Case: 21-50299 Document: 00516235536 Page: 1 Date Filed: 03/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 11, 2022
No. 21-50299
Lyle W. Cayce
Clerk
James Templeton,
Plaintiff—Appellant,
versus
Officer Edward Jarmillo, Austin Police Department,
Badge #8408; Officer Steven Kielcheski, Austin Police
Department, Badge #7314; Officer James Starns, Austin
Police Department, Badge #7338; Officer Gadiel Alas,
Austin Police Department, Badge #7835; Officer Tara
Dicken, Austin Police Department, Badge #4761; Officer
Amy Boudreau, Austin Police Department, Badge #8370,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC 1:19-CV-848
Before Southwick, Haynes, and Higginson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
The plaintiff was handcuffed, detained, and involuntarily committed
after the Austin Police Department conducted a welfare check on him at his
home. He brought multiple claims under Section 1983 against the officers
and other city employees. All the claims were dismissed. The plaintiff
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No. 21-50299
appealed only as to the dismissal of his claims against the arresting officers
for the use of excessive force. We AFFIRM.
FACTUAL AND PROCEDURAL HISTORY
On November 17, 2017, officers with the Austin Police Department
performed a welfare check on Plaintiff James Templeton. They did so based
on a recommendation from a licensed clinical social worker at the Austin
Travis County Mental Health and Mental Retardation Center’s (d/b/a
Integral Care) crisis hotline. Templeton was not home when the officers
arrived, so the officers allegedly concealed themselves in his driveway and
emerged once Templeton arrived. When they emerged, they pointed their
guns at him, instructed him to get onto his knees, handcuffed him, and frisked
him for officer safety.
While handcuffing Templeton, the officers allegedly “wrenched his
arm behind him causing him extreme pain” and “twisted his hands 180
[degrees] and closed the handcuffs tightly so he could not rotate his hands.”
Templeton claims the pain caused his legs to buckle and his shoulder to
spasm. He says he cried out in pain and asked the officers to remove the
handcuffs, but instead, they pulled his arms to lift him to his feet, causing him
more pain. The complaint states that Templeton was taken into “emergency
detention” and also was subjected to involuntary civil commitment.
In August 2019, Templeton brought multiple claims under 42 U.S.C.
§ 1983 against the officers and city employees involved in his arrest,
detention, and commitment. Claims against all defendants were dismissed
in stages based on their different motions. Solely before us on this appeal are
Templeton’s claims against multiple police officers. Related to his
handcuffing, he claimed the officers violated his Fourth Amendment right to
be free from excessive force. The officers claimed they were entitled to
qualified immunity and moved for judgment on the pleadings. In July 2020,
the district court granted this motion, dismissing Templeton’s excessive
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force claims against the officers. Templeton then moved for the district court
to alter its judgment, a motion the district court denied in August 2020. Final
judgment was entered as to all defendants and all claims in March 2021.
Templeton timely appealed the initial order dismissing his claims and the
subsequent order denying Templeton’s motion to amend judgment.
DISCUSSION
We review a dismissal on the pleadings de novo. Hughes v. Tobacco
Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001). The standard for dismissing a
complaint under Rule 12(c) is the same as a dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). Great Plains Tr. Co. v.
Morgan Stanley Dean Witter & Co.,
313 F.3d 305, 312–13 (5th Cir. 2002). The
standard requires the complaint to “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
To overcome the officers’ qualified immunity defense, Templeton
must allege facts showing that the officers (1) “violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time
of the challenged conduct.” Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011).
Because the officers invoked a qualified immunity defense, the burden shifts
to Templeton to show the officers violated his clearly established rights. Cass
v. City of Abilene,
814 F.3d 721, 729, 732–33 (5th Cir. 2016).
A right is clearly established when it is defined “with sufficient clarity
to enable a reasonable official to assess the lawfulness of his conduct.”
McClendon v. City of Columbia, 305 F.3d 314, 331 (5th Cir. 2002). The court
must determine “whether the violative nature of particular conduct is clearly
established.” Al-Kidd, 563 U.S. at 742 (emphasis added). So, although a
plaintiff does not need to identify a case “directly on point” to meet this
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burden, he must identify caselaw that “place[s] the statutory or
constitutional question beyond debate.” Id. at 741.
The district court determined Templeton did not meet this burden
because Templeton failed to cite any caselaw that would show the officers
violated his clearly established rights. Templeton initially cited only general
caselaw that a person has a right to be free from excessive force during an
arrest, then cited Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007).
Overcoming qualified immunity requires showing clearly established law
supporting the plaintiff’s claim, and that demands “that the legal principle
clearly prohibit the officer’s conduct in the particular circumstances before
him.” District of Columbia v. Wesby,
138 S. Ct. 577, 590 (2018). Citing
caselaw generally referring to the prohibition on officers’ using excessive
force does not suffice. See Cass, 814 F.3d at 732–33.
Templeton did a better job of briefing on his motion to alter judgment.
There, he cited one of our opinions in which we held that a claim that
handcuffs were applied too tightly, and the arrestee’s pleas to loosen the
handcuffs were ignored, could be a plausible claim of excessive force and
survive a motion to dismiss. Heitschmidt v. City of Houston, 161 F.3d 834, 836,
839–40 (5th Cir. 1998). A factor in our holding was that police had secured
the premises, leaving “no justification for requiring Heitschmidt to remain
painfully restrained.”
Id. at 840.
The district court held it was too late to inject new caselaw, and even
if it were not, the new precedent was insufficient to show clearly established
law. The district court accepted that Heitschmidt was factually “somewhat
similar” to events in the present case but held it was “not sufficient to
overcome” other Fifth Circuit precedent that the use of handcuffs for some
period of time even when they caused pain to a suspect was not excessive
force.
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In reviewing the district court’s decision on this issue, we find it
helpful to start by distinguishing a party’s raising new issues for the first time
on rehearing, or on appeal, or in a reply brief, and citing new authority in
support of existing issues. For example, in order to preserve an argument for
appeal, the argument (or issue) not only must have been presented in the
district court, a litigant also “must press and not merely intimate the
argument during proceedings before the district court.” FDIC v. Mijalis, 15
F.3d 1314, 1327 (5th Cir. 1994). In the present case, there is no doubt that the
plaintiff presented and pressed the argument that the use of the handcuffs
constituted excessive force. Indeed, that is the essence of this case. Yet, it
was not until the effort to get the district court to reconsider the earlier
judgment on the pleadings that a particularly on-point Fifth Circuit
precedent was discovered. A new precedent is not a new argument; it is new
support for an existing argument.
Among the explicit pronouncements that new authority may be cited
on appeal is from the First Circuit: “Whether or not an issue is preserved in
the trial court does not depend on what authorities the arguing party cites to
that court.” Alston v. Town of Brookline, 997 F.3d 23, 44 (1st Cir. 2021). The
Alston court then cited approvingly two opinions from other circuits on which
it relied.
Id. (citing Metavante Corp. v. Emigrant Sav. Bank,
619 F.3d 748, 773
n.20 (7th Cir. 2010) (“finding issue preserved because it was raised below
and noting that ‘litigant may cite new authority on appeal’”) and United
States v. Rapone,
131 F.3d 188, 196 (D.C. Cir. 1997) (“distinguishing between
raising new issue and citing new authority on appeal”)). Making an issue
clear, or as the First Circuit stated the point in Alston, presenting the issue
“face up and squarely in the trial court,” is necessary. Alston,
997 F.3d at 44.
Citing and analyzing the best discovered authority on the issue supports the
presentation, but it is not the same thing as identifying the issue.
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Some of our precedents have evaluated authority not cited in district
court without suggesting a need to overcome some barrier to doing so. See,
e.g., Lester v. Exxon Mobil Corp., 879 F.3d 582, 589–90 (5th Cir. 2018).
Certainly, this court is not restricted to analyzing the issues properly
presented only on the authorities cited by the parties. We also conclude that
if the parties cite new, relevant authority on an issue already before the court,
it may be considered.
Though holding that the citation of Heitschmidt had come too late, the
district court analyzed what its impact on the case would be. As we
summarized already, the court seemingly concluded that the case was
something of an outlier. We agree that clearly established law in the Fifth
Circuit is contrary to Templeton’s claims. Tight handcuffing alone, even
where a detainee sustains minor injuries, does not present an excessive force
claim. See, e.g., Freeman, 483 F.3d at 416–17; Glenn v. City of Tyler, 242 F.3d
307, 314 (5th Cir. 2001); Lockett v. New Orleans City,
607 F.3d 992, 999 (5th
Cir. 2010). At least one point being made by the district court was that
regardless of what a single precedent states, that opinion cannot clearly
establish law if there is considerable contrary authority.
In Glenn, for example, the plaintiff alleged officers “handcuffed her so
tightly that her right hand became swollen” and, like Templeton, she
complained to the officers that the handcuffs were too tight. Glenn, 242 F.3d
at 311. The Court determined that the handcuffing did not amount to
excessive force because the plaintiff did not allege the officer acted
maliciously and “handcuffing too tightly, without more, does not amount to
excessive force.”
Id. at 314. In another precedent, the plaintiff alleged
officers handcuffed her too tightly, “twisted her arms behind her back while
handcuffing her[,] and jerked her all over the carport,” which left bruises on
her hands and arms that required medical treatment. Freeman,
483 F.3d at
410, 416–17 (quotation marks omitted). We relied on Glenn to conclude such
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allegations did not amount to excessive force because the injuries were minor
and incidental to the use of handcuffs during arrest. Id. at 416–17. In one
additional precedent, we held that a plaintiff who alleged “he suffered acute
contusions of the wrist” from handcuffing did not state an excessive force
claim because he alleged no more than de minimis injury from the handcuffing
and also did not allege the officers had any malice in handcuffing him. Tarver
v. City of Edna,
410 F.3d 745, 751–52 (5th Cir. 2005) (quotation marks
omitted).
Templeton alleges he experienced pain in his shoulder from tight
handcuffing that occurred over a matter of minutes. This allegation is
insufficient to raise an excessive force claim. Disagreeing at least with the
implications of the district court’s analysis of Heitschmidt, we conclude it is
no outlier. Far differently than the brief handcuffing in the present case,
Heitschmidt was painfully handcuffed for over four hours, prevented from
using the bathroom, and suffered “serious and permanent” injury from the
handcuffing. Heitschmidt, 161 F.3d at 836, 839–40. Those are not the
allegations here. Facts matter in excessive force claims. Based on the alleged
facts in the complaint, Templeton failed to state a claim that the officers
violated his clearly established rights.
AFFIRMED.
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