227 F.3d 316 (5th Cir. 2000), 99-40175, Wagner v Bay City Texas

Docket Nº:99-40175
Citation:227 F.3d 316
Party Name:Mary Wagner, Individually and as Next Friend of Gilbert Gutierrez and Irma Gutierrez, Plaintiff-Appellee, v. Bay City, Texas, et al., Defendant, Robert Garcia, Officer; Victor R. Hadash, Officer; Richard M. Hempel, Officer; David Mirelez, Officer; Scott A. Sherrill, Officer, Defendants-Appellants.
Case Date:September 27, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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227 F.3d 316 (5th Cir. 2000)

Mary Wagner, Individually and as Next Friend of Gilbert Gutierrez and Irma Gutierrez, Plaintiff-Appellee,


Bay City, Texas, et al., Defendant,

Robert Garcia, Officer; Victor R. Hadash, Officer; Richard M. Hempel, Officer; David Mirelez, Officer; Scott A. Sherrill, Officer, Defendants-Appellants.



September 27, 2000

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Texas

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This is an appeal of a partial denial of a motion for summary judgment. The appellant police officers argue that qualified immunity precludes Mary Wagner's 42 U.S.C. § 1983 claims of excessive force and deliberate indifference to the need for medical attention arising from the arrest of her brother, Gilbert Gutierrez, who died in police custody. Concluding that there is no reasonable inference that the officers were objectively unreasonable, we reverse and render judgment for the defendant officers and remand for further proceedings.


In March 1996, Gutierrez entered a fast-food restaurant in Bay City, Texas, and, using a receipt that belonged to another customer, he requested to be given free food. When he was told he could not have the food, he cursed one of the managers, who was black, and called her a racial epithet. The manager told him to leave and then called the police, who arrived after Gutierrez already had departed.

Gutierrez returned to the restaurant about an hour later; the manager again called the police. This time, Officer Hadash arrived and recognized the man as Gutierrez, whom he approached, and an altercation ensued. According to Hadash, Gutierrez jumped off a stool and started swinging his fists, striking Hadash several times. Hadash apparently did not strike Gutierrez at this time, because he was busy blocking his assailant's blows. Other witnesses also said Gutierrez struck Hadash, and it is undisputed that Hadash and Gutierrez eventually ended up struggling on the floor.

Officer Mirelez arrived and, seeing the fight, tried to assist Hadash. The two officers struggled to restrain Gutierrez, who continued fighting. Although different witnesses provided slightly varying accounts as to the sequence of events, it is undisputed that one or both of the officers

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dragged Gutierrez outside and sprayed him with pepper spray. It is uncertain how many times he was sprayed or how much spray was used. And although one witness stated that the officers sprayed Gutierrez while inside the restaurant, all other witnesses stated that this occurred after Gutierrez was taken outside.

Next, the officers placed Gutierrez face down on the pavement and eventually were able to handcuff him. According to the officers, Gutierrez was still struggling at that point. But, according to one witness, Maria Juarez, Gutierrez did not appear to be struggling at the time he was dragged outside. Juarez stated that after Gutierrez was taken outside, she watched the incident from the store and saw Gutierrez on the ground, face down, handcuffed.

One of the officers had his knee on Gutierrez's back and "kept pushing Mr. Gutierrez [sic] neck and head to the ground" with a stick. Mirelez confirmed placing his right shin across Gutierrez's back while attempting to restrain Gutierrez. Neither Hadash nor Mirelez mentioned using a baton, however.

After Gutierrez was cuffed, three other officers arrived--Sergeant Garcia, Officer Hempel, and Officer Sherrill. According to Garcia, when he arrived he observed Hadash and Mirelez on top of Gutierrez. Then, when Sherrill and Hempel arrived, Garcia told them to put Gutierrez into a patrol car. Garcia advised Hadash that Gutierrez could go to the hospital to be decontaminated from the pepper spray, but Hadash declined, because the jail was closer and more secure, and because Gutierrez had been combative.1

When Sherrill and Hempel arrived, Gutierrez was lying on his stomach and was no longer struggling. The officers had to carry him to place him in the car; he did not walk on his own. The officers placed him in the car head-first. Sherrill had to go to the other side of the vehicle to pull Gutierrez through, placing him on his stomach with his head turned toward the front of the vehicle. Sherrill reported that Gutierrez appeared to have passed out. According to Garcia, he did not attempt to assess whether Gutierrez was injured, nor did he speak to him.

Hadash then drove Gutierrez to the county jail. He recalled hearing "a couple of groans and grunts" during the trip but did not speak to Gutierrez during that time.

When Hadash arrived, he was met by two jailers, who again had to assist Gutierrez out of the car. Gutierrez was not combative; indeed, Hadash did not know whether he was even conscious at that point. The jailers carried Gutierrez into the jail, half dragging him, and laid him face down. At that point, Hadash looked at Gutierrez and told Garcia that it appeared Gutierrez was not breathing.

The officers removed Gutierrez's handcuffs and turned him over, and Hadash began CPR. Once his breathing was revived, Gutierrez was transported to the hospital, where he slipped into a coma and eventually died.


Gutierrez's sister (Wagner) and his daughter (Irma Gutierrez) sued the city and the officers, alleging violations of Gutierrez's civil rights pursuant to § 1983. The complaint set forth claims of, inter alia, excessive force and a failure to respond to Gutierrez's medical needs. Although the original complaint named Bay City and every male officer of the Bay City police force, the claims eventually were dismissed against all but Bay City and Mirelez, Sherrill, Garcia, Hadash, and Hempel, the officers involved in the arrest.

The officers moved for summary judgment on the basis of qualified immunity, and the court granted summary judgment

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on the excessive force claims as to Sherrill, Garcia, and Hempel, because they arrived after the altercation was over. The court denied summary judgment in all other respects.


Wagner argues that with respect to her claim for excessive force,2 because the district court ruled that neither party had submitted enough evidence about what happened during the course of the arrest to declare whether Hadash and Mirelez were entitled to qualified immunity, we do not have jurisdiction to review this purely factual conclusion. The court stated, preliminarily, that it could not currently say there was no merit to Wagner's claims, and it invited the defendants to raise the summary judgment issue again once additional discovery was taken.

In so ruling, the court pointed to several inconsistencies in the record regarding the altercation between Hadash and Gutierrez, and to inconclusive evidence as to how much pepper spray was used. Thus, it concluded that further discovery would be necessary to determine whether the defendants were entitled to qualified immunity.

In deciding an interlocutory appeal of a denial of qualified immunity, we can review the materiality of any factual disputes, but not their genuineness. See Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.) (on petition for rehearing en banc), cert. denied, 525 U.S. 1054 (1998). So, we review the complaint and record to determine whether, assuming that all of Wagner's factual assertions are true, those facts are materially sufficient to establish that defendants acted in an objectively unreasonable manner. Even where, as here, the district court has determined that there are genuine disputes raised by the evidence, we assume plaintiff's version of the facts is true, then determine whether those facts suffice for a claim of excessive force under these circumstances.

Moreover, in light of the fact that the district court did not specifically identify those factual issues as to which it believed genuine disputes remained, we conduct an analysis of the record to determine what issues of fact the district court likely considered genuine. This ensures that the defendants' right to an immediate appeal will not be defeated because of the district court's failure to articulate its reasons for denying summary judgment. See id. at 285. It follows that we do have jurisdiction to review the denial of summary judgment on all of these claims.


Defendants argue that there is no issue of material fact regarding whether they acted in an objectively unreasonable manner in using the amount of force that they did to subdue Gutierrez and in failing to notice sooner that he was in need of medical attention.3 We examine the various claims in turn.

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With respect to the excessive-force claim, defendants argue that, notwithstanding the district court's assertions to the contrary, there is no issue of material fact about what occurred during Gutierrez's altercation with Hadash and Mirelez. Hadash claims that Gutierrez attacked him and that he merely defended himself by blocking Gutierrez's blows. Although another witness was unable to recall who was the aggressor, nothing about this witness's statement is inconsistent with Hadash's version of the story. Defendants also argue that there is no evidence that the officers used two full cans of pepper spray.

To be sure, there is a slight inconsistency in the sequence of events as reported by the officers and Wagner's witness, Juarez, and there is some question as to how long the defendants held Gutierrez on the ground, how roughly they treated him, and how much pepper spray--even if not two full cans--was used. At least one witness said...

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