Case: 10-10056 Document: 00511287791 Page: 1 Date Filed: 11/08/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          November 8, 2010

                                     No. 10-10056                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



TAMARA R. PEARLMAN,

                                                   Plaintiff - Appellant
v.

CITY OF FORT WORTH, TEXAS; P. R. MCCLESKEY, Individually and in
his Official Capacity,

                                                   Defendants - Appellees




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:08-CV-393


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Tamara R. Pearlman filed this action against the City
of Fort Worth (“City”) and P. R. McClesky, a police officer for the city, alleging
that she was seriously injured when she was forcibly arrested by McClesky
following an incident on August 7, 2006.                     Pearlman asserts various
constitutional claims against McClesky under 42 U.S.C. § 1983, alleging that he



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 10-10056

unlawfully seized her, that he injured her through his use of excessive force, and
that he refused to provide her with necessary medical treatment. She brings
similar claims under 42 U.S.C. § 1983 against the City, alleging that the City
had a customary practice or policy supporting McClesky’s alleged actions and
that it failed to adequately train its officers. Pearlman also asserts state-law
claims against both defendants for false arrest and false imprisonment,
intentional infliction of emotional distress, and assault and battery.
      The parties have stipulated to the pertinent facts.        After receiving
information that Pearlman may have been mistreating her niece Allison, who
was living with Pearlman while Allison’s parents were in the process of
divorcing, Officer McClesky was sent to Pearlman’s home to conduct a “welfare
check” on Allison. Allison agreed to speak to McClesky, and Pearlman initially
did not object. Subsequently, however, Pearlman apparently came under the
delusion that McClesky was attempting to kidnap Allison, and she tried to
intervene and pull Allison away from the officer. According to the stipulations,
      Pearlman and McClesky eventually got into an altercation, and
      McClesky decided to arrest Pearlman. At some point during the
      incident McClesky informed Plaintiff Pearlman that she was under
      arrest. Pearlman admittedly being arrest [sic]. Pearlman was
      eventually handcuffed, photographed at the scene, and transported
      to jail. Defendants dispute many of Pearlman’s claimed injuries,
      but the parties agree she received a scraped cheek and a sore,
      perhaps sprained, elbow.

The district court dismissed several of Pearlman’s claims after McClesky filed
a motion to dismiss, and it later granted summary judgment for defendants on
the remaining claims.




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                                         No. 10-10056

      The district court dismissed Pearlman’s state-law claims against McClesky
pursuant to the Texas Tort Claims Act, which provides that “[i]f a suit is filed
under this [Act] against both a governmental unit and any of its employees, the
employees shall immediately be dismissed on the filing of a motion by the
governmental unit.”1 It subsequently held that Pearlman’s state-law claims
against the City are likewise barred under the doctrine of sovereign immunity.
Although the Texas Tort Claims Act waives sovereign immunity for certain torts,
the intentional torts alleged by Pearlman fall outside that waiver.2 Pearlman’s
brief on appeal fails to identify any error in the district court’s analysis of these
issues, and we accordingly affirm.
      Pearlman’s constitutional claims against McClesky in his official capacity
are instead treated as claims against the City.3 The district court granted
summary judgment to the City on all constitutional claims because Pearlman
failed to adduce any evidence that the City had a custom or policy approving the
alleged violations4 or that the City failed to train its employees adequately.5
Once again, Pearlman’s brief fails to identify any error in the district court’s
analysis of these issues, and we affirm.
      The district court granted summary judgment for McClesky in his
individual capacity on all three constitutional claims. The award of summary



      1
          TEX . CIV . PRAC . & REM . CODE § 101.106(e) (2010).
      2
          See Taylor v. Gregg, 

, 457 (5th Cir. 1994).
      3
          See Monell v. N.Y. Dept. of Soc. Servs., 

, 690 n.55 (1978).
      4
          See 

      5
          See City of Canton v. Harris, 

(1989).

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                                       No. 10-10056

judgment on the unlawful arrest claim was based on procedural grounds that,
due to subsequent events, no longer apply,6 but we affirm summary judgment
on the alternative ground that no reasonable juror could find that Pearlman’s
arrest was unlawful. Pearlman concedes that, apparently acting under the
delusion that Officer McClesky was a kidnapper, she physically intervened in an
attempt to keep McClesky away from Allison.                   On these facts, McClesky
indisputably had probable cause to arrest Pearlman for interfering with a police
investigation.7
       We likewise affirm the grant of summary judgment for McClesky on the
excessive force claim. Pearlman admits that she fought back against Officer
McClesky as if he were a kidnapper, and thus McClesky necessarily had to use
substantial force to restrain her. Pearlman’s injuries were not insignificant, but
neither were they particularly severe. On the undisputed facts, no reasonable
juror could find that any injuries McClesky suffered were due to a use of force
that was excessive or unreasonable under these circumstances.




       6
        Specifically, the district court held—correctly at the time—that Pearlman was barred
from bringing a Section 1983 claim for her allegedly unlawful arrest, since that same arrest
was the basis for criminal charges of resisting arrest to which Pearlman pleaded guilty.
Because a ruling in Pearlman’s favor on her unlawful arrest claim would necessarily imply
that her criminal conviction was invalid, the district court was barred from considering her
claim unless the conviction was first invalidated on direct appeal, by writ of habeas corpus,
or through a similar proceeding. See Heck v. Humphrey, 

, 486–87 (1994); Randell
v. Johnson, 

(5th Cir. 2000). The day after the district court issued its judgment,
however, a Texas state court granted McClesky’s motion to withdraw her guilty plea and the
prosecutor’s motion to dismiss the case, and thus the Heck bar no longer applies.
       7
         See TEX . PEN . CODE § 38.15(a)(1) (“[A] person commits an offense if the person with
criminal negligence interrupts, disrupts, impedes, or otherwise interferes with . . . a peace
officer while the peace officer is performing a duty or exercising authority imposed or granted
by law.”).

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                                 No. 10-10056

      Finally, we affirm the award of summary judgment for McClesky on the
claim for failure to provide necessary medical care. Pearlman has failed to offer
any evidence to suggest she was in need of immediate medical attention, or even
that she requested any medical care that she did not receive.
      Accordingly, the judgment of the district court is AFFIRMED.




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