Prothro v. City of Garland

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10023
(Summary Calendar)
LAWRENCE PROTHRO, on behalf of Jason
Prothro; DEBORAH PROTHRO, on behalf of
Jason Prothro,
Plaintiffs-Appellees,
versus
CITY OF GARLAND; R. DUDLEY, individually
and in his official capacity; K. PRYOR,
individually and in his official
capacity; J. JESSEE, individually and in
his official capacity; D. SCRUGGS,
individually and in his official
capacity,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
(3:98-CV-119-BF-X)
--------------------
September 29, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendants-Appellants the City of Garland and four of its
police officers —— Robert Dudley, Kirk Pryor, James S. Jessee, and
David Scruggs—appeal the district court’s denial of their motion
for summary judgment based on qualified immunity in a civil rights
lawsuit brought on behalf of Jason Prothro. The district court
*
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that this opinion should not be published and is not precedent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.
denied the motion in its entirety, holding that none of the
officers were entitled to qualified immunity on any of the claims.
We have jurisdiction to review the district court’s denials to the
extent they turned on matters of law, including whether any issues
of disputed fact are material. Colston v. Barnhart, 146 F.3d 282,
284 (5th Cir. 1998). Our review is de novo. Lemoine v. New
Horizons Ranch and Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).
The officers argue first that the district court erred in
concluding that they were not entitled to qualified immunity on
Prothro’s excessive-force claim. Viewing the summary judgment
evidence in the light most favorable to Prothro, as we must on this
appeal, we reject Officer Pryor’s arguments that his actions were
objectively reasonable and that Prothro suffered no more than a de
minimis injury. See Ikerd v. Blair, 101 F.3d 430, 434 & n.9 (5th
Cir. 1996). We conclude, however, that Officers Dudley and Jessee
are entitled to qualified immunity because they had no “reasonable
opportunity to realize the excessive nature of the [alleged] force
and to intervene to stop it.” Hale v. Townley, 45 F.3d 914, 919
(5th Cir. 1995). As there exists a genuine issue of material fact
as to whether Officer Scruggs —— who, with a police dog, was
located nearby at the relevant time —— had a reasonable opportunity
to intervene but failed to do so, he is not entitled to a summary
judgment dismissal based on qualified immunity. See id.
The officers also argue that the district court erred in
holding that they were not qualifiedly immune on Prothro’s false-
arrest claim. We reject Prothro’s contention that this issue is
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not properly before us. On the merits and given the circumstances
that the officers faced, we conclude that reasonable officers could
have believed that probable cause existed to arrest Prothro for
theft of a motor vehicle. See Sorenson v. Ferrie, 134 F.3d 325,
328 (5th Cir. 1998). Thus, the district court erred in holding
that the officers were not entitled to qualified immunity on the
false-arrest claim.
As for Prothro’s state law assault and battery claims, we hold
for reasons similar to those addressed in relation to the
excessive-force claim, that the district court correctly determined
that Officer Pryor was not entitled to qualified immunity: A
reasonably prudent officer would not have used the amount of force
alleged by Prothro. See Cantu v. Rocha, 77 F.3d 795, 808 (5th Cir.
1996). The district court did err, however, when it denied
immunity to the other three officers. See id. Prothro has not
alleged that any of the other three, even Officer Scruggs, made
inappropriate physical contact. See Preble v. Young, 999 S.W.2d
153, 156 (Tex. App. 1999, no writ) (noting that actual touching is
a necessary element to assault and battery claims). Finally,
inasmuch as Texas does not recognize a separate tort of “official
oppression,” all of the officers are entitled to state-law
qualified immunity on that claim, which the court failed to
address. See Cantu, 77 F.3d at 810.
To recap: (1) We affirm the district court’s holding that
neither Officer Pryor nor Officer Scruggs was entitled to qualified
immunity on Prothro’s excessive-force claims, but we reverse the
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court’s holding that Officers Dudley and Jessee were not entitled
to immunity on such claims; (2) on the summary judgment evidence,
reasonable officers could have believed that probable cause existed
to arrest him, so we reverse the district court’s holding that the
officers were not qualifiedly immune on the false-arrest claim; (3)
we affirm the court’s holding that Officer Pryor was not entitled
to qualified immunity on Prothro’s state-law assault and battery
claims, but we reverse like holdings on this claim as to the other
three officers; and (4) we conclude de novo that all the officers
are qualifiedly immune from Prothro’s official-oppression claim.
The case is therefore remanded with instructions to enter the
dismissals indicated above and to conduct further proceedings
consistent herewith.
AFFIRMED in part; REVERSED and REMANDED in part, with instructions.
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