Case: 16-20686 Document: 00514234377 Page: 1 Date Filed: 11/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-20686 FILED
November 13, 2017
WILLIAM WINDHAM, Medical Doctor, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
HARRIS COUNTY, TEXAS; DEPUTY T. R. PASKET; DEPUTY M. DUNN;
JOHN DOE SUPERVISORS,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Two Harris County sheriff’s deputies detained plaintiff William Wind-
ham on suspicion of driving while impaired. Windham filed suit against the
officers and the County, contending that a standard field sobriety test injured
him as a result of his preexisting neck condition. He now appeals the district
court’s grant of summary judgment for defendants on his failure-to-accommo-
date claim under Title II of the Americans with Disabilities Act (“ADA”), and
on his claims for unjustified detention, excessive use of force, and municipal
liability under 42 U.S.C. § 1983 and the Fourth Amendment. We affirm.
Case: 16-20686 Document: 00514234377 Page: 2 Date Filed: 11/13/2017
No. 16-20686
BACKGROUND
On May 30, 2011, Deputy Thomas Pasket was called to investigate an
accident reportedly caused by an intoxicated driver. When he arrived at the
scene around 2:49 p.m., he learned that Windham had rear-ended another car.
The other car’s passenger reported that Windham appeared to be under the
influence of drugs or alcohol and had fallen asleep behind the wheel while wait-
ing for the police. Pasket observed that Windham’s eyes were bloodshot, that
he appeared confused, and that he had not been aware that he had hit another
car. Windham explained that he had taken a prescription painkiller at 3:00
a.m. and had been awake for twenty hours.
Windham suffered from cervical stenosis. As a result, his neck involun-
tarily assumed a flexed, downward-looking position. He carried an explanatory
doctor’s note. The note stated that Windham’s stenosis “place[d] him at risk for
strenuous activities and particularly for driving in the unpredictable event of
an accident.” It added that “[b]ecause of [Windham’s] risk of neurologic injury
from neck extension, he should also consider delaying his thyroid surgery until
such time as his cervical spine issues have been addressed.” And it concluded
by asking the reader to “[k]indly afford [Windham] the opportunity to address
these issues in whatever way that you can help him.” The note gave no further
details, however, as to the nature of Windham’s “issues” or the accommoda-
tions they required. Pasket read the note and assured Windham that “nobody
w[ould] extend [his] neck.” 1
1 The doctor’s note read in full:
To Whom It May Concern:
Dr. Windham is a patient of mine who suffers from severe ste-
nosis of the cervical spine from disc disease at the C4/5 level.
2
Case: 16-20686 Document: 00514234377 Page: 3 Date Filed: 11/13/2017
No. 16-20686
Pasket then sought Windham’s permission to administer certain stand-
ard field sobriety tests. Although Windham declined to perform some, he
“promptly agreed” to a gaze nystagmus test. 2 That test involves waiving a stim-
ulus in front of the subject’s face and tracking his eye movements. Pasket per-
formed the test without injuring Windham. The results were negative or in-
conclusive. Pasket determined that he needed to call a certified drug recogni-
tion expert, Deputy Matthew Dunn, to gauge Windham’s impairment. 3
Dunn responded to Pasket’s call as quickly as he could, arriving at 4:01
p.m. He spoke first with Pasket for about ten minutes. The officers then ap-
proached Windham together. The dash cam on Dunn’s patrol car recorded their
interaction. To the extent the parties’ recollections differ from the video ac-
count, we credit the video. See Scott v. Harris, 550 U.S. 372, 380–81 (2007).
According to the video, Windham began by telling Dunn that he
Dr. Windham’s symptoms place him at risk for strenuous activ-
ities and particularly for driving in the unpredictable event of an
accident. Dr. Windham is in the process of seeking surgical rem-
edy for this problem, but that may take some time to unfold. Be-
cause of the patient’s risk of neurologic injury from neck exten-
sion, he should also consider delaying his thyroid surgery until
such time as his cervical spine issues have been addressed.
Hopefully Dr. Windham’s symptoms will be improving in a rela-
tively short time frame. Kindly afford him the opportunity to ad-
dress these issues in whatever way that you can help him.
Sincerely,
Mark D. Barhorst, M.D.
2 The parties’ accounts differ as to when Windham was subjected to a horizontal gaze
nystagmus test and when he was subjected to a vertical one. Because this distinction is im-
material, we refer only to general “gaze nystagmus tests.”
3 Although Windham’s declaration arguably puts these events in a different sequence,
we credit the order of events he provides in his appellant brief. See United States v. Monkey,
725 F.2d 1007, 1010 (5th Cir. 1984); 10A Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 2723 (4th ed. updated Apr. 2017) (“[A]dmissions in the brief of the
party opposing the motion [for summary judgment] may be used in determining that there is
no genuine dispute as to any material fact.”). The distinction is in any event immaterial.
3
Case: 16-20686 Document: 00514234377 Page: 4 Date Filed: 11/13/2017
No. 16-20686
“do[es]n’t drive at all” because he has “cervical stenosis with radiculopathy in
both [his] legs.” He added, “It’s right here on my surgical...” before trailing off
and handing Dunn a stack of papers, including the doctor’s note. Dunn held
the papers at arm’s length and glanced at the topmost page for about three
seconds. No one mentioned the note.
Dunn asked Windham if he would perform some field sobriety tests.
Windham responded, “Yeah I’m not gonna be able to do them.” Dunn asked,
“So are you refusing to do any?,” and Windham quickly assured him, “No.”
Dunn sought clarification: “So you said you will or you won’t?” Windham re-
plied, somewhat enigmatically, “No I will. But I’m not gonna be able to.” Dunn
remarked “okay” and began administering a gaze nystagmus test.
When Dunn instructed Windham to “look up at me” and “put your head
up,” Windham promptly did so, but added: “It hurts to lift my head up this
high.” Dunn asked if he had any head injuries and Windham answered, “No,
but the neck hurts.” Windham never indicated that he could not complete the
test or asked Dunn to stop. He also never asked Dunn to administer the test
differently or to use another test instead. To the contrary, he completed the
gaze nystagmus test without further complaint. He held his head in the re-
quested position for about forty-five seconds. He then completed the walk-and-
turn test and the one-leg-stand.
Dunn concluded that Windham was insufficiently impaired to justify ar-
rest and released him around 4:18 p.m. The entire encounter lasted approxi-
mately ninety minutes. The district court determined, and no one now dis-
putes, that a reasonable jury could find that Windham suffered injury as a
result of Dunn’s administration of the gaze nystagmus test. Windham sued
Pasket, Dunn, and the County, all of whom secured summary judgment on the
relevant claims. See Windham v. Harris Cty., No. 4:13-cv-1576, 2016 WL
4939563 (S.D. Tex. Sept. 13, 2016). Windham timely appealed.
4
Case: 16-20686 Document: 00514234377 Page: 5 Date Filed: 11/13/2017
No. 16-20686
STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo, ap-
plying the same standards as the district court. Robinson v. Orient Marine Co.,
505 F.3d 364, 365 (5th Cir. 2007). Summary judgment is proper only if the
movant shows both that “there is no genuine dispute as to any material fact”
and that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Although we view the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party’s favor, SEC v. Kahlon,
873 F.3d 500, 504 (5th Cir. 2017), summary judgment remains appropriate if
the evidence is “merely colorable” or “not significantly probative,” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We may affirm a grant of sum-
mary judgment on any ground the record supports. United States ex rel. King
v. Solvay Pharm., Inc., 871 F.3d 318, 323 (5th Cir. 2017).
ANALYSIS
I. Title II of the ADA
Title II of the ADA provides: “[N]o qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be de-
nied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. It further
defines “public entities” to include local governments. § 12131(1)(A). And it cre-
ates a private right of action against them for monetary and equitable relief.
See § 12133. These provisions allow individuals to sue local governments for
disability discrimination committed by police in non-exigent circumstances.
See Delano-Pyle v. Victoria Cty., 302 F.3d 567, 570–71, 574–76 (5th Cir. 2002);
Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000). 4
4 Harris County has not sought to avail itself of the exigent-circumstances exception
to Title II we created in Hainze. Nor would that exception apply on these non-exigent facts.
5
Case: 16-20686 Document: 00514234377 Page: 6 Date Filed: 11/13/2017
No. 16-20686
To make out a prima facie case under Title II, a plaintiff must show “(1)
that he is a qualified individual within the meaning of the ADA; (2) that he is
being excluded from participation in, or being denied benefits of, services, pro-
grams, or activities for which the public entity is responsible, or is otherwise
being discriminated against by the public entity; and (3) that such exclusion,
denial of benefits, or discrimination is by reason of his disability.” Melton v.
Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004). The County
does not dispute that a reasonable jury could find for Windham on the first two
prongs. Our analysis concerns only whether a reasonable jury could find that
the County discriminated against Windham “by reason of his disability.” 5
Windham attempts to satisfy the third prong on a theory of “failure to
accommodate.” That theory is expressly codified in Title I of the ADA (govern-
ing employment), which defines “discriminat[ion] . . . on the basis of disability”
to include “not making reasonable accommodations [for a disabled employee’s]
known physical or mental limitations.” 42 U.S.C. § 12112(b)(5)(A). Although
Title II contains no similarly explicit definition, see 42 U.S.C. §§ 12131, 12132,
our cases recognize that a public entity’s failure reasonably to accommodate
the known limitations of persons with disabilities can also constitute disability
discrimination under Title II. See Bennett-Nelson v. La. Bd. of Regents, 431
5To recover compensatory damages for disability discrimination under Title II of the
ADA, a plaintiff must also show that the discrimination was “intentional” in the sense that
it was more than disparate impact. Delano-Pyle, 302 F.3d at 574 (citing Carter v. Orleans
Par. Pub. Sch., 725 F.2d 261, 264 (5th Cir. 1984)). This requirement exists because Title II
incorporates the remedies in Title VI of the Civil Rights Act of 1964, see 42 U.S.C. § 12133;
29 U.S.C. § 794a(a)(2), and because “private individuals c[annot] recover compensatory dam-
ages under Title VI except for intentional discrimination,” Alexander v. Sandoval, 532 U.S.
275, 282–83 (2001). Here, the district court appears to have relied on the intentionality re-
quirement to resolve Windham’s failure-to-accommodate claim. See Windham, 2016 WL
4939563, at *7. The parties dispute whether that was proper. But because we conclude below
that Windham has not established that the attending officers knew of Windham’s limitation
and necessary accommodation, such that Windham fails to establish a prima facie case in
any event, we need not reach the issue.
6
Case: 16-20686 Document: 00514234377 Page: 7 Date Filed: 11/13/2017
No. 16-20686
F.3d 448, 454 & n.11 (5th Cir. 2005) (“[Title II] impose[s] upon public entities
an affirmative obligation to make reasonable accommodations for disabled in-
dividuals.” (citing 42 U.S.C. § 12131)); see also Jin Choi v. Univ. of Tex. Health
Sci. Ctr. at San Antonio, 633 F. App’x 214, 215 (5th Cir. 2015) (adapting the
failure-to-accommodate standard from Title I to Title II); Ball v. LeBlanc, 792
F.3d 584, 596 n.9 (5th Cir. 2015) (same). 6 We have also recognized Title II
claims in the specific context of police officers who fail reasonably to accommo-
date the known limitations of disabled persons they detain. 7
A critical component of a Title II claim for failure to accommodate, how-
ever, is proof that “the disability and its consequential limitations were known
by the [entity providing public services].” Jin Choi, 633 F. App’x at 215 (quoting
Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013)); accord Ball,
6 Other circuits share this view. See, e.g., Robertson v. Las Animas Cty. Sheriff’s Dep’t,
500 F.3d 1185, 1195 n.8 (10th Cir. 2007) (“Title II's use of the term ‘reasonable modifications’
[in 42 U.S.C. § 12131] is essentially equivalent to Title I’s use of the term ‘reasonable accom-
modation.’”); McGary v. City of Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004) (“Although
Title II of the ADA uses the term ‘reasonable modification,’ rather than ‘reasonable accom-
modation,’ these terms create identical standards.”); Henrietta D. v. Bloomberg, 331 F.3d 261,
273 n.7 (2d Cir. 2003) (“‘[D]iscrimination,’ which is not defined in Title II, may take its mean-
ing from Title I.’” (citation omitted)); Washington v. Ind. High Sch. Athletic Ass’n, 181 F.3d
840, 848 (7th Cir. 1999) (“Congress clearly intended the failure-to-accommodate method of
proving discrimination to apply to Title II.”).
7 See Delano-Pyle, 302 F.3d at 570–71, 575–76 (affirming jury verdict that police offic-
ers discriminated against deaf arrestee by failing to accommodate the limitations arising
from his inability to hear); Hainze, 207 F.3d at 802 (“Once the area was secure and there was
no threat to human safety, the Williamson County Sheriff’s deputies would have been under
a duty to reasonably accommodate Hainze’s disability . . . .”); see also Waller ex rel. Estate of
Hunt v. City of Danville, 556 F.3d 171, 174 (4th Cir. 2009) (“In the context of arrests, courts
have recognized two types of Title II claims: (1) wrongful arrest, where police arrest a suspect
based on his disability, not for any criminal activity; and (2) reasonable accommodation,
where police properly arrest a suspect but fail to reasonably accommodate his disability dur-
ing the investigation or arrest, causing him to suffer greater injury or indignity than other
arrestees.”).
7
Case: 16-20686 Document: 00514234377 Page: 8 Date Filed: 11/13/2017
No. 16-20686
792 F.3d at 596 n.9. 8 Mere knowledge of the disability is not enough; the ser-
vice provider must also have understood “the limitations [the plaintiff] experi-
enced . . . as a result of that disability.” Taylor v. Principal Fin. Grp., Inc., 93
F.3d 155, 164 (5th Cir. 1996) (emphasis added); accord Patton v. Jacobs Eng’g
Grp., Inc., --- F.3d ---, ---, 2017 WL 4784586, at *5 (5th Cir. Oct. 24, 2017); Jin
Choi, 633 F. App’x at 216. 9 Otherwise, it would be impossible for the provider
to ascertain whether an accommodation is needed at all, much less identify an
accommodation that would be reasonable under the circumstances. 10 Taylor,
93 F.3d at 164. Thus, because “[t]he ADA does not require clairvoyance,” Hed-
berg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995), the burden falls on
the plaintiff “to specifically identify the disability and resulting limitations,”
Taylor, 93 F.3d at 165, and to request an accommodation in “direct and spe-
cific” terms, Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001). 11
8 We have recently described a failure-to-accommodate claim under Title II as requir-
ing the plaintiff to prove: “(1) he is a qualified individual with a disability; (2) the disability
and its consequential limitations were known by the [public] entity; and (3) the entity failed
to make reasonable accommodations.” Ball, 792 F.3d at 596 n.9; accord Jin Choi, 633 F. App’x
at 215. Proof of these elements suffices to establish a prima facie case as defined in Melton,
391 F.3d at 671–72.
9 Although we developed these principles in cases applying Title I, e.g., Taylor, 93 F.3d
at 163–65, the rules are “no less applicable in the context of Title II,” Robertson, 500 F.3d at
1196; see id. at 1195–98; Jin Choi, 633 F. App’x at 215–16; Ball, 792 F.3d at 596 n.9.
10 As we have explained, “the ADA requires [public entities] to reasonably accommo-
date limitations, not disabilities.” Taylor, 93 F.3d at 164. To borrow Taylor’s example: A hear-
ing-impaired worker may require significant accommodations while working as a telephone
operator, but have no difficulty working in an assembly line, despite the same disability. 93
F.3d at 164. Similarly, a police detainee with a broken leg may suffer unnecessary pain if
required to perform the one-leg-stand sobriety test, but face no limitations in tracking a pen
with his eyes. In Title II cases, “the critical component of the entity’s knowledge is that it is
aware not just that the individual is disabled, but that the individual’s disability affects his
ability to receive the benefits of the entity’s services,” Robertson, 500 F.3d at 1197 n.10, or—
in the context of police detentions, “caus[es] him to suffer greater injury or indignity than
other [detainees],” Waller, 556 F.3d at 174.
11 Of course, a plaintiff need not request, or even know, the particular reasonable ac-
commodation he ultimately requires. That judgment “is best determined through a flexible,
interactive process” involving both the plaintiff and the public entity. Taylor, 93 F.3d at 165.
8
Case: 16-20686 Document: 00514234377 Page: 9 Date Filed: 11/13/2017
No. 16-20686
When a plaintiff fails to request an accommodation in this manner, he
can prevail only by showing that “the disability, resulting limitation, and nec-
essary reasonable accommodation” were “open, obvious, and apparent” to the
entity’s relevant agents. Taylor, 93 F.3d at 164; accord Jin Choi, 633 F. App’x
at 216 (applying standard to Title II); Robertson v. Las Animas Cty. Sheriff’s
Dep’t, 500 F.3d 1185,1197 (10th Cir. 2007) (collecting cases across circuits); see,
e.g., id. at 1198 (reasonable jury could infer that deaf arrestee’s inability mean-
ingfully to participate in his probable-cause hearing was sufficiently obvious
to put officers on notice of the need for a hearing aid). The parties dispute what
type of knowledge is required (although neither provides any citation or anal-
ysis): the County couches its arguments in terms of what “would have alerted
a reasonable officer,” whereas Windham asserts that the inquiry is subjective.
Although our caselaw speaks generally in terms of the entity’s subjective
knowledge, 12 we do not appear to have confronted this question directly. Nor
must we do so now. As explained below, we would reach the same conclusion
on either party’s view of the law.
In this case, Windham contends that the County failed reasonably to ac-
commodate his neck disability in Dunn’s administration of the gaze nystagmus
test. That test required Windham to raise his head into a neutral, forward-
looking position for about forty-five seconds. The County does not challenge the
district court’s conclusion that a reasonable jury could find that, because of
Windham’s disability, doing so caused him injury.
A police detainee with a broken leg, for example, may not know enough about police investi-
gatory procedures to specifically request a gaze nystagmus test; it is enough for him to ask
generally for an alternative to the one-leg stand.
12 E.g., Patton, 2017 WL 4784586, at *4 (affirming grant of summary judgment be-
cause “there is insufficient evidence to prove [the relevant agents’] knowledge of [the plain-
tiff’s] disability”); Taylor, 93 F.3d at 163–64 (affirming grant of summary judgment because
the plaintiff failed to adduce “evidence which would allow a reasonable trier of fact to find
that [the entity] knew of [the plaintiff’s] limitations”).
9
Case: 16-20686 Document: 00514234377 Page: 10 Date Filed: 11/13/2017
No. 16-20686
But Windham never asked the officers for any accommodation. Far from
requesting, for example, that the gaze nystagmus test not be performed or that
it be administered from a lower angle, Windham made no requests of the offic-
ers whatsoever. He also expressly confirmed that he was not refusing to per-
form the test. Although Windham did express vague skepticism about whether
he would “be able to do” the tests, that statement can hardly be construed as a
“request” for anything. It does not constitute the kind of clear and definite re-
quest for accommodations that would trigger the duty to accommodate under
the ADA. See Taylor, 93 F.3d at 165.
Nor has Windham adduced evidence from which a reasonable jury could
infer that the extent of Windham’s limitation and the necessary accommoda-
tion were “obvious”—that is, infer that Pasket and Dunn knew or should have
known that Windham’s neck condition was such that looking straight ahead
would injure him, and that Pasket and Dunn knew or should have known what
accommodation Windham needed. See Taylor, 93 F.3d at 164–65. To be sure, a
jury could find that the officers knew or should have known Windham suffered
from a neck-related disability. But knowledge of a disability is different from
knowledge of the resulting limitation. And it certainly is different from
knowledge of the necessary accommodation. See Patton, 2017 WL 4784586, at
*5; Jin Choi, 633 F. App’x at 216; Taylor, 93 F.3d at 164. To prevail, Windham
must adduce evidence that all three were or should have been obvious. Taylor,
93 F.3d at 165. He fails to make that showing.
As an initial matter, Windham has never argued that his disability, lim-
itation, and necessary accommodation are of a kind that would still have been
“open, obvious, and apparent” even if Windham had never attempted to explain
them. That may be true of well-understood and outwardly visible disabilities
like, say, blindness, deafness, or being wheelchair-bound. Cf., e.g., Robertson,
10
Case: 16-20686 Document: 00514234377 Page: 11 Date Filed: 11/13/2017
No. 16-20686
500 F.3d at 1198 (need for hearing aid could be found obvious). But no one
suggests that cervical stenosis fits that category.
Windham instead attempts to prove the requisite “obviousness” by rely-
ing on his doctor’s note. But that note could not reasonably be found to have
apprised the officers of Windham’s limitation or how that limitation should be
accommodated. The closest the note came was its statement, buried in a de-
pendent clause in the second paragraph, that Windham “risk[ed] . . . neuro-
logic injury from neck extension.” Yet nothing in the note defined “neck exten-
sion” or intimated that Windham risked injury by moving his head into a neu-
tral, forward-looking position (an act that does not obviously constitute “neck
extension” on its own). The note therefore could not have rendered Windham’s
limitation “obvious”—and it certainly could not have made obvious the neces-
sary accommodation. See Taylor, 93 F.3d at 165 n.10 (doctors’ affidavits insuf-
ficient because they failed to identify “(1) the specific disability; (2) any limita-
tions resulting therefrom, or (3) any reasonable accommodations required”).
In his reply brief, Windham additionally points to the statements he
made to Dunn during the second gaze nystagmus test. Although Windham ex-
pressed generic doubts about his ability to perform the test, and although he
said that raising his head caused him pain, none of these statements made
clear that Windham needed accommodation for his neck and suggested possi-
ble accommodations. Vague statements like these cannot transform Wind-
ham’s somewhat-obscure condition into one for which the limitations and nec-
essary accommodation were “open, obvious, and apparent.” See Taylor, 93 F.3d
at 164–65. 13
13 Our own review of the record revealed a more explicit statement of Windham’s lim-
itation: According to Windham’s declaration, he told Pasket at the outset that—in Windham’s
words—“neck extension would risk neurologic injury” and “movement of [his] head from a
downward looking position to a neutral position was in fact extending [his] neck.”
11
Case: 16-20686 Document: 00514234377 Page: 12 Date Filed: 11/13/2017
No. 16-20686
Our decision in Delano-Pyle does not counsel otherwise. Although we up-
held a jury finding of disability discrimination where police officers failed to
accommodate a deaf arrestee even without an explicit request for accommoda-
tion, 302 F.3d at 575–76, that holding says little about whether Windham’s
need for accommodation was similarly obvious. For one, the officers in Delano-
Pyle testified that they understood that the plaintiff’s disability prevented him
from hearing, yet they continued to give him oral instructions regardless. Id.
Windham points to no similar evidence here. And, more importantly, the
Delano-Pyle plaintiff’s disability was far more readily apparent. That deafness
limits a person’s ability to understand oral commands is plain; that cervical
stenosis limits a person’s ability to look straight ahead for a period of forty-five
seconds is not. 14
As a result, Windham cannot avail himself of the narrow exception ap-
plicable only to people whose disabilities, limitations, and necessary accommo-
dations are “open, obvious, and apparent.” Taylor, 93 F.3d at 165. He instead
falls within the generally applicable rule that “[i]f the [plaintiff] fails to request
an accommodation, the [public entity] cannot be held liable for failing to pro-
vide one.” Id. Because the record contains no evidence that Windham requested
an accommodation, we affirm the district court’s grant of summary judgment
for the County on the ADA claim.
But Windham never relied on or even mentioned this statement in his briefs (either
here or in district court). We will not consider it now. See Procter & Gamble Co. v. Amway
Corp., 376 F.3d 496, 499 (5th Cir. 2004) (“Failure adequately to brief an issue on appeal con-
stitutes waiver of that argument.”); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th
Cir. 1992) (“Although on summary judgment the record is reviewed de novo, this court, for
obvious reasons, will not consider evidence or arguments that were not presented to the dis-
trict court for its consideration in ruling on the motion.”); see also Fed. R. Civ. P. 56(c)(3)
(“The court need consider only the cited materials . . . .”).
14 The other case on which Windham relies, Perez v. Doctors Hospital at Renaissance,
Ltd., 624 F. App’x 180 (5th Cir. 2015), is even less apposite. Unlike Windham, the Perez
plaintiff repeatedly requested an accommodation for his disability, obviating the need for the
court to determine whether the disability was obvious. Id. at 185–86.
12
Case: 16-20686 Document: 00514234377 Page: 13 Date Filed: 11/13/2017
No. 16-20686
II. Fourth Amendment and § 1983
The Fourth Amendment prohibits “unreasonable . . . seizures.” U.S.
Const. amend. IV. A seizure is generally reasonable only if justified by an “in-
dividualized suspicion of wrongdoing,” City of Indianapolis v. Edmond, 531
U.S. 32, 37 (2000), and only if carried out in a reasonable manner, Graham v.
Connor, 490 U.S. 386, 395 (1989). Officers who conduct unreasonable seizures
in violation of clearly established law may be liable under 42 U.S.C. § 1983.
And local governments may be liable if their policies or customs caused the
violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978).
Windham appeals the grant of summary judgment on his claims against
the officers for unjustified detention and excessive use of force, and on his claim
against the County for failure to train its officers to perform sobriety tests on
individuals with neck injuries. We affirm as to each.
A. Unjustified Detention
To be justified under the Fourth Amendment, an investigative stop
needs only reasonable suspicion. United States v. Massi, 761 F.3d 512, 520 (5th
Cir. 2014). An arrest, on the other hand, demands the greater showing of prob-
able cause. Id. Here, Windham argues that the officers lacked reasonable sus-
picion, and that, in any event, the detention was functionally an arrest such
that probable cause was required.
(i) Reasonable Suspicion
The first question is whether the officers “ha[d] a reasonable suspi-
cion . . . that criminal activity ‘may [have been] afoot.’” United States v.
Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
This inquiry “look[s] at the ‘totality of the circumstances’ of each case to see
whether the detaining officer has a ‘particularized and objective basis’ for sus-
pecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). “Although an
13
Case: 16-20686 Document: 00514234377 Page: 14 Date Filed: 11/13/2017
No. 16-20686
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 stand-
ard.” Id. (citations omitted). The only relevant information is the information
that was available to the officers at the time. Carroll v. Ellington, 800 F.3d
154, 171 (5th Cir. 2015).
Pasket had reasonable suspicion to detain and investigate Windham for
the crime of driving while impaired. See Tex. Penal Code § 49.04. From the
seizure’s outset, Pasket was aware that (1) Windham had rear-ended the car
in front of him; (2) the other driver’s passenger had informed both the 911 op-
erator and Pasket that he believed Windham to be intoxicated; (3) the passen-
ger had further reported that Windham fell asleep behind the wheel while
waiting for the police; (4) Windham was taking prescription-strength painkill-
ers; (5) Windham had not slept for twenty hours; (6) Windham’s eyes appeared
bloodshot; and (7) Windham appeared confused and did not know that he had
struck a car. These undisputed facts, taken together, surpass the low threshold
for reasonable suspicion. See, e.g., Schmerber v. California, 384 U.S. 757, 769
(1966) (driver’s involvement in an accident and bloodshot eyes contributed to
proper finding of probable cause to arrest for driving under the influence).
Windham’s arguments do not persuade us otherwise. Although he con-
tends that the witness was mistaken and that Windham in fact was neither
sleeping nor impaired, this argument says nothing about whether Pasket rea-
sonably believed the witness. Similarly, although Windham’s brief asserts that
“Windham’s eyes were not bloodshot,” it cites no record evidence to support
that claim. See Fed. R. Civ. P. 56(c)(1) (requiring parties to support factual
assertions with record citations). Finally, Windham has not argued that rea-
sonable suspicion dissipated as the detention progressed. The district court
14
Case: 16-20686 Document: 00514234377 Page: 15 Date Filed: 11/13/2017
No. 16-20686
correctly determined that the undisputed facts established reasonable suspi-
cion.
(ii) De Facto Arrest
The second question is whether the seizure exceeded the bounds of a
traffic stop and became a de facto arrest. See United States v. Shabazz, 993
F.2d 431, 437 (5th Cir. 1993) (“A prolonged investigative detention may be tan-
tamount to a de facto arrest, a more intrusive custodial state which must be
based upon probable cause rather than mere reasonable suspicion.”). “A sei-
zure rises to the level of an arrest only if ‘a reasonable person in the suspect’s
position would have understood the situation to constitute a restraint on free-
dom of movement of the degree which the law associates with formal arrest.’”
Carroll, 800 F.3d at 170 (quoting United States v. Corral-Franco, 848 F.2d 536,
540 (5th Cir. 1988)). Windham makes two arguments on this front, both of
which we reject.
First, Windham asserts without citation that the traffic stop became an
arrest because Pasket “confiscated . . . Windham’s driver’s license, making it
impossible for [him] to drive away.” To be sure, taking a detainee’s driver’s li-
cense suggests that some type of seizure has taken place. 15 But examining a
detainee’s driver’s license is an “ordinary . . . incident to [a] traffic stop.” Ro-
driguez v. United States, 135 S. Ct. 1609, 1615 (2015) (alteration omitted)
15See, e.g., United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999) (“[W]hat began
as a consensual encounter quickly became an investigative detention once the agents received
[defendant’s] driver’s license and did not return it to him.” (quoting United States v. Lambert,
46 F.3d 1064, 1068 (10th Cir. 1995))), modified on denial of reh’g, 203 F.3d 883 (2000). We
note that, in this case, Pasket inadvertently failed to return the driver’s license to Windham
after Windham was free to go. Pasket returned the license to Windham’s residence later that
evening. Windham does not argue that this oversight is relevant to the unjustified detention
claim.
15
Case: 16-20686 Document: 00514234377 Page: 16 Date Filed: 11/13/2017
No. 16-20686
(quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)). It does not indicate ar-
rest. See, e.g., Shabazz, 993 F.2d at 437 (“[W]e have no doubt[] that in a valid
traffic stop, an officer can request a driver’s license . . . .”).
Second, Windham argues that the length of the traffic stop—close to
ninety minutes—transformed it into an arrest. But “[t]here is . . . no constitu-
tional stopwatch on traffic stops.” United States v. Brigham, 382 F.3d 500, 511
(5th Cir. 2004) (en banc). Instead, “[i]n assessing whether a detention is too
long in duration to be justified as an investigative stop, we . . . examine
whether the police diligently pursued a means of investigation that was likely
to confirm or dispel their suspicions quickly, during which time it was neces-
sary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 685–86
(1985). The key requirement is that the stop “last no longer than is necessary
to effectuate [its] purpose.” Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality
opinion).
It is undisputed that Pasket determined that he needed the opinion of
Dunn, a certified drug recognition expert, to assess the extent of Windham’s
impairment. It is likewise undisputed that Dunn arrived as quickly as he
could, that he administered the tests expeditiously once he arrived, and that
those tests were germane to the reasonable suspicion that justified the stop.
The parties dispute only whether Pasket’s belief was reasonable. According to
Windham, because Pasket knew how to perform sobriety tests himself, “[i]t
was not necessary to call another officer to obtain a second opinion.”
But Windham offers no evidentiary basis for finding Pasket’s determina-
tion unreasonable. His brief justifies his assertion with just a single piece of
evidence: Windham’s own declaration that “[a]ny well trained officer should be
16
Case: 16-20686 Document: 00514234377 Page: 17 Date Filed: 11/13/2017
No. 16-20686
able to administer the sobriety test.” 16 Suffice it to say, Windham’s bare, lay
opinion as to the scope of a reasonable police officer’s abilities does not create
a genuine factual dispute. See Fed. R. Civ. P. 56(c)(4) (declarations used to op-
pose summary judgment motions “must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated”); see also Fed. R. Evid.
701 (lay opinion testimony must be “rationally based on the witness’s percep-
tion” and “not based on . . . specialized knowledge”). Windham has not laid ad-
equate foundation for this opinion, nor do we see how he conceivably could do
so. His argument is therefore unavailing. We affirm the grant of summary on
Windham’s unjustified detention claim.
B. Excessive Force
That the seizure was justified by reasonable suspicion, however, does not
end our inquiry. The seizure must also have been conducted in a reasonable
manner, without the use of excessive force. Graham, 490 U.S. at 395. To prevail
on an excessive force claim, a plaintiff must show “(1) an injury that (2) re-
sulted directly and only from the use of force that was excessive to the need
and that (3) the force used was objectively unreasonable.” Hamilton v. Kindred,
845 F.3d 659, 662 (5th Cir. 2017) (internal quotation mark omitted).
The district court erred in holding that Windham’s preexisting neck con-
dition prevented him from satisfying the second prong’s causation require-
ment. See Windham, 2016 WL 4939563, at *5 (citing Wells v. Bonner, 45 F.3d
16 Windham also failed to support this factual assertion in his summary judgment
brief in district court. Although that brief lacked discernable organization, as far as we can
tell, it contained only one relevant citation. That citation referred to Pasket’s deposition tes-
timony describing the inconclusive results of his initial testing. That evidence does nothing
to establish that Pasket’s decision to seek further testing from a certified expert officer was,
in fact, unreasonable.
17
Case: 16-20686 Document: 00514234377 Page: 18 Date Filed: 11/13/2017
No. 16-20686
90, 96 (5th Cir. 1995)). Our law is clear that the second prong does not “pre-
clude[] recovery for aggravation of preexisting injury caused by the use of ex-
cessive force.” Dunn v. Denk, 79 F.3d 401, 403 (5th Cir. 1996) (en banc); see
also Darden v. City of Fort Worth, 866 F.3d 698, 703 (5th Cir. 2017) (explaining
that the second prong does not preclude recovery where a preexisting condition
contributed to, but would not have independently caused, the injury). To the
extent Wells v. Bonner might be read to say otherwise, our en banc court has
rejected that understanding. See Dunn, 79 F.3d at 403. 17
We nonetheless affirm on the basis of prong three. Whether a use of force
is reasonable “must be judged from the perspective of a reasonable officer on
the scene.” Graham, 490 U.S. at 396. It follows that “[w]hat would ordinarily
be considered reasonable force does not become excessive force when the force
aggravates (however severely) a pre-existing condition the extent of which
w[ould have been] unknown to [a reasonable] officer at the time.” Rodriguez v.
Farrell, 280 F.3d 1341, 1353 (11th Cir. 2002); accord Huntley v. City of Owasso,
497 F. App’x 826, 831 (10th Cir. 2012). 18 Here, there is no doubt that, but for
Windham’s neck condition, Dunn’s administration of the gaze nystagmus test
would have been a perfectly reasonable exercise of police authority. And we
17 The district court also went too far in stating, as a categorical matter, that “an ex-
cessive force claim cannot survive when the police did not touch the plaintiff.” Windham,
2016 WL 4939563, at *5 n.3. We have not so held. Other circuits, moreover, “have recognized
excessive force claims where the force is expressed by means other than physical contact,”
Martin v. Bd. of Cty. Comm’rs, 909 F.2d 402, 406 (10th Cir. 1990) (collecting cases), including
in circumstances resembling those of the case at bar, id. at 403–04, 407 (police use of threats
of arrest to force wheelchair-bound detainee to walk, causing her injury, constituted excessive
use of force). See also, e.g., Davis v. Bergeon, 187 F.3d 635, 1999 WL 591448, at *5 (6th Cir.
1999) (unpublished) (“We also do not believe that proof of physical contact is an essential
element of an excessive force claim.”).
18 This holding is consistent with Dunn. The fact that a use of force aggravates a
preexisting injury does not preclude a finding that the injury “resulted directly and only from
the use of force.” 79 F.3d at 403. But an unknown preexisting injury cannot transform what
would otherwise be a reasonable use of force into an unreasonable one. Rodriguez, 280 F.3d
at 1353.
18
Case: 16-20686 Document: 00514234377 Page: 19 Date Filed: 11/13/2017
No. 16-20686
have already concluded that, based on the evidence Windham cites, no reason-
able jury could find that the officers should have been on notice that his neck
condition was such that he would suffer injury if Dunn administered the test.
This conclusion is fatal to Windham’s excessive force claim, warranting the
grant of summary judgment. 19
C. Monell Liability
Finally, in light of the above, there can be no liability for the County
under Monell. “We have stated time and again that ‘[w]ithout an underlying
constitutional violation, an essential element of municipal liability is missing.’”
Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 866–
67 (5th Cir. 2012) (en banc) (alteration in original) (quoting Becerra v. Asher,
105 F.3d 1042, 1048 (5th Cir.1997)). Because Windham fails to demonstrate
the existence of a constitutional violation, the County is entitled to judgment
on his Monell claim as a matter of law.
* * *
The district court’s judgment is AFFIRMED.
19 Our conclusion also disposes of Windham’s late-raised bystander liability claim
against Pasket. See Kitchen v. Dallas Cty., 759 F.3d 468, 481 (5th Cir. 2014) (“[B]ystander
liability arises . . . only where the plaintiff can allege and prove ‘another officer’s use of ex-
cessive force.’” (quoting Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995))), abrogated on other
grounds, Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472–73 (2015).
19