Trevino v. Price ( 2023 )

Case: 22-51032 Document: 00516969508 Page: 1 Date Filed: 11/15/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-51032
Summary Calendar FILED
____________ November 15, 2023
Lyle W. Cayce
Andrew Trevino, Clerk
Plaintiff—Appellant,
versus
Timothy Price, Homicide Detective, Austin Police Department,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-152
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Proceeding pro se and in forma pauperis, Andrew Trevino, Texas
prisoner #2119873, appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint following the grant of summary judgment in favor of the
sole named defendant, Detective Timothy Price. Trevino sought damages
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-51032 Document: 00516969508 Page: 2 Date Filed: 11/15/2023
No. 22-51032
for injuries he alleged resulted from Detective Price’s use of excessive force
in handcuffing him on November 9, 2021.
In his brief on appeal, Trevino does not challenge the district court’s
determination that the summary judgment evidence did not show that
Detective Price handcuffed him, much less used excessive force against him
while doing so, as he alleged in his complaint. Even given the benefit of liberal
construction, by failing to address the summary judgment evidence or any
aspect of the district court’s summary judgment determination, Trevino
appears to have abandoned any challenge to the sole issue on appeal. See
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995; Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993); see also Brinkmann v. Dallas Cty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987) (stating that this court “will not raise
and discuss legal issues” that an appellant “has failed to assert”).
Nevertheless, assuming he has not abandoned a challenge to the summary-
judgment ruling, he has not shown a genuine dispute as to any material fact.
Summary judgment is appropriate if the record discloses “that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review “the
grant of summary judgment de novo, applying the same standards as the
district court.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal
quotation marks and citation omitted). When, as in this case, a § 1983
defendant pleads qualified immunity in a summary judgment motion, the
plaintiff has the burden to show that the defense is unavailable. Trent v.
Wade, 776 F.3d 368, 376 (5th Cir. 2015). To satisfy this burden, the plaintiff
must show that there are material factual disputes regarding whether the
defendant violated a constitutional right and whether the right was clearly
established at the time of the alleged misconduct, such that every reasonable
official would understand that the misconduct violated the right. See Baldwin
v. Dorsey, 964 F.3d 320, 325-26 (5th Cir. 2020).
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No. 22-51032
The competent summary judgment evidence before the district court,
including video evidence of Trevino’s handcuffing and re-cuffing with two
pairs of handcuffs for his comfort, “blatantly contradict[s]” and “utterly
discredit[s]” Trevino’s § 1983 allegation that Detective Price used excessive
force in handcuffing him. Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017)
(internal quotation marks and citation omitted). Indeed, the video evidence,
which is consistent with the affidavits submitted, unambiguously shows that
it was a uniformed patrol officer—and not Detective Price—who handcuffed
Trevino. None of the evidence shows the patrol officer using force, much
less excessive force, or engaging in any malicious conduct when handcuffing,
or re-cuffing, Trevino. See, e.g. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th
Cir. 2001) (concluding that officer’s handcuffing of plaintiff, which caused
the plaintiff’s hand to become swollen, did not amount to excessive force
because the plaintiff did not allege that the officer acted maliciously, and
“handcuffing too tightly, without more, does not amount to excessive
force”). To the contrary, the video evidence clearly shows that the
interaction between Trevino and the officer was calm and cordial and that
Trevino was handled courteously and without force by Detective Price.
Because the competent summary judgment evidence does not show a
genuine dispute as to any material fact regarding whether Detective Price
handcuffed Trevino or violated Trevino’s constitutional right by using
excessive force, summary judgment was proper. Accordingly, the district
court’s judgment is AFFIRMED. Trevino’s motion for monetary damages
is DENIED.
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