Trammell v. Fruge

Decision Date17 August 2017
Docket NumberNo. 16-50981,16-50981
Citation868 F.3d 332
Parties George TRAMMELL, Plaintiff–Appellant, v. Kevin FRUGE, in his individual and official capacity ; Mike Krogmann, in his individual and official capacity ; Brian Neveu, in his individual and official capacity ; E. F. Delarosa, in his/her individual and official capacity ; Hunter Webb, in his individual and official capacity ; M. Garza, in his/her individual and official capacity ; Shelby Ingles, in her individual and official capacity ; City of Round Rock, Texas; John Does 1-5, Defendants–Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Stephen Daniel Casey, Esq., Attorney, Casey Law Office, P.C., Round Rock, TX, for PlaintiffAppellant.

Mike Thompson, Jr., Esq., Archie Carl Pierce, Esq., Wright & Greenhill, P.C., Austin, TX, for DefendantsAppellees.

Before KING, PRADO, and SOUTHWICK, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

PlaintiffAppellant George Trammel sued DefendantsAppellees Kevin Fruge, Mike Krogmann, Brian Neveu, E.F. Delarosa, Hunter Webb, Marciano Garza, Shelby Ingles, and the City of Round Rock, Texas ("Round Rock") under 42 U.S.C. §§ 1983 and 1988 alleging that the Defendants violated his Fourth and Fourteenth Amendment rights during his arrest on January 21, 2013. The district court granted summary judgment in favor of the Defendants. We AFFIRM in part and REVERSE and REMAND in part.

A. Facts

At approximately 12:00 a.m. on January 21, 2013, the Round Rock Police Department received a 911 call about an individual who had crashed his motorcycle after leaving the El New Goal Post Club ("the Goal Post") and was believed to be intoxicated. Police officers were dispatched to the scene.

Officer Kevin Fruge was the first to arrive and was directed to a parking lot across the street from the Goal Post where the suspect, George Trammel, was located. Fruge testified that when he pulled into the parking lot he observed a man in a dark jacket standing near a parked motorcycle.1 Officer Fruge contends that on arrival he "immediately detected a strong odor of an alcoholic beverage emitting from [Trammel's] breath."2

On exiting his vehicle, Officer Fruge instructed Trammel to "step away from the motorcycle." Because he was on the phone and is hearing impaired, Trammel did not respond to Officer Fruge's first command. Then Officer Fruge again requested that Trammel step away from the motorcycle. This time Trammel responded, "What?" Officer Fruge then raised his voice and commanded that Trammel "step away from the motorcycle" a third time. Trammel replied "okay" and complied with Officer Fruge's request.

Officer Fruge and Trammel then had the following exchange:

OFFICER FRUGE: "What's goin' on? What's goin' on?"
TRAMMEL: "Nothing. I parked my bike."
OFFICER FRUGE: "You parked it?"
TRAMMEL: "Yeah."
OFFICER FRUGE: "Did you wreck it?"
TRAMMEL: "No. I didn't wreck my bike."
OFFICER FRUGE: "Let me ask you a question, sir. How much have you had to drink tonight?"
TRAMMEL: "A whole lot of nothin'."
OFFICER FRUGE: "A whole lot of nothing? How much is that?"
TRAMMEL: "A whole lot of nothin'."
OFFICER FRUGE: "How much is that, sir?"
TRAMMEL: "I'm not going to answer."
TRAMMEL: "I'm not going to answer."

As the dash cam video confirms, Trammel remained calm throughout this interaction.

Officer Fruge then asked Trammel, "Well, can you walk towards me?" Trammel declined and said, "No." Officer Fruge then commanded Trammel to place his hands behind his back. Trammel again told Officer Fruge, "I'm not answering your questions," and did not comply with Officer Fruge's request. At this point, Trammel took off the jacket he was wearing because he felt hot and said, "I'm not going to jail."

At this point, Officer Fruge believed he had probable cause to arrest Trammel for public intoxication, and he grabbed Trammel's right arm as he told him to put his hands behind his back. Trammel immediately pulled back and told Officer Fruge that it hurt and not to grab him there.3 Officer Ingles then grabbed Trammel's left arm, but Trammel again pulled away.4 Officer Fruge executed a knee strike on Trammel's right thigh, and Trammel lost his balance. Officer Garza put Trammel in a headlock as he, Officer Neveu, and Officer Fruge pulled Trammel to the ground.5 Trammel states that he initially had his "arms in front of [his] body ... [because he] was trying to prevent [his] fall," but that the officers were grabbing at his arms and landed on top of his body so that he landed face first on the pavement. Trammel claims that at some point when he was on the ground he "lost memory," but prior to this, he recalled a brief period of time where he could not breathe.

While on the ground, the officers tried to grab hold of Trammel's arms, which were underneath him. The officers repeatedly asked Trammel to put his hands behind his back, and he apparently refused to comply.6 After the officers tackled Trammel, he can first be heard yelling that he is a cop, and later, as the officers command him to "stop resisting," Trammel can be repeatedly heard yelling that his arm is fused. During this time, the officers administered knee strikes to Trammel's arms, thighs, and ribs so that they could subdue and handcuff him.7

Six days after the arrest, Trammel received a medical exam and was diagnosed with "mildly displaced right L1, L2, and L3 transverse process fractures." Since the incident, Trammel has stopped riding his motorcycle, hunting, sailing, fishing, playing with his grandchildren the way he used to, and has "very limited mobility." Trammel has also had to get a "new vehicle with a scooter" and uses a wheelchair while at home.

B. Procedural History

On January 21, 2015, Trammel filed suit against the City of Round Rock and the above-named police officers pursuant to 42 U.S.C. §§ 1983 and 1988 alleging violations of his Fourth and Fourteenth Amendment rights. Trammel specifically claimed that the officers violated his constitutional right to be free from unlawful restraint and excessive force and that Round Rock is liable for its failure to supervise and adequately train its officers. On June 29, 2016, the district court granted summary judgment in favor of Round Rock and Officers Fruge, Neveu, Delarosa, Webb, and Garza. On July 12, 2016, the court also granted summary judgment in favor of Sergeant Krogmann and Officer Ingles after giving Trammel an opportunity to offer evidence in support of his claims against those parties. This appeal followed.

A. Standard of Review

"This court reviews de novo the district court's resolution of legal issues on a motion for summary judgment on the basis of qualified immunity." Hanks v. Rogers , 853 F.3d 738, 743 (5th Cir. 2017) (quoting Griggs v. Brewer , 841 F.3d 308, 311 (5th Cir. 2016) ). Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[W]e view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Hanks , 853 F.3d at 743 (internal quotation marks omitted) (quoting Griggs , 841 F.3d at 312 ). But "a plaintiff's version of the facts should not be accepted for purposes of qualified immunity when it is ‘blatantly contradicted’ and ‘utterly discredited’ by video recordings." Id. at 744 (quoting Curran v. Aleshire , 800 F.3d 656, 664 (5th Cir. 2015) ). "A qualified immunity defense alters the usual summary judgment burden of proof. Once an official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official's allegedly wrongful conduct violated clearly established law." Id. (citation and internal quotation marks omitted) (quoting Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010) ).

B. Analysis

On appeal, Trammel argues that the district court erred in granting summary judgment: (1) in favor of Officers Fruge, Garza, Neveu, and Ingles on the basis of qualified immunity with respect to his excessive force and failure-to-intervene claims; and (2) in favor of Round Rock on his municipal liability claims.8 We address each argument in turn.

1. Officers Fruge, Garza, Ingles, and Neveu

Qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine whether qualified immunity applies, a court engages in a two-part inquiry asking: first, whether "[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer's conduct violated a constitutional right"; and second, "whether the right was clearly established." Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Although the Supreme Court has recognized considering these two questions in order "should not be regarded as mandatory in all cases ... it is often beneficial." Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

In order for a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Although this does not mean that "a case directly on point" is required, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). "The central concept is that of ‘fair warning’: The law can be clearly established ‘despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave...

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