Case: 17-10101   Document: 00514628263     Page: 1   Date Filed: 09/05/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 17-10101              United States Court of Appeals
                                                                    Fifth Circuit

                                                                  FILED
VERNON LINICOMN,                                          September 5, 2018
                                                             Lyle W. Cayce
             Plaintiff - Appellant                                Clerk

v.

MAURICO HILL; CHERYL MATTHEWS; DOES 1-3, Inclusive,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before KING, DENNIS, and COSTA, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Vernon Linicomn brought this 42 U.S.C. § 1983 action asserting that
Dallas, Texas, police officers violated his Fourth Amendment rights by forcibly
entering his house without a warrant, without his consent, and without reason
to believe that any person inside was in imminent danger of harm; and by
assaulting and arresting him with excessive force. Two of the officers, Maurico
Hill and Cheryl Matthews, filed a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c), which the district court granted. Vernon
now appeals.
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                                   No. 17-10101
                                          I
                                          A
      We review a district court’s grant of a Rule 12(c) motion for judgment on
the pleadings de novo. Machete Prods., L.L.C. v. Page, 

, 287 (5th
Cir. 2015). A Rule 12(c) motion may dispose of a case when there are no
disputed material facts and the court can render a judgment on the merits
based on “the substance of the pleadings and any judicially noticed facts.” 

pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A pleading
offering only “labels and conclusions,” “naked assertions,” or “a formulaic
recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

,
555, 557 (2007)). To avoid dismissal, a plaintiff must plead “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
In re Great Lakes Dredge & Dock Co. LLC, 

, 210 (5th Cir. 2010)
(quoting 

). We must construe the complaint in the light
most favorable to the plaintiff. 

are entitled to qualified immunity unless the plaintiff can
plead specific allegations demonstrating (1) the violation of a constitutional
right that (2) was clearly established at the time of the alleged misconduct.
Pearson v. Callahan, 

, 232 (2009). A right is “clearly established”
when “[t]he contours of the right [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Rice v.
ReliaStar Life Ins. Co., 

, 1130 (5th Cir. 2014) (quoting Anderson
v. Creighton, 

, 640 (1987)).




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                                       No. 17-10101
                                             B
       Vernon Linicomn alleged the following facts in his pleadings. 1 He was
awarded primary custody of his two minor children in his divorce from their
mother, Linda, who suffers from mental disorders that render her unfit to be
a custodial parent. After the divorce, and prior to the incident involved in this
lawsuit, Linda falsely reported to the City of Dallas’s Police Department on
numerous occasions that the welfare of the children was endangered while they
resided with Vernon.          However, although the police responded on each
occasion, no action was taken against Vernon because each of the reports
proved to lack substance or justification.
       On October 23, 2011, at approximately 4:40 p.m., Linda called 911
regarding the welfare of the children and told dispatch that Vernon was
“abusing” the children. Officers Gilbert and Oliver went to Vernon’s house,
knocked on the door, but received no response; they departed without taking
further action. At 9:20 p.m. that same night, Linda again called the police
department and reported a “disturbance” pertaining to the children at
Vernon’s residence. The Defendants, Officers Hill and Matthews, responded 2
and arrived at Vernon’s house between 9:30 and 10:41 p.m. 3 Upon arrival, the
officers met Linda and Dallas paramedics and firefighters outside. Linda
informed the officers that her daughter was “lethargic and sick” inside
Vernon’s house. The paramedics stated that they had been unable to gain




       1  At the motion to dismiss stage, we take the facts, as alleged or admitted by Vernon,
as true. Bell Atl. Corp. v. Twombly, 

, 589 (2007).
        2 We note that the Defendants, Officers Hill and Matthews, claim that they were not

aware of Linda’s prior false reports to the Dallas Police Department, including Linda’s report
earlier on the day of the incident giving rise to this litigation.
        3 The pleadings are inconsistent with respect to when the officers arrived at Vernon’s

house.
                                              3
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                                  No. 17-10101
entry to Vernon’s house. The officers tried to contact Vernon by calling his cell
phone and knocking repeatedly at his front door. Vernon did not respond.
        Officer Hill contacted his supervisor, Sergeant Melquiades Irizarry, who
arrived on the scene soon after.     Sergeant Irizarry spoke with Linda and
directed Hill to announce through the police public address system that they
would enter the house—with or without Vernon’s cooperation. Eventually,
Vernon answered the door. Vernon advised Sergeant Irizarry and Officer Hill,
who were standing at the threshold of the doorway, that his daughter was
asleep and did not need medical assistance. Meanwhile, Officer Matthews
stood off to the side of the door with her back to Vernon and the other officers.
The officers did not have a warrant to enter Vernon’s house.
        Vernon refused to allow anyone entry without a warrant. Sergeant
Irizarry placed his hand on Vernon’s shoulder and asked him to step aside so
that paramedics could enter and verify that Vernon’s daughter was safe.
Vernon pushed Sergeant Irizarry’s hand away.         Officer Hill then clasped
Vernon’s right arm and shoulder. Vernon pushed Officer Hill away, retreated,
and tried to close the door to the house. Officer Hill and Sergeant Irizarry
prevented Vernon from closing the door, and Vernon ran toward the back of
the house. Officer Hill ran after Vernon. Officer Matthews entered the house
but remained near the front door. Inside the house, a struggle ensued. Officer
Hill grabbed Vernon and tried to take him to the floor. Vernon resisted.
Sergeant Irizarry sprayed Vernon with pepper spray.           Vernon was then
handcuffed, escorted outside, and treated by paramedics. The officers spoke
with Vernon’s children and confirmed that they had been asleep and were not
ill.    The children also confirmed that Linda had a history of making
exaggerated claims about their welfare.




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                                       No. 17-10101
                                             C
       Vernon filed suit in Texas state court against Officers Hill and
Matthews, 4 alleging assault and battery as well as claims under 42 U.S.C.
§ 1983 for violations of his Fourth Amendment rights.                    The state court
dismissed the assault and battery claims, and Officers Hill and Matthews
removed the case to federal court. Officers Hill and Matthews affirmatively
asserted the defense of qualified immunity, and the district court ordered
Vernon to reply to that defense under Federal Rule of Civil Procedure 7(a). The
district court ultimately granted the officers’ motion for a judgment on the
pleadings under Federal Rule of Civil Procedure 12(c), dismissing Vernon’s
§ 1983 claims with prejudice. Vernon appeals that judgment. For the following
reasons, we AFFIRM.
                                             II
       The district court granted the officers’ Rule 12(c) motion for judgment on
the pleadings, holding that Vernon’s amended complaint and Rule 7(a) reply
to the Officers’ answers did not overcome the officers’ qualified immunity
defense. 5 Vernon challenges that order, arguing that his pleadings sufficiently
demonstrate that the officers acted objectively unreasonably and violated his
clearly established Fourth Amendment rights by (1) entering his house without
a warrant and (2) using excessive force by assaulting and pepper spraying him.




       4  Vernon also sued the City of Dallas and three unidentified officers (Does 1–3).
However, Vernon abandoned his claims against the City in the district court by failing to
name it as a defendant in his amended complaint. MacArthur v. Univ. Tex. Health Ctr., 

, 896 (5th Cir. 1995). The district court ultimately dismissed the claims against Does
1–3, after Vernon did not show good cause for his failure to effect service on them. See Fed.
R. Civ. P. 4(m) and 6(b). Vernon has abandoned these claims by failing to brief them on
appeal. 

.
        5 The court assumed, arguendo, that Vernon sufficiently alleged violations of his

constitutional rights, deciding only whether the Officers’ conduct was objectively reasonable
in light of the clearly established law at the time.
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                                 No. 17-10101
                                       A
      The Supreme Court has held that we have discretion to address either
prong of the qualified immunity analysis first. See 

(holding that the two-step, qualified-immunity sequence set forth in Saucier v.
Katz, 

(2001), “should not be regarded as mandatory in all cases”).
Further, the Court recognized that, even where defendants are clearly entitled
to qualified immunity under the second prong, undertaking the two-step
procedure “is often beneficial . . . [because it] promotes the development of
constitutional precedent and is especially valuable with respect to questions
that do not frequently arise in cases in which a qualified immunity defense is
unavailable.” 

this to be the case here. Accordingly, although
we ultimately conclude that the officers were entitled to a judgment on the
pleadings based on the second prong of the qualified-immunity inquiry, we
begin our analysis with the first prong. See 

the first prong of the qualified-immunity analysis, we consider
whether the officers’ actions violated Vernon’s Fourth Amendment rights. See
Trammell v. Fruge, 

, 339 (5th Cir. 2017) (citing 

). Vernon argues that the officers entered his house without a warrant
and absent exigent circumstances or any other exception to the warrant
requirement.
      “Physical entry of the home is the chief evil against which the wording
of the Fourth Amendment is directed.” United States v. U.S. Dist. Ct., 

, 313 (1972). A warrantless search of a person’s home is presumptively
unreasonable, unless an exception to the warrant requirement applies. Carroll
v. Ellington, 

, 169 (5th Cir. 2015) (citing Brigham City v. Stuart,

, 404 (2006)).       One exception is the existence of exigent
circumstances justifying immediate action. 

–31 (citing
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                                  No. 17-10101

). Whether exigent circumstances exist to justify a
warrantless search depends on whether, given the totality of the
circumstances, the search was objectively reasonable. See 

.     Officers cannot manufacture exigency through their own action or
inaction.    United States v. Jones, 

, 720 (5th Cir. 2001).        In
assessing whether the officers created the exigency, we focus on the
“reasonableness of [their] investigative tactics leading up to the warrantless
entry.” 

        Exigent circumstances exist where, inter alia, officers must enter a home
to provide emergency assistance to preserve life or prevent serious injury.
Officers may enter a home “without a warrant to render emergency assistance
to an injured occupant or to protect an occupant from imminent injury.”

(finding exigent circumstances where officers looked
through a window and witnessed a bloody fight inside the house). “Officers do
not need ironclad proof of a likely serious, life-threatening injury to invoke the
emergency aid exception.” Michigan v. Fisher, 

, 48 (2009) (internal
quotation marks omitted).          The Supreme Court has found exigent
circumstances where the responding officers “encountered a tumultuous
situation in the house—and . . . also found signs of a recent injury.” 

see also 

–01.
        We have declined to apply the emergency aid exception absent strong
evidence of an emergency at the scene or an imminent need for medical
attention. In Gates v. Tex. Dep’t of Protective & Reg. Servs., 

, 422
(5th Cir. 2008), we concluded that there were no exigent circumstances
justifying the warrantless entry of social workers into a home to investigate
whether children were being abused and neglected. This conclusion was based
on several findings: the alleged abuser was not at home and the children were
not in immediate danger; the purpose of the entry was to interview the children
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                                 No. 17-10101
and not to guard them against immediate danger; and one of the social workers
testified that he did not witness any exigent circumstances or emergencies at
the home. 

Additionally, in United States v. Troop, we held that
it was unreasonable for border patrol agents to conclude that the persons they
tracked to a house needed immediate aid based solely on the fact that their
footprints showed signs of fatigue. 

, 410 (5th Cir. 2008). We found
that signs of fatigue alone, absent evidence “of medical distress requiring
immediate aid, such as loss of blood, signs of physical illness, or evidence that
the individual had been carried or dragged,” did not constitute exigent
circumstances justifying immediate entry into the house. 

argue that they acted reasonably in entering Vernon’s house,
claiming that they were unaware of Linda’s mental illness and history of
making groundless 911 calls and therefore had reason to take her call seriously
that day, as she was the children’s mother. Even so, under the facts alleged
and admitted by Vernon, their warrantless entry was still not justified by
exigent circumstances. Linda’s 911 call that night alleged that there was a
“disturbance” at Vernon’s address. But the officers had the burden of proving
the existence of exigency, and failed to corroborate her call. See Welsh v.
Wisconsin, 

, 750 (1984) (“Before agents of the government may
invade the sanctity of the home, the burden is on the government to
demonstrate exigent circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home entries.”); see also
United States v. Rico, 

, 500–01 (5th Cir. 1995) (officers have the
burden of proving the existence of exigency). The record reflects that the
officers spoke to Linda outside Vernon’s house, but the officers allege only that
Linda informed them that her daughter was “lethargic and sick” before they
decided to enter. The officers’ responsive pleadings do not demonstrate that
they inquired into the basis for Linda’s assertion that the children were
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                                 No. 17-10101
“lethargic and sick,” or the circumstances surrounding Vernon’s possession of
the children on that day. Moreover, the officers do not contend that Linda told
them Vernon hurt either child or in any way caused his daughter’s condition;
nor do they claim that they were aware of Linda’s first 911 call that day,
alleging that Vernon was abusing the children. Cf. 

(finding “no immediate danger” to the children where the alleged abuser was
not home); Wernecke v. Garcia, 

, 389, 396 (5th Cir. 2009) (holding
that the warrantless entry of a state official to investigate the medical neglect
of a child was justified by exigent circumstances, where the investigator had a
temporary-custody order based on a court’s finding that the child’s physical
health and safety were in “immediate danger,” the child was known to have
Hodgkin’s disease, and the child’s parents had refused to consent to radiation
treatment).
      The officers arrived at Vernon’s house up to one hour and twenty-one
minutes after Linda placed the call. Unlike the tumultuous situations the
officers encountered in Stuart and Fisher, the officers arrived at Vernon’s
house to find a relatively calm scene outside with no external signs of struggle
indicating the need to prevent violence or restore order.
      Although Vernon did not answer his cell phone and did not initially
respond to the repeated knocks at his front door, his failure to respond did not
constitute exigency. See 

(holding that when a person
does not answer the door, officers should “change[] their strategy by retreating
cautiously, seeking a search warrant, or conducting further surveillance.”
(citing United States v. Gomez-Moreno, 

, 355–56 (5th Cir. 2007)));
see also United States v. Hill, 

, 266 (4th Cir. 2011) (an officer’s
belief that there was someone inside the house who was not answering the door
“is simply not sufficient evidence to support a warrantless entry into a private
home without some articulable fact that justified urgent entry by police”). And
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                                       No. 17-10101
when Vernon eventually did come to the front door, he told the officers that his
daughter “was asleep, not ill, and not in need of assistance.” 6 The officers have
not demonstrated that they observed or received any information, aside from
Linda’s 911 call, indicating that Vernon’s daughter’s condition had devolved
beyond “lethargic and sick,” or that she needed immediate emergency aid. 7 Cf.
United States v. Flores-Castaneda, 384 F. App’x 364, 367 (5th Cir. 2010)
(finding imminent danger justifying warrantless entry where smugglers held
hostages inside a home; they had a cell phone and possible weapons; the
officers heard movement inside, but no one opened the door for two minutes;
and a man inside the residence spotted the officers, turned, and ran back into
the interior of the house). Thus, the officers did not show that they reasonably
believed their warrantless entry was justified by exigent circumstances.
       Finally, the officers contend that they were justified in entering Vernon’s
home to prevent him from obtaining a weapon inside. However, the officers do
not allege that they had any information indicating the presence of a weapon
inside the home, nor did they articulate such a suspicion before entering. And
the pleadings demonstrate that Vernon attempted to close the door and retreat
into his house as a result of the officers’ request to enter without a warrant.
Vernon’s retreat in response to the officers’ actions did not give rise to exigent
circumstances. Cf. 

(finding that the suspect, not the


       6  In their answer to the amended complaint, the officers stated that Vernon appeared
“irate and upset” upon answering the door, and Vernon admitted the allegation. But an
appearance of anger, without more, does not establish exigency. Cf. Thacker v. City of
Columbus, 

, 254 (6th Cir. 2003) (finding that the totality of the circumstances
justified entry to secure the safety of the police, paramedics, and other people possibly inside
the home where “[s]omeone had placed a 911 call reporting an emergency—a cutting or
stabbing—at the residence. [The plaintiff] answered the door shirtless, with blood on his legs
and boxer shorts. It was apparent that [the plaintiff] himself was injured . . . [he] acted
belligerently and used profanity. . . . [and] [h]e appeared intoxicated.”).
        7 As explained above, Officers Hill and Matthews claim they had no knowledge of

Linda’s call earlier that day, alleging that Vernon was abusing the children. See supra note
2.
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                                 No. 17-10101
officers, created the exigency where the suspect left the door open with a
handgun in plain view). In sum, as Vernon adequately alleged in his amended
complaint, “[a]t the time of Defendants’ warrantless entry, Defendants
observed no crime being committed, and observed no fact or circumstance
tending to give rise to an objectively reasonable concern for the safety of
Plaintiff’s children,” apart from Linda’s uncorroborated statement that her
child was “lethargic and sick.” We therefore conclude that Vernon has facially
pleaded sufficient facts to support a plausible claim that the officers violated
his Fourth Amendment rights when they entered his house without a warrant
and absent proof or showing of exigent circumstances. See In re Great 

(quoting 

).
                                       2
      Though we find plausible Vernon’s allegations that the officers’
warrantless entry into his house violated his Fourth Amendment right, we
cannot conclude, under the second prong of the qualified immunity analysis,
that this right was clearly established under the circumstances of this case at
the time of the officers’ entry. See 

. The law is
clearly established when there is “controlling authority—or a ‘robust
consensus of persuasive authority’—that defines the contours of the right in
question with a high degree of particularity.” Hogan v. Cunningham, 

, 735 (5th Cir. 2013) (citing Morgan v. Swanson, 

, 371–72 (5th
Cir. 2011) (en banc)). The Supreme Court “does not require a case directly on
point for a right to be clearly established, [but] existing precedent must have
placed the statutory or constitutional question beyond debate.” See Kisela v.
Hughes, 

, 1152 (2018) (quoting White v. Pauly, 

,
551 (2017)). An officer is entitled to qualified immunity “unless all reasonable
officials in the defendant’s circumstances would have then known that the


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                                  No. 17-10101
defendant’s conduct violated the United States Constitution.” Thompson v.
Upshur Cty., 

, 457 (5th Cir. 2001).
        Vernon argues that, under Troop, the Officers should have known that
no exigent circumstances existed to justify their warrantless entry into his
house. In Troop, we found that signs of fatigue in footsteps “alone [were]
insufficient to demonstrate exigent circumstances requiring an immediate
entry into the house,” noting the lack of evidence “of medical distress requiring
immediate aid, such as loss of blood, [or] signs of physical 

. Here, however, the officers acted in response to Linda’s 911 call asking
for assistance checking on her sick and lethargic child. Because Linda’s call
could reasonably be construed as evidence that her daughter was physically
ill, Troop does not clearly establish that the officers’ actions were unreasonable
in light of clearly established law. While Troop may be relevant to the question
of whether the exigent circumstances exception applies, it is not “controlling
authority . . . that defines the contours of the right in question with a high
degree of particularity.” 

. Nor does Troop “place[] the
statutory or constitutional question beyond debate.” See 

.
        Vernon does not cite to any controlling authority establishing that the
officers’ entry into his house would have violated a clearly established right
under the circumstances. Accordingly, we affirm the district court’s decision
to grant the officers’ motion for judgment on the pleadings on the basis of
qualified immunity.
                                        B
        The district court concluded that the officers used reasonable force in
light of the clearly established law at the time. The court noted Vernon’s
admission that he was not pepper sprayed by the officers, but by Sergeant
Irizarry. It further concluded that Officer Matthews did not touch Vernon,
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                                       No. 17-10101
except to assist him outside of the house to receive medical care. Finally, the
court found that Vernon failed to allege any facts to negate the assertion that
Officer Hill’s use of force was reasonable to prevent him from accessing any
weapons inside his house.
       Vernon argues that his pleadings demonstrate that he was assaulted and
pepper sprayed and suffered great bodily harm as a result of the officers’
unreasonable use of force. To prevail on an excessive force claim, the plaintiff
must show (1) an injury (2) that resulted directly and only from the use of force
that was clearly excessive to the need and that (3) the force used was
objectively unreasonable. Goodson v. City of Corpus Christi, 

, 740
(5th Cir. 2000). Excessive force claims are fact-intensive, and courts must
consider “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.” Deville v.
Marcantel, 

, 167 (5th Cir. 2009) (quoting Graham v. Connor, 

, 396 (1989)). “The ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Hogan v. Cunningham, 

, 734
(5th Cir. 2013) (quoting 

).                       We evaluate the
reasonableness of each officer’s actions separately. Poole v. City of Shreveport,

, 628 (5th Cir. 2012).
       We agree with the district court’s findings and conclusions as to the
officers’ use of force. First, Vernon conceded that he was pepper sprayed by
the officers’ supervisor, Sergeant Irizarry. Sergeant Irizarry is not a defendant
in this case. 8 Vernon’s allegations of being pepper sprayed therefore do not



       In Vernon’s original petition in state court, he alleged that Doe 1 “entered Plaintiff’s
       8

home without a warrant” and “assaulted Plaintiff, causing great bodily harm.” To the extent
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                                       No. 17-10101
“focus[] specifically on the conduct of” Officers Hill and Matthews and cannot
help him overcome their defense of qualified immunity. See Reyes v. Sazan,

, 161 (5th Cir. 1999) (a plaintiff must allege facts focusing
specifically on the conduct of the individuals who caused the plaintiff’s injury).
Second, Vernon did not allege any facts demonstrating that Officer Matthews
used any force on him at all. And he admitted the allegations contained in
Officer Matthews’s answer to his complaint, which does not describe Officer
Matthews as having any contact with Vernon until she helped escort him
outside for medical treatment.
       Finally, Vernon claims that Officer Hill used excessive force in
restraining him. However, his claim is undermined by his admission of the
facts in Officer Hill’s answer to his complaint. 9 Vernon admitted that Officer
“Hill clasped [Vernon’s] right arm and shoulder” after Vernon pushed Sergeant
Irizarry’s hand away. Vernon next admitted that Officer Hill “grabbed [him]
and attempted to take him to the ground” after he pushed Officer Hill’s hand
away and ran into the house. Vernon further admitted that he and Officer Hill
struggled in the hallway. Lastly, Vernon admitted that Officer Hill handcuffed
and escorted him outside for medical treatment after Vernon was pepper
sprayed by Sergeant Irizarry. In light of Vernon’s admission that Officer Hill
used force only after Vernon made physical contact with him and Sergeant
Irizarry, and again after Vernon fled to the back of his house and engaged in a
physical struggle with Officer Hill, we conclude that Vernon’s pleadings do not
sufficiently establish that Officer Hill’s use of force was objectively
unreasonable. See 

(finding that officers responded to


that Vernon intended to name Sergeant Irizarry as Doe 1, he has abandoned this claim, as
discussed above. See supra note 3.
        9 Vernon admitted the facts in Officer Hill’s answer to his complaint “with the

exception that he [had] no information and belief with respect to the beliefs or mental status
of the officers.”
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                                 No. 17-10101
plaintiff’s “escalating verbal and physical resistance” with “measured and
ascending”   actions   where   plaintiff    persistently    resisted   the   officers’
commands); Galvan v. City of San Antonio, 435 F. App’x 309, 311 (5th Cir.
2010) (finding the same where officers reacted with verbal warnings, then
pepper spray, then hand-and-arm manipulation techniques, then a Taser, after
plaintiff ran from officers, responded aggressively when they caught him, and
engaged in a physical struggle). Accordingly, we affirm the district court’s
judgment as to this claim.
                                      ***
      For these reasons, we AFFIRM the district court’s judgment.




                                       15