Nunez v. Ellis County, Texas et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MANUEL NUNEZ,
Plaintiff,
v.
ELLIS COUNTY, TEXAS, RYAN
MASSEY, and ETHAN TUPPER,
Defendants.
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Civil Action No. 3:25-CV-556-K
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants Ryan Massey and Ethan Tupper’s Motion for
Summary Judgment (Doc. No. 16) and Brief in Support (Doc. No. 17) (together, the
“Motion”), Plaintiff Manuel Nunez’s Response to Defendants Ryan Massey and Ethan
Tupper’s Motion (Doc. No. 22) and Brief in Support (Doc. No. 23) (together, the
“Response”), and Defendants’ Reply Brief in Further Support of the Motion (the
“Reply”) (Doc. No. 27). The Court has carefully considered the Motion, the Response,
the Reply, the supporting exhibits, the applicable law, and the relevant portions of the
record. 	Because Plaintiff 	does not 	satisfy 	his burden to overcome 	the 	qualified
immunity defense asserted by Defendants Ryan Massey and Ethan Tupper, the Court
GRANTS the Motion and DISMISSES WITH PREJUDICE Plaintiff’s claims against
Defendants Ryan Massey and Ethan Tupper.
I. 	Factual Background
In the early morning hours of April 29, 2023, Waxahachie police officers (not
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the present Defendants) arrested Plaintiff Manuel Nunez for resisting arrest, search, or
transport in violation of Texas Penal Code § 38.03 and for evading arrest or detention
in violation of Texas Penal Code § 38.04. Doc. No. 18-1 at 11 (Appendix to Defendant
Massey and Tupper’s Motion) & Doc. No. 23 at 9 (citing same) (all citations to
CM/ECF assigned page number unless otherwise noted). These charges were later
dismissed. Doc. No. 23 at 9.
After the arrest, the police transported Plaintiff to Ellis County Jail. Doc. No. 17
at 8 (citing Doc. No. 18-1 at 6) & Doc. No. 23 at 9 (citing Plaintiff’s Appendix in
Support of Response (Doc. No. 24 at 5)). After “verbally opposing his arrest,” Ellis
County Jail officers placed Plaintiff in a restraint chair so that they could obtain
Plaintiff’s fingerprints. Doc. No. 17 at 9 (citing Doc. No. 18-4 at 2) & Doc. No. 23 at
9 (citing Doc. No. 24 at 5). While the parties dispute the events that occurred after
Ellis County Jail officers placed Plaintiff in a restraint chair, it is undisputed that
Plaintiff refused to open his hands so that the officers could obtain his fingerprints. See
Doc. No. 17 at 9 (citing Doc. No. 18-3 at 2) & Doc. No. 23 at 9 (citing Doc. No. 18-
2). Five Ellis County Jail officers attended to Plaintiff, including Defendants Massey
and Tupper. Doc. No. 23 at 9 (citing Doc. Nos. 18-2, 18-3 at 2, & 18-4 at 2). The
officers attempted to manually open Plaintiff’s right hand so that they could obtain his
fingerprints, but these efforts failed. See Doc. No. 17 at 9 (citing Doc. No. 18-3 at 2)
& Doc. No. 23 at 9 (citing Doc. No. 18-2).
After unsuccessful attempts to manually open Plaintiff’s hands, Defendant
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Tupper warned Plaintiff that if he did not open his hand, Defendant Tupper would use
his taser on Plaintiff. See Doc. No. 17 at 9 (citing Doc. No. 18-2) & Doc. No. 23 at 10
(citing Doc. No. 18-2). After Plaintiff continued to refuse to open his hand, Defendant
Tupper tased Plaintiff’s right arm for approximately three seconds. Doc. No. 17 at 9
(citing Doc. No. 18-3 at 2) & Doc. No. 23 at 10 (citing Doc. No. 18-2). Defendant
Tupper’s taser did not get Plaintiff to open his hand, so Defendant Massey then warned
Plaintiff that he would use his taser if Plaintiff did not open his right hand. Doc. No.
17 at 9 (citing Doc. No. 18-2) & Doc. No. 23 at 11 (citing Doc. No. 18-2). Plaintiff
still did not open his hand, so Defendant Massey tased Plaintiff in his stomach. Doc.
No. 17 at 9 (citing Doc. No. 18-3 at 2) & Doc. No. 23 at 11–12 (citing Doc. No. 18-
2 & Doc. No. 24 at 4).
Plaintiff later filed his Original Complaint (Doc. No. 1), alleging a claim against
Defendants Massey and Tupper for excessive force under 42 U.S.C. § 1983. See Doc.
No. 1 at 9–12. Plaintiff also asserts a Monell claim under § 1983 against Defendant
Ellis County, Texas, which is not at issue in the present Motion. See id. at 12–18.
Defendants Massey and Tupper now move for summary judgment on Plaintiff’s
excessive force claim, asserting the defense of qualified immunity. See Doc. No. 17 at
6. Plaintiff filed his Response and Defendants filed their Reply. Therefore, the Motion
is now ripe for determination.
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II. 	Legal Standards & Applicable Law
A. 	Summary Judgment Standard
Summary judgment is appropriate when the pleadings, affidavits, and other
summary judgment evidence show that no genuine dispute of material fact exists, and
the moving party is entitled to judgment as a matter of law. F ED . R. CIV. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute of material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict in favor of the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]he substantive
law will identify which facts are material.” Id. All evidence and reasonable inferences
must be viewed in the light most favorable to the nonmovant, and all disputed facts
resolved in favor of the nonmovant. See United States v. Diebold, Inc., 369 U.S. 654, 655
(1962); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
When a party bears the burden of proof on the issue, “he must establish beyond
peradventure all of the essential elements of the claim or defense to warrant judgment
in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). When the
nonmovant bears the burden of proof, the movant may obtain summary judgment by
(1) submitting evidence that negates the existence of one or more essential elements of
the nonmovant’s claim or affirmative defense, or (2) arguing that there is no evidence
to support one or more essential elements of the nonmovant’s claim or affirmative
defense. Celotex, 477 U.S. at 323–25. Once the movant satisfies his burden, the
nonmovant may not rest on the pleadings, but must present competent summary
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judgment evidence showing that a genuine fact dispute for trial exists. Id. at 324; Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
Conclusory 	allegations, 	unsubstantiated 	assertions, 	or 	a 	mere 	scintilla 	of
evidence cannot defeat a motion for summary judgment. See Anderson, 477 U.S. at 249–
52; Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmovant fails to make a sufficient showing to prove the existence of an
essential element to the case and on which the nonmovant will bear the burden of proof
at trial, summary judgment must be granted. Celotex, 477 U.S. at 322. The court views
the evidence in the light most favorable to the nonmovant, but the nonmovant must
still “come forward with specific facts indicating a genuine [dispute] for trial.” Vela v.
City of Houston, 276 F.3d 659, 666 (5th Cir. 2001) (citing Celotex, 477 U.S. at 324).
B. 	Qualified Immunity
“The doctrine of qualified immunity protects government officials from civil
damages liability when their actions could reasonably have been believed to be legal.”
Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). “Qualified immunity
protects ‘all but the plainly incompetent or those who knowingly violate the law.’”
Mullenix v. Luna, 577 U.S. 7, 12 (2017) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
“A 	good-faith 	assertion 	of 	qualified 	immunity 	alters 	the 	usual 	summary
judgment burden of proof, shifting it to the plaintiff to show that the defense is not
available.” Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017). To defeat a qualified
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immunity defense, the plaintiff must show “(1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.” McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017). “To avoid
summary judgment on qualified immunity, ‘the plaintiff need not present absolute
proof, but must offer more than mere allegations.’” Melton, 875 F.3d at 261 (quoting
King v. Handorf, 821 F.3d 650, 654 (5th Cir. 2016)). The Court construes all facts and
inferences in the light most favorable to the nonmovant. Id. at 261.
Regarding the second prong of the qualified immunity defense, an official’s
alleged 	misconduct violates “clearly 	established” law when, 	“at 	the time 	of the
challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would [have understood] that what he is doing violates that right.’”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). A plaintiff does not have to provide “directly on point” authority,
but “existing precedent must have placed the statutory or constitutional question
beyond debate.” Id. at 741. To find that the constitutional right was clearly established
at the time of the challenged conduct, the court “must be able to point to controlling
authority—or a ‘robust consensus of persuasive authority’—that defines the contours
of the right in question with a high degree of particularity.” Morgan, 659 F.3d at 371–
72. Further, this inquiry is based on the “objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was taken.” Pearson
v. Callahan, 555 U.S. 223, 244 (2009) (quoting Wilson v. Layne, 526 U.S. 603, 614
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(1999)) 	(emphasis 	added). 	The 	asserted 	right 	must 	be 	clearly 	established 	in 	a
“particularized” way, such that the illegality of the challenged conduct, in light of pre-
existing precedent, was apparent at the time of the conduct. Anderson, 483 U.S. at 640.
Importantly, the court, in its discretion, may “decid[e] which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in
the particular case at hand.” Pearson, 555 U.S. at 236.
C. 	Excessive Force
The Fourth Amendment guarantees the right to be free from unreasonable
seizures, which includes the use of excessive or unreasonable force by a law enforcement
officer during an arrest, an investigatory stop, or other “seizure.” Graham v. Connor, 490
U.S. 386, 395 (1989); Roque v. Harvel, 993 F.3d 325, 332 (5th Cir. 2021). An excessive
force claim requires the plaintiff to show “(1) an injury, (2) which resulted directly and
only from the use of force that was clearly excessive, and (3) the excessiveness of which
was clearly unreasonable.” Roque, 993 F.3d at 332–33. The reasonableness of an
officer’s use of force is to be “judged from the perspective of a reasonable police officer
on the scene, rather than the 20/20 vision of hindsight.” Graham, 490 U.S. at 396;
accord Roque, 993 F.3d at 333. This reasonableness standard demands “allowance for
the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Harmon v. City of Arlington, Tex., 16
F.4th 1159, 1163 (5th Cir. 2021) (internal quotations omitted) (quoting Graham, 490
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U.S. at 396–97). However, the reasonable inquiry is objective as the officer’s actions
are judged “in light of the facts and circumstances confronting them, without regard to
their underlying intent or motivation.” Graham, 490 U.S. at 397.
In analyzing a plaintiff’s excessive force claim, the court considers several factors
in determining whether the force was “unreasonable or excessive,” including “the
‘severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.’” Harmon, 16 F.4th at 1163 (quoting Graham, 490 U.S. at 396).
III. 	Analysis
In their Motion, Defendants Massey and Tupper argue that they are entitled to
qualified immunity from Plaintiff’s excessive force claim. See Doc. No. 17 at 12.
Specifically, Defendants Massey and Tupper argue that the use of their tasers on
Plaintiff “was neither excessive nor unreasonable given the way Plaintiff was acting and
resisting[]” because Plaintiff was resistant and “combative,” he refused to open his
hands for fingerprinting, and Defendants Massey and Tupper warned Plaintiff that he
would be tased if he continued his non-compliance with their orders. Id. at 14.
Defendants Massey and Tupper argue that their “use of the taser was measured and
ascending in accordance with Plaintiff’s resistance and belligerence.” Id. at 16. Further,
Defendants Massey and Tupper argue that their actions did not violate clearly
established law existing at the time of the challenged conduct. See id.
Defendants Massey and Tupper submit the following video and documentary
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evidence in support of their Motion: (1) police and incident report for Plaintiff,
including statements from the arresting officers and charges against Plaintiff (Doc. No.
18-1); video of the incident at the Ellis County Jail (referenced at Doc. No. 18-2);
Defendant Massey’s sworn declaration (Doc. No. 18-3); Defendant Tupper’s sworn
declaration (Doc. No. 18-4); and the Declaration of Terry Ogden (Doc. No. 18-5).
In his Response, Plaintiff argues that Defendants Massey and Tupper “used
force that was excessive and clearly unreasonable when they tased [Plaintiff] while he
was restrained in a restraint chair, not combative, not a threat, and for the sole purpose
of opening his hand to fingerprint him.” Doc. No. 23 at 17. Specifically, Plaintiff argues
that the use of tasers against him was excessive because he was arrested for a non-
violent offense, he was not attempting to flee or resist, and he was not a threat to
Defendants Massey, Tupper, or any of the other jail officers. Id. at 17–18. Plaintiff also
argues that the challenged conduct violated clearly established law. Id. at 20.
Plaintiff submits the following video evidence in support of his Response: (1)
body camera footage from Officer Harrison “Drew” Pickens beginning at 1:32 A.M.
(referenced as “Exhibit A” at Doc. No. 24 at 4); and (2) body camera footage from
Officer Pickens beginning at 12:58 A.M. (referenced as “Exhibit B” at Doc. No. 24 at
5) (together, the “Pickens Footage”).
In their Reply, Defendants Massey and Tupper object to the Pickens Footage as
not properly authenticated and “confusing at best and misleading at worse.” Doc. No.
27 at 1. Further, Defendants Massey and Tupper argue that they used the minimum
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amount of force necessary to gain Plaintiff’s compliance and that Plaintiff “fails to cite
a single case where the use of force is used on an individual who continues to physically
resist officers’ commands once in custody.” Id. at 2.
A. 	Defendants’ Objections to Plaintiff’s Summary Judgment Evidence
In their Reply brief, Defendants Massey and Tupper object to the Pickens
Footage that Plaintiff submits in support of his Response, arguing that the Pickens
Footage is not competent summary judgment evidence. Id. Specifically, Defendants
Massey and Tupper argue that the Pickens Footage lacks authentication. See id. at 1.
Plaintiff did not file a response to these objections.
Under Federal Rule of Civil Procedure 56(c)(2), “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” F ED. R. CIV. P. 56(c)(2). “At the summary judgment stage,
evidence relied upon need not be presented in admissible form, but it must be capable
of being presented in a form that would be admissible in evidence.” Truman Prop.
Owner, LLC v. Arlington Commons II, LLC, Civ. Action No. 4:23-CV-629-Y, 2024 WL
4426189, at *1 (N.D. Tex. June 12, 2024) (Means, J.) (quoting D’Onofrio v. Vacation
Publ’ns, 	Inc., 	888 	F.3d 	197, 	208 	(5th 	Cir. 	2018) 	(emphasis 	original) 	(internal
quotations omitted). If this case proceeded to trial, Plaintiff could put on witness
testimony to authenticate the Pickens Footage, so the Court finds that the Pickens
Footage is capable of being presented in admissible form. See id. Therefore, the Court
OVERRULES Defendants Massey and Tupper’s objections to the Pickens Footage.
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B. 	Clearly Established Law
At the center of Plaintiff’s argument against summary judgment is his conclusion
that the act of holding his hands closed and refusing to submit to fingerprinting
“amounted to at most passive resistance.” Doc. No. 23 at 10 (emphasis added). In
contrast, Defendants argue that while Plaintiff was in the restraint chair in the Ellis
County Jail, he physically resisted the jail officers’ attempts to obtain his fingerprints.
See Doc. No. 17 at 9. As the Court has already noted, it may “decid[e] which of the
two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. In light of the
issues presented in the present summary judgment briefing, the Court will first address
the second prong of the qualified immunity analysis, that being whether Defendants
Massey 	and 	Tupper’s 	alleged 	misconduct 	violated 	“clearly 	established” 	law. 	See
Anderson, 483 U.S. at 640 (emphasis added). Having viewed the evidence and all
reasonable inferences in the light most favorable to Plaintiff and resolving all disputed
facts in favor of Plaintiff, the Court finds that Defendants Massey and Tupper’s alleged
misconduct was not a “clearly established” violation of Plaintiff’s rights.
An important consideration in any excessive force case is whether the plaintiff
“actively resist[ed] arrest.” Harmon, 16 F.4th at 1163 (quoting Graham, 490 U.S. at
396). In determining the need for use of force, an officer must assess “the relationship
between the need and the amount of force used.” Trammell v. Fruge, 868 F.3d 332, 341
(5th Cir. 2017) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009))
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(internal quotations omitted). Further, an officer’s use of force must be “measured and
ascending” in response to an arrestee’s escalation of his resistance. Poole v. City of
Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (internal quotations omitted). Plaintiff
argues that his refusal to open his hands for fingerprinting was mere passive resistance.
See Doc. No. 23 at 10. When a person’s conduct is only “mere passive resistance,” an
officer’s use of force on that person is generally unjustified. Trammell, 868 F.3d at 341.
However, even when an individual only offers passive resistance, the use of force is not
necessarily unjustified, but “the amount of reasonable force varies.” Robles v. Ciarletta,
797 Fed. App’x. 821, 827–28 (5th Cir. 2019) (providing additional context to
Trammell).
The line between passive and active resistance is “unclear.” Trammell, 868 F.3d
at 341; see also Betts v. Brennan, 22 F.4th 577, 583 (5th Cir. 2022) (“the line between
active and passive resistance is sometimes hazy”). In some cases, an individual actively
resists arrest or an officer’s orders such that the use of force is not excessive. See
Buchanan v. Gulfport Police Dep’t, 530 Fed. App’x. 307, 314 (5th Cir. 2013) (officer’s
use of his taser was not excessive when plaintiff failed to comply with officer’s order);
Pratt v. Harris Cnty., Tex., 822 F.3d 174, 182 (5th Cir. 2016) (“[o]nly after [plaintiff]
continuously failed to comply, did either deputy deploy tasers”); Betts, 22 F.4th at 583
(active resistance where plaintiff “adopted a confrontational stance,” “repeatedly
contested why he was stopped,” “ignored dozens of [the officer’s] commands,” and
“batted away [the officer’s] hand”). In other cases, a plaintiff only offers passive
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resistance such that the use of force is excessive. See Ramirez v. Martinez, 716 F.3d 369,
378 (5th Cir. 2013) (fact question as to excessive force found where plaintiff only
resisted the officer by “pulling his arm out of [the officer’s] grasp”); Deville, 567 F.3d
at 169 (fact question as to excessive force found where plaintiff only offered “passive
resistance to being removed from her car and separated from her grandchild”); Cloud v.
Stone, 993 F.3d 379, 385 (5th Cir. 2021) (citing Newman v. Guedry, 703 F.3d 757, 762–
63 (5th Cir. 2012)) (“we held that officers could not tase someone who had not
committed a crime, attempted flight, or disobeyed any commands, and who may have
only provoked police with an ‘off-color joke’”). In all, an excessive force analysis,
particularly the line between passive and active resistance, is “fact-intensive.” Betts, 22
F.4th at 583 (quoting Deville, 567 F.3d at 167) (internal quotations omitted).
Additional considerations are insightful to the present Motion. First, officers
“may consider a suspect’s refusal to comply with instructions” in determining whether
physical force is necessary to obtain compliance. Deville, 567 F.3d at 167 (emphasis
added); see also Buchanan, 530 Fed. App’x. at 314 (“where a suspect resists arrest or fails
to follow police orders, officers do not violate his right against excessive force by
deploying their tasers to subdue him”). Further, an officer’s use of “physical skill” and
“negotiation” before resorting to using his taser is evidence that his use of force was
reasonable under the circumstances. Betts, 22 F.4th at 583 (quoting Newman, 703 F.3d
at 763); see also Trammell, 868 F.3d at 342 (“this Court has several times found that
the speed with which an officer resorts to force is relevant in determining whether that
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force was excessive to the need”). Indeed, the use of force is excessive where an officer
uses his taser as “the first indication” that the arrestee is non-compliant with the
officer’s orders. Autin v. City of Baytown, 174 Fed. App’x. 183, 185 (5th Cir. 2005).
Importantly, an officer that stops using force once compliance is obtained provides
evidence of a “reasonable relationship between the need [for force] and the amount of
force used.” Betts, 22 F.4th at 584 (quoting Joseph on behalf of Est. of Joseph v. Bartlett,
981 F.3d 319, 332 (5th Cir. 2020)) (internal quotations omitted).
In light of the foregoing precedent, which existed at the time of Defendants
Massey and Tupper’s alleged misconduct, the Court finds that the challenged conduct
was not a violation of then-clearly established law. Plaintiff does not dispute that the
jail officers, including Defendants Massey and Tupper, attempted to manually open
his right hand in order to obtain his fingerprints, including through the use of pressure
points. See Doc. No. 17 at 9 (citing Doc. No. 18-3 at 2); Doc. No. 23 at 9 (citing Doc.
No. 18-2) (“[t]wo [j]ailers attempted to pry open [Plaintiff’s] right hand to get his
fingerprints”). After Plaintiff continued his non-compliance, Defendant Tupper pulled
out his taser and warned Plaintiff that he would get tased if he did not comply. Doc.
No. 23 at 10 (citing Doc. No. 18-2); Betts, 22 F.4th at 583 (physical skill and
negotiation prior to tasing is evidence of reasonable use of force). Once Plaintiff
maintained his non-compliance, Defendant Tupper tased him. Doc. No. 23 at 10
(citing Doc. No. 18-2); Deville, 567 F.3d at 167 (“refusal to comply” is a valid
consideration in determining whether to use force). Plaintiff still refused to comply, so
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Defendant Massey pulled out his taser and issued another warning to Plaintiff. Doc.
No. 23 at 11 (citing Doc. No. 18-2). When Plaintiff still did not comply, Defendant
Massey tased him. See id. After Defendant Massey’s use of force, Plaintiff opened his
hands for fingerprinting. See Doc. No. 17 at 9–10 (citing Doc. No. 18-3 at 2). Plaintiff
also does not dispute that once he opened his hands for fingerprinting, none of the jail
officers, including Defendants Massey and Tupper, deployed their tasers any further.
See id.; Betts, 22 F.4th at 584 (stopping use of force once compliance is obtained shows
“reasonable relationship” between need for force and amount of force used).
It is clear to the Court that at the time of Defendants Massey and Tupper’s
alleged misconduct, existing precedent was not “sufficiently clear that every reasonable
[officer] would have understood that what he is doing violates that right.” Mullenix,
577 U.S. at 11 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Plaintiff refused
to comply with the jail officers’ orders to open his hands for fingerprinting. Defendants
Massey and Tupper attempted to use other methods of obtaining Plaintiff’s compliance
and only resorted to their tasers when Plaintiff continued to refuse to comply with their
orders. After finally obtaining Plaintiff’s compliance, they did not deploy their tasers
any further. These are all facts that then-existing precedent showed were persuasive in
finding the use of force reasonable. See Deville, 567 F.3d at 167; Buchanan, 530 Fed.
App’x. at 314; Betts, 22 F.4th at 583, 584 (emphasis added). The Court sees nothing
in then-existing precedent, much less a “robust consensus of persuasive authority,” that
clearly established a violation of law in this case. Morgan, 659 F.3d at 371–72. Further,
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the Court acknowledges that Plaintiff provides a set of cases in support of his argument
that Defendants Massey and Tupper violated his clearly established rights. See Doc.
No. 23 at 21–23. The Court has carefully reviewed each of Plaintiff’s proffered cases
and finds that they are each easily distinguishable from the facts of this case and are
thus unpersuasive.
Having viewed the evidence and all reasonable inferences in the light most
favorable to Plaintiff and resolving all disputed facts in favor of Plaintiff, the Court
finds that Defendants Massey and Tupper’s alleged misconduct was not a “clearly
established” violation of Plaintiff’s Fourth Amendment rights. Because Plaintiff does
not satisfy this prong of the qualified immunity analysis, the Court need not discuss
the other prong. See Bernabe v. Rosenbaum, 2023 WL 181099, at *1 (5th Cir. Jan. 13,
2023) (“both prongs must be satisfied, and courts may choose which prong to consider
first”).
C. 	Plaintiff’s Fourteenth Amendment Claim
Plaintiff also alleges his excessive force claim as a violation of his Fourteenth
Amendment rights. See Doc. No. 1 at 9. However, “all claims that law enforcement
officers 	have 	used 	excessive 	force—deadly 	or 	not—in 	the 	course 	of 	an 	arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the
Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive
due process’ approach.” Graham, 490 U.S. at 395 (emphasis original). Accordingly,
Plaintiff’s asserted ground for relief under the Fourteenth Amendment is not proper in
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this case. Therefore, the Court finds that Defendants Massey and Tupper are entitled
to summary judgment on Plaintiff’s Fourteenth Amendment claim.
IV. 	Conclusion
Having viewed the evidence and all reasonable inferences in the light most
favorable to Plaintiff and resolving all disputed facts in favor of Plaintiff, the Court
finds that Plaintiff fails to satisfy his summary judgment burden to overcome the
defense of qualified immunity. Accordingly, the Court GRANTS the Motion and
DISMISSES WITH PREJUDICE Plaintiff’s claims against Defendants Ryan Massey
and Ethan Tupper.
SO ORDERED.
Signed March 26th , 2026.
____________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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