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

                                                                               FILED
                                                                               May 8, 2008

                                         No. 07-40819                    Charles R. Fulbruge III
                                                                                 Clerk

RUSTY COONS,

                                                     Plaintiff-Appellant,
v.

RANDALL LAIN, Wood County Deputy,

                                                     Defendant-Appellee.



                      Appeal from the United States District Court
                           for the Eastern District of Texas
                                USDC No. 6:06-CV-439



Before DAVIS and SOUTHWICK, Circuit Judges, and CLARK, District Judge.*
PER CURIAM:**
       Plaintiff-Appellant Rusty Coons (“Coons”) filed this appeal following entry
of the district court’s order granting summary judgment and dismissing his suit
against Defendant-Appellee Randall Lain (“Deputy Lain”). For the following
reasons, we reverse and remand.




       *
           District Judge of the Eastern District of Texas, sitting by designation.
       **
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-40819

                                        I.
      In August 2006, Wood County Deputy Sheriff Randall Lain entered
Marilyn Hipps’s (“Hipps”) ranch to investigate Hipps’s complaint that property
had been stolen from her tack room. Both Rusty Coons and his wife Lisa worked
at the ranch and Rusty apparently thought the investigation focused on Lisa.
While Deputy Lain was trying to take Hipps’s statement in the tack room, Coons
entered the room, approached Hipps, and said, “I don’t like you involving my
wife in your investigation . . . because my wife didn’t do anything.”
      At this point there is a dispute regarding the facts. According to Deputy
Lain, he told Coons to leave but Coons continued to approach Deputy Lain and
Hipps. Deputy Lain asserts that after he told Coons to leave, Coons attempted
to get around Deputy Lain to get to Hipps. Deputy Lain alleged that he
controlled Coons both to protect Hipps and stop Coons’s interference with the
investigation. Deputy Lain alleged that Coons resisted his efforts and continued
to interfere. According to Coons, though, he did not disobey Deputy Lain’s
instructions, but rather when he was told to leave he promptly attempted to
comply. Coons stated that he turned to leave but Deputy Lain tackled him,
slammed him against a wall, threw him down on a bench, and twisted his arm
behind his back.     Coons specifically denies ever reaching out towards or
attempting to touch Hipps or Deputy Lain in any way.
      Deputy Lain then put Coons in handcuffs and placed him in his police car.
Coons was detained in the patrol car for 15–30 minutes. Coons was never
charged with any crime. Deputy Lain alleged that he could have arrested Coons
for interference with the investigation, but did not do so at the request of Hipps.
      Coons alleged that he suffered soft tissue damage to his left shoulder,
tendon damage to his left wrist, torn cartilage, and multiple bruises and
abrasions, as well as emotional distress. Coons’s medical records indicate he had
injuries that required a sling for his shoulder and multiple medications for pain.


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       Coons alleged in his complaint against Deputy Lain that Deputy Lain
unlawfully arrested him, used excessive force in the arrest, and assaulted him,
all in violation of the Fourth Amendment. Deputy Lain filed a summary
judgment motion on qualified immunity grounds which the district court
granted. The court also dismissed Coon’s state law claims on official immunity
grounds.
                                        II.
       We review the grant of summary judgment de novo, independently
reviewing the decision according to the same standards the district court used.
Lafreniere Park Found. v. Broussard, 221 F.3d 804, 807 (5th Cir. 2000); Lampkin
v. City of Nacagdoches, 7 F.3d 430, 434 (5th Cir. 1993), cert. denied sub nom,
Vanover v. Lampkin, 511 U.S. 1019 (1994). A motion for summary judgment
should be granted “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 a
judgment as a matter of law.” FED R. CIV. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 323–25 (1986). When ruling on a motion for summary
judgment, the district court must view all inferences drawn from the factual
record in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Lampkin, 7 F.3d at
434.
                                        III.
                                        A.
       The qualified immunity doctrine was established to reconcile the interest
of compensating persons who have experienced a violation of their federally
protected rights with the interest of limiting the fear that personal liability will
inhibit public officials in the discharge of their duties. Goodson v. City of Corpus
Christi, 202 F.3d 730, 735 (5th Cir. 2000) (internal quotations omitted). We

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follow the two-prong test established by the Supreme Court to evaluate the
merits of a qualified immunity defense: (1) whether the plaintiff alleged a
violation of a clearly established right; and (2) whether the public official’s
conduct was objectively reasonable in light of clearly established law at the time
of the alleged violation. Siegert v. Gilley, 500 U.S. 226, 231–32 (1991); see also
Goodson, 202 F.3d at 736.
      We turn first to the excessive force claim under the Fourteenth
Amendment. In an excessive force claim, the plaintiff bears the burden of
showing: (1) an injury, (2) resulting directly from use of force clearly excessive
to the need, and (3) the force used was objectively unreasonable. Goodson, 202
F.3d at 730. Coons alleged that Deputy Lain used excessive force because even
though he turned to leave the room in compliance with Deputy Lain’s request,
Deputy Lain nevertheless attacked him.
      Deputy Lain argues both that he did not use excessive force and that he
is entitled to qualified immunity because he acted in an objectively reasonable
manner.    Under Deputy Lain’s account, he told Coons to depart and his
command was flagrantly ignored. Under these facts his response may have been
objectively reasonable, and Deputy Lain may have been entitled to qualified
immunity. Under Coons’s version of the facts, however, the version we must
accept when reviewing a grant of summary judgment, Deputy Lain’s actions
were not objectively reasonable. Specifically, when Deputy Lain told Coons to
depart the scene, Coons tried to comply but was nonetheless attacked by Deputy
Lain. Under these facts Deputy Lain’s use of force was unreasonable. On this
summary judgment record, there exists a material fact in dispute, i.e., whether
Coons promptly obeyed Deputy Lain’s command that he depart the scene of the
investigation thus giving Deputy Lain no reason to seize him. Which version of
the facts the fact finder accepts determines whether Deputy Lain used excessive
force. These disputed facts make summary judgment inappropriate.

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                                        No. 07-40819

       We turn next to the unlawful detention claim. A police officer may detain
an individual for a short period of time if the officer has a reasonable suspicion
supported by articulable facts that criminal activity may be afoot, even if the
officer lacks evidence rising to the level of probable cause.                     Michigan v.
Summers, 452 U.S. 692, 699 (1981); Terry v. Ohio, 392 U.S. 1, 30 (1968). To
state a claim for unlawful detention, a plaintiff must allege: (1) a detention
occurred; and (2) the detention was not based on reasonable suspicion supported
by articulable facts that criminal activity was occurring. Terry, 392 U.S. at 30.
       Deputy Lain argues that he detained Coons because he had reasonable
suspicion that Coons was interfering with his investigation.1 Deputy Lain
alleged that Coons failed to obey Deputy Lain’s lawful command that he leave
the site of the investigation and continued toward Hipps and reached out to
touch or strike her. Deputy Lain concluded that Coons was interfering with his
investigation and his limited detention of Coons was objectively reasonable.
Deputy Lain thus argues he is entitled to qualified immunity.
       The problem, again, is that Deputy Lain’s conclusion is based on his
account of the facts, facts directly disputed by Coons. Coons specifically takes
issue with Deputy Lain’s allegations that he did not comply with Deputy Lain’s
command to leave the scene of the investigation, that he continued toward
Hipps, and that he reached out toward Hipps. Coons alleged that he did not
interfere with Deputy Lain’s duties, get angry, raise his voice, attempt to
circumvent Deputy Lain to reach Hipps, disregard Deputy Lain’s commands, or
struggle or otherwise resist arrest. Coons thus alleged that he was unlawfully
detained when Deputy Lain handcuffed and placed him in his patrol car for
15–30 minutes. If we accept Coons’s version of the facts, as we must when


       1
          Texas law makes it unlawful for a person, with criminal negligence, to interrupt,
disrupt, impede, or otherwise interfere with a peace officer while the peace officer is performing
a duty or exercising authority imposed or granted by law. TEX. PEN. CODE ANN. § 38.15.

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                                  No. 07-40819

reviewing a grant of summary judgment, Deputy Lain’s detention of Coons was
not supported by articulable facts that criminal activity was afoot. Under this
version, Deputy Lain’s actions were objectively unreasonable and he should not
be shielded by qualified immunity. A genuine issue of material fact is presented
on this claim which precludes summary judgment.
                                       B.
      Official immunity is an affirmative defense in Texas that protects
government employees from liability. Univ. of Houston v. Clark, 38 S.W.3d 578,
580 (Tex. 2000).    The Texas Supreme Court has stated that government
employees are entitled to official immunity from suit arising from performance
of their (1) discretionary duties in (2) good faith as long as they are (3) acting
within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d
650, 653 (Tex. 1994). Official immunity in Texas is substantially the same as
qualified immunity under federal law. Meadours v. Ermel, 483 F.3d 417, 424
(5th Cir. 2007). The main difference, however, is that official immunity does not
incorporate the requirement that the plaintiff show the violation of a clearly
established right; official immunity hinges on whether the official’s activities
were undertaken in “good faith,” i.e., whether they were objectively reasonable.
Id. (citing Lancaster, 883 S.W.2d at 656–67).
      Deputy Lain argues that the district court correctly concluded that he is
shielded by official immunity from the state assault claim. His argument again
rests on his version of the facts, that Coons did not follow his commands,
interfered with his investigation, and resisted arrest. For the reasons explained
above, we find Deputy Lain’s argument unavailing. If we accept Coons’s version
of events, as we must, Deputy Lain did not act in an objectively reasonable way.
Thus, the district court erred in granting summary judgment on the state law
claims based on official immunity grounds.
                                       IV.

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                                No. 07-40819

      Accepting Coons’s version of the facts, Deputy Lain’s actions were not
objectively reasonable. For this reason, the district court erred in granting
summary judgment on qualified immunity and official immunity grounds.
Triable issues of material fact are present. The summary judgment is thus
reversed and the case is remanded for further proceedings not inconsistent with
this opinion.
      REVERSED and REMANDED.




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