Durant, et al v. Brooks

United States Court of Appeals
for the Fifth Circuit

No. 20-30039
Summary Calendar

Raymond Durant; Nena Fairley,

Plaintiffs—Appellees,

versus

Tramell Brooks, Individually and in His Official
Capacity as a Gretna Police Officer,

Defendant—Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-147

Before Stewart, Higginson, and Costa, Circuit Judges.
Per Curiam:*
Officer Tramell Brooks appeals the district court’s interlocutory
order denying in part his motion for summary judgment based on qualified
immunity. We affirm.

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
September 1, 2020

Lyle W. Cayce
Clerk
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I.
The following facts are undisputed. On the evening of March 16, 2018,
Raymond Durant drove his vehicle to Key’s Fuel Mart in Gretna, Louisiana.
He drove there to pick up his fiancée, Nena Fairley, who worked at the gas
station. Durant arrived at Key’s a few minutes before Fairley was scheduled
to get off work, which was at 9 p.m. Meanwhile, Gretna Police Officer
Tramell Brooks was patrolling the area near Key’s. As he drove by the gas
station, he noticed that the lights were off above the store’s gas pumps. He
also noticed several people gathered around a couple of vehicles in the gas
station’s parking lot. One of the vehicles belonged to Durant, and he was
among the group seen by Officer Brooks.
Durant, with Fairley in the passenger seat of his vehicle, started to
drive out of the gas station’s parking lot. But when he saw Officer Brooks
driving by, Durant grew nervous, changed course, and reversed into a parking
spot at the gas station. Officer Brooks thought this was suspicious. Although
he had already driven past the gas station, he made a U-turn to head back in
the direction of Key’s.
At that point, Durant drove out of the Key’s parking lot and, shortly
thereafter, into the parking lot of a nearby Neighborhood Wal Mart. Officer
Brooks observed Durant’s vehicle accelerate through the Wal Mart parking
lot “at a good rate of speed.” Richard Street, where Durant and Fairley live,
dead-ends into a street that borders the Wal Mart parking lot. Durant drove
from the Wal Mart parking lot to Richard Street, where he parked his car. He
and Fairley exited his vehicle and began walking toward their home.
What unfolded once Officer Brooks arrived at Richard Street is in
dispute. But for the purposes of this appeal, at least this much is not in
dispute: Officer Brooks searched Durant and Fairley, handcuffed them, and
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placed them into the back of his patrol vehicle. Officer Brooks’s colleague,
Officer Matthew Kraly, then arrived to assist.
In a deposition, Durant testified that, while handcuffed and seated in
the police cruiser, he pulled his phone from his pocket. He testified that he
wanted to video record what was happening. According to Durant, when
Officer Kraly saw him with the phone, he “punched [Durant] in the ribs a
couple of times.” Durant testified that Officer Brooks then “made it around
there to assist [Officer Kraly]. And they wrestled the phone [away].” Durant
also testified that Officer Brooks “put his dirty feet on [him].” Later on,
while clarifying the details of the interaction, Durant testified that Officer
Kraly jumped on him and punched him, with Officer Brooks coming over to
“assist” and “help.” Durant clarified that the two officers were “wrestling
[him] together, both of them.” Although Durant did not clearly testify that
Officer Brooks punched or kicked him during the scuffle, he later stated in a
post-deposition declaration that Officers “Kraly and Brooks . . . punch[ed]
and kick[ed] me while I was handcuffed in the back seat.”
Fairley’s recollection of what transpired is similar to Durant’s. At her
deposition, she stated that she witnessed Officers Kraly and Brooks
“tussl[e]” with Durant next to her in the back seat of the police vehicle. She
also testified that she saw Officer Kraly punch Durant, and “[h]e kept
punching him. And then Officer Brooks . . . picked up his foot, kicked him,
and slammed the door.” When asked where Officer Brooks punched or
kicked Durant, Fairley testified that “I only seen (sic) Officer Brooks kick
[Durant].”Nevertheless, she later stated in a post-deposition declaration that
Officer “Kraly and Brooks . . . physically attacked [Durant], punching him
and taking his phone by force.”
Durant testified that his ribs were “a little sore” after the incident, but
that he did not seek medical treatment for any rib pain. He also testified that
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his physical pain, in general, “wasn’t much.” Instead, what appeared to
bother him more were the “recurring nightmares” that happened “maybe
once a week, twice a week.”
Officer Brooks’s deposition testimony tells a different story. He does
not recall Durant ever pulling out a phone. What he does remember is that
“no force was used.” He testified that neither he nor Officer Kraly used any
force on Durant.
Officer Brooks released Fairley at the scene. But he transported
Durant to the Jefferson Parish Correctional Center in Gretna and booked him
into the jail on several open attachments. Durant also was booked on a charge
of threatening a public official based upon Officer Brooks’s allegation that
Durant threatened him on the ride to the jail. The charge was later dismissed.
On January 9, 2019, Durant and Fairley filed this civil rights lawsuit
against Officer Brooks, the City of Gretna, Gretna Police Chief Arthur
Lawson, and two unnamed police officers. The Defendants filed a motion for
summary judgment on November 8, 2019. Officer Brooks claimed that he had
qualified immunity for all the claims against him. The district court, on
January 17, 2020, granted in part and denied in part the motion.
The court granted summary judgment to the Defendants on all of
Fairley’s claims and some of Durant’s claims. But it denied summary
judgment on Durant’s: (1) Fourth Amendment excessive force claim against
Officer Brooks; (2) bystander liability or “failure to intervene” claim against
Officer Brooks; (3) Monell claim against the City of Gretna; (4) state law
battery claim against Officer Brooks; (5) state law malicious prosecution
claim against Officer Brooks; and (6) state law vicarious liability claims
against the City of Gretna and Chief Lawson based on Officer Brooks’s
alleged battery and malicious prosecution.
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Officer Brooks filed this interlocutory appeal arguing that the district
court erred by denying him qualified immunity from Durant’s excessive force
and bystander liability claims. Durant’s other remaining claims are not at
issue on appeal.
II.
“On an appeal of a denial of summary judgment on the basis of
qualified immunity, our jurisdiction is limited to examining the materiality of
factual disputes the district court determined were genuine.” Cole v. Carson,
935 F.3d 444, 452 (5th Cir. 2019) (en banc). “Within the limited scope of our
inquiry, review is de novo.” Id.
III.
Officer Brooks raises three issues on appeal. First, he argues that the
district court relied on improper summary judgment evidence in considering
his motion. More specifically, Officer Brooks contends that the court erred
in considering Durant’s post-deposition declaration to find genuine disputes
of material facts because the declaration contradicted, without explanation,
Durant’s deposition testimony. Second, he contends that Durant’s excessive
force claim fails as a matter of law because Durant did not suffer a sufficient
“injury” for Fourth Amendment purposes. And third, he avers that
Durant’s claim for bystander liability must fail because Durant presented
insufficient evidence to support the claim.
Durant counters that we lack jurisdiction over this appeal because
Officer Brooks’s arguments relate to issues about the sufficiency of the
evidence on which the district court found genuine disputes of material facts.
To the extent Officer Brooks’s challenge can be characterized as an issue of
law regarding the excessive force claim, Durant argues that the district court
correctly relied on this court’s precedents in holding that Durant presented
sufficient evidence to support an “injury” for his excessive force claim.
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We first address Durant’s jurisdictional argument before turning to
Officer Brooks’s remaining claims.
A.
In an interlocutory appeal like this one from an order denying qualified
immunity in part, it is true that we lack jurisdiction “to resolve the
genuineness of any factual disputes.” Cole, 935 F.3d at 452 (quoting Trent v.
Wade, 776 F.3d 368, 376 (5th Cir. 2015)). Nevertheless, “[w]here . . . the
admissibility of particular evidence is critical to a [denial of] summary
judgment founded on qualified immunity, this court has not hesitated to
review the admissibility of the evidence on appeal.” Mersch v. City of Dallas,
Tex., 207 F.3d 732, 735 (5th Cir. 2000). The district court expressly relied on
Durant’s declaration, in addition to his and Fairley’s deposition testimony,
1

in finding genuine disputes as to several material facts underlying Durant’s
excessive force claim. We therefore have jurisdiction to review Officer
Brooks’s challenge to the district court’s consideration of Durant’s
declaration. See Miller v. Gaston, 358 F. App’x 573, 574 (5th Cir. 2009) (per
curiam) (unpublished) (reviewing challenge to admissibility of evidence
relied on by district court in denying defendant qualified immunity); Phillips
v. City of Victoria, 243 F. App’x 867, 870 (5th Cir. 2007) (per curiam)
(unpublished) (same).
We also have jurisdiction to review Officer Brooks’s claim that
Durant’s evidence of the injuries he suffered fails to establish a Fourth
Amendment excessive force claim as a matter of law. This is exactly the type
of conclusion of law that we have jurisdiction to review in orders denying an

1
By contrast, the district court did not rely on Fairley’s declaration in deciding
whether Durant had created a genuine dispute of material fact for his excessive force claim.
Accordingly, we do not consider Officer Brooks’s arguments regarding the inconsistencies
between her deposition testimony and statements in her declaration.
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official qualified immunity. See Trent, 776 F.3d at 376 (5th Cir. 2015) (holding
that appellate courts have jurisdiction to review legal determinations that
underlie denials of qualified immunity); Payne v. Dickerson, 334 F. App’x 629,
630–31 (5th Cir. 2009) (per curiam) (unpublished) (reviewing whether the
plaintiff established more than a de minimis injury to support an excessive
force claim).
Nevertheless, we lack jurisdiction to review Officer Brooks’s
challenge to the district court’s ruling regarding his bystander liability claim.
He argues that there has been insufficient evidence to support the district
court’s finding that genuine disputes of fact exist about whether Officer
Brooks saw Officer Kraly use unreasonable force and whether Officer Brooks
had a reasonable opportunity to respond. Because Officer Brooks effectively
challenges the “genuineness” of the factual disputes underlying these
findings, we lack jurisdiction over this claim. See Cole, 935 F.3d at 452.
B.
Officer Brooks’s primary complaint on appeal is that the district court
improperly allowed Durant to oppose Officer Brooks’s motion for summary
judgment with an unsworn declaration that contradicted his deposition
testimony. We review the district court’s ruling on this evidentiary issue for
abuse of discretion. Phillips, 243 F. App’x at 870.
“It is well settled that this court does not allow a party to defeat a
motion for summary judgment using an affidavit that impeaches, without
explanation, sworn testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d
489, 495 (5th Cir. 1996). And yet, “[w]hen an affidavit merely supplements
rather than contradicts prior deposition testimony, the court may consider
the affidavit when evaluating genuine issues in a motion for summary
judgment.” Id.
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Here, the district court did not abuse its discretion in relying on
Durant’s declaration. In his deposition, Durant testified that Officer Kraly
punched him, Officer Brooks “assisted” and “helped” during the
“wrestling,” and Officer Brooks “put his dirty feet” on Durant. In his
declaration, meanwhile, Durant states that, after Officer Kraly asked what
Durant was doing with his phone, Officers “Kraly and Brooks then started
punching and kicking me while I was handcuffed in the back seat . . . .”
Although Durant’s declaration was clearly carefully crafted in response to
Officer Brooks’s motion for summary judgment, it does not directly
contradict his deposition testimony. Instead, his statement is more fairly
characterized as supplementing and amplifying his deposition testimony.
Thus, the district court did not abuse its discretion in considering the
declaration to determine whether Durant established any genuine dispute of
material fact that would preclude Officer Brooks’s entitlement to qualified
immunity.
C.
Officer Brooks also argues that Durant’s complaints of sore ribs and
emotional distress—without corroborating medical evidence—are
insufficient to establish an “injury” for excessive force purposes. In the
context of this case, we disagree. “[A]s long as a plaintiff has suffered ‘some
injury,’ even relatively insignificant injuries and purely psychological injuries
will prove cognizable when resulting from an officer’s unreasonably
excessive force.” Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir.
2017) (quoting Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013) (per
curiam) (unpublished)). Moreover, the law is “clearly established” that
“once a suspect has been handcuffed and subdued, and is no longer resisting,
an officer’s subsequent use of force is excessive.” Carroll v. Ellington, 800
F.3d 154, 177 (5th Cir. 2015).
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Officer Brooks does not claim that Durant was resisting arrest while
handcuffed in the back seat of the police cruiser. Instead, he testified that no
scuffle happened at all. Meanwhile, Durant and Fairley testified that Officer
Brooks used force on Durant while he was handcuffed and subdued in the
police car. Such conduct amounts to unreasonably excessive force under our
caselaw. See id. Accordingly, any injury suffered by Durant—even sore
ribs—is sufficient to establish the injury element of his excessive force claim.
Alexander, 854 F.3d at 309.
2

IV.
For the foregoing reasons, the district court did not reversibly err. We
therefore affirm.
3

2
Officer Brooks attempts to distinguish Alexander on the ground that the excessive
force claim there had been dismissed by the district court at the motion to dismiss stage of
the litigation. See 854 F.3d at 309. This is a distinction without a difference. The rule of law
from Alexander that we rely on did not turn on the procedural posture of the case. See id.;
see also Sam v. Richard, 887 F.3d 710, 713-14 (5th Cir. 2018) (applying Alexander to
plaintiff’s excessive force claim on a motion for summary judgment).
3
We note that the district court’s 87-page opinion thoroughly recounted the
disputed and undisputed facts and carefully applied them to the fact-sensitive claims in this
qualified immunity case. The court appropriately dismissed certain claims while declining
to grant summary judgment on a select few.
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