Ryan David ZIMMERMAN, Plaintiff-Appellant v. Gary CUTLER; Curtis Jackson; Corporal Molandes; Tina Henry; Constance Newberry; Preston Dodson; Rusty Doherty; Lewis Garcia; James Henry; Michael Kloss; Dustin Oliver; Jacob Wardlow; Lee Harris; Howard E. Williams, Defendants-Appellees
No. 15-50424
United States Court of Appeals, Fifth Circuit
September 20, 2016
V. Conclusion
For the foregoing reasons, we AFFIRM the district court‘s denial of McMillon‘s motion to suppress; AFFIRM the court‘s denial of McMillon‘s motion to dismiss; AFFIRM each of McMillon‘s convictions; and AFFIRM the district court‘s denial of a
Michael Mowla, Cedar Hill, TX, for Plaintiff-Appellant
Eric Alexander Johnston, Esq., Michael A. Shaunessy, McGinnis, Lochridge & Kilgore, L.L.P., Austin, TX, for Defendants-Appellees Curtis Jackson, Corporal Molandes, Tina Henry, Constance Newberry, Preston Dodson, Rusty Doherty, Lewis Garcia, James Henry, Michael Kloss, Dustin Oliver, Jacob Wardlow
Joanna Lippman Salinas, Esq., Fletcher, Farley, Shipman & Salinas, L.L.P., Austin, TX, for Defendants-Appellees Lee Harris and Howard E. Williams
Before DENNIS, ELROD, and GRAVES, Circuit Judges.
Ryan Zimmerman appeals from the grant of summary judgment dismissing his
BACKGROUND
Plaintiff-Appellant Ryan Zimmerman spent the evening of February 14, 2012, meeting with friends at bars near his apartment in San Marcos, Texas. At around two o‘clock in the morning, Zimmerman and his roommate noticed that a show was ending at a nearby music venue and decided to walk over. Zimmerman‘s roommate went inside the venue to find a friend while Zimmerman waited outside. Among the people exiting the theater, Zimmerman noticed a man with whom he had previously had a verbal dispute. Upon seeing each other, Zimmerman and this man resumed their earlier disagreement and began trading insults. Zimmerman walked alongside the man down the sidewalk as he and the man insulted and cursed one another. As they entered a crosswalk and began to walk across an intersection, the man stopped and turned to face Zimmerman. At that point, according to Zimmerman, the argument got “more heated,” becoming an intense “standoff.” Neither man, however, raised a hand against the other.
A few seconds after the two men stopped in the middle of the street to face each other, a car pulled up, which Zimmerman quickly realized was a police car. Upon seeing the police car, Zimmerman turned and ran back toward the theater. Officer Lee Harris, of the San Marcos Police Department, exited his squad car and gave chase. As Zimmerman neared an alleyway next to the theater, he was struck in the back by a single shot from Harris‘s Taser and fell to the ground. When a second officer asked Zimmerman why he fled, Zimmerman responded that it was because he did not wish to talk to the officer. Zimmerman was handcuffed and placed in Harris‘s squad car.
Harris next drove Zimmerman to the Hays County Jail. During the car ride, Zimmerman was extremely angry and complained that the handcuffs hurt his wrists. By the time Harris accompanied Zimmerman into the jail, the tension between the two had dissipated and they had established a jocular rapport.
Upon intake, Zimmerman was asked about his medical conditions and indicated that he had high blood pressure, had previously had four knee surgeries, and had lacerations on his right elbow and right hand. The cuts on Zimmerman‘s arm were from falling on the ground after he was shot with the Taser, and were not particularly deep. A medic at the jail cleaned and applied a bandage to the cuts on Zimmerman‘s arm. While his arm was being cleaned, Zimmerman mentioned that it was “in pretty bad shape.” He testified that he may also have said, “I hope my arm is not broken.” Once Zimmerman‘s arm was bandaged, Harris left and Zimmerman was placed in a cell. Zimmerman did not request additional medical attention. Zimmerman was later taken to arraignment, during which time he clutched his arm to his side because it was causing him pain. Zimmerman was finally released at around eleven o‘clock in the morning. A couple of hours after being released, Zimmerman went to the emergency room and
Zimmerman eventually pleaded “no contest” to charges of disorderly conduct and public intoxication in exchange for dismissal of the evading arrest charge and received three months of deferred disposition probation.
In 2014, Zimmerman filed the underlying complaint in Texas state court. Zimmerman brought claims against: (1) Harris for unlawful arrest, excessive force, and deliberate indifference to serious medical needs; (2) Howard Williams, the Chief of Police of the San Marcos Police Department, for failure to train his officers not to arrest persons suspected of Class C misdemeanors and not to use excessive force; (3) Gary Cutler, the Sheriff of Hays County, for failure to train his deputies and jailers that prisoners have a right to medical care and that deliberate indifference to a prisoner‘s injury violates the prisoner‘s rights; and (4) sixteen individual Hays County Sheriff‘s Office employees for deliberate indifference to a serious medical need. The defendants removed the case to federal court. The district court subsequently granted Zimmerman‘s motion to dismiss four of the individual Sheriff‘s Office employees. The remaining defendants next moved for summary judgment on all claims. The district court granted their motions, and Zimmerman timely appealed. On appeal, Zimmerman challenges the grant of summary judgment as to all claims, with the exception of the failure-to-train claim against Cutler, the Sheriff of Hays County.
STANDARD OF REVIEW
We review a district court‘s summary judgment decision de novo. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
DISCUSSION
I. Unlawful Arrest by Harris
Zimmerman alleges that Harris violated his Fourteenth Amendment rights by ar-
A. Probable Cause to Arrest for Evading Arrest or Detention
Zimmerman was arrested for Evading Arrest or Detention. See
A person violates Texas‘s evading detention statute “if he intentionally flees from a person he knows is a peace officer ... attempting lawfully to arrest or detain him.”
“Although an officer‘s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations omitted) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). In Texas, a person commits the offense of disorderly conduct if he, inter alia, “abuses or threatens a person in a public place in an obviously offensive manner” or “fights with another in a public place.”
Here, Zimmerman testified that he had consumed five or six alcoholic beverages over the course of the evening in question, and that he and another man stopped to face each other in the middle of a street, engaged in a heated “standoff” that did not come to blows. Viewing the facts in the light most favorable to Zimmerman, the evidence shows that Harris saw Zimmer-
B. Arrest for a Class C Misdemeanor
Zimmerman also claims that his Fourteenth Amendment due process rights were violated when he was arrested and required to post bond for a Class C misdemeanor.1 Zimmerman‘s unlawful arrest claim must be analyzed under the Fourth Amendment, not the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (applying Fourth Amendment to excessive force claim). The Supreme Court has made clear that a citizen‘s Fourth Amendment rights are not violated when he is lawfully arrested on a non-jailable offense. Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.“). Moreover, we have held that “requiring a defendant charged with a non-jailable offense to post bond insures that he will appear for trial” and does not violate the defendant‘s constitutional rights. Gladden v. Roach, 864 F.2d 1196, 1200 (5th Cir. 1989). We therefore find Zimmerman‘s unlawful arrest claim without merit.
II. Excessive Force by Harris
Zimmerman next alleges that Officer Harris violated his Fourth Amendment rights by exercising excessive force in carrying out Zimmerman‘s arrest. Harris is entitled to qualified immunity on the excessive force claim only if, viewing the evidence in the light most favorable to Zimmerman and drawing reasonable inferences therefrom in his favor, Zimmerman has failed to raise a dispute of material fact as to: (1) whether Harris violated Zimmerman‘s constitutional right not to be subjected to excessive force; or (2) whether such right was clearly established at the time of the challenged conduct. See Tolan, 134 S.Ct. at 1865-66.
The parties, like the district court, focus on the second prong of the qualified immunity analysis—whether it was “clearly established” in February 2012 that deploying a Taser to stop a person reasonably suspected of a misdemeanor violated the Fourth Amendment. A right is “clearly
Zimmerman relies heavily on two cases from other circuits to support his position, but neither involved the one-time application of a Taser to an actively-fleeing or actively-resisting suspect. In Goodwin v. City of Painesville, 781 F.3d 314 (6th Cir. 2015), the Sixth Circuit denied qualified immunity to police officers who had entered the plaintiff‘s home, where they gratuitously and repeatedly applied a Taser after all resistance had ceased. In Brown v. City of Golden Valley, 574 F.3d 491, 494 (8th Cir. 2009), a police officer used a Taser on the plaintiff because she had disobeyed two orders to end her call with a 911 operator while sitting in the passenger seat of a car the officers had pulled over. The Eighth Circuit affirmed the denial of summary judgment based on qualified immunity. Id. at 501. In both cases, the courts denied qualified immunity largely because the defendant officers had used Tasers on plaintiffs who were neither fleeing nor actively resisting arrest. See id. at 499; Goodwin, 781 F.3d at 324. The relevant facts of the instant case sharply contrast with the key facts in Goodwin and Golden Valley. Here, Harris reasonably suspected Zimmerman of committing several offenses and reasonably concluded that Zimmerman was fleeing to avoid an investigatory stop by Harris. Moreover, Zimmerman was on a public street and received only a single shock from Harris‘s Taser. Neither Golden Valley nor Goodwin is precedent that tends to clearly establish that Harris‘s conduct was unlawful.
Zimmerman correctly notes that a constitutional violation can be “clearly established” even when there is no materially similar precedent. See Hope, 536 U.S. at 741. He does not, however, argue that this case involves the kind of extreme or egregious conduct that has been held to be a clearly established violation of a more general constitutional right. See, e.g., id. at 738 (officials handcuffed prisoner to hitching post for seven hours in the mid-day heat); Cole v. Carson, 802 F.3d 752, 773-74 (5th Cir. 2015) (officer intentionally fabricated evidence to frame plaintiffs for a felony they did not commit); Wilkerson v. Goodwin, 774 F.3d 845, 858 (5th Cir. 2014) (officials held plaintiff in solitary confinement for nearly forty years). Moreover, there is factually analogous caselaw that would undercut such an argument.
For example, in McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011), the Eighth Circuit affirmed qualified immunity for an officer who had deployed a Taser on a fleeing misdemeanant, even though use of the Taser had led to the suspect‘s death. There, two officers entered James Barnes‘s grandfather‘s possibly abandoned house to execute misdemeanor warrants for Barnes‘s arrest. Id. at 356-57. When the officers found Barnes in a second-story bedroom, Barnes lunged toward a window to make an escape. Id. at 357. One of the officers shot him once with her Taser before Barnes reached the window, but Barnes continued through the window and onto the roof of the story below, from which he fell to his death. Id. at 357-58.
Similarly, the Sixth Circuit held in an unpublished opinion written around the same time of the events at issue that “a misdemeanant, fleeing from the scene of a non-violent misdemeanor, but offering no other resistance and disobeying no official command,” did not have a clearly established right not to be shot with a Taser. Cockrell v. City of Cincinnati, 468 Fed. Appx. 491, 495 (6th Cir. 2012). In Cockrell, an officer witnessed the plaintiff jaywalk and then run away when the officer approached. Id. at 491-92. Without issuing a warning or an order to halt, the officer deployed a Taser, causing the plaintiff “to crash headlong into the pavement.” Id. at 492. The court summarized: “in no case where courts denied qualified immunity was the plaintiff fleeing, and in at least some of these cases, the court specifically referred to the fact of non-flight.” Id. at 496-97 (collecting authorities).2 The court therefore held that not every reasonable officer would have understood that using a Taser on a non-violent, fleeing misdemeanant violated the Fourth Amendment. Id. at 498.
Like the officers in McKenney and Cockrell, Harris used a single Taser shot to stop a fleeing person reasonably suspected of a misdemeanor. Although the crimes Zimmerman was suspected of committing were relatively minor, “Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396 (listing as one factor in the excessive force analysis “whether [the suspect] is ... attempting to evade arrest by flight“); see also McKenney, 635 F.3d at 360 (stating that officers were not required to let a fleeing misdemeanant escape). We conclude that at the time of Zimmerman‘s arrest it was not clearly established (so as to give Harris notice) that a single shot or use of a Taser to halt a fleeing misdemeanant or suspect would amount to excessive force.
III. Deliberate Indifference by Harris
Zimmerman briefly argues that Harris violated his constitutional rights by displaying deliberate indifference to Zimmerman‘s serious medical needs.3 In this cir-
Zimmerman contends that Harris knew Zimmerman was exposed to a substantial risk of serious harm because Harris saw that Zimmerman‘s arm was scratched and bleeding, and because Zimmerman told Harris his arm hurt. Assuming arguendo that Zimmerman has presented sufficient evidence that Harris could have inferred a substantial risk of serious harm, Zimmerman‘s claim would still fail because he has offered no evidence that Harris was “actually aware of the risk” of substantial harm and “consciously disregarded it.” See id. The fracture in Zimmerman‘s arm was not obvious. His only obvious injuries were the scratches on his arm, for which he received prompt medical attention. Even when crediting all of Zimmerman‘s evidence and drawing all reasonable inferences in his favor, no reasonable jury could conclude that Harris displayed deliberate indifference to Zimmerman‘s serious medical needs. Summary judgment was therefore appropriate.
IV. Failure to Train by Police Chief Williams
Zimmerman also argues that the district court erred in granting summary judgment on his claim that Howard Williams, in his capacity as Chief of Police of the City of San Marcos Police Department (the “Department“), is liable for failing to train his officers not to shoot a Taser at a fleeing misdemeanor suspect and not to arrest persons suspected of committing a Class C misdemeanor. Zimmerman makes clear on appeal that his claim against Chief Williams is a claim against the municipality and is governed by Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).4 To succeed on his Monell claim, Zimmerman would have to show that the Department‘s training practices caused a violation of his constitutional rights. See Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996). Specifically, he would need to demonstrate that (1) the training conducted by the municipality‘s policymaker was inadequate, (2) the municipality‘s policymaker was deliberately indifferent in adopting the training policy, and (3) the inadequate training policy directly caused a violation of Zimmerman‘s constitutional rights. See id.
Zimmerman argues that summary judgment was erroneously granted because the chief of the Department endorsed Harris‘s conduct in an affidavit. However, it is Zimmerman‘s burden to produce evidence concerning the inadequacy of officer training that could support a jury verdict in his favor. See City of Canton v. Harris, 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Zimmerman has failed to adduce any evidence of Department training procedures—inadequate or otherwise—and thus fails to carry this burden. See City of Canton, 489 U.S. at 391. Further, because Zimmerman has not offered sufficient evidence of a constitutional violation by Harris, he also cannot satisfy the causation requirement of a failure-to-train claim as it pertains to his allegedly unlawful arrest. See Hill v. Carroll Cty., 587 F.3d 230, 238 (5th Cir. 2009) (declining to give Monell claim further consideration where plaintiff had not created a genuine issue of material fact on the existence of a constitutional violation). Thus, summary judgment was properly granted.
V. Deliberate Indifference by Hays County Deputies
Finally, Zimmerman contends that the district court erred in granting summary judgment in favor of the individual defendant deputies of the Hays County jail on his claim that these defendants were deliberately indifferent to his arm injury. To survive summary judgment on these deliberate indifference claims, Zimmerman must demonstrate a genuine issue of material fact as to whether each deputy was actually aware of a risk of serious harm and consciously disregarded it. Lawson, 286 F.3d at 262. As Zimmerman has presented no evidence of any of the individual deputies’ knowledge, actions, or omissions, a reasonable factfinder would have no basis to conclude that any of the individual Hays County defendants were aware that Zimmerman could suffer serious harm. Zimmerman thus cannot show that the Hays County defendants exhibited deliberate indifference, and the district court properly granted summary judgment in favor of these defendants. See id. (“The deliberate indifference standard is a subjective inquiry; the plaintiff must establish that the jail officials were actually aware of the risk, yet consciously disregarded it.” (citing Farmer, 511 U.S. at 837, 839, 114 S.Ct. 1970)).
CONCLUSION
For the reasons described above, we AFFIRM the district court‘s grant of summary judgment for the defendants on all of Zimmerman‘s claims.