United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court is a motion for summary judgment by Defendants
Robert Anderson, Lewis Holland, Seth Model, Jon Bundick,
Quint Sebek, and Celestin Adam (collectively,
“Defendants”), (Dkt. 47), and responsive
briefing, (Dkts. 54, 56). Having considered the parties'
submissions, the record, and the applicable law, the Court
will grant Defendants' motion.
case concerns the use of pepper spray during a street brawl.
Plaintiffs Sara and Amanda Hoke (collectively, “the
Hokes”) are twin sisters who went out one evening on
6th Street during the 2016 South by Southwest festival. (1st
Am. Compl., Dkt. 2, ¶ 9). At 2:00 a.m., the bars on 6th
Street closed, and thousands of patrons poured into the
street. As she and her sister left a bar, Sara Hoke bumped
into another woman, and a fight ensued. (Id. ¶
10; Resp., Dkt. 54, at 14). Amanda Hoke joined in the fight.
(1st Am. Compl., Dkt. 2, ¶ 10).
Hokes allege that 17 officers responded to the fight, eight
of whom surrounded the women fighting, and at least seven of
whom deployed pepper spray. (Id. ¶¶ 11-13;
Resp., Dkt. 54, at 15-16). Defendants sprayed the Hokes with
pepper spray for several seconds. (1st Am. Compl., Dkt. 2,
¶ 13; Mot., Dkt. 47, at 3). After the fight ended,
Defendants arrested the Hokes for disorderly conduct and took
them to a building they were using as a staging area that
night. (1st Am. Compl., Dkt. 2, ¶ 17; Mot., Dkt. 47, at
4). There, the Hokes were given water to wash off the pepper
spray. (Mot., Dkt. 47, at 4; Resp., Dkt. 54, at 17). They
claim that both before and after they were given the water,
they experienced intense pain from the pepper spray on
several parts of their bodies. (1st Am. Compl., Dkt. 2,
on these facts, the Hokes bring this action under 42 U.S.C.
§ 1983 against Defendants for violation of their Fourth
and Eighth Amendment rights. They claim that Defendants used
excessive force against and unreasonably arrested them.
(Id. ¶¶ 28-31). Defendants assert that
they are entitled to qualified immunity and that the evidence
raises no genuine issue as to whether they used excessive
force or wrongfully arrested the Hokes. (Mot., Dkt. 47, at
1). Defendants seek summary judgment on all of the Hokes'
judgment is appropriate when there is no genuine dispute as
to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). A dispute
regarding a 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). “A
fact is material if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Tex., 560
F.3d 316, 326 (5th Cir. 2009) (quotations and footnote
omitted). When reviewing a summary judgment motion,
“[t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255. That said,
courts “give greater weight, even at the summary
judgment stage, to the facts evident from video recordings
taken at the scene.” Griggs v. Brewer, 841
F.3d 308, 312 (5th Cir. 2016) (citing Carnaby v. City of
Houston, 636 F.3d 183, 187 (5th Cir. 2011)). A court may
not make credibility determinations or weigh the evidence in
ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986). Unsubstantiated assertions, improbable
inferences, and unsupported speculation are not competent
summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
Furthermore, the nonmovant is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). Rule 56 does not impose a duty on the court to
“sift through the record in search of evidence”
to support the nonmovant's opposition to the motion for
summary judgment. Id. After the nonmovant has been
given the opportunity to raise a genuine factual issue, if no
reasonable juror could find for the nonmovant, summary
judgment will be granted. Miss. River Basin Alliance v.
Westphal, 230 F.3d 170, 175 (5th Cir. 2000).
qualified immunity defense alters the usual summary judgment
burden of proof.” Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010). “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. Even
when considering a qualified immunity defense, however, the
court must view the evidence in the light most favorable to
the nonmovant and draw all inferences in the nonmovant's
favor, Rosado v. Deters, 5 F.3d 119, 122-23 (5th
Cir. 1993), and cannot make credibility determinations or
weigh the evidence, Reeves, 530 U.S. at 150.
Hokes make three claims that Defendants used excessive force
against them in violation of the Fourth Amendment: they (1)
used “far more than a reasonable quantity of a chemical
agent”; (2) deployed the chemical agent “without
prior verbal command, or after the person was subdued and
compliant;” and (3) “withheld irrigation and
appropriate medical attention pre- and post-arrest.”
(1st Am. Compl., Dkt. 2, ¶¶ 29-31). The Hokes also
claim that Defendants unreasonably arrested them in violation
of the Fourth Amendment and that Defendants' decision to
withhold irrigation also constitutes a violation of the
Eighth Amendment. (Id. ¶¶ 28, 31).
assert that they are entitled to qualified immunity with
respect to each of these claims. Whether an official is
entitled to qualified immunity is a two-step inquiry. In the
context of a motion for summary judgment, the Court must
determine (1) whether the plaintiff has shown a violation of
a constitutional right, and (2) whether that right was
“clearly established” at the time of the
defendant's alleged misconduct. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). The Court has
discretion to decide which of the two steps to address first.
Id. at 236. If there is no constitutional violation,
the officer is entitled to qualified immunity from suit.
Mace v. City of Palestine, 333 F.3d 621, 625 (5th
Cir. 2003). As explained below, Defendants are entitled to
summary judgment on each of the Hokes' claims.
Amount of ...