Case: 20-20387 Document: 00515953646 Page: 1 Date Filed: 07/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-20387 July 27, 2021
Lyle W. Cayce
Clerk
Janet Prim; Eric Prim,
Plaintiffs—Appellants,
versus
Deputy Stein; Lieutenant Webb; Detective Terrell;
John Harshaw; Montgomery County, Texas; The Center
for the Performing Arts at the Woodlands; Live
Nation Worldwide, Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-1774
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Carl E. Stewart, Circuit Judge:
Eric and Janet Prim (“the Prims”) were arrested for public
intoxication while attending a concert in The Woodlands, Texas. They sued
the concert venue as well as Montgomery County (“the County”) and
several Montgomery County officers for violations of federal law. The
district court granted summary judgment in favor of the Defendants. We
AFFIRM in part and REVERSE and REMAND in part.
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No. 20-20387
I. FACTUAL AND PROCEDURAL HISTORY 1
On the evening of June 17, 2018, the Prims attended a 7pm concert at
the Cynthia Woods Mitchell Pavilion (“the Pavilion”) in The Woodlands,
Texas. 2 Live Nation Worldwide Incorporated produces and promotes the
Pavilion’s events.
Before the concert, 3 the Prims had dinner and consumed approxi-
mately three glasses of wine each. At the concert, the Prims each consumed
an additional two glasses of wine between 7:15pm and 10pm. As the Prims
were leaving the concert, Janet was “stumbling, unstable, [and] holding onto
things.” John Harshaw, a Pavilion employee, noticed Janet’s stumbling and
came over to offer his assistance. Harshaw used his radio to call for a wheel-
chair for Janet.
Harshaw escorted the Prims to the Pavilion’s security office. Eric con-
tinued to talk with Harshaw, and Harshaw smelled alcohol on Eric’s breath.
Eric also spoke with Deputy Stein, who had been working traffic at the Pavil-
ion and was called to help with the Prims. Deputy Stein saw Eric sway and
noticed that Eric had difficulty standing, had bloodshot eyes, and slurred
speech. Eric told Deputy Stein that he had been drinking both before and
during the concert. Deputy Stein administered a horizontal gaze nystagmus
test to Eric, and Eric failed it twice because he could not hold his head still.
Janet suffers from multiple sclerosis (“MS”), and her symptoms in-
clude stumbling, inability to recall, and vision loss. Once at the security office,
Janet was evaluated by Charles Tatum, a medic. Tatum involved police after
1
Since the Prims are the non-movants, we construe the evidence in the light most
favorable to them. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970).
2
The Pavilion is also known as the Center for the Performing Arts at the
Woodlands.
3
Dinner occurred sometime between 4 and 7pm on June 17, 2018.
2
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suspecting that Janet was drunk to ensure that Janet did not attempt to drive
herself home. Tatum called Lieutenant Webb, who spoke with Janet and ob-
served that Janet had red eyes, trouble answering questions, and had admit-
ted to drinking. Janet was unable to hold a conversation with Lieutenant
Webb and was unable to stand on her own.
The Prims insisted on walking home since they “lived on the other
side of the golf course.” To walk home, the Prims would have had to cross
two intersections (including a busy parkway) in the dark. Both Prims were
stumbling, had red eyes, slurred speech, and other indicators of intoxication.
Rather than permit them to walk home in their condition, the officers tried to
find the Prims a ride home. The officers asked Eric to provide information so
that the officers could call someone to pick the Prims up. Eric did not have a
cell phone on him at the time and said he did not know the numbers of anyone
the officers could call. Unable to find the Prims a ride home, Deputy Stein
arrested them for public intoxication. The charges against the Prims were ul-
timately dismissed.
On May 30, 2018, Janet and Eric filed a lawsuit in the Southern Dis-
trict of Texas. They asserted 42 U.S.C. § 1983 claims against the County and
Deputy Stein, Lieutenant Webb, and Detective Terrell for alleged violations
of the Fourth Amendment. They alleged that the County and the Pavilion
Defendants violated their rights under the Americans with Disabilities Act
(“ADA”) and Rehabilitation Act (“Rehab Act”). They also asserted false
imprisonment, assault, negligence, gross negligence, and intentional inflic-
tion of emotional distress 4 claims against the Pavilion Defendants.
4
The Prims do not present an argument that the district court erred in granting
summary judgment on their claim for intentional infliction of emotional distress. Any
potential argument has been abandoned on appeal. See Mackey v. Astrue, 486 F. App’x 421,
423 (5th Cir. 2012) (per curiam).
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In March 2019, the Pavilion Defendants moved for summary judg-
ment. The district court granted their motion. In July 2019, the County and
the officers moved for summary judgment. The district court granted the mo-
tion. This appeal follows.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo.
Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). “The court shall
grant summary judgment 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). “A fact is ‘material’ if its resolution
in favor of one party might affect the outcome of the lawsuit under governing
law.” Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue
is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.” Id.
III. DISCUSSION
The Prims maintain that the district court erroneously granted
summary judgment in favor of the Pavilion Defendants, Montgomery
County, and the Montgomery County officers.
A. Pavilion Defendants
The Prims argue that they were assaulted, falsely imprisoned, and
harmed by the Pavilion Defendants’ negligence and that the district court
erred by granting the Pavilion Defendants’ motion for summary judgment.
We agree with the district court on most claims, but we disagree about Eric
Prim’s assault claim.
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1. Assault
Both Eric and Janet Prim contend that they were assaulted by the
Pavilion Defendants. Janet claims that she was assaulted when she was forced
into a wheelchair by an unknown individual. Eric says that Harshaw assaulted
him by grabbing his arm while they walked to the Pavilion’s security office.
The district court disagreed, granting summary judgment in favor of the
Pavilion Defendants. We agree that Janet’s claim fails. Eric’s claim, however,
raises a genuine factual dispute that should be resolved by a factfinder.
“A person commits an assault if he intentionally or knowingly causes
physical contact with another when the person knows or should reasonably
believe that the other will regard the contact as offensive or provocative.”
Umana v. Kroger Texas, L.P., 239 S.W.3d 434, 436 (Tex. App—Dallas 2007,
no pet.).
Though Janet claims that she was assaulted, Janet’s deposition offers
conflicting testimony about her experience getting into the wheelchair. Janet
testified that someone “forced [her] into a wheelchair.” In the next few lines,
she said that “[she’s] not saying [she] objected to the wheelchair.” She also
stated that she was “very happy to see the wheelchair, because, without Eric
to hold onto, [she] would have been on the ground.”
Janet’s own testimony undercuts the idea that she was assaulted.
Moreover, Janet has not presented evidence that a Pavilion employee
assaulted her because she cannot identify who purportedly forced her into
the wheelchair. Thus, we agree with the district court’s dismissal of Janet’s
claim.
Eric’s assault claim is a different story. Eric argues that Harshaw
grabbed his arm while Eric, Janet, and Harshaw traveled to the Pavilion’s
security office. Eric says that Harshaw grabbed his arm, that he experienced
pain, and that he told Harshaw that he was in pain. Harshaw does not dispute
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that he grabbed Eric, but he claims that he was justified in doing so because
Eric pushed him. Eric denies pushing Harshaw.
Moreover, Harshaw argues that he grabbed Eric for less than a minute
and that he let go when Eric told him that he was in pain. Harshaw responds
by saying that Eric impliedly consented because Eric did not immediately tell
him that his contact was offensive or provocative. Even so, “[t]he issue of
consent as a defense is an issue of fact to be determined by a jury.” Allen v.
State, 273 S.W.3d 689, 693 (Tex. App—Houston [1st Dist.] 2008, no pet.).
Since both parties acknowledge that Harshaw grabbed Eric, our
analysis turns on whether a reasonable person could deem the contact
offensive or provocative. Harshaw argues that the contact was so brief that
no reasonable juror could find it offensive, and he cites Picard v. City of
Dallas, 3:10-CV-634-K, 2011 WL 3758806, at *9 (N.D. Tex. Aug. 25, 2011),
aff’d, 467 F. App’x 327 (5th Cir. 2012). In Picard, the district court granted
summary judgment against a plaintiff who accused her co-worker of
assaulting her by touching her back and shoulders because there was no
evidence that the co-worker knew that his contact was offensive. Id. Here,
however, a reasonable juror could conclude that Harshaw’s contact was
offensive. By Harshaw’s own account, he grabbed Eric after Eric shoved him.
It is not inconceivable that Harshaw grabbed Eric in a manner or a degree that
a reasonable person could find offensive. While Harshaw’s contact may have
ultimately been inoffensive, it is difficult to conclude as much as a matter of
law.
Harshaw additionally relies on Schroeder v. Lufthansa German Airlines,
875 F.2d 613 (7th Cir. 1989), but that case is also distinguishable. In Schroeder,
the court granted summary judgment on a battery claim where a flight
attendant took the plaintiff by the arm and led her to the cockpit. Id. at 622.
In affirming the summary judgment, the Seventh Circuit noted that the
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plaintiff voluntarily walked to the cockpit with the flight attendant and failed
to indicate that she was harmed or offended by the flight attendant’s alleged
touching. Id. Unlike the plaintiff’s silence in Schroeder, Eric told Harshaw
that it hurt when he grabbed him.
Harshaw’s final response to Eric’s assault claim is that Eric has failed
to present evidence of damages. The Prims sought actual damages for assault.
Harshaw insists that summary judgment was appropriate because the Prims
failed to prove how the assault caused their damages. Texas law does not
require the Prims to prove physical or personal injury to sustain an assault
claim. See Sanchez v. Striever, 614 S.W.3d 233, 240 (Tex. App.—Houston
[14th Dist.] 2020, no pet.). “As offensive physical contact is the gravamen of
the claim, the defendant is liable for contacts that are offensive and
provocative regardless whether they cause physical harm.” Id. Eric is thus
not required to prove damages to survive summary judgment on his assault
claim.
Since Harshaw grabbed Eric and a reasonable person could find that
contact offensive, we reverse the district court’s summary judgment on
Eric’s assault claim. We affirm the summary judgment on Janet’s assault
claim.
2. False Imprisonment
The Prims contend that Harshaw falsely imprisoned them when he
escorted them to the security office and lacked “legal authority or valid
reasons to arrest or detain Eric or Janet.” The Pavilion Defendants respond
by pointing to the lack of evidence that Harshaw detained the Prims or
otherwise instigated their detention by officers.
“The essential elements of false imprisonment are: (1) willful
detention; (2) without consent; and (3) without authority of law.” Wal-Mart
Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002) (quoting Sears,
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Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985)). “[L]iability for
false imprisonment extends beyond those who willfully participate in
detaining the complaining party to those who request or direct the
detention.” Id. at 507 (citing Joske v. Irvine, 44 S.W. 1059, 1063 (Tex. 1898)).
“False imprisonment’s first element may thus be satisfied by conduct that is
intended to cause one to be detained, and in fact causes the detention, even
when the actor does not participate in the detention.” Id. “[M]erely
reporting a crime and the suspected criminal to law enforcement authorities
does not constitute procurement of criminal proceedings when the
authorities exercise discretion in deciding whether to prosecute.” Id. at 509.
There is no genuine factual dispute about whether Harshaw
personally detained the Prims by escorting them to the security office. The
Prims did not present evidence that Harshaw forced them to go the security
office or that Harshaw detained them once they arrived at the office.
There is no factual dispute about Harshaw’s alleged role in instigating
the Prims’ detention by the police. Though Harshaw told the officers that the
Prims need to be arrested, there is no evidence that the officers acted at
Harshaw’s request or that the Prims otherwise would not have been arrested.
For example, Lieutenant Webb testified in her deposition that she conducted
an independent analysis of Janet and made the decision to arrest Janet herself.
We affirm the summary judgment on the Prims’ false imprisonment claim.
3. Negligence
The Prims next argue that the Pavilion is liable for the negligent
supervision and training of Harshaw. The Pavilion Defendants disagree,
arguing that the Prims did not present evidence of negligent supervision. We
agree.
To prevail on a negligent-supervision claim against an employer, the
plaintiff must prove that the employer owed him a duty to supervise its
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employees, that the employer breached that duty, and that the breach
proximately caused the plaintiff’s injuries. See Knight v. City Streets, L.L.C.,
167 S.W.3d 580, 584 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Even
if we assume that the Pavilion owed the Prims the duty to supervise Harshaw,
there is no evidence that the Pavilion breached that duty. Harshaw
approached the Prims after he noticed Janet’s stumbling, called for a
wheelchair for Janet, and escorted them to the security office. Even if
Harshaw committed a tort against the Prims, the Prims have failed to
demonstrate how the Pavilion was negligent in its supervision of Harshaw.
We affirm the summary judgment on this issue.
4. Respondeat Superior
Next, the Prims assert that the Pavilion is liable for Harshaw’s actions
through respondeat superior. “To hold an employer liable for the actions of
its employee, a claimant must prove (1) an agency relationship existed
between the employee [] and the employer []; (2) the employee committed a
tort; and (3) the tort was in the course and scope of the employee’s
authority.” Id. at 582–83 (citing Baptist Memorial Hosp. Sys. v. Sampson, 969
S.W.2d 945, 947 (Tex. 1998)).
There is a genuine factual dispute on Eric Prim’s assault claim.
Because Harshaw was an employee of the Pavilion, whether Harshaw is liable
for assault—and if so, whether he was acting within the scope of his
employment with the Pavilion—present genuine factual disputes as to this
claim against the Pavilion. We thus reverse and remand this issue to the
district court.
B. Montgomery County Officers’ Qualified Immunity Defense
The Prims alleged that the Montgomery County officers violated the
Fourth Amendment by arresting them without probable cause. The officers
moved for summary judgment based on qualified immunity, and the district
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court granted the motion. We agree that the officers are entitled to qualified
immunity.
“A warrantless arrest must be based on ‘probable cause.’ Probable
cause exists when the totality of 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.” Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000).
Even if the officers lacked probable cause for the Prims’ arrests,
“[q]ualified 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.’”
Osborne v. Harris Cnty, Tex., 97 F.Supp.3d 911, 923 (S.D. Tex. 2015) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The Prims were arrested for public intoxication under Texas Penal
Code section 49.02(a), which prohibits “appear[ing] in a public place while
intoxicated to the degree that the person may endanger the person or
another.” Eric had difficulty standing, bloodshot eyes, and slurred speech.
He admitted to drinking throughout the night and twice failed the nystagmus
test. Though the Prims’ expert’s report concludes that they were not
intoxicated because of the timing of their alcohol and food consumption, this
does not resolve the question at hand—whether officers could reasonably
infer that the Prims were intoxicated based on the totality of the
circumstances. See Dist. of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018).
Since Eric exhibited symptoms of intoxication and failed the nystagmus test,
the officers reasonably inferred that Eric was intoxicated.
But section 49.02 requires more than mere intoxication. The officers
also needed reason to think that Eric was a danger to himself, though “[t]he
danger need not be immediate.” Gallagher v. State, 778 S.W.2d 153, 154 (Tex.
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App.—Houston [1st Dist.] 1989, no pet.). Though Eric claims that there was
no reason to think he was a danger to himself or others, his deposition
testimony dooms his argument. The Prims insisted on walking the “mile [or]
mile and a half” back to their home, across Woodlands Parkway and several
other intersections. Given their apparent intoxication, inability to stand
without assistance, and the length and path of their route home, the officers
reasonably concluded that the Prims posed a danger to themselves or others.
As to Janet, the Prims argue that the officers lacked probable cause
because Janet’s stumbling, red eyes, and inability to stand were caused by her
MS. Even if Janet is correct that her MS caused her to appear intoxicated
(rather than the alcohol that she admittedly consumed), the officers are still
shielded by qualified immunity. Janet appeared intoxicated, and “probable
cause does not require officers to rule out a suspect’s innocent explanation
for suspicious facts.” Wesby, 138 S. Ct. at 588. On review, we only ask
“whether a reasonable officer could conclude—considering all of the
surrounding circumstances, including the plausibility of the explanation
itself—that there was a ‘substantial chance of criminal activity.’” Id. at 588
(quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)).
The officers observed Janet stumbling and unable to stand without
assistance. She admitted to drinking on the night of the concert. A reasonable
officer could have concluded that Janet was intoxicated and that she posed a
danger to herself or others if she tried to walk home with Eric. The officers
had probable cause to arrest Janet. We thus affirm the summary judgment in
favor of the County and its officers.
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C. ADA and Rehab Act Claims
Janet asserted ADA and Rehab Act claims against the County, the
Pavilion, and Live Nation. 5 The district court granted summary judgment on
each of the Prims’ claims. We agree with the district court.
1. Title II of the ADA
Janet argues that both the County and the Pavilion violated Janet’s
rights under Title II of the Americans with Disabilities Act. That section
provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied 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 (emphasis added). A
public entity is a state or local government, agency or department of a state
or local government, and select railroad and commuter authorities. Id. at §
12131.
Both claims are deficient. Janet’s Title II claim against the Pavilion
fails because the Pavilion is a private entity, not a public entity within the
meaning of the ADA. Nor is it a railroad or commuter authority. As for
Janet’s claim that the County violated Title II by not giving its officers proper
training, the County persuasively notes that there is no evidence that Janet
was discriminated against “by reason of her disability.” There is also no
evidence that Janet was denied a reasonable modification in accessing the
County’s benefits or services. Frame v. City of Arlington, 657 F.3d 215, 231
(5th Cir. 2011) (explaining that Title II may require reasonable
5
The Prims did not present evidence that Eric has a disability within the meaning
of the ADA.
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modifications). Because there is no evidence that Janet faced discrimination
because of her MS diagnosis, we affirm the district court’s judgment.
2. Rehab Act Claims
Janet also lodges Rehab Act claims against both the Pavilion and the
County, to no avail. We agree with the district court’s grant of summary
judgment.
No otherwise qualified individual with a disability in the United States
. . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any
Executive agency or by the United States Postal Service.
29 U.S.C. § 794 (emphasis added).
Again, the Pavilion does not fit within the statute’s definitions. The
Pavilion is a private, non-profit entity and it does not receive federal financial
assistance. It is not amenable to suit under the Rehab Act. On the other hand,
the County’s operations do fit within the statute’s definition of program or
activity. See id. at § 794(b). Still, Janet has failed to prove that she was denied
participation or benefits based on her disability. We affirm the district court.
3. Title III of the ADA
Janet also asserts Title III claims against the Pavilion. Though the
Pavilion is amenable to suit under Title III, Janet has failed to present a
genuine factual dispute. We agree with the district court’s grant of summary
judgment.
Title III of the ADA prohibits “discriminat[ion] . . . on the basis of
disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a
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place of public accommodation.” 42 U.S.C. § 12182. Janet has not
demonstrated that she was discriminated against based on her disability, so
her claims fail.
Janet specifically points to two claims under Title III, an architectural
barrier claim and a policy modification claim. As for her architectural barrier
claim, Janet must have presented some record evidence that (1) the Pavilion
has a barrier and (2) the removal of the barrier is readily achievable. See 42
U.S.C. § 12182(b)(2)(A)(iv). Even if Janet is correct that various features 6 of
the Pavilion create a barrier of some sort, she did not present evidence that
the barrier’s removal was readily achievable.
To the extent that Janet also asserts a claim that the Pavilion failed to
implement a policy modification under Title III, she has failed to identify a
policy, practice, or procedure to modify. See id. at § 12182(b)(2)(A)(ii).
Moreover, there is no evidence “that a modification was requested and that
the requested modification is reasonable.” Johnson v. Gambrinus Co./Spoetzl
Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997). We thus affirm the district court.
IV. CONCLUSION
For the aforementioned reasons, the district court’s judgment is
AFFIRMED in part and REVERSED and REMANDED in part.
6
Janet points to several features of the Pavilion including the spotlights and strobe
lights that are used during concerts.
14