     Case: 12-30527       Document: 00512355915         Page: 1     Date Filed: 08/28/2013




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

                                                                            FILED
                                                                          August 28, 2013

                                       No. 12-30527                        Lyle W. Cayce
                                                                                Clerk

LATRINA D. THOMAS, Tutrix, on behalf of Ka’Dary Da’Shun Thomas,

                                                  Plaintiff–Appellee,
v.

SCOTT NUGENT, individually and in his official capacity as police officer for
the City of Winnfield,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CV-1167


Before JOLLY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
       Latrina D. Thomas brought suit on behalf of her minor son seeking
damages for the death of her son’s father, Baron Pikes. The district court denied
Officer Scott Nugent’s assertion of qualified immunity as to Thomas’s excessive
force claim. We reverse and remand for dismissal of the claims against Nugent.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                        I
      Thomas contends that Officer Nugent used excessive force when Pikes was
tased eight times on the evening that Nugent and another officer, Cargyle
Branch, arrested Pikes.     An active felony warrant for Pikes’s arrest was
outstanding when Officer Nugent spotted Pikes as he was walking along a
sidewalk. Nugent called for backup. He had prior dealings with Pikes and
considered him a flight risk. Officer Branch arrived in a separate vehicle, and
when Branch stepped out and tried to speak to Pikes, Pikes ran. The ensuing
foot chase lasted approximately three minutes and ended when Officer Branch
pointed his firearm at Pikes and ordered him to the ground. Pikes complied, and
the officers handcuffed him. Pikes was breathing heavily.
      The officers then directed Pikes, who was six feet tall and weighed 247
pounds, to stand up, but he refused to comply. A witness at a nearby business
heard Pikes say, “oh, ya’ll just drag me, take me, carry me.” This witness heard
the officers repeatedly ask Pikes to get up and walk, and when Pikes did not
accede, the officers said that they would count to three, then tase him. They
counted to three, and when Pikes did not arise, they again asked him to get up
and walk and told him that they would count to three again, which they did.
After counting to three a second time and yelling “taser, taser” without
movement on Pikes’s part, they then tased Pikes in “drive stun” mode in the
middle of Pikes’s back. This mode of delivery is utilized as a compliance
procedure because it causes temporary and localized pain, as opposed to “probe
mode,” which results in incapacitation.
      The officers contend that Pikes rolled away from the first administration
of the taser in stun mode and that the taser device then deployed “at point blank
range.” Thomas contends that the probes pierced Pikes’s flesh and that he
received a “probe mode” shock, though Thomas concedes that all taser shocks
except for this one were in drive stun mode. We accept Thomas’s version of the

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                                        No. 12-30527
facts as true.1 Pikes then got up and walked about ten feet before falling to his
knees. Nugent gave another verbal warning and administered another drive
stun (the second stun) to the middle of Pikes’s back. Nugent told Pikes that if
he did not get up, Nugent would tase him again. Pikes did not comply, and
Nugent tased Pikes a third time in drive stun mode. Nugent and Branch then
tried to lift Pikes, but he refused to get up and told the officers that he would not
go with them. After ordering Pikes to get up several more times, and issuing
another verbal warning, Nugent tased Pikes for a fourth time in drive stun
mode.
        Pikes then stood up and walked as far as a concrete barrier but stopped
at that barrier and laid across it, asking the officers to leave him there so that
he could die. The officers ordered him to get up so that they could get him into
a law enforcement vehicle and, after warning him, tased him a fifth time in drive
stun mode. He did not comply, and the officers repeated this sequence, stunning
Pikes a sixth time in drive stun mode. At that point, Pikes said that he would
go, the officers helped him up, and he walked until he came to a parking lot, at
which point he fell down. Pikes asked for help to get up, the officers assisted
him, and he was placed into Officer Branch’s vehicle. Approximately twelve
minutes had expired since Pikes was handcuffed.
        During the drive to the police department, Pikes told Branch, “I’m dead
anyway, I’m dead anyway.” Upon arrival at the police department, Pikes would
not exit the vehicle, saying that he “wanted to stay in the car so he could die.”
Nugent performed a spark test on the stun gun device thinking that it might



        1
         Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013) (citing Haggerty v. Tex. S.
Univ., 391 F.3d 653, 655 (5th Cir.2004) (“In an interlocutory appeal in which the defendant
asserts qualified immunity, to the extent that the district court found that genuine factual
disputes exist, we accept the plaintiff's version of the facts (to the extent reflected by proper
summary judgment evidence) as true.”)).
.

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motivate Pikes. When Pikes did not exit, Nugent warned him that he would tase
him and did so, in drive stun mode, to Pikes’s upper right chest, by his shoulder.
While being tased (for the seventh time), Pikes said that he would get out, and
Nugent stopped the shock after two seconds rather than allowing the device to
complete an automatic five second cycle.
      Nugent helped Pikes out of the vehicle, and Pikes dropped to the ground.
Nugent asked Pikes to get up and Pikes responded that he would not. Nugent
again warned him and then administered another, the eighth and last, shock in
drive stun mode to the middle of Pikes’s back.
      Pikes did not respond, and Nugent and another officer picked him up and
“had to drag him” into the police department building. They placed him in a
chair, but Pikes fell off the chair more than once. When Nugent asked Pikes
what drugs he had taken, Pikes said that he had taken PCP and crack, but
subsequent analysis showed only marijuana in his system. Pikes was “breathing
kind of heavy,” and Nugent immediately requested an ambulance.
      Paramedics arrived and found Pikes on the floor, unresponsive. After
being administered a sternum rub, Pikes regained consciousness and mumbled
a few words. Paramedics attached heart monitor leads, but Pikes stopped
breathing while the paramedics were placing blood pressure cuffs on him.
Paramedics began resuscitation efforts and continued them as Nugent drove the
ambulance to the hospital. Pikes was “flat lining” at this point. After treatment
at the hospital for about an hour, Pikes was pronounced dead. An autopsy
revealed that Pikes’s red blood cells had sickled before his death. The officers
did not know that Pikes had sickle cell anemia. However, the cause of Pikes’s
death is not at issue.
      Thomas sued Officer Nugent, alleging that he violated Pikes’s
constitutional rights under the Fourth and Fourteenth Amendments by using
excessive force and because he was deliberately indifferent to Pikes’s need for

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                                        No. 12-30527
medical attention. Officer Nugent moved for summary judgment on the ground
of qualified immunity. Although the district court granted the motion as to the
deliberate indifference claim, it denied summary judgment as to excessive force.
Officer Nugent now appeals this denial of summary judgment.
                                              II
       “The denial of a motion for summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine ‘to the
extent that it turns on an issue of law.’”2 This means that when “the district
court finds that genuinely disputed, material fact issues preclude a qualified
immunity determination, this court can review only their materiality, not their
genuineness.”3 “Whether there are material issues of fact is reviewed de novo.”4
                                             III
       “The doctrine of qualified immunity serves to shield a government official
from civil liability for damages based upon the performance of discretionary
functions if the official’s acts were objectively reasonable in light of then clearly
established law.”5 This privilege “is an immunity from suit rather than a mere
defense to liability;” accordingly, “it is effectively lost if a case is erroneously
permitted to go to trial.”6




       2
         Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)).
       3
        Manis v. Lawson, 585 F.3d 839, 842 (5th Cir. 2009); see also White v. Balderama, 153
F.3d 237, 240 (5th Cir. 1998) (per curiam) (“[W]e possess jurisdiction to hear an interlocutory
appeal challenging the materiality of the fact issues that led the district court to deny
summary judgment but . . . we lack jurisdiction to hear interlocutory appeals challenging the
genuineness of those fact issues.”).
       4
           Manis, 585 F.3d at 843.
       5
           Thompson v. Upshur Cnty., TX, 245 F.3d 447, 456 (5th Cir. 2001).
       6
           Mitchell, 472 U.S. at 526.

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                                         No. 12-30527
       The qualified immunity defense has two prongs: (1) whether an official’s
conduct violated the plaintiff’s clearly established constitutional rights, and
(2) whether the government official’s conduct was objectively reasonable in light
of clearly established law.7 Once a defendant pleads qualified immunity, the
plaintiff has the burden to rebut this defense by establishing genuine issues of
fact as to both prongs.8 The plaintiff must offer more than “mere allegations” in
order to negate the defense of qualified immunity.9 “A court may rely on either
prong of the defense in its analysis” and may conduct its inquiry in any
sequence.10
       We consider only the second prong of the qualified immunity analysis
because it resolves this appeal. Thomas did not raise a material dispute as to
whether Officer Nugent’s actions were objectively reasonable in light of clearly
established law.
       The “clearly established” standard “does not mean that officials’ conduct
is protected by qualified immunity unless ‘the very action in question has
previously been held unlawful.’”11 But neither does an official lose qualified
immunity “merely because a certain right is clearly established in the
abstract.”12 In other words, the fact that the abstract right to be free from
excessive force is clearly established does not categorically negate qualified
immunity. “Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified

       7
           Thompson, 245 F.3d at 457.
       8
           See, e.g., Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
       9
           Manis, 585 F.3d at 843 (internal quotation marks omitted).
       10
         Brown, 623 F.3d at 253 (citing Manis, 585 F.3d at 843); see also Pearson v. Callahan,
555 U.S. 223, 242 (2009).
       11
        Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
       12
            Id.

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                                            No. 12-30527
immunity . . . into a rule of virtually unqualified liability simply by alleging
violation of extremely abstract rights.’”13                The “central concept” is “fair
warning,”14 which means that an officer is entitled to qualified immunity unless
“all but the plainly incompetent or those who knowingly violate the law” would
have known that the conduct at issue violated constitutional rights.15
       Thomas relies on Bryan v. McPherson16 and Newman v. Guedry17 to show
that Officer Nugent’s use of force was unreasonable. Bryan and Newman,
however, are distinguishable from the circumstances of this case. In Bryan, the
Ninth Circuit described the impact of a taser as paralyzing the muscles
throughout the body and causing excruciating pain.18 In light of that holding,
Thomas asserts that Officer Nugent’s repeated tasering was “grossly
disproportionate to the nature of the threat.” However, in Bryan the officer had
stopped a driver for failing to wear a seatbelt and while the driver, Bryan, was
standing beside his vehicle, the officer aimed the taser device at Bryan’s bare
chest in probe mode and, without any warning, tasered Bryan when he took “one
step” toward the officer.19 One of the metal probes lodged in Bryan’s arm, and



       13
            Manis, 585 F.3d at 846 n.4 (5th Cir. 2009) (quoting Anderson, 483 U.S. at 639).
       14
            Kinney, 367 F.3d at 350 (internal quotation marks omitted).
       15
          Manis, 585 F.3d at 845 (internal quotation marks omitted); see also Thompson v.
Upshur Cnty., TX, 245 F.3d 447, 460 (5th Cir. 2001) (“[W]hen the defendant moves for
summary judgment based on qualified immunity, it is the plaintiff’s burden to demonstrate
that all reasonable officials similarly situated would have then known that the alleged acts
of the defendants violated the United States Constitution.”).
       16
         590 F.3d 767 (9th Cir. 2009), withdrawn and superseded, 608 F.3d 614 (9th Cir.
2010), withdrawn and superseded, 630 F.3d 805 (9th Cir. 2010).
       17
            703 F.3d 757 (5th Cir. 2012).
       18
            Bryan, 590 F.3d at 772-73.
       19
            Bryan, 590 F.3d at 771.

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it had to be surgically removed.20 The electrical current delivered during the
tasing paralyzed Bryan and caused him to fall face-first onto pavement.21 Four
of his teeth were broken as a result.22 In the present case, there is no indication
that Nugent intended for the taser device to discharge in probe mode. Moreover,
Pikes thereafter failed to comply with the officers’ numerous requests to get up
and walk with them to the police vehicle. The Ninth Circuit’s decision in Bryan
does not clearly establish that tasering Pikes under the circumstances of this
case would constitute excessive force. With regard to tasering in drive stun
mode, the Ninth Circuit, in Brooks v. City of Seattle,23 granted qualified
immunity in part because unlike probe mode,24 drive stun mode caused only
temporary, localized pain and was authorized by the Seattle Police Department’s
use of force guidelines as a compliance mechanism.25 Likewise here, Officer
Nugent testified that the Winnfield City Police Department authorized taser use
in drive stun mode in the face of passive resistance.26
       In Newman, we considered an excessive force claim against an officer who
had repeatedly tasered the plaintiff.27 The officer asserted he had no reasonable



       20
            Id. at 773.
       21
            Id.
       22
            Id.
       23
         599 F.3d 1018 (9th Cir. 2010), aff’d on reh’g sub nom. Mattos v. Agarano, 661 F.3d
433 (9th Cir. 2011) (en banc). The final iteration of Bryan acknowledges this distinction as
well. 630 F.3d 805, 820 (9th Cir. 2010).
       24
            Referred to as “dart mode” by the Ninth Circuit.
       25
            Brooks, 599 F.3d at 1026.
       26
          See Gutierrez v. City of San Antonio, 139 F.3d 441, 448-49 (5th Cir. 1998) (noting
that a memo reminding officers of the prohibition of a particular police practice was material
to assessing the objective reasonableness of the officer’s conduct).
       27
            Newman v. Guedry, 703 F.3d 757, 760 (5th Cir. 2012).

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warning that tasering a suspect multiple times was a constitutional violation
because “there was then no binding caselaw on the appropriate use of tasers.”28
Although we agreed with the officer, we held also that “in an obvious case, the
Graham excessive-force factors themselves can clearly establish the answer,
even without a body of relevant case law.”29 These factors aid in assessing the
reasonableness of the force used by considering (1) “the severity of the crime at
issue,” (2) “whether the suspect poses an immediate threat to the safety of the
officers or others,” and (3) whether he is actively resisting arrest or attempting
to evade arrest by flight.”30
      Thomas asserts that just as in Newman, the Graham excessive-force
factors clearly establish the answer in this case such that a body of relevant case
law is unnecessary. But as with Bryan, Newman is also distinguishable from
the facts of this case. In Newman, the suspect had committed no crime, posed
no threat to anyone’s safety, and did not resist the officers or fail to comply with
a command.31 In fact, the plaintiff claimed he was tasered repeatedly despite
never being given any command by the officers.32 The facts in another recent
decision of this court, Ramirez v. Martinez,33 are somewhat similar to those in
Newman.34        In contrast, Pikes was arrested pursuant to an active felony
warrant, attempted to evade arrest, was subdued only through the threat of
deadly force, and did not comply with the officers’ repeated requests to cooperate

      28
           Id. at 763.
      29
           Id. at 764 (internal quotation marks omitted).
      30
           Graham v. Connor, 490 U.S. 386, 396 (1989).
      31
           Newman, 703 F.3d at 764.
      32
           Id. at 763.
      33
           716 F.3d 369 (5th Cir. 2013).
      34
           Ramirez, 716 F.3d at 378.

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                                           No. 12-30527
in effectuating the arrest. Thus, this case does not provide an “obvious” example
of excessive force such that Thomas satisfied her burden to demonstrate that
Officer Nugent’s use of force was unreasonable under clearly established law.35
       Because Bryan and Newman are distinguishable from the circumstances
in this case, Thomas has presented no law to support the unreasonableness of
Officer Nugent’s actions. Thomas has not met her burden to show that Officer
Nugent’s use of force was unreasonable such that qualified immunity would not
apply.36
                                       *        *         *
       For the foregoing reasons, we REVERSE the district court’s denial of
summary judgment and REMAND for dismissal of Thomas’s claims against
Officer Nugent.




       35
          See Poole v. City of Shreveport, 691 F.3d 624, 625-26, 629 (5th Cir. 2012) (holding that
police officer’s use of force and tasering the plaintiff during an arrest was not objectively
excessive or clearly unreasonable when the plaintiff resisted arrest and did not comply with
requests). Essentially the only evidence in the record about the reasonableness or
unreasonableness of the force applied comes from the arresting and jail officers.
Consequently, although there were numerous tasings, which certainly raises suspicion as to
the excessiveness of force, none of the evidence shows that the tasings were an unreasonable
response under the circumstances reflected in the record before us.
       36
        See Sama v. Hannigan, 669 F.3d 585, 591 (5th Cir. 2012) (citing Kovacic v. Villarreal,
628 F.3d 209, 211-12 (5th Cir. 2010)) (“Once raised, the burden shifts to the plaintiff . . . .”).

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