Keith Schmidt v. State of Texas

Filing

UNPUBLISHED OPINION FILED. [09-20570 Affirmed in Part ] Judge: WED , Judge: JLW , Judge: JLD Mandate pull date is 11/16/2010 [09-20570]

Keith Schmidt v. Statease: 09-20570 C of Texas

Document: 00511275385 Page: 1 Date Filed: 10/26/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 26, 2010 N o . 09-20570 Lyle W. Cayce Clerk

K E I T H WAYNE SCHMIDT, P la in t if f -A p p e lle e v. E R I C GRAY, State Trooper, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 4:08-CV-01696

B e fo r e DAVIS, WIENER, and DENNIS, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Eric Gray, a Texas State Trooper, appeals the d is t r ic t court's denial of his motion for summary judgment in Plaintiff-Appellee K e v in Wayne Schmidt's 42 U.S.C. § 1983 action against Gray for use of excessive fo r c e . We affirm in part and dismiss in part. I . FACTS & PROCEEDINGS G r a y stopped Schmidt because his license plate was not visible. Gray s m e lle d alcohol on Schmidt, so he asked him to exit the car. After administering
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-20570 Document: 00511275385 Page: 2 Date Filed: 10/26/2010

No. 09-20570 s o b r ie t y tests, Gray concluded that Schmidt was intoxicated, arrested him, and p la c e d him in the front passenger seat of the patrol car. Schmidt then informed G r a y that he needed medications from his car because he suffered from a n u m b e r of illnesses, including AIDS. While Gray was retrieving those m e d ic a t io n s , Schmidt began to have difficulty breathing and spit mucus into an e m p t y paper cup in the patrol car. When Gray returned, Schmidt told him about s p it tin g into the cup, after which Gray became upset that Schmidt had spread h is bodily fluids in the patrol car. Gray called for a deputy sheriff who was d r iv in g a patrol car with a protective divider so that Schmidt could be taken to ja il in it because Gray was worried that Schmidt would spit on him and infect h im . While waiting for that car, Gray walked Schmidt to the rear of Gray's p a t r o l car. At some point, Gray closed the trunk lid, which had been left open, s la m m in g it on Schmidt's thumb. Schmidt alleges that Gray intentionally slammed the trunk lid on his t h u m b in retaliation for Schmidt's spitting in the cup. Gray counters that he did n o t notice Schmidt's hand near the trunk lid and that closing it on Schmidt's t h u m b was an accident. S c h m id t filed suit against Gray, asserting claims under the Americans w it h Disabilities Act (ADA) and § 1983.1 Gray filed a motion for summary ju d g m e n t seeking qualified immunity. The district court granted Gray's motion a s to Schmidt's ADA claims and as to those of his § 1983 claims based on denial o f medical treatment and conspiracy, but denied Gray's motion as to Schmidt's § 1983 claim based on use of excessive force, ruling that a genuine issue of fact e x is t s as to whether Gray injured Schmidt intentionally.

The record on appeal shows that Schmidt originally filed suit against the State of Texas, the Texas Department of Public Safety (DPS), and Montgomery County Hospital District--EMS Division (EMS) in addition to Gray. The district court, however, dismissed Schmidt's claims against the State of Texas and the DPS in an earlier order and dismissed the claims against EMS in granting its motion for summary judgment.

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No. 09-20570 G r a y appealed, asserting that the district court erred (1) in ruling that the h a r m to Schmidt's thumb constituted more than a de minimis injury; (2) in h o ld in g as a matter of law that Gray's conduct was not objectively reasonable, in violation of the Fourth Amendment; and (3) in accepting Schmidt's version of t h e facts that Gray's conduct was intentional despite the patrol car video.2 I I . ANALYSIS A . Jurisdiction " T h e denial of a motion for summary judgment based on qualified im m u n it y is immediately appealable under the collateral order doctrine `to the e x t e n t that it turns on an issue of law.'"3 We interpret a district court's denial of q u a lifie d immunity as comprising "two distinct determinations, even if only im p lic it ly " : (1) that the state actor's conduct "would, as a matter of law, be o b je c t iv e ly unreasonable in light of clearly established law"; and (2) that "a g e n u in e issue of fact exists regarding whether the [state actor] did, in fact, e n g a g e in such conduct."4 "According to the Supreme Court, as well as our own p r e c e d e n t s , we lack jurisdiction to review conclusions of the second type on

Schmidt failed to file a response brief, but neither the Federal Rules of Appellate Procedure nor our circuit rules suggest that an appellee's failure to file a brief should have any effect on the appeal beyond the sanction provided in Federal Rule of Appellate Procedure 31(c) that "[a]n appellee who fails to file a brief will not be heard at oral argument unless the court grants permission." We agree with the position of other circuits that the courts should "decide the appeal on the appellant's brief alone when the appellee fails to file a brief." Allgeier v. United States, 909 F.2d 869, 871 n.3 (6th Cir. 1990) (citing Instituto Nacional v. Cont'l Ill. Nat'l Bank, 858 F.2d 1264, 1270-71 (7th Cir. 1988); United States v. Everett, 700 F.2d 900, 902-03 n.5 (3d Cir. 1983)). See also Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1478 (9th Cir. 1992) ("The only sanction authorized by the Federal Rules of Appellate Procedure for an appellee's failure to file a timely brief is refusal to hear the appellee at oral argument. The limited nature of this sanction coincides with our duty to affirm the judgment on any ground fairly supported by the record.") (citations omitted). Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
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Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc).

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No. 09-20570 in t e r lo c u t o r y appeal."5 When we review determinations of the first type, h o w e v e r , "we ignore the disputes of fact, take those facts assumed by the district c o u r t in a light most favorable to [the non-movant], and determine whether u n d e r those facts [the non-movant] has stated a claim under clearly established la w ." 6 I n short, we have jurisdiction to entertain this appeal, but only to the e x t e n t that it concerns the "purely legal question" whether Gray is entitled to q u a lifie d immunity "on the facts that the district court found sufficiently s u p p o r t e d in the summary judgment record." 7 B . Standard of Review " W e review de novo the scope of clearly established law and the objective r e a s o n a b le n e s s of the defendant government official's actions."8 Nonetheless, we " c o n s id e r only whether the district court erred in assessing the legal significance o f the conduct that the district court deemed sufficiently supported for purposes o f summary judgment." 9 C . Qualified Immunity G r a y 's first two claims on appeal attack the district court's qualified im m u n it y analysis. "Under the doctrine of qualified immunity, government o ffic ia ls performing discretionary functions are shielded from civil liability `in s o fa r as their conduct does not violate clearly established statutory or
Id. (emphasis in original and citations omitted). Put another way, "we can review the materiality of any factual disputes, but not their genuineness." Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir. 2000) (emphases in original and citations omitted).
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Nerren v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir. 1996). Kinney, 367 F.3d at 347 (citing Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996)).

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Flores, 381 F.3d at 394 (citing Thompson v. Upshur County, Tex., 245 F.3d 447, 456 (5th Cir. 2001)). Kinney, 367 F.3d at 348 (citing Behrens, 516 U.S. at 313; Johnson v. Jones, 515 U.S. 304, 313 (1995)).
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No. 09-20570 c o n s t it u t io n a l rights of which a reasonable person would have known.'" 1 0 T h e r e fo r e , once a state actor invokes the defense of qualified immunity, the court m u s t conduct a two-prong test to determine whether the movant is entitled to s u c h immunity: "First, we assess whether a statutory or constitutional right w o u l d have been violated on the facts alleged. . . . [Second,] we determine w h e t h e r the defendant's actions violated clearly established statutory or c o n s t it u t io n a l rights of which a reasonable person would have known." 1 1 S c h m id t alleged that Gray violated his Fourth Amendment right to be free fr o m unreasonable seizures. To maintain a § 1983 claim for excessive force, S c h m id t had to show that he was seized and that he "suffered (1) an injury that (2 ) resulted directly and only from the use of force that was excessive to the need a n d that (3) the force used was objectively unreasonable."1 2 There is no dispute t h a t Schmidt was seized, but Gray asserts on appeal that the injury was de m in im is and therefore legally insufficient to support a Fourth Amendment claim o f excessive force. T h e injury necessary to support such a claim "must be more than a de m in im is injury and must be evaluated in the context in which the force was d e p lo y e d ."1 3 We have recognized, however, that even insignificant injuries may " q u a lify as a cognizable injury when the victim is maliciously assaulted by a p o lic e officer."1 4 "What constitutes an injury in an excessive force claim is

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Flores, 381 F.3d at 393-94 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Id. at 395 (internal citation and quotation omitted). Id. at 396 (citing Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir.

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2000)). Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (citing Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)).
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Williams, 180 F.3d at 704.

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No. 09-20570 t h e r e fo r e subjective--it is defined entirely by the context in which the injury a r is e s ."1 5 A t the time of Schmidt's alleged injury, he was not attempting to flee or r e s is t Gray's arrest; he was merely standing next to the patrol car as Gray had in s t r u c t e d him to do. When we accept Schmidt's factual assertions as true--that G r a y intentionally leaned him against the car and then maliciously slammed the t r u n k lid on his finger in retaliation against Schmidt and not for any law en forcem e n t purposes--the resulting pain, soreness, and bruising, combined and in context, qualify as a legally cognizable injury. The district court found that " t h e pain resulting from having one's thumb slammed in a car's trunk could be a t least as intense as the pain resulting from a kick or a temporary chokehold, a n d possibly comparable to that caused by a cattle prod."1 6 As that finding is not c le a r ly erroneous, we affirm the district court's holding that the alleged injury is sufficient to support a claim of excessive force. C o m p le tin g our excessive force analysis, we conclude that the second e le m e n t is satisfied because the injury unquestionably resulted from Gray's use o f force. For the third element, given that neither party contends that any use o f force was necessary against Schmidt at the time, Gray's use of force was o b je c t iv e ly unreasonable under the nonviolent, nonresistant circumstances of S c h m id t 's arrest.1 7 In sum, Schmidt pleaded facts that are legally sufficient to m a in t a in a § 1983 claim for use of excessive force.

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Id. R. at 487.

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See Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998) ("To determine the objective reasonableness of [an officer's] conduct, . . . [w]e pay `careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.'") (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

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No. 09-20570 L a s t ly , we address the second prong of the qualified immunity analysis a n d Gray's claim that a reasonable person would not have believed that his " m is ta k e n " actions violated the Fourth Amendment.1 8 At the time of this in c id e n t , it was clearly established that Schmidt had a constitutional right to be fr e e from excessive force during an investigatory stop or arrest.1 9 Gray insists t h a t the injury was accidental and that he reasonably believed that he acted in c o m p lia n c e with the Fourth Amendment.2 0 The facts alleged by Schmidt that we a c c e p t on appeal, however, are not that Gray accidentally slammed the trunk d o o r on Schmidt's thumb, but that Gray did so intentionally. As it is not clear as a matter of law that, under Schmidt's version of the facts, Gray's conduct was o b je c t iv e ly reasonable, we affirm the district court's denial of qualified immunity t o Gray. D . Genuine Issue of Fact G r a y maintains on appeal that the district court erred in accepting S c h m id t 's version of the facts that allege Gray's conduct was intentional. Gray con ten d s that Schmidt's allegations are "implausible" and "blatantly

c o n t r a d ic t e d " by his patrol car's video.2 1 In its review of Gray's qualified im m u n it y defense, however, the district court found that "Plaintiff has created a fact issue as to . . . whether Gray intended to slam the trunk on Plaintiff's t h u m b ."2 2 Gray fails to accept that, when "the district court has determined that
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Appellant's Br. at 22-23. See Graham, 490 U.S. at 393-94. Appellant's Br. at 23. Id. at 18.

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R. at 487-88 ("The Court acknowledges Gray's claim that he closed the trunk on Plaintiff's fingers purely by accident. It is quite possible that, upon hearing Gray's version of events, a jury will find that no malice was involved and that Plaintiff's injuries do not support an excessive force claim. The Court cannot, however, substitute its judgment for that of the jury . . . .").

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No. 09-20570 t h e r e are genuine disputes raised by the evidence, we assume plaintiff's version o f the facts is true, then determine whether those facts suffice for a claim of e x c e s s iv e force under these circumstances."2 3 As "this court lacks jurisdiction to r e v ie w the court's determination that a genuine fact issue exists,"2 4 we must d is m is s Grey's interlocutory appeal of this claim. I I I . CONCLUSION F o r the foregoing reasons, we conclude as a matter of law that Schmidt a lle g e d an injury sufficient to support his § 1983 excessive force claim and a lle g e d conduct that a reasonable person would have known violated the Fourth A m en d m e n t. We accordingly AFFIRM the district court's denial of Gray's motion fo r summary judgment. We DISMISS Gray's claim that the patrol car's video d is p r o v e s the existence of a genuine fact issue because we lack jurisdiction to r e v ie w that determination of the district court.

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Wagner, 227 F.3d at 320. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007).

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