     Case: 12-20296       Document: 00512666753         Page: 1     Date Filed: 06/17/2014




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

                                                                                    FILED
                                       No. 12-20296                             June 17, 2014
                                                                               Lyle W. Cayce
ROBERT R. TOLAN; MARIAN TOLAN,                                                      Clerk


                                                  Plaintiffs - Appellants
v.

JEFFREY WAYNE COTTON,

                                                  Defendant - Appellee




                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-1324


                         ON REMAND FROM
              THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In May 2009, Robert R. Tolan, Marian Tolan, Bobby Tolan, and Anthony
Cooper filed this action, pursuant to 42 U.S.C. § 1983, against numerous
defendants, arising out of, inter alia, claimed use of excessive force, in violation
of the Fourth Amendment. When the summary judgment described infra was
granted in 2012, however, to Officers Jeffrey Wayne Cotton and John C.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 12-20296
Edwards, on the basis of qualified immunity, the only other defendant in this
action was the City of Bellaire, Texas. That summary judgment did not pertain
to the City.
      As a result of the summary judgment, a final judgment under Federal
Rule of Civil Procedure 54(b) (permitting appeal of final judgment for less than
all parties or claims) dismissed all of plaintiffs’ claims against Officers Cotton
and Edwards.
      Only two of the four plaintiffs appealed from that Rule 54(b) judgment:
Robert and Marian Tolan. And, they challenged the judgment only as to
Officer Cotton and only regarding his being accorded qualified immunity
against their excessive-force claims.
      In April 2013, our court affirmed, holding summary judgment had been
proper for Officer Cotton, on the basis of qualified immunity, against the
excessive-force claims of Robert and Marian Tolan. Tolan v. Cotton, 713 F.3d
299, 309 (5th Cir. 2013).
      In May 2014, the Supreme Court vacated our judgment only as to Robert
Tolan and remanded for further proceedings, consistent with its opinion,
regarding his excessive-force claim against Officer Cotton. Tolan v. Cotton,
134 S. Ct. 1861, 1868 (2014).
      Considering the summary-judgment record de novo in the light of the
rulings in the Court’s opinion regarding that record, and pursuant to Federal
Rule of Civil Procedure 56(a) (summary-judgment standard), a genuine dispute
of material fact exists for whether Officer Cotton is entitled to summary
judgment, based on qualified immunity, against Robert Tolan’s excessive-force
claim. Therefore, we hold Officer Cotton is not entitled to summary judgment,
on that basis, against that claim.
      It goes without saying that all other dismissals pursuant to the Rule
54(b) judgment are not affected by this holding.
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                                 No. 12-20296
      Accordingly, we VACATE only that part of the Rule 54(b) judgment
dismissing Robert R. Tolan’s excessive-force claim against Officer Jeffrey
Wayne Cotton and REMAND that one claim for further proceedings consistent
with this opinion. These proceedings on remand are in addition to, or to be
conducted with, proceedings, if any, against the City of Bellaire, Texas.
      AFFIRMED IN PART; VACATED and REMANDED IN PART.




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