                       REVISED December 16, 1998

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 97-20316



                         EDWIN O. HEITSCHMIDT,

                                                   Plaintiff-Appellant,


                                 VERSUS


             THE CITY OF HOUSTON; SAM NUCHIA, Chief;
         GEORGE SWEETIN; C. P. GILLESPIE; J. K. SHAFFER;
      KEVIN D. TEMPLETON; GEORGE FENCL; JOHN C. WHITEFIELD,

                                                  Defendants-Appellees.




             Appeal from the United States District Court
                  For the Southern District of Texas
                           November 23, 1998


Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

     Edwin    O.   Heitschmidt   appeals   the   district   court’s   rule

12(b)(6) dismissal of his § 1983 action against six named Houston

Police Officers, former Houston Police Chief Sam Nuchia, and the

City of Houston.      We reverse and remand for further proceedings

consistent with this opinion.
                                          I.

       Dismissal pursuant to rule 12(b)(6) is appropriate only when

“‘it appears that no relief could be granted under any set of facts

that    could       be   proven     consistent        with    the    allegations.’"

Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 529 (5th

Cir. 1996) (quoting Bulger v. United States Bureau of Prisons, 65

F.3d 48, 49 (5th Cir. 1995)); see also Rochon v. City of Angola,

122 F.3d 319, 320 (5th Cir. 1997), cert. denied, 118 S. Ct. 1311

(1998).     We review the district court’s action de novo, accepting

as   true     all    well-pleaded     facts      in     Heitschmidt’s      complaint.

Meadowbriar Home for Children, 81 F.3d at 529.

       In June 1994, Edwin Heitschmidt was living in Houston, Texas

with   Anne     Menke    Fucaluro,    the      leader    of   a   sizable     ring   of

innovative      prostitutes       known   as   the    “salad      sisters.”     After

Fucaluro was arrested as part of a sting operation, a warrant was

issued to search the house that Heitschmidt shared with Fucaluro.

Officers had information prior to the search that Fucaluro shared

the house with Heitschmidt and that he was a U.S. Customs Officer.

Heitschmidt was not a target of the investigation, and police had

no   reason    to    suspect   Heitschmidt       of     any   wrongdoing    prior    to

searching the home.

       Officers arrived to serve the warrant around 9:00 p.m. on the

evening of June 9, 1994.          Two policemen lured Heitschmidt from the

residence by claiming they needed his help identifying people who


                                          2
had allegedly been picked up in the neighborhood.                            Heitschmidt

agreed to help, then put on a shirt and voluntarily exited his

home, walking toward a police car parked on the street.                                As

Heitschmidt approached the parked car, police shined a flashlight

into the back seat, where Heitschmidt observed two individuals

smiling at him.           The two policemen escorting Heitschmidt then

pushed him onto the trunk of the police car and handcuffed him

tightly enough to cause severe pain.

       As Heitschmidt was being handcuffed, several unmarked cars

pulled into the driveway and in front of the house, and about ten

or twelve additional police officers exited the vehicles.                        Some of

the police arriving at this time had guns drawn, and some of the

guns were pointed at Heitschmidt.

       Heitschmidt        was     then   taken      back    inside     the    house    and

positioned on a bar stool in the living room.                       Defendant Officer

Sweetin told Heitschmidt the house was being searched pursuant to

a warrant and held a copy of the warrant in front of Heitschmidt.

Heitschmidt explained that he could not read the document without

his    reading   glasses.            Officer      Sweetin   moved     the    paper    back

slightly, but Heitschmidt was still unable to read the document and

no    effort   was   made       to   secure       Heitschmidt’s      reading   glasses.

Officer Sweetin then read Heitschmidt his rights.                            Heitschmidt

asked    whether     he     was      under    arrest.        Sweetin    replied       that

Heitschmidt was not under arrest, and that he was merely being

detained.

                                              3
     Heitschmidt remained handcuffed and seated on the bar stool

from approximately      9:15     p.m.   until    about    1:45    a.m.   the   next

morning,    as   many   police    officers      from   various     jurisdictions

searched the house.        During that period, Heitschmidt complained

that the handcuffs were painfully tight and requested that they be

loosened.    Heitschmidt’s requests were denied.               Heitschmidt also

requested permission to use the bathroom.                That request was also

denied.

     Police seized a number of items from the home, all thought to

be related to Fucaluro’s operation of the prostitution ring.                   When

the four and one-half hour search was complete, the handcuffs were

removed and Heitschmidt was released.

     Heitschmidt claims that he suffered permanent serious injury

to his wrists as a result of the incident, for which he has sought

medical treatment. He also claims psychological harm, for which he

has sought medical treatment.



                                        II.

     Heitschmidt filed this civil rights suit pursuant to 42 U.S.C.

§ 1983 in May 1996. Heitschmidt’s original complaint named Houston

Police    Officers   George    Sweetin,       C.P.   “Chris”     Gillespie,    J.K.

Shaffer, Kevin D. Thompson, George Fencl, and John C. Whitefield,

in their individual capacities; Houston Police Chief Sam Nuchia, in

his individual capacity; and the City of Houston, as defendants.


                                         4
Heitschmidt’s original complaint raised federal claims under the

Fourth, Fifth, Eighth, and Fourteenth Amendments, and several

pendant state law claims.

      In June 1996, the defendants moved for dismissal on the basis

of qualified immunity.               In November 1996, the district court

entered an order deferring its ruling on the defendants’ motion,

and permitting Heitschmidt an opportunity to amend his pleadings to

set forth facts sufficient to overcome the defendants’ claimed

entitlement to qualified immunity.                   See Schultea v. Wood, 47 F.3d

1427, 1433-34 (5th Cir. 1995) (en banc) (establishing procedure for

requiring a civil rights plaintiff to file a reply tailored to the

issues    raised       by   a   motion   asserting          the    qualified     immunity

defense).        On December 9, 1996, Heitschmidt filed an amended

complaint.        Defendants responded with an amended answer, and

shortly thereafter, with another motion to dismiss.                           On April 1,

1997,     the    district       court    entered       an    order      (1)    dismissing

Heitschmidt’s Fifth, Eighth, and Fourteenth Amendment claims for

failure to state a claim, and (2) dismissing Heitschmidt’s Fourth

Amendment claims against the six named officers and Chief Nuchia on

the   basis     that    those     defendants         were   entitled      to    qualified

immunity.       On June 16, 1997, the district court entered a second

order (1) dismissing Heitschmidt’s claims against the City of

Houston    for     failure      to   state       a   claim,       and   (2)    dismissing

Heitschmidt’s remaining state law claims for want of jurisdiction.



                                             5
On    June 26,      1997,   the    district       court     entered    final   judgment

dismissing all claims.            Heitschmidt appealed.

       Heitschmidt’s principal brief on appeal challenges only the

district court’s decision to grant the six named Houston Police

Officers qualified immunity from his Fourth Amendment claims.

Heitschmidt’s        briefing     does   not       contain    any     cogent   argument

concerning the district court’s dismissal of his Fifth, Eighth, and

Fourteenth Amendments claims for failure to state a claim, the

district court’s dismissal of all claims against Chief Nuchia and

the    City    of    Houston,     or   the       district    court’s     dismissal    of

Heitschmidt’s pendant state law claims.                     We therefore limit our

review to the district court’s April 1, 1997 decision that the six

named Houston Police Officers were entitled to qualified immunity

from Heitschmidt’s Fourth Amendment claims.



                                         III.

       To determine whether the district court’s grant of qualified

immunity to the individual officers was proper, we must decide

whether       Heitschmidt’s       pleadings,        if    accepted     as   true,    (1)

conceivably         state   violations       of     clearly     established      Fourth

Amendment rights, and (2) allege conduct that is objectively

unreasonable.         See, e.g., Fontenot v. Cormier, 56 F.3d 669, 673

(5th Cir. 1995). Heitschmidt’s Fourth Amendment claims alleged (1)

that he was unlawfully and unreasonably detained, and (2) that he


                                             6
was subjected to excessive force.          With regard to his unlawful

detention claim, Heitschmidt asserts his clearly established right

to be free from unreasonable seizure of his person, a right which

he maintains includes the clearly established right to be free from

an unreasonably prolonged or intrusive detention without probable

cause. Heitschmidt further claims that the conduct of the officers

was objectively unreasonable because he was held for more than four

hours in painful restraints without being allowed access to a

bathroom, even though he was not a target of the investigation and

police had no articulable reason for suspecting him of misconduct.

     Defendants rely upon Michigan v. Summers, 101 S. Ct. 2587

(1981), for the proposition that a valid search warrant implicitly

authorizes the detention of any occupant of the premises to be

searched during the pendency of the search.            The district court

likewise focused upon Summers, holding that police may detain a

person not named in the search warrant while a validly executed

search   warrant   is   executed.       Therefore,   the   district     court

reasoned, Heitschmidt could not allege violation of a clearly

established right.

     Defendants’     unqualified    reliance    upon    Summers   for     the

proposition that Heitschmidt could not, under any circumstances,

state a claim for unlawful detention during the execution of a

valid search warrant is unjustified.         The holding in Summers was

far more narrow.


                                    7
     In Summers, police obtained a valid warrant to search a house.

The defendant, who in that case was trying to suppress evidence

offered at his criminal trial, was observed leaving the house as

officers arrived.    Officers requested his assistance entering the

house and detained him during the search.            Summers, 101 S. Ct. at

2589.

     Summers recognized that:

           some seizures admittedly covered by the Fourth
           Amendment constitute such limited intrusions on the
           personal security of those detained and are
           justified by such substantial law enforcement
           interests that they may be made on less than
           probable cause, so long as police have an
           articulable basis for suspecting criminal activity.

Id. at 2592-93.      The Court noted that those cases recognizing

exceptions to the probable cause requirement, for example for Terry

stops based upon reasonable suspicion, “are consistent with the

general rule that every arrest, and every seizure having the

essential attributes of a formal arrest, is unreasonable unless it

is supported by probable cause.”        Id. at 2593.    The Court concluded

that “a warrant to search for contraband founded on probable cause

implicitly carries with it the limited authority to detain the

occupants of the premises while a proper search is conducted.” Id.

at 2595.

     Whether   a    particular   seizure     falls     within   the   limited

authority recognized in Summers to proceed without probable cause

depends upon “both the character of the official intrusion and its

                                    8
justification.”   Id. at 2593; see also United States v. Place, 103

S. Ct. 2637, 2642-43 (1983) (whether a particular intrusion must be

supported by probable cause depends upon a balancing of the “nature

and quality of the intrusion . . . against the importance of the

governmental interests alleged to justify the intrusion”). Summers

identified several factors important to its analysis that the

intrusion in that case was not great.     First, the Court stated that

the restraint on liberty was minimal because, unless the respondent

intended flight to avoid arrest, he would have little incentive to

leave during a search.    Summers, 101 S. Ct. at 2593.           Second, the

Court noted that the detention during the search of a residence is

unlikely to be prolonged because police are seeking information

from the search rather than the person.     Id. at 2594.        Finally, the

Court stated that the stigma and inconvenience of the detention is

likely to be less significant when the detention occurs in the

person’s home.    Id.

      Summers also identified factors important to its conclusion

that the intrusion in that case was justified by important police

interests.    First,    the   Court   recognized   the    law    enforcement

interests in preventing flight and minimizing harm to officers.

Id.   Second, the Court observed that an efficient search may be

facilitated by the presence of the resident.             Id.    Finally, the

Court stated that the existence of the warrant based upon probable

cause “gives the police officer an easily identifiable and certain

                                      9
basis for determining that suspicion of criminal activity justifies

a detention of th[e] occupant.”       Id.

     Although   Summers   expressly    rejects   a   completely   ad   hoc

approach to determining whether probable cause was required, id. at

2595 n.19 (“the balancing of the competing interests . . . must in

large part be done on a categorical basis” (internal quotations

omitted)), the holding is not without limitation, see id. at 2595

n.20 (“we do not decide whether the same result would be justified

if the search warrant merely authorized a search for evidence”) &

id. at 2595 n.21 (“Although special circumstances, or possibly a

prolonged detention, might lead to a different conclusion in an

unusual case, we are persuaded that this routine detention of

residents of a house while it is being searched for contraband

pursuant to a valid warrant is not such a case.”).        Thus, Summers

merely holds that the police have limited authority to detain the

occupant of a house without probable cause while the premises is

searched, when the detention is neither prolonged nor unduly

intrusive, and when police are executing a validly executed search

warrant for contraband.     Summers cannot be blindly used for the

much broader proposition that Heitschmidt had no Fourth Amendment

right to be free from an unreasonably intrusive or unjustified

detention while his home was being searched.

     The intrusion in this case was far more severe than in

Summers.   In Summers, the defendant was merely asked to remain at


                                  10
the home until the search was completed.    Heitschmidt claims he was

physically pushed onto the trunk of a car and handcuffed in the

street.   Heitschmidt was then detained in pain without a restroom

break for more than four hours.         The nature of Heitschmidt’s

detention renders the Supreme Court’s general observations that

detention at home may involve minimal restraint and that detention

at home generally involves less stigma inapplicable to this case.

The duration of Heitschmidt’s detention renders the Supreme Court’s

final observation, that detention at home will rarely be prolonged,

likewise inapplicable to this case.      Thus, none of those factors

that the Supreme Court used to explain why the detention in Summers

was so minimally intrusive that the probable cause requirement

could properly be excused apply in this case.

     Similarly,   the   justification      supporting     Heitschmidt’s

detention is far less persuasive than was the case in Summers.

Heitschmidt was lured from his home.     He was not trying to flee.

Indeed, he voluntarily dressed and then exited the home, ostensibly

to assist police efforts.      Thus, the police officers had no

significant interest in preventing flight at the time Heitschmidt

was pushed onto the trunk of the car and handcuffed.       In addition,

there was only minimal indication that Heitschmidt’s restraint was

required to protect the police.   Defendants’ amended answer states

that police were aware Heitschmidt’s status as a U.S. Customs

Officer might have provided him access to guns.         But there is no


                                  11
indication that police had any reason to believe that Heitschmidt

was involved in the prostitution ring or any other crime at the

time the home was searched, and likewise, no indication that police

had any reason to believe Heitschmidt would use any hypothetical

gun that he might have been able to access.

     As   a   resident,    Heitschmidt     could   certainly   have    helped

facilitate the search.         However, that there was no need to place

Heitschmidt in painful restraints to vindicate that legitimate

police interest.      While the existence of a search warrant may, in

some circumstances, support a reasonable belief that anyone present

at the premises to be searched is engaged in criminal activity, id.

at 2594-95, that justification is significantly weakened when, as

here,   police   know    the    occupant’s   identity   and    yet   have    no

articulable reason for suspecting that person of criminal activity.

     Finally, defendants’ amended answer makes clear that the

warrant at issue in this case was aimed at retrieving evidence

relating to the prostitution ring for the purpose of preparing a

case against Fucaluro, which is exactly what police found.             Police

were not searching for, and did not find, contraband of any sort.

Summers   expressly     left   open   whether   probable   cause     would   be

required when the search warrant supporting the detention was for

evidence, rather than contraband.          Id. at 2595 n.21.    We conclude

that none of those factors that the Supreme Court used to explain

why the detention in Summers was justified by legitimate police


                                      12
interests should be given any significant weight in this case.

Based upon an application of the controlling factors identified in

Summers, it appears that Heitschmidt has at least conceivably

alleged violation of his clearly established right to be free from

unreasonable seizure of his person.

       The remaining inquiry is whether the police officers’ actions

were     nonetheless       objectively    reasonable.        Heitschmidt     was

restrained for more than four hours.              See Place, 103 S. Ct. at

2642-43 (“we have never approved a seizure of the person [without

probable cause] for the prolonged 90-minute period involved here

and cannot do so on the facts presented by this case”).                 But we

need     not    base   our    holding    upon   the   prolonged     nature   of

Heitschmidt’s detention alone.           Once the premises was secure and

police were proceeding with their work without interference, there

was no justification for prolonging the physically intrusive aspect

of Heitschmidt’s detention.         Heitschmidt’s pleadings allege that

there were between ten and twelve police officers in the home

during    the    search.      Heitschmidt     could   have   been   effectively

restrained, and the police interest in facilitating the search

could have been vindicated, with a far less intrusive detention.

We cannot say, on the basis of the pleadings, that the officers’

conduct was objectively reasonable as a matter of law.

       Heitschmidt has at least conceivably alleged a violation of

his clearly established Fourth Amendment right to be free from


                                         13
unreasonable      seizure.     Moreover,      the    defendants’     conduct   in

continuing the painful restraint once any conceivable interest in

the physically intrusive nature of the detention was vindicated

requires    the   conclusion    that    the       officers’    conduct   was   not

objectively reasonable as a matter of law.                      We conclude the

officers are not entitled, on the basis of the pleadings, to

qualified   immunity    with   respect       to   Heitschmidt’s     unreasonable

detention claim.      Accordingly, the district court’s dismissal of

that claim is reversed.



                                       IV.

     Heitschmidt also claims that the defendants subjected him to

excessive force, in violation of the Fourth Amendment.                To state a

claim for imposition of excessive force, Heitschmidt was required

to show that he (1) suffered some injury which (2) resulted from

force that was clearly excessive to the need for force; (3) the

excessiveness of which was objectively unreasonable.                See Ikerd v.

Blair, 101 F.3d 430, 433-34 (5th Cir. 1996).                  When examining the

propriety of qualified immunity from excessive force claims, the

Court is faced with the unusual circumstance that the standard for

stating a claim, the objective reasonableness of the force exerted,

coincides in large part with the inquiry for determining qualified

immunity, the objective reasonableness of the officers’ conduct.

On the basis of these pleadings, we are unable to conclude that


                                       14
either the force exerted or the officers’ conduct was reasonable as

a matter of law.

       Heitschmidt complained that he was cuffed too tightly, and

then   left   in    pain   for   a   significant   period   of   time   without

justification.      The district court held that the officers’ failure

to loosen the handcuffs or to allow Heitschmidt to go to the

bathroom was objectively reasonable.          In reaching that conclusion,

the district court recognized that nonfeasance or failure to act is

less likely to be considered an act of excessive force than a

direct act of injury.        In our view, the district court failed to

give appropriate weight to the consequence that it was the officers

who placed Heitschmidt in the painful restraints to begin with.

Heitschmidt informed the officers that he was in pain and asked

that the cuffs be loosened. Once police secured the premises there

was no justification for requiring Heitschmidt to remain painfully

restrained.        Heitschmidt alleges that he suffered serious and

permanent injury      to his wrists, for which he has required medical

treatment.     While the character of the force exerted may make

Heitschmidt’s claim more difficult to prove, we cannot say that it

is sufficient to render Heitschmidt’s excessive force claim without

effect.    We conclude that Heitschmidt has at least conceivably

stated a violation of his Fourth Amendment right to be free from

excessive force.       Accordingly, the district court’s dismissal of

Heitschmidt’s excessive force claim on the basis of qualified

immunity is reversed.

                                        15
                                     V.

     Heitschmidt argues on appeal that he should have been allowed

limited discovery before the district court granted defendant’s

motion for qualified immunity.             The district court dismissed

Heitschmidt’s claims on the basis that his pleadings did not state

facts   sufficient   to   overcome   the       qualified   immunity   defense.

Qualified immunity is a defense from both liability and suit.

Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996).               Our Court

has held that “[e]ven limited discovery on the issue of qualified

immunity must not proceed until the district court first finds that

the plaintiff’s pleadings assert facts which, if true, would

overcome the defense of qualified immunity.’”                Id. at 1368-69

(quoting Wicks v. Mississippi State Employment Serv., 41 F.3d 991,

994 & n.10 (5th Cir. 1995)).

     Heitschmidt’s motion for limited discovery was denied before

the district court’s decision on the defendants’ motion to dismiss.

There   was,   therefore,   no   error    in    that   decision.      Now   that

Heitschmidt’s pleadings have been judged adequate to at least

potentially state a claim, however, discovery can proceed on

remand. We do not hold that Heitschmidt will eventually be able to

establish a violation of his Fourth Amendment rights, but rather,

that his pleadings are sufficient to create that possibility.               See

Meadowbriar Home for Children, 81 F.3d at 529.                Should further

discovery lead to the conclusion that there is no genuine issue of

                                     16
fact which could support such a claim, there will be no procedural

or substantive barrier to the filing of a motion for summary

judgment on the issue of qualified immunity.                 See Behrens v.

Pelletier, 116 S. Ct. 834 (1996).



                                    CONCLUSION

        The district court’s decision dismissing Heitschmidt’s Fourth

Amendment         claims   for   unreasonable   detention   and   the   use   of

excessive force against defendants George Sweetin, C. P. “Chris”

Gillespie, J. K. Shaffer, Kevin D. Thompson, George Fencl, and John

C. Whitefield is REVERSED and the cause REMANDED for further

proceedings consistent with this opinion.




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