     Case: 13-31211      Document: 00512973749         Page: 1    Date Filed: 03/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-31211                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JON LEIGH SHOULDERS,                                                      March 18, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

LORENZO C. COLEMAN, Individually and in their official capacity as City
of Baton Rouge and Baton Rouge Police Department Officers,

              Defendant - Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                            USDC No. 3:09-CV-00494


Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jon Leigh Shoulders sued Lorenzo Coleman, an officer with the Baton
Rouge Police Department, for the use of excessive force in violation of the
Fourth Amendment. The district court refused to grant summary judgment to
Coleman on the basis of qualified immunity. Coleman appeals. We DISMISS
the appeal for lack of jurisdiction.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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               FACTUAL AND PROCEDURAL BACKGROUND
      In July 2008, Shoulders attended a concert in Baton Rouge, Louisiana.
In the concert arena, Coleman and another officer arrested Shoulders. They
removed him from the arena in order to issue a misdemeanor summons for
smoking marijuana. Coleman instructed Shoulders to stand with his hands on
the roof of Coleman’s vehicle while he wrote the summons. At one point,
Shoulders removed his hands from the vehicle and Coleman told him to put his
hands back on the vehicle. Shoulders complied.
      Before Coleman finished writing the summons, Coleman alleges he saw
Shoulders moving towards him with fists clenched. He alleges that, upon
seeing Shoulders move towards him, he struck Shoulders with a control
technique called the “Brachial Plexus Stun Maneuver,” which involved striking
the back of Shoulder’s neck with the edge of his right hand. The impact caused
Shoulders to lose consciousness, fall, and strike his head on the pavement. His
injuries included a fractured skull, brain bleeding, and permanent damage to
the frontal lobe of his brain.
      Shoulders filed suit against multiple defendants, including Coleman, for
damages under 42 U.S.C. § 1983 and Louisiana tort law. Coleman and the
other officers sued in their individual capacity filed a motion for summary
judgment on qualified immunity grounds. Shoulders voluntarily dismissed his
claims against all defendants except for Coleman. The district court denied
summary judgment, concluding there were disputes of material fact as well as
insufficient evidence to determine whether the force Coleman used was clearly
excessive and objectively unreasonable. Coleman appealed.
                                 DISCUSSION
      Coleman raises only one issue on appeal. He argues that the district
court erred when it denied qualified immunity because his actions in response


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to Shoulders were objectively reasonable in light of clearly established law at
the time of the incident.
      If this court has jurisdiction, it is under 28 U.S.C. § 1291 and the
collateral order doctrine. Although a denial of summary judgment is typically
not subject to appeal, defendants have a limited ability to contest the denial of
qualified immunity. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en
banc) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).         Under the
collateral order doctrine, we may immediately review a district court’s denial
of qualified immunity if it is “based on a conclusion of law.” Naylor v. State of
La., Dept. of Corr., 123 F.3d 855, 857 (5th Cir. 1997) (citations omitted). “[W]e
do not have jurisdiction to review the genuineness of any factual disputes but
can decide whether the factual disputes are material.” Kovacic v. Villarreal,
628 F.3d 209, 211 n.1 (5th Cir. 2010) (citations omitted). In addition, orders
denying qualified immunity “are not immediately appealable if they are based
on sufficiency of the evidence.” Naylor, 123 F.3d at 857 (citation omitted).
      “Where factual disputes exist in an interlocutory appeal asserting
qualified immunity, we accept the plaintiff[’s] version of the facts as true.”
Kinney, 367 F.3d at 348 (citations omitted). “In reviewing the district court’s
conclusions concerning the legal consequences – the materiality – of the facts,
our review is of course de novo.” Id. at 349 (citations omitted).
      Accordingly, if we have jurisdiction to review the denial of qualified
immunity, our analysis has two prongs. We first consider whether Shoulders
“has adduced sufficient evidence to raise a genuine [dispute] of material fact
suggesting [Coleman’s] conduct violated an actual constitutional right.”
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citation omitted).
“[W]e must then consider whether [Coleman’s] actions were objectively
unreasonable in light of clearly established law at the time of the conduct in
question.” Id. (citation and internal quotation marks omitted).
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      Under the Fourth Amendment, Shoulders had a right to be free from an
excessive use of force by police effecting a seizure. See Graham v. Connor, 490
U.S. 386, 394-95 (1989). Whether the force used was excessive or unreasonable
depends on “the facts and circumstances of each particular case.” Id. at 396.
“[R]elevant considerations include ‘the severity of the crime at issue, whether
the suspect pose[d] an immediate threat to the safety of the officers or others,
and whether he [was] actively resisting arrest or attempting to evade arrest by
flight.’” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (alterations in
original) (quoting Graham, 490 U.S. at 396). Our review of reasonableness
must also “‘allow[] for the fact that police officers are often forced to make split-
second judgments – in circumstances that are tense, uncertain, and rapidly
evolving – about the amount of force that is necessary in a particular
situation.’”   Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004)
(alterations in original) (quoting Graham, 490 U.S. at 396-97).
      The district court denied qualified immunity for two related reasons.
The court found that there was a genuine dispute of material fact as to “the
actions of Plaintiff that led to the relevant incident” and about “the
reasonableness of Defendant Coleman’s conduct,” making summary judgment
improper. The court explained its first finding – that there were genuine
disputes of material fact regarding reasonableness – by stating, “Coleman used
an extremely strong level of force to combat the least-serious level of
resistance.” The court held that Coleman’s actions were in “disproportion” to
Shoulder’s resistance. As to the factual issues regarding Coleman’s conduct,
the district court found an absence of evidence as to key details. Specifically,
the court noted that Coleman’s report merely stated that Shoulders “stepped
up” to Coleman with his “fist clench[ed].” It was undisputed that Shoulders did
not throw a punch. It was important to the district court that the police report
did not detail “the specific actions that Plaintiff took”; it only used the
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                                 No. 13-31211
ambiguous term “stepped up.”        The court contrasted the narratives in
Coleman’s deposition and written report with his separate report on his use of
force, saying the evidence provided more than one view of what happened.
      The district court found both that there was insufficient evidence to
explain Shoulders’ actions just before Coleman struck him, and that there were
disputes of material fact. For both reasons, no ruling on qualified immunity
could be made at that stage.
      Coleman argues that the facts the district court found were not
genuinely in dispute. For example, Coleman quotes at length from his own
deposition, then argues: “This testimony makes clear that [Coleman]
reasonably perceived himself to be in danger of receiving an imminent physical
attack upon his person.” We have already discussed that a district court’s
determination that there are factual disputes is unreviewable on interlocutory
appeal; the party challenging the denial of qualified immunity must instead
show those disputes do not concern material facts, and Coleman fails to do so.
See Kovacic, 628 F.3d at 211 n.1. The district court also found there was
insufficient evidence of what Coleman saw and would have perceived to be a
threat. In this “interlocutory appeal we cannot challenge the district court's
assessments regarding the sufficiency of the evidence – that is, the question
whether there is enough evidence in the record for a jury to conclude that
certain facts are true.” Kinney, 367 F.3d at 347 (citation omitted).
      We DISMISS Coleman’s appeal for lack of jurisdiction.




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