Case: 22-40719 Document: 00516843488 Page: 1 Date Filed: 08/02/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-40719 FILED
Summary Calendar August 2, 2023
____________ Lyle W. Cayce
Clerk
Jarvis Livingston,
Plaintiff—Appellant,
versus
State of Texas; John Doe Lopez, In his personal capacity; Jane
Doe Mendoza, In her personal capacity; John Doe, Assistant District
Attorney, In his personal capacity; Karl Van Slooten, In his personal
capacity; City of Yoakum; Anita R. Rodriguez; Carl
O’Neill; Sean Mooney; Glenn Klander; Billy Goodrich;
Amanda Orack; Frank Rhodehamel,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:21-CV-7
______________________________
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam:*
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40719
Plaintiff-Appellant, Jarvis Livingston, proceeding pro se and in forma
pauperis, appeals the district court’s summary judgment in favor of
Defendants-Appellees, police officers with the City of Yoakum Police
Department, dismissing his 42 U.S.C. § 1983 claims for false arrest and
excessive force. For the reasons set forth below, we AFFIRM.
I.
During a Spears1 hearing conducted by the magistrate judge, Plaintiff
testified to the following: On July 6, 2019, Plaintiff’s brother and cousin got
into “an argument” while they were visiting an aunt’s residence in Yoakum,
Texas. Someone placed a 911 call and reported that “there was a fight [going
on].” When the police arrived, Plaintiff told his brother that he wanted to go
home once his brother finished talking with the police. “[T]hen . . . [Officer
Sarah] Mendoza proceeded to grab [Plaintiff’s] wrist,” so Plaintiff “pulled
[his] wrist back” and asked why Mendoza was touching him when he had not
done anything wrong. Minutes later, two other male officers (Officers Lopez
and Rhodehamel) arrived on the scene. Each officer grabbed one of
Plaintiff’s arms, and one grabbed his neck, and told him to get on the ground,
telling him he was not under arrest but that he was being detained. Plaintiff
resisted getting on the ground because he had not “done anything wrong.”
The officers then took him to the police car, told him he was “going to jail,”
and then slammed the door and took him to the county jail.
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1
Spears v. McCotter, 766 F.2d 179, 183 (5th Cir. 1985) (allowing a district court to
refer in forma pauperis cases to a magistrate judge “to hold an evidentiary hearing ‘in the
nature of a motion for more definite statement’”). Testimony given at a Spears hearing is
incorporated into the pleadings. Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996).
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Plaintiff was charged with resisting arrest and public intoxication and
was bonded out the next day.2 He testified that he believed his arrest was
unlawful and that the officers used excessive force during the incident in
violation of his constitutional rights. At the conclusion of the hearing,
Plaintiff testified that he was seeking thirty million dollars as damages.
The magistrate judge subsequently recommended that Plaintiff’s
claims of false arrest and excessive force be stayed pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994), because the related criminal cases were still
pending. The magistrate judge recommended that any remaining claims be
dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B) as frivolous, for
failure to state a claim, and based on immunity.
After the related criminal cases were dismissed, Plaintiff filed a
motion to lift the stay, which the magistrate judge granted. After answering
the complaint, Defendants filed a motion for summary judgment, arguing
that Plaintiff’s claims should be dismissed on the basis of qualified immunity.
The district court granted the motion.
In granting summary judgment, the district court largely relied on the
patrol vehicle recordings of the incident which revealed the following: When
Officer Mendoza arrived on the scene, Plaintiff was walking towards the area
where Officer Rhodehamel was questioning Plaintiff’s brother about the 911
call. The manner in which Plaintiff was approaching the men was clearly
troubling to Officer Mendoza because, after exiting her vehicle, she walked
towards Plaintiff, attempting to stop his movement and repeatedly instructed
him to “calm down.” The recordings further indicate that a scuffle then
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2
Plaintiff’s lawyer told him the resisting arrest charge had been dismissed, but in
January 2021, Plaintiff was informed that the charge had apparently been changed to
“interfering with police duties.”
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ensued between Plaintiff and Defendants. During the scuffle, Plaintiff
continued to resist Defendants’ efforts to calm him down by moving wildly
and repeatedly yelling at them.
After much effort, Defendants were able to handcuff Plaintiff and
move him near a patrol car. When Plaintiff complained that the handcuffs
were too tight, Officer Lopez loosened them, but Plaintiff continued to be
belligerent and noncompliant. Although at one point, Plaintiff appeared to
calm down, his change in behavior was short lived. Officers Lopez and
Mendoza ultimately informed Plaintiff that he was being arrested for public
intoxication. Plaintiff challenged his arrest, stating that he had “not [been]
tested,” but Officer Mendoza responded that Plaintiff did not need to be
tested under the circumstances because his behavior and the way he was
talking to them supported his arrest for public intoxication. She additionally
stated that she could smell alcohol during her interactions with him.
After being informed that he was being arrested for public
intoxication, Plaintiff continued to resist Defendants’ efforts to place him in
the patrol car. But, after one officer called for use of the WRAP restraint
system, Plaintiff began to cooperate and entered the patrol car. However,
after entering the car, Plaintiff continued to resist by refusing to put his legs
in the car. Officer Lopez had to grab Plaintiff’s legs and push Plaintiff into
the patrol car. Because of his continued resistance, Officer Lopez
subsequently filled out a probable cause affidavit for placing Plaintiff in the
Lavaca County Jail for resisting arrest or transport under Texas Penal Code
§ 38.03(a).
Based on this evidence, and its determination that Plaintiff was unable
to come forward with evidence creating a genuine dispute that his
constitutional rights had been violated, the district court concluded that
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Defendants were entitled to summary judgment under the first prong of the
qualified immunity analysis. Plaintiff filed a timely notice of appeal.
II.
This Court reviews the district court’s summary judgment de novo
applying the same standards as the district court. Buehler v. Dear, 27 F.4th
969, 979 (5th Cir. 2022). Under Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment shall be granted “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.” However, the usual summary-judgment
burden of proof does not apply when a defendant moves for dismissal based
on qualified immunity. “Although nominally an affirmative defense, the
plaintiff has the burden to negate the defense once it is properly raised.”
Tucker v. City of Shreveport, 998 F.3d 165, 173 (5th Cir. 2021) (citation
omitted).
Qualified immunity shields federal and state officials from money
damages unless a plaintiff can establish that (1) the official violated a
statutory or constitutional right, and (2) the right was clearly established at
the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011). Courts have the “discretion to decide which of the two prongs of
qualified-immunity analysis to tackle first.” Id. (citation omitted). In this
case, the district court determined that Defendants were entitled to qualified
immunity under the first prong because Plaintiff was unable to establish a
genuine dispute that his Fourth Amendment rights were violated. As
explained below, we agree.
A. False Arrest
The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” A warrantless arrest is a reasonable seizure “if the
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officer has probable cause to believe that the suspect committed a crime in
the officer’s presence.” District of Columbia v. Wesby, 138 S. Ct. 577, 586
(2018) (citation omitted). “Whether probable cause exists depends upon the
reasonable conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152
(2004) (citation omitted). “If an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in his presence,
he may, without violating the Fourth Amendment, arrest the offender.”
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
Here, Plaintiff was arrested on charges of public intoxication and
resisting arrest. Under Texas law, a person commits the offense of public
intoxication “if the person appears in a public place while intoxicated to the
degree that the person may endanger the person or another.” Tex. Penal
Code § 49.02(a). A person commits the offense of resisting arrest, search,
or transportation under Texas law “if he intentionally prevents or obstructs
a person he knows is a peace officer or a person acting in a peace officer’s
presence and at his direction from effecting an arrest, search, or
transportation of the actor or another by using force against the peace officer
or another.” Tex. Penal Code § 38.03(a).
As the district court determined, the record evidence in this case
establishes that, based on the facts known to Defendants on the night of the
incident, Defendants had probable cause to arrest Plaintiff for public
intoxication and resisting arrest.3 Specifically, the patrol car recordings make
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3
Under Supreme Court precedent, the existence of probable cause for any offense
is sufficient to defeat a claim of false arrest, even if the offense giving rise to probable cause
is different from “the offense identified by the arresting officer at the time of arrest.” See
Devenpeck, 543 U.S. at 153. Although not specifically discussed herein, we agree with the
district court that probable cause also existed to arrest Plaintiff for the crimes of
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clear that when Officer Mendoza arrived on the scene, the manner in which
Plaintiff was approaching Officer Rhodehamel, who was questioning
Plaintiff’s brother, was clearly troubling to Officer Mendoza. When she
exited her vehicle, she attempted to stop Plaintiff’s movement and
repeatedly instructed him to “calm down.” During the subsequent scuffle
between Plaintiff and Defendants, Plaintiff continued to resist Defendants’
efforts to calm him down by moving wildly and repeatedly yelling at them.
After being handcuffed (after much effort) and informed that he was being
arrested for public intoxication, Plaintiff resisted Defendants’ efforts to place
him in the patrol car. Once he did enter the patrol car, Plaintiff continued to
resist by refusing to put his legs in the car.
We agree with the district court that based on Plaintiff’s behavior and
demeanor, Plaintiff was a danger to himself or others as a result of
intoxication and that Defendants had probable cause to arrest him for public
intoxication. See Tex. Penal Code § 49.02(a). We further conclude that
after being informed of his arrest for public intoxication, Plaintiff resisted
getting into the patrol car and that probable cause existed to arrest him for
resisting arrest and transport in violation of Texas Penal Code § 38.03(a).
Plaintiff contends in his appellate briefing that during the incident, he
was only “verbally resistant,” that he was just trying to stop Officer
Rhodehamel from “being rude to [his] little brother,” and that he was
exercising his First Amendment right to speech. As set forth above, the
patrol car recordings of the incident indicate otherwise. They make clear that
Plaintiff was more than “verbally resistant.” The video recording shows that
Plaintiff physically resisted Defendants’ requests to calm down and that it
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interference with public duties and disorderly conduct under Texas law. See Tex. Penal
Code §§ 38.15(a)(1), 42.01(a)(1).
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took considerable physical effort for Defendants to gain control of Plaintiff.
Plaintiff’s behavior was irrational, belligerent, combative, and noncompliant.
Although Plaintiff contends that he did nothing wrong, we are not required
to accept factual allegations “that are ‘blatantly contradicted’” by video and
audio recordings taken at the scene. Buehler, 27 F.4th at 979-80 (citation
omitted). We conclude that the district court did not err in determining that
Defendants are entitled to summary judgment under the first prong of the
qualified immunity analysis because Plaintiff was unable to show his Fourth
Amendment rights were violated when Defendants arrested him.
B. Excessive Force
To succeed on an excessive force claim, Plaintiff must demonstrate
that he suffered “(1) an injury (2) which resulted directly and only from the
use of force that was excessive to the need and (3) the force used was
objectively unreasonable.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.
2001) (internal quotation marks and citations omitted). The district court
determined that Plaintiff was unable to establish any of these elements.
Plaintiff makes no argument challenging the district court’s
determination regarding the elements of his excessive force claim until his
reply brief.4 And, even then, Plaintiff does not challenge the district court’s
determination that he was unable to show “an injury” for purposes of an
excessive force claim. Although we liberally construe pro se briefs, even pro
se litigants must brief arguments in order to preserve them. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Therefore, Plaintiff has waived
the issue whether he established “an injury” by failing to brief it on appeal.
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4
Ordinarily, arguments raised for the first time in a reply brief are considered
waived. See City of Abilene v. U.S. E.P.A., 325 F.3d 657, 661 n.1 (5th Cir. 2003).
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III.
Based on the foregoing, the district court’s summary judgment in
favor of Defendants-Appellees, police officers with the City of Yoakum
Police Department, dismissing Plaintiff’s 42 U.S.C. § 1983 claims for false
arrest and excessive force is AFFIRMED.
9