Escobar v. Montee, 071118 FED5, 17-10467

Docket Nº:17-10467
Party Name:ISRAEL ESCOBAR, Plaintiff-Appellee Cross-Appellant, v. LANCE MONTEE, Defendant-Appellant Cross-Appellee.
Judge Panel:Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
Case Date:July 11, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Plaintiff filed suit under 42 U.S.C. 1983, alleging, among other things, that the initial bite from a police dog and the continued biting were excessive force in violation of the Fourth Amendment. The district court dismissed the initial bite claim on a Federal Rule of Civil Procedure 12(b)(6) motion and denied summary judgment to the officer. The Fifth Circuit held that there was no Fourth... (see full summary)


ISRAEL ESCOBAR, Plaintiff-Appellee Cross-Appellant,


LANCE MONTEE, Defendant-Appellant Cross-Appellee.

No. 17-10467

United States Court of Appeals, Fifth Circuit

July 11, 2018

Appeals from the United States District Court for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.


Israel Escobar assaulted his wife and fled from the police with a knife. While chasing him, the police were informed-by Escobar's mother-that they would have to kill him to get him. The police eventually found Escobar in a backyard and released a dog to capture and hold him. Escobar was bitten by the dog until fully handcuffed by the police, even though he avers that he dropped the knife and lay flat on the ground once discovered. Because he claims he was trying to surrender, Escobar contends that both the initial bite and the continued biting were excessive force in violation of the Fourth Amendment. He brought those claims, among others, under 42 U.S.C. § 1983. The district court dismissed the initial-bite claim on a Federal Rule of Civil Procedure 12(b)(6) motion, then denied Officer Lance Montee summary judgment on a claim of qualified immunity ("QI"). Montee appeals the denial of QI; Escobar cross-appeals the dismissal of his initial-bite claim. Finding no Fourth Amendment violation, we reverse the denial of qualified immunity, dismiss the cross-appeal for lack of jurisdiction, and remand.


Escobar assaulted his wife in a restaurant parking lot, and then left her alone in a nearby retail lot. After noticing police vehicles at his house, he fled into the night. He ran through several neighbors' yards, finally hiding in the backyard of a house a few blocks from his own. He remained there, crouched under an awning near the backdoor, for about twenty minutes while the police searched for him, both on foot and in a helicopter. They eventually located Escobar, and the helicopter circled the house while the police decided on a course of action.

While the helicopter monitored Escobar, the police were informed that he had a knife. Furthermore, they were told that Escobar's mother had called and said the police would have to kill Escobar to catch him; he would not go without a fight. Based on those facts, Montee-the K-9 officer in charge of the police dog "Bullet"-decided not to give his usual warning to the suspect that he would deploy the canine. Instead, he threw Bullet over the fence surrounding the backyard and only then scaled the fence himself.

Montee followed Bullet alongside the house into the backyard, where he claims he saw Escobar standing with the knife. Escobar disagrees; according to him, once he heard the dog and officers approaching, he dropped his knife and lay flat on the ground "like a parachute man." Either way, Escobar was then bitten by Bullet and wound up lying flat on the ground. Montee agrees that Escobar then dropped the knife but maintains that the knife remained within Escobar's reach-a fact Escobar never disputes.

Escobar claims he remained on the ground in an attempt to convey his surrender. But Montee, believing Escobar still posed a threat because of the knife and warnings by Escobar's mother, allowed Bullet to continue biting Escobar until Escobar was fully subdued and in handcuffs. All in all, Escobar was bitten for approximately one minute. Once he was cuffed, the officers removed Bullet and took Escobar away; he eventually pleaded guilty of third-degree family assault.

Escobar sued Montee under § 1983, alleging that Montee violated his Fourth Amendment right to be free from excessive force by (1) having Bullet initially bite him without warning and (2) permitting Bullet to continue biting after he surrendered and was not resisting. Montee, claiming QI, moved to dismiss under Rule 12(b)(6).

The district court granted Montee's motion as to Escobar's first claim, i.e., as to the initial bite. As the court reasoned, Montee's initial decision to release Bullet without warning was objectively reasonable because a reasonable officer in Montee's shoes would not have known Escobar was surrendering. The court denied the motion as to Escobar's second claim, i.e., as to the continued biting.

Montee moved for summary judgment; he and Escobar submitted dueling affidavits that provide the factual background above. The district court denied Montee's motion, reasoning that-with the facts construed in Escobar's favor-a reasonable officer would have known that Escobar was not resisting and was surrendering. And the court found that such force, in the face of surrender, is clearly established as violating the Fourth Amendment.

Montee appealed, claiming QI. Escobar cross-appealed the Rule 12(b)(6) dismissal of his initial-bite claim, contending we have pendent appellate jurisdiction over that dismissal.


We start by assessing our jurisdiction.1 Montee's appeal is based on QI and thus, although this is an interlocutory appeal, the order denying QI is appealable. Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985). Beyond the limited right to an interlocutory appeal, the ability to enjoy pendent appellate jurisdiction is carefully circumscribed. The Supreme Court has recognized two exceptions to the bar on court-created interlocutory appeals: (1) If the pendent decision is "inextricably intertwined" with the decision over which the appellate court otherwise has jurisdiction, pendent appellate jurisdiction may lie, or (2) if "review of the former decision [is] necessary to ensure meaningful review of the latter." Swint v. Chambers Cty. Comm'n, 514 U.S. 35, 51 (1995).2 Such exceptions are proper because courts should "extend their Cohen jurisdiction3 to rulings that would not otherwise qualify for expedited consideration" "[o]nly where [those rulings are essential] to the resolution of properly appealed collateral orders." Id. (quoting Riyaz A. Kanji, The Proper Scope of Pendent Appellate Jurisdiction in the Collateral Order Context, 100 Yale L.J. 511, 530 (1990)).

Pendent appellate jurisdiction "is only proper in [the] rare and unique circumstances" articulated by Swint.4 Escobar believes he has such a "rare" and "unique" case, reasoning that his claim based on the first bite is "inextricably intertwined" with the claim for continuing bites. But the claims are obviously severable. The district court considered and decided them separately, finding for Montee on one claim and for Escobar on the other. And the court issued individualized orders on each claim at distinct stages of the proceedings. Plainly the decision to dismiss the first-bite claim was not "inextricably intertwined" with whether summary judgment was proper on the continued-bite claim.

A survey of our caselaw exposes the flaws in Escobar's position. To support pendent appellate jurisdiction, Escobar cites Anderson v. Valdez, 845 F.3d 580 (5th Cir. 2016), where, as here, the court had interlocutory appellate jurisdiction over the appeal of a QI-based motion to dismiss. Id. at 588-89. The court exercised pendent appellate jurisdiction only over an additional appeal of whether the plaintiff had even stated a claim. Id. The question whether a plaintiff has alleged a constitutional violation can be seen as inextricably intertwined with whether an officer has QI. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Read properly, Anderson does not support Escobar's position.

Pendent appellate jurisdiction may be proper where (1) the court will decide some issue in the properly brought interlocutory appeal that necessarily disposes of the pendent claim;5 (2) addressing the pendent claim will further the purpose of officer-immunities by helping the officer avoid trial;6 (3) the pendent claim would be otherwise unreviewable;7 or (4) the claims involve precisely the same facts and elements.8 Escobar's cross-appeal does not fit any of those categories. Deciding Montee's appeal will not necessarily dispose of Escobar's cross-appeal, as evidenced by the disposition in the district court. Nor would addressing Escobar's first-bite claim further the purposes of QI by helping Montee avoid trial. And Escobar's claim is reviewable through the normal course of appellate review.

Finally, as explained above, the first-bite claim and continued-bite claim do not involve precisely the same facts in such a way as to be "inextricably intertwined." Indeed, the claims "were treated separately by the district court," and differences in facts include whether Montee gave warnings before releasing Bullet and whether the knife remained within grabbing distance once dropped. See Gros, 209 F.3d at 437. Because Congress has provided "statutory instructions . . . to control the timing of appellate proceedings," Swint, 514 U.S. at 45, we must be cautious about creating "ad hoc appellate jurisdictional rules." Byrum, 566 F.3d at 449. This is not the "rare and unique" case to warrant such an ad hoc exception to the normal course of review. Id. Accordingly, we dismiss the cross-appeal for want of jurisdiction.


We turn to whether the district court properly denied Montee QI and summary judgment on the continued-bite claim. Our review is de novo. Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016). When reviewing the denial of summary judgment based on QI, "we have jurisdiction to 'review the materiality of any factual disputes, but not their genuineness.'" Id. (quoting Hogan v. Cunningham, 722 F.3d 725, 730-31 (5th Cir. 2013)). If there are factual disputes, "we accept the plaintiff's version." Id.

To overcome QI, Escobar must show (1) "a violation of an actual constitutional right," and (2) that "the right was clearly...

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