     Case: 19-50028      Document: 00515394052         Page: 1    Date Filed: 04/24/2020




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


                                      No. 19-50028
                                                                                  FILED
                                                                              April 24, 2020
                                                                             Lyle W. Cayce
JUSTIN SCOTT,                                                                     Clerk

              Plaintiff - Appellee

v.

OFFICER GREGORY WHITE, also known as Greg White,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CV-1287


Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellant Sergeant Gregory White appeals from the district court’s order
denying him summary judgment based on qualified immunity. We DISMISS
for want of jurisdiction.
                                    BACKGROUND
       Appellee Justin Scott filed a 42 U.S.C. § 1983 action against White in
federal district court, alleging that White violated his Fourth Amendment


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50028
rights to be free from unreasonable search, unreasonable seizure, and the use
of excessive force, and Fourteenth Amendment right to due process. Scott also
brought § 1983 claims against the City of Austin, Texas, based on an alleged
policy and practice of permitting the use of excessive force and an alleged
failure to adequately train or supervise its officers.
       The district court dismissed each of Scott’s claims except for his excessive
force claim against White.          On that claim, White’s motion for summary
judgment based on qualified immunity was denied.
                       SUMMARY JUDGMENT EVIDENCE 1
       In February 2015, White, a sergeant with the Austin Police Department,
responded to a 911 call about a suspicious person. On arrival at the scene,
White saw Scott. White asked Scott several questions, such as whether Scott
had an identification card and whether he was with anyone else. Scott was
generally unresponsive. However, when asked whether he had a weapon on
him, Scott said, “No.” During this exchange, Scott held a circular object with
both hands at his stomach. 2
       After Scott said that he did not have any weapons on him, White moved
to Scott’s left side and grabbed Scott’s left hand. White did not grab the circular
object, which Scott continued to hold with his right hand at his stomach. White
then instructed Scott to drop the circular object. In response, Scott moved his



       1   The facts recounted in this Section are gleaned from the record on appeal,
particularly an audiovisual recording of the encounter from White’s police vehicle dashcam
and a transcript of the recording. The video may be accessed via the following internet link:
http://www.ca5.uscourts.gov/opinions/unpub/19/19-50028.mp4.
        2 The Austin Police Department’s General Offense Hardcopy—a type of police report—

regarding the incident includes a supplement to the initial incident report in which Joseph
Herman Hebbe states that he gathered Scott’s personal belongings and retrieved from the
scene “a[n] unknown plastic/metallic object approximately 3” to 4” in diameter and .5” in
height which may have weighed approximately 1 pound.” Hebbe adds, “The unknown object
was similar in size and shape of a coaster used for drinking glasses.”

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                                        No. 19-50028
right hand from his stomach down to his right side, continuing to hold onto the
object. The video does not depict Scott actively resisting White’s hold on his
left hand. It is at this point that White hit Scott’s head or neck from behind,
grabbed Scott’s abdomen with both hands from behind, pushed Scott onto the
ground, and rolled on top of Scott. White’s use of force up until this point is his
initial use of force. 3
       Once on the ground, Scott twisted and turned underneath White as
White repeatedly punched, elbowed, and kneed Scott. Contemporaneously,
Scott covered his head with his hands, screamed, and—at times—curled his
legs inward. Meanwhile, White repeatedly instructed Scott to put his hands
behind his back. White then held Scott down and tasered him. As he was
being tasered, Scott moved his hands onto White’s left arm.
       Afterward, White continued hitting Scott. White then said, “Let go of
my taser,” punched Scott repeatedly, rolled Scott back onto his stomach, and
then resumed punching Scott as Scott screamed. (Later, White told another
officer who arrived on the scene that he “got tased” and that “[Scott] took my
taser from me and tased me.”) 4 White repeated, “Put your hands behind your


       3   There are two distinct times when White uses force: (1) before Scott is on the ground,
and (2) once Scott is on the ground. To distinguish between these uses of force, we—as did
the district court—refer to White’s use of force before Scott is on the ground as White’s “initial
use of force” and White’s uses of force once Scott is on the ground as White’s “subsequent use
of force.”
         4 During his deposition, Scott stated that, “while I was being tased[,] . . . my hand

grabbed [White’s] arm at the same time, and it went through him, got him.” When asked
whether he had the taser in his hand, he said, “yeah, it was in my hand at that point.” But
when asked why he picked up the taser, he said, “I didn’t pick it up. It was kind of – I don’t
know how to describe how it happened.” When asked again whether he had the taser in his
hand, Scott said, “No . . . . I said at one point I grabbed his arm, and he got tased through me.
. . .” In a recorded interview, Scott also said that he grabbed the taser, but then explained,
“I don’t – I wasn’t in control, like, at that point. I was just, like – my body was, like shaking.
Like, I – I was – I was protecting myself.” Scott’s expert Kimberly Bustos, relying in part on
the video of the incident, interprets Scott’s actions once he was on the ground as defensive
rather than resistive. Bustos states that it appears that Scott attempted to comply with

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                                       No. 19-50028
back” several times, and Scott said, “I can’t.” White then put his whole body
on top of Scott and remained on Scott until other officers arrived on the scene.
White’s use of force once Scott was on the ground is White’s subsequent use of
force.
         White and Scott were treated for injuries after the incident. White broke
his right ring finger during his encounter with Scott. White states that he
“believe[s]” he broke his finger when “we were struggling over my Taser.”
However, he also states that the broken finger “possibly occurred from
delivering strikes.” 5      Scott complained of throbbing to his forehead, and
emergency medical services (EMS) personnel noted “various facial abrasions”
without significant bleeding.         EMS personnel also removed a taser probe
embedded in Scott’s chest. At a hospital after the incident, Scott was diagnosed
with “[f]acial abrasion” and “[h]ead contusion.”
                               STANDARD OF REVIEW
         This court has jurisdiction over appeals from a district court’s final
decision. 28 U.S.C. § 1291. “Ordinarily, we do not have jurisdiction to review
a denial of a summary judgment motion because such a decision is not final
within the meaning of 28 U.S.C. § 1291.” Perniciaro v. Lea, 901 F.3d 241, 250
(5th Cir. 2018) (citation and internal quotation marks omitted). But “the
denial of qualified immunity on a motion for summary judgment is
immediately appealable if it is based on a conclusion of law.” Id. (citation and
internal quotation marks omitted).             “We have no jurisdiction to hear an
interlocutory appeal, however, when a district court’s denial of qualified
immunity rests on the basis that genuine issues of material fact exist.”
Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir. 2005).


White’s commands, but “it [was] physically impossible for . . . Scott to place his hands behind
his back,” and “Scott [was] not seen attempting to use the Taser against [White].”
       5 White told other officers, “I was punching the sh[*]t out of [Scott].”

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                                  No. 19-50028
      “Because of this case’s posture, . . . review is limited to determining
whether the factual disputes that the district court identified are material to
the application of qualified immunity.” Samples v. Vadzemnieks, 900 F.3d 655,
660 (5th Cir. 2018) (emphasis omitted). The plaintiff carries the burden to
rebut the defense of qualified immunity. Brown v. Callahan, 623 F.3d 249, 253
(5th Cir. 2010). Nonetheless, “[w]e accept the plaintiff’s version of the facts as
true and review it through the lens of qualified immunity.” Samples, 900 F.3d
at 660; see also Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (“[T]he facts [must
be] taken in the light most favorable to the party asserting the injury[.]”)
(internal quotation marks, citation, and brackets omitted). “If the defendant
would still be entitled to qualified immunity under this view of the facts, then
any disputed fact issues are not material, the district court’s denial of summary
judgment was improper, and we must reverse; otherwise, the disputed factual
issues are material and we lack jurisdiction over the appeal.” Lytle v. Bexar
Cty., 560 F.3d 404, 409 (5th Cir. 2009). Put another way, “[i]f a factual dispute
must be resolved to make the qualified immunity determination, that fact issue
is material and we lack jurisdiction over the appeal.” Manis v. Lawson, 585
F.3d 839, 843 (5th Cir. 2009). The court reviews the materiality of factual
disputes and the district court’s legal conclusions de novo.        Hampton v.
Oktibbeha Cty. Sheriff Dep’t, 480 F.3d 358, 364 (5th Cir. 2007).
                                 DISCUSSION
      White raises three issues on appeal: whether the district court erred in
(1) relying on unsupported allegations and evidence outside the summary
judgment record, (2) holding that Scott’s physical injuries are not categorically
de minimis, and (3) holding that White is not entitled to qualified immunity at
the summary judgment stage. We address each issue.
      First, the court lacks jurisdiction to consider White’s arguments that the
district court erred in relying on mere allegations and evidence outside the
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                                       No. 19-50028
summary judgment record. Behrens v. Pelletier, 516 U.S. 299, 313 (1996)
(“[D]eterminations of evidentiary sufficiency at summary judgment are not
immediately appealable merely because they happen to arise in a qualified-
immunity case[.]”) (citing Johnson v. Jones, 515 U.S. 304, 313–318 (1995));
Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000) (“In deciding an
interlocutory appeal of a denial of qualified immunity, we can review the
materiality of any factual disputes, but not their genuineness.”) (emphasis in
original).
       Second, White’s argument that Scott’s physical injuries are categorically
de minimis as a matter of law is unavailing. White relies on Westfall v. Luna
for this proposition. 903 F.3d 534 (5th Cir. 2018). White reads Westfall too
broadly. In Sam v. Richard, for example, we held:
       Although a de minimis injury is not cognizable, the extent of injury
       necessary to satisfy the injury requirement is directly related to
       the amount of force that is constitutionally permissible under the
       circumstances. Any force found to be objectively unreasonable
       necessarily exceeds the de minimis threshold, and, conversely,
       objectively reasonable force will result in de minimis injuries only.
       . . . In short, as long as a plaintiff has suffered some injury, even
       relatively insignificant injuries and purely psychological injuries
       will prove cognizable when resulting from an officer’s
       unreasonably excessive force.
887 F.3d 710, 713 (5th Cir. 2018) (quoting Alexander v. City of Round Rock,
854 F.3d 298, 309 (5th Cir. 2017)) (emphasis and italics omitted). Accordingly,
Scott’s physical injuries are not categorically de minimis as a matter of law. 6


       6  Relatedly, White argues that his initial uses of force caused no injury. But the
medical records are silent as to the cause of Scott’s injuries and are consistent with Scott’s
account that the injuries he sustained are related to both White’s initial and subsequent uses
of force. See Anderson v. McCaleb, 480 F. App’x 768, 772 (5th Cir. 2012) (unpublished) (right-
hand fracture a plaintiff sustained was “arguably consistent” with the plaintiff’s account that
the fracture was related to his arrest where the “medical records [were] silent as to the cause
of the fracture” and additionally showed “an abrasion and contusion” of the plaintiff’s right

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                                       No. 19-50028
       Third, the district court correctly determined that disputes of material
fact exist, precluding summary judgment. The district court considered the
totality of the circumstances, construed the evidence in the light most
favorable to Scott, and viewed Scott’s version of events as a reasonable officer
on the scene would have to correctly hold that a reasonable jury could
determine that White’s use of force was objectively unreasonable and therefore
in violation of Scott’s Fourth Amendment right to be free from excessive force.
See Darden v. City of Fort Worth, 880 F.3d 722, 728–29 (5th Cir. 2018). The
video evidence does not “utterly discredit[]” Scott’s allegations regarding
White’s initial and subsequent uses of force such that “no reasonable jury could
have believed [Scott].” Scott v. Harris, 550 U.S. 372, 380 (2007); see also
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (“A court of
appeals need not rely on [a] description of the facts where the record discredits
that description but should instead consider the facts in light depicted by the
videotape.”) (citation and internal quotation marks omitted).
       Further, the district court correctly determined that clearly established
law at the time of White’s violation prohibited his use of force given the
circumstances and construing the evidence in the light most favorable to Scott.
See Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 (2018); see also Darden, 880
F.3d at 729–32 (describing clearly established law as of May 2013 and stating
that “a constitutional violation occurs when an officer tases, strikes, or
violently slams an arrestee who is not actively resisting arrest”); Hanks v.
Rogers, 853 F.3d 738, 747 (5th Cir. 2017) (describing clearly established law as
of February 2013 and stating that excessive force is established where an
officer “abruptly resorts to overwhelming physical force rather than continuing


wrist, even though the plaintiff said “at the time that the fracture was an old injury”). “At
this stage and without evidence that blatantly contradicts [Scott’s] account, [we are] required
to take [Scott’s] version of events as true.” Id. (citing Lytle, 560 F.3d at 409).
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                                 No. 19-50028
verbal negotiations with an individual who poses no immediate threat or flight
risk, [and] who engages in, at most, passive resistance”); Trammell v. Fruge,
868 F.3d 332, 343 (5th Cir. 2017) (holding that “the law [as of January 2013]
clearly established that it was objectively unreasonable for several officers to
tackle an individual who was not fleeing, not violent, not aggressive, and only
resisted by pulling his arm away from an officer’s grasp”) (citing Goodson v.
City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)).
      Accordingly, issues of material fact exist, and we lack jurisdiction over
this appeal.
                                CONCLUSION
      For the foregoing reasons, we DISMISS this appeal for want of
jurisdiction.




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