IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 23, 2008
No. 07-30953 Charles R. Fulbruge III
Clerk
RUBENS MESA; JULIETA TARAZONA
Plaintiffs - Appellants
v.
DWAYNE PREJEAN, Individually and in his official capacity as a Lafayette
City Police Officer
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
This is a civil suit seeking damages against police officers for illegally and
with excessive force arresting Plaintiffs Rubens Mesa and Julieta Tarazona.
This appeal concerns the summary judgment granted in favor of one of the
officers on the basis of qualified immunity. We affirm as to the claims brought
by Mesa but reverse and remand in part the claims brought by Tarazona.
I. Facts and Procedural Background
The Plaintiffs Rubens Mesa and Julieta Tarazona are married and own
Guama’s Restaurant and Bar in Lafayette, Louisiana. In the late-night hours
No. 07-30953
of April 8, 2005, one of the Defendants, Lafayette Police Officer Dwayne Prejean,
was on duty patrolling an area near downtown where Guama’s and many other
bars were located. Patrons were in the businesses and on the sidewalks. Officer
Prejean visited a few establishments to have owners move tables and chairs that
were obstructing sidewalks in a manner that he believed to be violating state
statute and local ordinance.
After stopping at Guama’s, Officer Prejean walked across the street to
another business. There, he arrested Tyler Guilbeau for disturbing the peace
due to intoxication. Officer Prejean placed Guilbeau inside his police car and
then stood next to the car while preparing paperwork on the arrest. Mesa
approached Prejean while he was writing in order to discuss the tables and
chairs on the sidewalk and to inquire about or object to Guilbeau’s arrest.
Officer Prejean instructed Mesa to wait on the sidewalk. Mesa walked
across the street to the opposite sidewalk. Tarazona arrived and heard Mesa’s
version of events. Tarazona and Guilbeau’s girlfriend, an employee of Guama’s,
both walked over to Officer Prejean; Mesa remained on the sidewalk. Officer
Prejean testified that when Tarazona first approached, he had already arrested
Guilbeau and was in the process of writing up a misdemeanor summons to give
to Guilbeau before releasing him. Tarazona asked Officer Prejean why Guilbeau
was being arrested and about Prejean’s earlier demand that Guama’s chairs and
tables be moved off the sidewalk.
At this point, the facts diverge as to Officer Prejean’s initial response to
Tarazona. Officer Prejean testified that he gave at least three clear orders for
Tarazona to remove herself from the street. Tarazona asserts that Officer
Prejean gave directions only twice. Moreover, the first was not an “imperative
command” but an invitation to discuss the matter of the tables and chairs when
he finished processing Guilbeau. Despite these assertions about the lack of
urgency of Officer Prejean’s initial directive, Tarazona’s deposition testimony
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No. 07-30953
confirms that (1) Officer Prejean “told” her twice to get out of the street and
move on, and (2) she did not immediately comply with his initial directive.
There is evidence, though disputed, that Tarazona crossed the street to the
opposite sidewalk after the second request.
Upon reaching the sidewalk, Tarazona turned back toward Officer Prejean
and made some comments in his direction. Officer Prejean testified that
Tarazona began “yelling again about the media and she’s going to call the
Governor and have my job.” Tarazona testified that she made a comment to the
following effect: “If you didn’t have that badge you wouldn’t be treating me like
that.” After Tarazona made her comments, Officer Prejean immediately
informed her that she was under arrest and started toward her.
When Officer Prejean approached Tarazona to place her under arrest,
Mesa moved toward him in what Officer Prejean described as an “aggressive
manner.” At least two officers became involved physically with Mesa while
detaining him. As a result, Mesa was bleeding and was taken to the hospital for
examination. While Mesa was being restrained, Officer Prejean placed his hand
on Tarazona’s shoulder near her upper back and neck because he had already
used his handcuffs on Guilbeau. Tarazona perceived the presence of Officer
Prejean’s hand as a requirement for her to kneel, and Tarazona knelt down.
Tarazona testified that, while she thought this manner of arrest was unusual,
Officer Prejean did not force her to the ground or otherwise inflict physical harm
upon her. Still, she complains that she was injured by Officer Prejean’s forcing
her to watch the other officers beat her husband, Mesa. Tarazona was
approximately eight feet away from the incident between Mesa and the other
officers. Less than one minute passed between Tarazona’s comments to Officer
Prejean and the point at which both she and Mesa were detained.
Tarazona was charged with disturbing the peace by intoxication and with
remaining after forbidden. Mesa was charged with resisting an officer, battery
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No. 07-30953
of an officer, obstruction of a public passage, and disturbing the peace by
intoxication. After a trial, a municipal court judge held that Mesa and Tarazona
were not guilty of the charges.
Following the acquittals, Mesa and Tarazona brought this suit for
violation of constitutional rights under 42 U.S.C. § 1983 and under Louisiana
law for false arrest, false imprisonment, use of excessive force, defamation, and
malicious prosecution.
Officer Prejean filed a motion for summary judgment, seeking dismissal
of all of the claims brought against him. The district court granted the motion
on the basis of qualified immunity. The court denied summary judgment
motions by the other Defendant officers. The City of Lafayette received a partial
summary judgment for matters related to prosecutorial immunity.
The court entered a Rule 54(b) judgment certifying the finality of the order
favoring Officer Prejean. Mesa and Tarazona appeal from that judgment.
II. Discussion
This court reviews a district court’s grant of summary judgment de novo
and evaluates the evidence as the district court would. XL Specialty Ins. Co. v.
Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir. 2008). Summary
judgment is appropriate when “there is no genuine issue as to any material fact,
[and] the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). The issue of qualified immunity is a question of law, but in certain
circumstances where “there remain disputed issues of material fact relative to
immunity, the jury, properly instructed, may decide the question.” Presley v.
City of Benbrook, 4 F.3d 405, 410 (5th Cir. 1993).
When an officer argues that he is entitled to qualified immunity from suit,
we first view the evidence “in the light most favorable to the party asserting the
injury” and decide if “the facts alleged show the officer’s conduct violated a
constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If that view
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No. 07-30953
reveals no constitutional violation, there is no claim. However, “if a violation
could be made out on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly established.” Id. This
second inquiry “must be undertaken in light of the specific context of the case,
not as a broad general proposition.” Id. For immunity to apply, the “actions of
the officer must be objectively reasonable under the circumstances, such that a
reasonably competent officer would not have known his actions violated
then-existing clearly established law.” Evett v. Deep E. Tex. Reg’l Narcotics
Trafficking Task Force, 330 F.3d 681, 688 (5th Cir. 2003).
We apply these standards first to Tarazona’s claims and then to Mesa’s.
A. Tarazona’s Fourth Amendment Claims
The validity of summary judgment on Tarazona’s claims turns on whether
Officer Prejean had “probable cause to believe that a criminal offense has been
or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “Probable
cause exists when the totality of the facts and circumstances within a police
officer’s knowledge at the moment of arrest are sufficient for a reasonable person
to conclude that the suspect had committed or was committing an offense.”
United States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006). A mistake
reasonably made as to probable cause justifies qualified immunity. Tarver v.
City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).
Two offenses were the alleged basis for the arrest: Tarazona’s remaining
after forbidden and her disturbing the peace by intoxication. We examine each
offense in turn.
1. Remaining After Forbidden
Officer Prejean first argues that he had probable cause to arrest Tarazona
under Louisiana’s criminal trespass statute, which provides as follows:
No person shall without authority go into or upon or attempt to go
into or upon or remain in or upon any structure, watercraft, or any
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No. 07-30953
other movable or immovable property, which belongs to another,
including public buildings or structures, ferries and bridges, or any
part, portion, or area thereof, after having been forbidden to do so,
either orally or in writing . . . by any owner, lessee, or custodian of
the property or by any other authorized person.
La. Rev. Stat. § 14:63.3(A). The Louisiana Court of Appeal has held that this
statute “does not prohibit standing on a public sidewalk.” Melancon v. Trahan,
645 So. 2d 722, 726-27 (La. Ct. App.), writ denied, 650 So. 2d 1183 (La. 1995); see
also State v. Brooks, 755 So. 2d 311, 313-14 (La. Ct. App. 1999). Though quite
likely an officer has the right in Louisiana to require someone to move even from
a sidewalk to avoid interfering with an arrest, the issue framed for us is whether
refusing to do so violates this trespass statute. The state Supreme Court has not
ruled on these points, but these precedents at least raise doubt that a sidewalk
can be the situs for application of this specific statute.
There is some evidence that Tarazona was in the street, not on the
sidewalk. This statute’s applicability to public streets has not been the subject
of any Louisiana court opinion. It may not criminalize every instance of
remaining on a public street after being forbidden. See Melancon, 645 So. 2d at
726-27. Because the issue regarding the statute’s applicability to kinds of
locations has not been raised or briefed by the parties, and because resolution
of the point is not dispositive on appeal, we leave this issue to be decided by the
district court on remand after full presentation by the parties.
Regardless of the legal issue of whether an officer may expel an individual
from a street or sidewalk, the violator must be given “a reasonable time to
actually accomplish his departure.” State v. Kology, 785 So. 2d 1045, 1048 (La.
Ct. App. 2001). These disputed facts do not indicate whether Tarazona only
briefly and reasonably hesitated after an initial request to move on. Further, if
Tarazona’s explanation is accepted that Officer Prejean at first used what would
be a neighborhood policing technique of making a suggestion and not issuing a
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No. 07-30953
command – though still“telling” her to move on – the resolution of disputed facts
could be that she promptly moved at the first clear command.
The district court determined that Tarazona’s failure to obey the first
order to move gave Officer Prejean probable cause to arrest. See Murray v. Town
of Mansura, 940 So. 2d 832 (La. Ct. App. 2006). The Murray court held that a
town police chief had probable cause to arrest two individuals who did not leave
the Mansura city hall premises after being given two warnings to move on. Id.
at 835, 841-42. We do not find the answer in Murray. First, the violators in
Murray refused to leave after being given two warnings and only departed from
the premises after being told they were under arrest. Id. In contrast, there is
some evidence that Tarazona complied with the one clear request and, arguably,
moved within a reasonable time after Officer Prejean’s first request. Second, the
individuals who refused to leave city hall violated Section 14:63.3, as it applies
to “public buildings and structures.” Sidewalks and streets, though, may not be
proper places for applying the statute as we have discussed.
Therefore, when viewing the evidence favorably to Tarazona, we conclude
that there are fact questions about a violation of a constitutional right to be free
from unreasonable seizures. See Saucier, 533 U.S. at 201. Because of that
uncertainty, we must take the next sequential step in qualified immunity
analysis and ask whether “a reasonably competent officer would not have known
his actions violated then-existing clearly established law.” Evett, 330 F.3d at
688. Here, too, the factual ambiguities regarding what Officer Prejean said and
how many times he said it, how quickly Tarazona moved, and whether no
reasonable officer would have thought he could arrest a person for her failure to
move from a sidewalk, make summary judgment inappropriate.
We should not be read as failing to distinguish the two analytical steps.
If there is no probable cause to arrest, the question of whether qualified
immunity nonetheless applies is a separate legal and factual issue. In one
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No. 07-30953
precedent, we reversed a decision regarding probable cause and remanded; on
the next appeal, then-Chief Judge Clark wrote that whether a “search was
reasonable is not the equivalent of whether an officer participating in an
unreasonable search is entitled to qualified immunity.” Bigford v. Taylor, 896
F.2d 972, 975 (5th Cir. 1990). We later examined the trilogy of Bigford appeals
and concluded that the analysis of facts that might not support probable cause
to arrest needs to be distinguished from the analysis of whether a reasonable
officer would have known that he was violating clearly established law when
making an arrest. Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir. 1997). We find
the facts relevant to each analysis sufficiently disputed to require reversal.
2. Disturbing the Peace by Intoxication
Even though Officer Prejean should not have been granted qualified
immunity on summary judgment as to the first offense, we must examine the
alternate basis for arrest due to disturbing the peace by intoxication. Probable
cause to arrest for either offense gives immunity. Tarazona submitted sworn
eyewitness statements that she was not intoxicated. Officer Prejean posits that
Tarazona’s actual intoxication is not dispositive in the probable cause inquiry.
The relevant statutory language for the offense is this:
A. Disturbing the peace is the doing of any of the following in such
manner as would foreseeably disturb or alarm the public:
(3) Appearing in an intoxicated condition . . . .
La. Rev. Stat. § 14:103(A)(3). This crime requires that a “defendant was
disturbing the peace by appearing drunk and in such a manner as would
foreseeably disturb or alarm the public.” State v. Trepagnier, 982 So. 2d 185, 191
(La. Ct. App. 2008). For a conviction, “the intoxication element is satisfied when
the defendant is present ‘while intoxicated, and not when he merely looks like
he is intoxicated.’” Id. (quoting State v. Champagne, 520 So.2d 447, 451 (La. Ct.
App. 1988)). That test does not answer what is needed for arrest.
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No. 07-30953
Cases interpreting Section 14:103(A)(3) suggest that probable cause for an
arrest for violating the statute requires that an officer observe evidence both of
actual intoxication and a likelihood that the public will be endangered or
disturbed. State v. Stowe, 635 So. 2d 168, 172 n.3 (La. 1994) (probable cause
existed “based on defendant’s offensive and derisive language in the middle of
a public highway, plus his visibly intoxicated condition”); State v. Chauvin, 945
So. 2d 752, 761-62 (La. Ct. App. 2006) (no probable cause because no evidence
of actual intoxication and no evidence “the defendant’s actions had the intent to
deride, offend or annoy the people he approached or that they were violent or
boisterous in a manner that would induce a foreseeable physical disturbance”).
The pertinent facts as to probable cause under Section 14:103(A)(3) are not
well-developed in this record. Officer Prejean moved for summary judgment and
argued that he had probable cause to arrest under each of the statutes we have
discussed. The district court did not reach Officer Prejean’s arguments on
disturbing the peace by intoxication, finding the arrest under the criminal
trespass statute to be justified. On appeal, Tarazona has disputed the existence
of probable cause only by arguing she was not actually intoxicated. The
appropriate inquiry, though, is whether the officer had probable cause to believe
that she was. See Gibson v. Rich, 44 F.3d 274, 276-77 (5th Cir. 1995).
While Tarazona’s evidence of her sobriety is not decisive on the probable
cause issue, there also is little evidence that would support a finding that, based
on Tarazona’s conduct preceding her arrest, a reasonable person could conclude
that she was violating the intoxication statute.1
1
Under qualified immunity analysis, Tarazona bears the burden of proving that Officer
Prejean lacked probable cause to arrest her. Sorenson v. Ferrie, 134 F.3d 325, 330 & n.10 (5th
Cir. 1998). Tarazona “must show that the legality of her conduct was clearly established.” Id.
Her perceived intoxication is an alternative basis for arrest, and in response Tarazona did not
demonstrate that the legality of her conduct was clearly established. We use our discretion not
to affirm on that basis, never reached by the court below, because of the weakness of the
offered evidence to suggest that this offense was a legitimate basis for arrest.
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No. 07-30953
Even under our de novo review, the litigants must present this court with
material facts before we can determine whether such facts are in dispute. The
district court made no finding of fact regarding probable cause to arrest under
Louisiana’s disturbing the peace by intoxication statute. Office Prejean has
shown little justification for the arrest, and Terazona has not shown an absence
of justification. Under these circumstances, we decline the opportunity to affirm
summary judgment on this alternative basis of probable cause. See U.S. ex rel.
Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 380 (5th Cir. 2004).
Because we have found that summary judgment based on qualified
immunity should not have been granted under either alleged basis for the arrest,
we reverse the dismissal of Tarazona’s claim of an illegal arrest.2
3. Excessive Force
Tarazona alleged that Officer Prejean used excessive force when placing
her under arrest. Tarazona admits that she suffered no physical injuries as a
result of the arrest but argues that the arrest caused psychological injuries.
Purely psychological injury can serve as a basis for liability under Section 1983.
Tarver, 410 F.3d at 752. However, Tarazona’s excessive force claim fails because
the undisputed facts show that Officer Prejean’s use of “force” was reasonable
and not excessive under the circumstances. Indeed, Tarazona’s own statements
in the record indicate the pressure from the officer’s hand on her shoulder that
caused her to kneel down was minimal. There is no fact question here.
B. Tarazona’s First Amendment Claim
Tarazona alleges that Officer Prejean violated her right to free speech by
arresting her in response to her comment that he would be treating her and
2
An arrest may be upheld if the circumstances viewed objectively created probable
cause to arrest for a violation of some offense other than the one subjectively being considered
at the time by the officer. Devenpeck, 543 U.S. at 153. Because no offense other than two we
have considered is argued, we do not search for others.
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No. 07-30953
Mesa differently if he “didn’t have that badge.” There are different versions of
the comment, but we accept as true the language most favorable to Tarazona.
We apply the principle that “the First Amendment protects a significant
amount of verbal criticism and challenge directed at police officers.” Enlow v.
Tishomingo County, 962 F.2d 501, 509 (5th Cir. 1992) (quoting City of Houston
v. Hill, 482 U.S. 451, 462 (1987)). “The freedom of individuals verbally to oppose
or challenge police action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police state.” Id.
(quoting Hill, 482 U.S. at 462-63). In Enlow, this court reversed the grant of
summary judgment on the basis of qualified immunity where the facts were
disputed whether an officer arrested the plaintiff because of violating a statute
or because the plaintiff asked the officer to furnish a warrant. Id. at 510.
The district court here found that Tarazona’s arrest was due to her refusal
to leave. Based on this independent ground for arrest, the court found no merit
to Tarazona’s First Amendment claim.
Courts need to be alert to arrests that are prompted by constitutionally
protected speech, even when the arrestee’s words are directed at a police officer
performing official tasks. Trained officers must exercise restraint when
confronted with a citizen’s anger over police action. Id. at 509; see also Lewis v.
City of New Orleans, 415 U.S. 130, 134-35 (1974) (Powell, J., concurring).
Conversely, when a person’s conduct gives an officer probable cause to
believe that she is guilty of a crime, that person does not taint a proper arrest
by contemporaneously shouting “police officers are corrupt.” Probable cause is
an objective standard. If it exists, any argument that the arrestee’s speech as
opposed to her criminal conduct was the motivation for her arrest must fail, no
matter how clearly that speech may be protected by the First Amendment. Of
course, this is nothing more than a recognition that “the Fourth Amendment’s
concern with ‘reasonableness’ allows certain actions to be taken in certain
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No. 07-30953
circumstances, whatever the subjective intent” of the officer. Whren v. United
States, 517 U.S. 806, 814 (1996).
Because the validity of Tarazona’s First Amendment claim hinges on
probable cause for her arrest – a fact question for the jury – we cannot resolve
the speech claim on summary judgment. If Officer Prejean had probable cause
to arrest Tarazona under Section 14:63.3, there can be no inquiry into whether
he was subjectively motivated by her comments. In such an event, there could
be no First Amendment violation. But if a jury finds no probable cause,
Tarazona’s First Amendment claim may be considered as well.
C. Tarazona’s State Law Claims
Tarazona also advanced a number state law claims, including false arrest,
malicious prosecution, battery, false imprisonment, and defamation. The district
court dismissed all of these state law claims because it found that Tarazona’s
arrest was both lawful and reasonable under the circumstances. Because we
have found the district court’s determination of probable cause to be in error, we
reverse the court’s dismissal of Tarazona’s state law claims.
D. Mesa’s Fourth Amendment Claim
Mesa alleges that Officer Prejean violated his Fourth Amendment right
to be free from unreasonable seizures by failing adequately to supervise the
other officers who subdued and arrested him. Liability under Section 1983 for
a supervisor may exist based either on “(1) his personal involvement in the
constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.” Thompkins v.
Belt, 828 F.2d 298, 304 (5th Cir. 1987).
Though Officer Prejean never had physical contact with Mesa, it is argued
that he was “personally involved” in Mesa’s arrest because Prejean precipitated
the arrest by falsely and unlawfully arresting Tarazona. Mesa does not offer any
authority that would support this novel theory of liability as a form of “personal
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No. 07-30953
involvement.” We reject it because supervisory liability under the “personal
involvement” theory requires something more than mere presence at the scene
where subordinates allegedly violated the plaintiff’s constitutional rights. The
plaintiff must demonstrate an officer’s “overt personal participation” in the
violation of his own rights, not someone else’s. Id. There is no allegation that
Officer Prejean gave any command, signal, or any other form of direction to the
officers that prompted them to arrest and subdue Mesa.
Absent Prejean’s “overt personal participation” in the events giving rise
to the claims, Mesa must demonstrate that “(1) the supervisor either failed to
supervise or train the subordinate official; (2) a causal link exists between the
failure to train or supervise and the violation of the plaintiff's rights; and (3) the
failure to train or supervise amounts to deliberate indifference.” Estate of Davis
v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (internal quotation
marks and citation omitted). Deliberate indifference is a “‘conscious’ choice to
endanger constitutional rights.” Snyder v. Trepagnier, 142 F.3d 791, 799 (5th
Cir. 1998). “[P]roof of deliberate indifference generally requires a showing of
more than a single instance of the lack of training or supervision causing a
violation of constitutional rights.” Burge v. St. Tammany Parish, 336 F.3d 363,
370 (5th Cir. 2003) (quotation marks omitted).
Mesa argues that Officer Prejean’s failure to supervise the officers who
arrested him caused the deprivation of Fourth Amendment rights. More
specifically, Mesa contends that Officer Prejean is liable as a supervisor because
he failed to intervene in the brief physical altercation between Mesa and the
other officers, which he should have due to his senior rank and close proximity.
We review what admittedly occurred. Mesa characterizes his actions after
Tarazona was arrested as raising “his forearms next to his side with the palms
of his hands up in a questioning manner . . . .” This gesture then triggered two
officers to subdue Mesa. Deposition testimony from witnesses and the parties
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No. 07-30953
established that Mesa’s arrest happened very quickly; the altercation between
Mesa and other officers lasted approximately thirty to forty seconds. During this
time, Officer Prejean was occupied with maintaining control over his own
arrestee, Tarazona, whom he could not handcuff due to the fact that he had
already employed his only set of handcuffs on Guilbeau.
Based on these facts, Officer Prejean’s failure to intervene in Mesa’s arrest
does not amount to a conscious choice to endanger Mesa’s constitutional rights.
Further, Mesa has not made any attempt to show a pattern of similar
“violations” by Officer Prejean. These omissions are fatal to his failure to
supervise claim under Section 1983. See Rios v. City of Del Rio, 444 F.3d 417,
427 (5th Cir. 2006). We affirm the district court’s summary judgment in favor
of Officer Prejean as to Mesa’s claims.
III. Conclusion
The judgment dismissing Tarazona’s federal claims is REVERSED AND
REMANDED, with the exception that the judgment dismissing Tarazona’s
excessive force claim is AFFIRMED.
The judgment dismissing Tarazona’s state law claims is REVERSED.
The judgment dismissing Mesa’s claim is AFFIRMED.
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