800 F.3d 656 (5th Cir. 2015), 15-30027, Curran v. Aleshire

Docket Nº:15-30027
Citation:800 F.3d 656
Opinion Judge:GREGG COSTA, Circuit Judge:
Party Name:COLLEEN CURRAN, Individually; APRIL CURRAN, Plaintiffs - Appellees v. PHILLIP ALESHIRE; RODNEY JACK STRAIN, Individually and in his official capacity as St. Tammany Parish Sheriff, Defendants - Appellants
Attorney:For COLLEEN CURRAN, Individually, April Curran, Plaintiffs - Appellees: Kearney Soniat Loughlin, Loughlin & Loughlin, New Orleans, LA. For Phillip Aleshire, RODNEY JACK STRAIN, Individually and in his official capacity as St. Tammany Parish Sheriff, Defendants - Appellants: Charles Marion Hughes ...
Judge Panel:Before REAVLEY, PRADO, and COSTA, Circuit Judges.
Case Date:August 25, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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800 F.3d 656 (5th Cir. 2015)

COLLEEN CURRAN, Individually; APRIL CURRAN, Plaintiffs - Appellees


PHILLIP ALESHIRE; RODNEY JACK STRAIN, Individually and in his official capacity as St. Tammany Parish Sheriff, Defendants - Appellants

No. 15-30027

United States Court of Appeals, Fifth Circuit

August 25, 2015

Appeal from the United States District Court for the Eastern District of Louisiana.

For COLLEEN CURRAN, Individually, April Curran, Plaintiffs - Appellees: Kearney Soniat Loughlin, Loughlin & Loughlin, New Orleans, LA.

For Phillip Aleshire, RODNEY JACK STRAIN, Individually and in his official capacity as St. Tammany Parish Sheriff, Defendants - Appellants: Charles Marion Hughes Jr., Esq., Ryan G. Davis, Esq., Talley, Anthony, Hughes & Knight, L.L.C., Mandeville, LA.

Before REAVLEY, PRADO, and COSTA, Circuit Judges.


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GREGG COSTA, Circuit Judge:[*]

Nearly seven years ago, sheriff's deputy Phillip Aleshire confronted high school sophomore April Curran over her violation of a school rule banning cell phones on campus. Their interaction lasted only ten minutes. But it was long enough to saddle Curran with a juvenile record for battery of an officer, and Aleshire with a federal lawsuit for violating Curran's constitutional rights.

This appeal arises from the federal civil rights case. Aleshire moved for summary judgment, in part on the basis of qualified immunity. The district court ruled that fact issues precluded summary judgment on the excessive force claims, and Aleshire filed this interlocutory appeal. Because our jurisdiction in such an interlocutory appeal is limited to reviewing the materiality of any factual disputes found by the district court and not whether those disputes

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exist, we dismiss the appeal for lack of jurisdiction.


In the fall of 2008, Curran was a 15-year-old sophomore at Fontainebleau High School in Mandeville, Louisiana. She took classes at Fontainebleau in the morning, and classes at the New Orleans Center for Creative Arts (NOCCA) in the afternoon.

On September 24, 2008, Curran missed her mid-day bus to NOCCA. She used her cell phone to call her mother while still on school grounds. School policy prohibited student use of cell phones on school property.

A teacher--Leonard Abram--saw Curran on her phone. He told her that she needed to give him the phone or go to the disciplinarian's office. Curran refused to give him the phone. She told him that she needed to leave campus to go to NOCCA.

Abram then called over Aleshire, a deputy with the St. Tammany Parish Sheriff's Office and Fontainebleau's school resource officer, to assist. At this point, the sequence of events becomes less clear.

According to Curran, Abram told Aleshire that she was trying to escape. Although both men had been given her name, Aleshire began grabbing for her student ID card, which was hanging on a lanyard around her neck. She claims that he yanked her head and neck when he pulled at her ID, causing her to reflexively " jerk[] back." ROA 373-74. Aleshire then " threw" her against a wall--allegedly headfirst--and handcuffed her. ROA 374.

Aleshire and Abram tell a different story. They report that Curran began to fight Aleshire when he reached for her ID, first smacking his hand away and then--when he continued to grab for the ID--striking him across the head hard enough to knock off his glasses and radio. Although Curran was " thrashing around and trying to get away," Aleshire was eventually able to " secure one of her arms and spin her around against the auditorium wall." ROA 300.

Once Curran was handcuffed, Aleshire and Abram walked her toward the disciplinarian's office. During the walk, Aleshire " slammed" Curran into a wall, hard enough to dislodge the cell phone which she had hidden in her shirt. ROA 498. She contends that she was cooperating and had done nothing to provoke being pushed into a wall. Aleshire disagrees, stating that Curran had attempted to free herself and that he " plac[ed] her against the hallway wall" in order to regain control. ROA 300. Surveillance cameras recorded at least part of this second use of force.

Aleshire then delivered Curran to the disciplinarian's office, where she waited for several hours until her mother arrived. After speaking with school officials and photographing Curran's injuries, her mother took her to a nearby hospital for treatment. Curran's physical injuries from the encounter with Aleshire included bruising on the back of her head and bruising on her arms and wrists.

Many hours after the incident, while Curran was still at the hospital with her mother, Aleshire arrested her for battery of an officer. She was tried in juvenile court and found guilty. The conviction is now final.


Before completion of the criminal case, Curran and her mother1 sued Aleshire

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and other St. Tammany Parish officials and entities2 for injuries stemming from the September 24th encounter. Curran asserted ten federal and state law claims against Aleshire. Although the complaint did not use the phrase " excessive force," she later clarified--and the district court accepted--that her claims of battery, assault, cruel treatment, and unlawful search and seizure were excessive force claims under both state tort law and federal constitutional law. Because the validity of Curran's conviction for battery might have affected the merits of at least some of her claims, the district court stayed the case while she unsuccessfully appealed her conviction.

When this federal case resumed, Aleshire moved for summary judgment on all of Curran's claims. Although it granted the motion on most of the claims, the district court denied summary judgment to Aleshire on (1) the Section 1983 excessive force claims, (2) the parallel state law claims of excessive force and battery and assault,3 and (3) punitive damages.

As to the excessive force claims under federal law, the district court rejected Aleshire's arguments that the claims were foreclosed by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Even if the state criminal proceeding established for purposes of this federal civil case that Curran struck Aleshire (an issue on which we express no opinion for lack of jurisdiction), the district court found that a fact issue existed on whether sufficient time had passed between Curran's battery and Aleshire's first use of force to render the latter unreasonable. The district court next found that Curran's alleged injuries were not de minimis, although it noted this question was a " close call." ROA 1890-91. The district court then conducted the qualified immunity analysis to assess whether Aleshire violated clearly established law. It concluded that the qualified immunity defense required the resolution of disputed fact issues, a task the district court could not perform on summary judgment. These disputed fact issues included whether Curran was resisting, threatening others, or attempting to escape when Aleshire used force against her. In the context of this interlocutory appeal, Aleshire challenges only the last of these rulings: that Aleshire's qualified immunity defense turns on fact issues which cannot be resolved through summary judgment.4

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Aleshire argues that he is entitled to qualified immunity, even assuming the existence of disputed facts, because none is material to whether his actions were objectively unreasonable in light of clearly established law. In other words, Aleshire contends that reasonable officers could disagree about whether the force allegedly used on Curran was lawful under the circumstances suggested by Curran's evidence.

The structure of Aleshire's argument is necessitated by the nature of this interlocutory appeal. The court possesses jurisdiction over the district court's summary judgment order--which is not a final decision--" only to the extent that the denial of summary judgment turns on an issue of law." Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (internal quotation marks and brackets omitted). The district court's determination that a fact dispute exists is not an issue of law that can be upended through interlocutory appeal. See id. at 346-47. As we have put it a number of times, when conducting an interlocutory review of a qualified immunity ruling we " review the materiality of any factual disputes, but not their genuineness." Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir. 2000) (emphasis in original).

Trying to fit his appeal within the confines of our limited review, Aleshire argues that both uses of force against Curran were justified in light of certain undisputed facts. He contends that his first use of force was justified because Curran battered him, and his second use of force was justified because video and photographic evidence show Curran taking a " long stride as if to escape." We will address each use of force separately.

A. First Use of Force

Aleshire contends that qualified immunity shields him from liability for his first use of force because he could have reasonably believed it necessary to push Curran against the wall in order to bring her under control after she struck him. That may be true under the deferential qualified immunity standard if his pushing her head into the wall was a split-second response to Curran's battery or continued resistance. While the district court accepted that Curran battered Aleshire, it then found a factual dispute as to timing which, viewed in Curran's favor, takes Aleshire's first use of force outside the context of an immediate and inseparable response to the battery. See Bush v. Strain, 513 F.3d 492, 498-502 (5th Cir. 2008) (reversing district court's grant of summary judgment against a plaintiff convicted of resisting arrest in light of " conflicting evidence about whether [the plaintiff] was injured before or after her resistance had...

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