Nolen v. Garrett

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 9, 2002
• Docket: 02-30024
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 02-30024 __________________________

JACKIE NOLEN, Plaintiff-Appellant,

versus

MINDEN POLICE DEPARTMENT, CITY OF MINDEN, SHANE WAITES, AND MARVIN GARRETT, Defendants-Appellees.

___________________________________________________

On Appeal from the United States District Court For the Western District of Louisiana (Civil Action No. 00-CV-1693) ___________________________________________________

September 6, 2002

Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jackie Nolen sued the City of Minden (“the City”), the Police

Department of Minden (“the Police Department”), and officers Marvin

Garrett and Shane Waites for alleged civil rights violations under

42 U.S.C. § 1983. Nolen alleged that Garrett and Waites falsely

arrested him and then beat and taunted him. The district court

granted summary judgment in favor of all defendants and dismissed

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 the Police Department.

Nolen does not challenge the district court’s determinations

that the Police Department was not a proper party because it was

not a separate entity from the City and that the City was entitled

to municipal immunity because Nolen failed to demonstrate that the

City had a policy of arresting individuals without probable cause.

Because Nolen does not address these determinations, the claims are

abandoned on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993). We affirm the grant of summary judgment in favor

of the City and the dismissal of the Police Department. See

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748

(5th Cir. 1987).

The district court found that Garrett and Waites were both

entitled to qualified immunity because they had probable cause to

arrest Nolen and used reasonable force. We review a grant of

summary judgment de novo, “viewing the evidence in the light most

favorable to the nonmovant.” Smith v. Brenoettsy, 158 F.3d 908,

911 (5th Cir. 1998). The moving party has the initial burden of

showing that there is no genuine issue of material fact. If the

moving party meets that burden, to reverse the grant of summary

judgment the nonmoving party must produce evidence or set forth

specific facts showing the existence of a genuine issue. Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986); FED. R. CIV. P. 56(e).

Conclusory allegations, unsubstantiated assertions, or a scintilla

2 of evidence will not satisfy the nonmovant’s burden. Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

To obtain relief under 42 U.S.C. § 1983 Nolen must allege a

violation of a constitutional right by one or more state actors.

Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir.

1994). A § 1983 claim for false arrest only stands if the

arresting officers lacked probable cause. Brown v. Board of

Comm’rs of Bryan County, Ok., 67 F.3d 1174, 1180 (5th Cir. 1995),

overruled on other grounds, 520 U.S. 397 (1997). The totality of

the circumstances must be considered in determining the existence

of probable cause. Id.

Nolen has not contested the defendants’ assertions that he was

intoxicated on the night of his arrest, see LA. REV. STATE. ANN. §

14:98 (2001), and ran a stop sign, see LA. REV. STATE. ANN. § 32:123

(2001). He has not presented evidence that on the night of the

incident he had a valid driver’s license. See LA. REV. STATE. ANN.

§ 32:415 (2001). Based on the totality of the circumstances, the

officers had probable cause to arrest Nolen. See Brown, 67 F.3d at

1180. We affirm the grant of summary judgment in favor of Garrett

and Waites on the false arrest claim.

Nolen’s final claim is a Fourth Amendment excessive force

claim against Garrett and Waites. Nolen’s verified complaint does

not claim that Garrett participated in the alleged assault. We

thus affirm the district court’s grant of summary judgment in favor

3 of Garrett on the excessive force claim.

The right to make an arrest necessarily carries with it the

right to use some degree of force or threat to effect it. Graham

v. Connor, 490 U.S. 386, 396 (1989). Nolen bears the burden of

showing: “(1) an injury (2) which resulted directly and only from

the use of force that was clearly excessive to the need and (3) the

force used was objectively unreasonable.” Williams v. Bramer, 180

F.3d 699, 703, clarified on reh’g, 186 F.3d 633, 634 (5th Cir.

1999). Whether or not the force was reasonable should be judged

according to the facts of each case, “including the severity of the

crime at issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Graham

v. Connor, 490 U.S. at 396.

Nolen’s complaint states that Waites struck him with a

flashlight and that he was transported to the Minden Medical Center

for surgical treatment of his injuries. The affidavits of civilian

witness Harold Cawthon and officers Garrett and Waites support

other facts. The affidavit of Cawthon states that Nolen was drunk

when arrested and that when Waites informed Nolen that he was going

to arrest him, Nolen shouted, “I am not going back to jail,” struck

a noncompliant posture, and then took off running. According to

Waites’ affidavit, when he caught up with Nolen he tackled him from

behind and handcuffed him. Nolen sustained bruises to his knees as

4 a result of the chase.

The district court found that Nolen failed to deny that he

resisted arrest and offered no details surrounding his arrest. The

court held that Waites used reasonable force when apprehending

Nolen. No evidence in the summary judgment record supports Nolen’s

allegations that Waites struck him with a flashlight and that his

injuries required surgery. All of the evidence supports Waites’

affidavit. The existence of a scintilla of evidence is

insufficient to defeat summary judgment. Little v. Liquid Air

Corp., 37 F.3d at 1075. We affirm the grant of summary judgment in

favor of Waites on the excessive use of force claim.

After closely reviewing the record and reading the briefs, we

AFFIRM the district court’s grant of summary judgment in favor of

defendants.