANE G. SORRELLS,
by and through its independent executrix
Sheryl Thostenson; DANA FONTENOT, as
next friend of Chandler Sorrells, a Minor;
PAT SORRELLS; RITA SORRELLS,                                Plaintiffs-Appellees-Appellants,


                                             versus


CITY OF DALLAS; Et al.,                                     Defendants,


CITY OF DALLAS,                                             Defendant-Appellee,


JOSEPH CUTRONA, Officer;
WILLIAM READDY, Officer;
STANLEY GRIFFIS, Sergeant,                                  Defendants-Appellants-Appellees.




                        Appeals from the United States District Court
                             for the Northern District of Texas

                                        July 10, 2002




                                               1
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

        Joseph Cutrona (“Cutrona”), William Readdy (“Readdy”), and Stanley Griffis (“Griffis”)

(collectively, the “Officers”) appeal from the district court’s denial of qualified and official immunity

from the plaintiffs’ § 1983 and state law claims. The Estate of Shane G. Sorrells and various

statutory heirs of Shane G. Sorrells (collectively, the “Sorrells Family”) cross-appeal from the grant

of summary judgment in favor of the City of Dallas (“Dallas”). For the reasons set forth below, we

AFFIRM.

                             FACTUAL AND PROCEDURAL HISTORY

        In the Fall of 1998, Officers Cutrona and Readdy were dispatched to an apartment complex

to investigate a report of indecent exposure. Upon their arrival, they witnessed Shane G. Sorrells

(“Sorrells”), nude and masturbating in the front seat of his car. Cutrona and Readdy told the suspect

to get out of his locked car, he failed to respond. The officers then called for backup. According to

the Sorrells Family, Sorrells did not exhibit any violent behavior or attempt to flee. Nevertheless,

Cutrona and Readdy decided to use Oleoresin Capsicum ("OC") spray1 to force Sorrells out of his

vehicle. Sorrells continued to masturbate and remained in his vehicle. Around this time, Sergeant

Griffis arrived. Griffis used an ASP baton to break the passenger-side window of the car. Sorrells

was injured by pieces of flying glass and began to bleed. Cutrona and Griffis then used more OC



    *
      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.

   1
      OC spray, also known as pepper spray or pepper mace, is a chemical agent made from hot pepper extracts. The
active ingredient, capsicum, is an inflammatory agent. Exposure to OC Spray irritates the mucous membranes of the
eyes, nose, throat, and lungs. It also causes dilation of the capillaries, which inhibits the ability to breathe.

                                                       2
spray on Sorrells, but he refused to exit the vehicle. At this point, Cutrona unlocked the car and

attempted to pull Sorrells from the vehicle. However, because Sorrells was sweating, Cutrona could

not get a firm grasp on him. Cutrona and Readdy were eventually able to remove Sorrells from the

car and get him to the ground. Shortly thereaft er, t hree more officers arrived on the scene. A

struggle ensued when the officers attempted to handcuff Sorrells. According to the Sorrells Family,

and a civilian witness, one of the officers struck Sorrells “between 25 and 30 times” with a baton

while another officer applied a Lateral Vascular Neck Restraint (“LVNR”),2 which is used to subdue

struggling individuals. Cutrona admits that he struck Sorrells twice on the right arm with a baton

after he refused a verbal command to put his arm behind his back. However, Cutrona denies that he

used the extent of force alleged by the Sorrells Family. Eventually, Sorrells either began to slowly

walk away (according to the Sorrells Family) or to violently escape (according to the Officers).

Readdy apprehended Sorrells and brought him to the ground by use of a LVNR. Cutrona, with the

assistance of the newly-arrived o fficers, handcuffed Sorrells. At some point during this ordeal,

Sorrells lost consciousness and stopped breathing. Paramedics administered CPR at the scene and

transported Sorrells to Parkland Memorial Hospital.              Despite efforts to revive him, he was

pronounced dead upon arrival. An autopsy revealed that Sorrells suffered a crushed larynx. The

coroner ruled his death a homicide.

        The Sorrells Family filed suit against Dallas, t he Officers, and several other individuals

including certain supervisory officials and the on-scene paramedics. They alleged excessive force and

failure-to-protect violations pursuant to 42 U.S.C. §§ 1983 and 1985, and various state law causes


    2
       An LVNR is a neck restraint involving a rear head lock and compression until conscious compliance or
unconsciousness. The Sorrells Family maintains that the LVNR is essentially a chokehold. The Officers deny that
a chokehold was used on Sorrells.

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of action, including violations of the Texas Tort Claims Act, assault, battery, false imprisonment,

intentional infliction of emotional distress, and negligence. The defendants moved for summary

judgment on all of the claims. The relevant arguments were that (1) the Officers were entitled to

qualified and official immunity and (2) there was no basis for municipal liability against Dallas. The

magistrate judge recommended that the motion for summary judgment be denied as to the claims of

excessive force, failure-to-protect, and state law causes of action against the Officers, and be granted

in favor of Dallas and the other individual defendants. The district court adopted the magistrate

judge’s findings and recommendation. The Officers appeal from the denial of qualified and official

immunity. The Sorrells Family cross-appeals from the grant of summary judgment in favor of Dallas.

                                      STANDARD OF REVIEW

        A grant of summary judgment is reviewed de novo. Price v. Roark, 256 F.3d 364, 368 (5th

Cir. 2001). A denial of a motion for summary judgment based on a claim of qualified immunity is also

reviewed de novo. Blackwell v. Barton, 134 F.3d 298, 301 (5th Cir. 1994). The issue of whether

a right is clearly established is typically treated as a question of law. Pfannstiel v. City of Marion, 918

F.2d 1178, 1183 (5th Cir. 1990). Likewise, the question of the objective reasonableness of the

Officers’ conduct is also a question of law. Mangieri v. Clifton, 29 F.3d 1012, 1015-16 (5th Cir.

1994). Questions of law are reviewed de novo. United States v. Urias-Escobar, 281 F.3d 165, 166

(5th Cir. 2002).      Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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

law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

                                             DISCUSSION


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        There are three main issues on appeal. First, whether the district court erred in failing to grant

the Officers qualified immunity from the excessive force and failure to protect claims under § 1983.

Second, whether the Officers are entitled to official immunity on the state law claims. Finally,

whether the district court erred in granting summary judgment to Dallas based on its finding that no

city policy or custom caused Sorrells’s injury.

                                       I.    Qualified Immunity

        To determine whether a government official is entitled to qualified immunity from liability

under 42 U.S.C. § 1983, a two step analysis is undertaken. Hayter v. Mt. Vernon, 154 F.3d 269, 274

(5th Cir. 1998). The first step is to determine whether the plaintiff has alleged a violation of a clearly

established constitutional right. Hare v. City of Corinth, Miss., 135 F.3d 320, 325 (5th Cir. 1998).

“The seco nd prong of the qualified immunity test is better understood as two separate inquiries:

whether the allegedly violated constitutional rights were clearly established at the time of the

incident; and, if so, whether the conduct of the defendants was objectively unreasonable in the light

of that then clearly established law.” Id. at 326 (emphasis in original).

        Excessive force claims are analyzed under the rubric of the Fourth Amendment. Johnson v.

Morel, 876 F.2d 477, 479 (5th Cir. 1989). At the time of the incident, a plaintiff wishing to establish

an excessive force claim had to show that: (1) he suffered a significant injury, (2) resulting directly

and only from the use of force that was clearly excessive to the need, and (3) the force used was

objectively unreasonable. Id. at 480. A court must view the totality of circumstances from the

standpoint of a reasonable officer on the scene, paying particular attention to “whether the suspect

pose[d] an immediate threat to the safety of the officers or others.” Stroik v. Ponseti, 35 F.3d 155,

158 (5th Cir. 1994).


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        The failure to pro tect a suspect from the use of excessive force by others can give rise to

liability under § 1983. Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995).

        The district court correctly concluded that a genuine issue of material fact existed as to

whether the Officers used excessive force and failed to protect Sorrells from the use of excessive

force by their comrades. The Sorrells Family adduced considerable evidence controverting the

Officers’ version of the events. Specifically, there is evidence in the record supporting the view that

Sorrells was not a threat to anyone.      First, Police Detective Joe Decorte admitted this fact to

members of the Sorrells Family. Further, civilian witnesses testified that the Officers continued to

kick and hit Sorrells after he was immobilized and that Sorrells did not resist or fight back. These

witnesses further explained that Sorrells was repeatedly struck despite the fact that he was not

struggling or fighting. Moreover, there is civilian witness testimony in the record verifying that

Sorrells merely stumbled off, and did not try to flee, negating the notion that force was needed to

limit the risk of flight. This witness also testified that Readdy leapt onto Sorrell’s back and was

choking him as Sorrells “tiptoed” away. While the Officers vigorously dispute the account of the

incident as portrayed by the civilian witnesses and the Sorrells Family, the district court correctly

concluded that there are too many disputed facts regarding the amount of force used, and the

necessity of the escalating violence, to permit resolution of this case by way of summary judgment.

Moreover, the same facts that give rise to a genuine issue of material fact as to whether the Officers

used excessive force, give rise to a genuine issue of material fact as to whether the Officers failed to

protect Sorrells.

                            II.    Immunity from the State Law Claims

        The Officers assert two separate grounds of immunity from the Sorrells Family’s state law


                                                   6
claims.

          A.     Official Immunity

          “Texas’ law of qualified or official immunity is substantially the same as federal immunity

law.” Cantu v. Rocha, 77 F.3d 795, 809 (5th Cir. 1996) (citing City of Lancaster v. Chambers, 883

S.W.2d 650, 656 (Tex. 1994)). “There is, however, one important difference. Summary judgment

is not appropriate, as it is in the federal system, simply on a showing that the right alleged to have

been violated was not clearly established.” Id. at 808-09 (citing City of Lancaster, 833 S.W.2d at

657). Texas’s test for official immunity focuses solely on the objective legal reasonableness of the

officer’s conduct. Id. (citing City of Lancaster, 833 S.W.2d at 656-57).

          We agree with the district court that the same fact issues that preclude summary judgment on

the § 1983 claim, preclude granting official immunity on the state law claims.

          B.     Immunity Under Section 101.106 of the Texas Civil Practice and Remedies Code

          The Officers also assert that they are entitled to immunity based on section 101.106 of the

Texas Civil Practice and Remedies Code. That section provides that “[a] judgment in an action or

a settlement of a claim under this chapter bars any action involving the same subject matter by the

claimant against the employee of the governmental unit whose act or omission gave rise to the claim.”

TEX. CIV. PRACTICE MANAGEMENT. & REM. CODE ANN. § 101.106 (Vernon 1997). The Texas

Supreme Court has held that the immunity conveyed to a governmental unit’s employees by section

101.106 is triggered by any judgment in a Texas Tort Claim suit against a governmental unit.

Newman v. Oberstellar, 960 S.W.2d 621, 622-23 (Tex. 1997) (emphasis added). The cause of action

against the employee need not arise under the Texas Tort Claims Act (“TTCA”). White v. Annis,

864 S.W.2d 127, 131 (Tex. App. 1993) (“If the Legislature had intended for a judgment in a Tort


                                                   7
Claims Act case to bar only actions against the employee based on the same cause of action, it would

have written the statute to so provide.”). The “same subject matter” language in section 101.106

means “arising out of the same actions, transactions, or occurrences.” Dallas County Mental Health

& Mental Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998).

        The Sorrells Family’s state law claims against Dallas were not claims “under this chapter,”

i.e., the TTCA, because Dallas was only sued under § 1983. Bell v. Love, 923 S.W.2d 229, 231

(Tex. App. 1996) (recognizing that section 101.106 would o nly apply if the claims against the

governmental unit were under the TTCA); see also Thomas v. Oldham, 895 S.W.2d 352, 355, 357

(Tex. 1995) (referring to “this chapter” as the TTCA). Because the judgment in favor of Dallas was

based on § 1983, Texas’s tort immunity does not apply.

                                      III.    Municipal Liability

        “A municipality is liable under § 1983 for a deprivation of rights protected by the Constitution

or federal laws that is inflicted pursuant to official policy.” Bennett v. City of Slidell, 735 F.2d 861,

862 (5th Cir. 1984). An official policy is defined as (1) “[a] policy statement, ordinance, regulation,

or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by

an official to whom the lawmakers have delegated policy-making authority” or (2) “[a] persistent,

widespread practice of city officials or emplo yees, which, although not authorized by officially

adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly

represents municipal policy.” Id. With regard to the second type of official policy, “actual or

constructive knowledge of such custom must be attributable to the governing body of the municipality

or to an official to whom that body had delegated policy-making authority.” Id.

        When the challenged conduct relates to informal policies or a custom of behavior, a single


                                                   8
violation is not actionable. City of Okla. v. Tuttle, 471 U.S. 808, 821 (1985) (“To impose liability

[because of a single incident] would be to impose [liability] simply because the municipality hired one

‘bad apple.’”). A plaintiff must establish “a pattern of similar incidents in which citizens were injured

or endangered by intentional or negligent police misconduct and/or that serious incompetence or

misbehavior was general or widespread.” Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir.

1983).

         The Sorrells Family argues that the district court improperly granted summary judgment in

favor of Dallas. They maintain that the policymaker for the City of Dallas is the Chief of Police. They

assert that in this case, Chief of Police Bolton (“Bolton”), following an Internal Affairs investigation,

exonerated all of the Officers, with the exception of Griffis. Therefore, they conclude that Bolton

made a determination, as Dallas’s policymaker, that the Officers acted within Dallas’s formal written

policies and procedures. They argue that either this proves that Dallas has a policy allowing for the

use of excessive force or, alternatively, that this proves that Dallas’s policymaker ratified the Officers’

conduct. From this, they conclude that liability can be imposed on Dallas.

         As the district court noted, however, this argument obscures the fact that the incident was

single and isolated and that no policy causing Sorrell’s injury has been shown. In fact, if anything,

the Sorrells Family put forth evidence that Dallas has formal written policies designed to protect

arrestees in these types of situations. Were we to hold Dallas liable in such a situation, we would be

holding the city liable not for what its policy says, but for what Bolton interpreted that policy to

require in a single-isolated incident. See Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978) (holding that respondeat superior liability is unavailable in § 1983 suits). As such, the district

court properly granted summary judgment in favor of Dallas on this claim.

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                                    CONCLUSION

     For the reasons set forth above, we AFFIRM.

AFFIRMED.




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