McNeal v. City of Katy ( 2023 )

Case: 23-20054 Document: 00516970821 Page: 1 Date Filed: 11/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 16, 2023
No. 23-20054
____________ Lyle W. Cayce
Clerk
Donna McNeal,
Plaintiff—Appellant,
versus
City of Katy; J. Noe Diaz; Officer Rucker; Officer
Garcia; Officer Domer; Officer Snowden; Officer
Reyna; Officer Wiley; Officer Alvarez,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-1163
______________________________
Before Jones, Barksdale, and Elrod, Circuit Judges.
Per Curiam: *
Plaintiff Donna McNeal appeals the district court’s grant of summary
judgment to Officers Domer and Garcia, arguing that the district court im-
properly granted the officers qualified immunity. She further appeals the dis-
trict court’s grant of summary judgment in favor of Police Chief Diaz and the
City of Katy on her § 1983 claims against those defendants. Because we hold
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-20054 Document: 00516970821 Page: 2 Date Filed: 11/16/2023
No. 23-20054
that (1) Domer and Garcia are entitled to qualified immunity, (2) McNeal has
forfeited her claims against Chief Diaz, and (3) McNeal has failed to establish
a genuine dispute as to any material fact concerning her Monell claim against
the City, we AFFIRM.
I
Because video evidence is available in this case, we are required to
“view the facts in the light depicted by the videotape.” Salazar v. Molina, 37
F.4th 278, 280 (5th Cir. 2022) (alteration adopted) (quoting Scott v. Harris,
550 U.S. 372, 381 (2007)). Inasmuch as that video evidence is inconclusive,
however, the ordinary summary judgment standard applies. Aguirre v. City
of San Antonio, 995 F.3d 395, 410 (5th Cir. 2021). Thus, the following facts
are recounted as depicted by the footage captured by Officer Domer and
Officer Garcia’s body cameras. To the extent the video evidence is
inconclusive, the disputed facts have been recounted—as they must be at
summary judgment—in the light most favorable to McNeal. Id.A
On March 16, 2019, Officers Garcia and Domer separately responded
to a call concerning a disturbance at Los Cucos Mexican Restaurant in Katy,
Texas. Garcia and Domer pursued two vehicles containing individuals
involved in the disturbance. Upon locating the vehicles, observing two
individuals acting suspiciously, and smelling marijuana, Garcia and Domer
detained those two people.
During this detention, Garcia began communicating with Donna
McNeal, who was standing nearby, between the open driver’s door and the
driver’s seat of a parked white SUV while another individual sat in the
driver’s seat. The SUV was parked perpendicular to a second vehicle, a red
sedan, with the SUV driver’s side door adjacent to the sedan’s right rear
bumper. Owing to the relative position of the vehicles, the encounter took
2
Case: 23-20054 Document: 00516970821 Page: 3 Date Filed: 11/16/2023
No. 23-20054
place in close quarters. During the confrontation, McNeal, in a raised tone,
stated “You better leave me the f—alone. Leave me alone. You don’t know
nothing about me.”
Officer Garcia repeatedly asked McNeal to calm down, to which she
replied, “I don’t have to calm down.” McNeal repeatedly yelled at Garcia,
demanding that he not touch her. Garcia also implored McNeal to not “turn
this into a bigger problem.” Subsequently, Garcia calmly asked McNeal
multiple times if she was at Los Cucos. Garcia then reframed the question,
asking what was “going on at Los Cucos.” McNeal responded, beckoning
and looking at someone off-camera, “that motherf— tried to make us pay for
s— we didn’t get.” McNeal, Garcia, and the unnamed driver then spoke
over one another, though McNeal can be heard stating, repeatedly, that she
was not “with them”—presumably referencing the other individuals
detained—and thus Garcia “ha[d] no business talking to [her].”
After McNeal reiterated her demand that Garcia not “talk” to her,
she slowly began to turn away from Garcia and towards the driver, who was
sitting mere inches from her. In response, Garcia reached out and grabbed
McNeal’s right forearm and attempted to place handcuffs on her. McNeal
intercepted the handcuffs, holding them in her right hand, and tried to
wriggle her arm free, though Garcia appears to have pulled her closer to his
person. McNeal alleges that at this point, “Garcia grabbed Ms. McNeal and
threw her to the ground.” While Appellees argue that McNeal fell on her
own accord, the video footage is not conclusive on this point. Thus, for the
purposes of summary judgment review, we presume that Garcia threw
McNeal to the ground, causing her to hit her head on the sedan’s bumper
before her elbow broke her fall on the ground. As Garcia grabbed at McNeal,
Domer—who to this point had stood at the back of the SUV detaining
another individual—lurched towards McNeal with his arm out, seemingly
3
Case: 23-20054 Document: 00516970821 Page: 4 Date Filed: 11/16/2023
No. 23-20054
trying to break her fall. Upon impact, McNeal exclaimed “Oh sh—!” Once
on the ground, McNeal reached for her head and yelled “Oh my G—!”
With McNeal on the ground, Domer tried to grab her wrists, place her
arms behind her back, and handcuff her. As McNeal again resisted being
handcuffed by flexing her biceps and preventing her arms from being placed
behind her, Domer took both of McNeal’s arms over her head, dragging her
on the ground toward the back of the SUV. Once she was clear of the car,
Domer stopped dragging her and again attempted to handcuff her. In
response, McNeal did not resist, stating only that she would “put [her arms]
back” behind her and imploring Domer to not “squish” or twist her arms.
With McNeal face-down on the ground, Domer secured her by handcuffing
her with her arms behind her, then helping her off the ground.
Now on her feet, McNeal again disavowed a relationship with the
individuals detained and yelled at the officers not to touch her. Garcia then
escorted McNeal to the back of his police cruiser. After speaking with
McNeal—who declined Garcia’s offer to secure medical assistance—other
detained individuals, officers on the scene, and members of McNeal’s family
over the course of several minutes, Garcia released McNeal. No charges were
filed against McNeal.
B
McNeal filed suit under 42 U.S.C. § 1983 in state court, asserting vi-
olations of her Fourth, Fourteenth, and Eighth Amendment rights against
Katy Police Chief J. Noe Diaz; Katy Police Officers Rucker, Garcia, Domer,
Snowden, Reyna, Wiley, and Alvarez; and the City of Katy. Appellees re-
moved the action to federal court the following month. Chief Diaz and the
4
Case: 23-20054 Document: 00516970821 Page: 5 Date Filed: 11/16/2023
No. 23-20054
City of Katy jointly filed for summary judgment, as did the Officers. The
district court granted summary judgment on all claims. 1
II
“This court reviews a grant of a motion for summary judgment de
novo, and applies the same standard as the district court, viewing the evidence
in the light most favorable to the nonmovant.” Clark v. Dep’t of Pub. Safety,
63 F.4th 466, 469 (5th Cir. 2023) (citation omitted) (italics added). Because
video evidence is available, we are required to “view the facts in the light
depicted by the videotape.” Salazar, 37 F.4th at 280 (alteration adopted)
(quoting Scott, 550 U.S. at 381). Inasmuch as that video evidence is incon-
clusive, however, the ordinary summary judgment standard applies. Aguirre,
995 F.3d at 410. Ultimately, summary judgment is proper “if the movant
shows 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).
III
On appeal, McNeal expressly waives all claims against Officers Snow-
den, Reyna, Wiley, and Alvarez, appealing only claims against Chief Diaz,
Officers Domer and Garcia, and the City of Katy. Likewise, while McNeal
does not expressly waive claims raised under the Eighth and Fourteenth
Amendments, she fails to mention them, much less brief them, which forfeits
those claims. DeVoss v. Sw. Airlines Co., 903 F.3d 487, 489 n.1 (5th Cir. 2018)
(concluding that failure to adequately brief a claim on appeal forfeits it).
Thus, we focus on McNeal’s claims against Diaz, Domer, Garcia, and the
City.
_____________________
1
The parties consented to trial before a magistrate judge.
5
Case: 23-20054 Document: 00516970821 Page: 6 Date Filed: 11/16/2023
No. 23-20054
A
McNeal appeals the district court’s grant of qualified immunity to
Domer and Garcia. We affirm, because the officer’s actions did not violate
clearly established law.
“The doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation
and quotation marks omitted). “Qualified immunity includes two inquiries.
The first question is whether the officer violated a statutory or constitutional
right. The second question is whether the right at issue was clearly
established at the time of the alleged misconduct.” Morrow v. Meachum, 917
F.3d 870, 874 (5th Cir. 2019) (alteration adopted) (quotation marks omitted)
(quoting Pearson, 555 U.S. at 232).
“To prevail on an excessive force claim, a plaintiff must show:
(1) injury, (2) which resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)
(citation omitted). “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 v. Connor, 490 U.S. 386, 396 (1989). Thus, a reasonable amount
of force may be used to detain a subject even if that subject is not being
arrested.
To “gauge the objective reasonableness of the force used by a law
enforcement officer, we must balance the amount of force used against the
need for force[,]” paying “careful attention to the facts and circumstances of
each particular case.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.
6
Case: 23-20054 Document: 00516970821 Page: 7 Date Filed: 11/16/2023
No. 23-20054
2004) (alteration adopted) (citation and quotation marks omitted). The
Supreme Court’s decision in Graham v. Connor guides the reasonableness
inquiry, pointing us to several factors: “[T]he severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” 490 U.S. at 396.
McNeal argues that Officers Garcia and Domer both used excessive
force in violation of clearly established law during their interaction with her.
First, she argues that Officer Garcia used excessive force when he
“intentionally grabbed and jerked Ms. McNeal towards the vehicle, causing
her head to strike against a car.” Further, she argues that Officer Domer
used excessive force when he dragged her by both arms out from between the
two vehicles. Specifically, McNeal argues that both uses of force were
unconstitutional because any use of force would have been unconstitutional
in these circumstances because “there was no filed criminal complaint” and
McNeal was not under arrest.
None of McNeal’s cited cases establish, much less clearly establish,
that the officers used excessive force. Citing Ware v. Reed, 709 F.2d 345 (5th
Cir. 1983), she argues that “the use of nearly any amount of force may result
in a constitutional violation when a suspect ‘poses no threat to [the officers’]
safety or that of others, and [the suspect] does not otherwise initiate action
which would indicate to a reasonably prudent police officer that the use of
force is justified.’” She also cites Ikerd v. Blair, 101 F.3d 430 (5th Cir. 1996),
for the proposition that a constitutional violation occurs where the amount of
force used is more than necessary. In Ikerd, the Court held that a reasonable
jury could conclude that an officer who violently jerked a ten-year-old child
out of her living room chair and dragged her across a room used excessive
force when the officer came into the home to arrest the child’s father. Id.These cases fall short of clearly establishing that Officers Domer and Garcia
7
Case: 23-20054 Document: 00516970821 Page: 8 Date Filed: 11/16/2023
No. 23-20054
used excessive force when detaining McNeal. See Ashcroft v. al-Kidd, 563
U.S. 731, 742 (2011) (instructing courts not to “define clearly established law
at a high level of generality”).
Indeed, this Court’s precedent forecloses McNeal’s argument.
Consider, for example, Solis v. Serrett, 31 F.4th 975 (5th Cir. 2022), in which
our Court recently concluded that qualified immunity applied in similar
circumstances. There, this Court held that it was not objectively
unreasonable for officers to restrain an individual’s arms and force her to the
ground in a “takedown” maneuver to handcuff her because the individual
was belligerent prior to her arrest for public intoxication and resisted arrest—
albeit mildly—by struggling against the officers as they tried to grab her arms.
Id. at 983. While the Court acknowledged that the individual “did not pose
an immediate threat to the safety of the officers or others,” it reasoned that
the officers’ action could still be perceived as reasonable. Id. at 981–83.
Accordingly, the Court held that “even viewing the facts in the light most
favorable to Solis, we cannot say that the officers violated her constitutional
right to be free from excessive force.” Id. at 983.
Solis and other similar precedents support the district court’s
determination that the force Garcia and Domer deployed in this case did not
clearly violate McNeal’s Fourth Amendment rights. See, e.g., Craig v.
Martin, 49 F.4th 404, 411 (5th Cir. 2022) (holding “it was not objectively
unreasonable” for an officer to “push[] [an arrestee] to the ground while
maintaining a hold on [his] left arm and releasing it as she slowly descends to
the ground” following the arrestee’s vocal but non-physical belligerence).
Moreover, upon review of both officers’ body camera footage, we conclude
that no reasonable juror could conclude that either officer deployed excessive
force against McNeal. Scott, 550 U.S. at 381.
8
Case: 23-20054 Document: 00516970821 Page: 9 Date Filed: 11/16/2023
No. 23-20054
B
McNeal also appeals the dismissal of her claims against Chief Diaz.
We affirm, as McNeal forfeited her claim.
In her opening brief, as Appellees note, McNeal fails to make an argu-
ment regarding Chief Diaz’s liability. Rather, McNeal only scantly refer-
ences Chief Diaz in the Statement of Facts, noting that he had a duty to in-
vestigate the incident, did so, was new to the Katy Police Department, and
later promoted Domer. In reply, McNeal attempts to remedy her oversight,
arguing that Diaz had “the authority to retrain, discipline, or ratify the ac-
tions of Officers Garcia and Domer” but failed to do so, thus ratifying their
allegedly illegal conduct and giving rise to liability. This effort is too little too
late. “An appellant abandons all issues not raised and argued in its initial brief
on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (emphasis in
original).
C
Finally, McNeal appeals the district court’s grant of summary
judgment against the City of Katy.
Under the Supreme Court’s decision in Monell, “[m]unicipalities can
be held liable for violating a person’s constitutional rights under § 1983.”
Est. of Bonilla by & through Bonilla v. Orange County, 982 F.3d 298, 308 (5th
Cir. 2020) (citation omitted); see also Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978). We need not discuss Monell’s elements let alone whether
McNeal established them, however: “without a predicate constitutional
violation, there can be no Monell liability.” Loftin v. City of Prentiss, 33 F.4th
774, 783 (5th Cir. 2022) (citing Garza v. Escobar, 972 F.3d 721, 734 (5th Cir.
2020)). Because we hold that McNeal has failed to establish any
constitutional violation, “the associated Monell claims must also fail.” Id.9
Case: 23-20054 Document: 00516970821 Page: 10 Date Filed: 11/16/2023
No. 23-20054
* * *
We AFFIRM.
10