# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 22

- 20144

**Morgan Grice,**

Plaintiff

— Appellant **,**

versus
**Travis Younger; City of Bellaire; Bellaire Police Department; Byron Holloway; Onesimo Lopez; Andrew**  **S. Friedberg; Paul A. Hoffman; Police Officer John Doe,**

Defendants —Appellees

**.**

Appeal from the United States District Court for the Southern District o f Texas USDC No. 4:19

- CV

- 2295

Before **Clement** , **Oldham** , and **Wilson** , Circuit Judges

**. Per Curiam**  **:** * Morgan Grice asks us to reverse the district court’s judgment on her 42 U.S.C. § 1983 and state tort claims against Officer Younger and her municipal liability claims against the City of Bellaire. Instead, we affirm.

* This opinion is not designated for publication. See **5th Cir. R. 47.5**

. United States Court of Appeals Fifth Circuit 

### FILED March 8, 2023 Lyle W. Cayce Clerk Case: 22-20144 Document: 00516669914 Page: 1 Date Filed: 03/08/2023No. 22

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2 I. On August 1 8 , 2017, Bellaire police o fficer Travis Younger arrived at the scene of a traffic accident along Texas ’s IH

- 610

. 1 Morgan Grice (the appellant) had rear ended another driver and badly smashed the front of her Subaru hatchback

. Grice spoke to Officer Younger with slurred speech and her eyelids drooped

. Officer Younger asked Grice several times how much she’d had to drink ; she repeatedly said she’d had nothing. Eventually, Grice admitted to drinking at a work happy hour earlier that day . S he also said she

was o n her way to pick up her child

. Inside her car, Officer Younger found ten empty Miller Lite beer cans, four empty and five unopened Modelo beer

cans, one empty Coors Lite beer can, and an empty bottle of Chateau Souverain Sauvignon Blanc . He conducted thre e field sobriety tests on Gric e , which she failed

. So Officer Younger arrested Grice under suspicion of driving while intoxicated and took her to jail

. At the jail, Grice consented to a blood test both orally and in writing. Officer Younger cuffed Grice again and drove her to the nearby Bellaire fire station to allow an EMT to take a blood sample

. After they entered the fire station, Officer Younger removed Grice’s handcuffs , and they climbed into the back of an ambulance to j oin the EMT. A fter the EMT took additional information from Grice and began preparing t o draw her blood , Grice asked Officer Younger if he would do the test himself

. In response, Officer Younger again explained to her in a level tone what was happening: Gr ice had consented to a blood draw so the EMT was taking her blood to determine the level of alcohol in her system. He also told her that if she didn ’t consent, he would get a warrant , and then they would take her blood anyway . In response,

1 The entire encounter is captured on one hour and sixteen minutes of video footage from Officer Younger’s body camera. Case: 22-20144 Document: 00516669914 Page: 2 Date Filed: 03/08/2023No. 22

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3 Grice said Offic er Younger was being “ a jerk , ” asked him if he had ever seen My Cousin Vinny , and then withdrew her consent to the blood draw

. Officer Younger told the EMT they would have to come back because Grice was being “difficult.” He asked Grice to step outside th e ambulance , but she refused to comply

. Officer Younger told her that if she refused to exit he would “pull her out

. ” She then got out and called Officer Younger a name. Officer Younger told her she was a “drunk driver , ” turned her around forcibly, and began attempting to handcuff her. Before Officer Younger could secure the handcuffs, Grice spun to her left with her chest toward Officer Younger and said “do it harder .” He then pushed her against the side of the ambulance and kept trying to cuff her

. 2 He repeatedly told Grice to “stop resisting , ” “to put her hands behind her back, ” and to not “pull away again.” He asked her repeatedly if she understood his command not to “pull away again.” He then told her that he would put her “on the gr ound” if she kept resisting. She said “do it again you fucking [inaudible]. ” Officer Younger said over his radio that Grice was “resisting.” After she squirmed and fidgeted her arm again, Officer Younger grabbed her arm and pressed her once again against t he ambulance; he told her again not to pull away. He then took out his handcuffs and attempted to cuff her again. At this point, Grice turned to her left and pull ed away again . In response, Officer Younger took her to the ground and then cuffed her. During the takedown , Grice hit her head against the concrete

. It’s clear from the video that the left side of her face immediately began to swell and bruise

.

2 Officer Younger’s body camera f ell off when he pushe d Grice against the ambulanc e. Within seconds, an EMT pick ed it up and ke pt filming the incident. Case: 22-20144 Document: 00516669914 Page: 3 Date Filed: 03/08/2023No. 22

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4 After a warrant issued , Grice’s blood was eventually drawn. Tests indicated that Grice had a blood alcohol concentration of more than three times the presumptive level of intoxication. Grice was convicted of driving while intoxicated.

Grice sued Officer Younger, the City of Be llaire, and a variety of other City

- related defendants under 42 U.S.C. § 1983 for excessive force in violation of the Fourth Amendment , intentional infliction of emotional distress (“IIED”) , and other claims . The district court first dismissed all Grice’s claims except her excessive force and IIED claims against Officer Younger , and later granted summary judgment to Officer Younger on those claims . Grice appeals only as to her excessive force and IIED claims against Officer Younger and her claims against th e City.

II. We review the district court’s grant of summary judgment and its grant of a motion to dismiss de novo using the same standards as the district

court. See Howell v. Town of Ball , 8 2 7 F. 3d 515 , 521

– 22 (5th Cir. 2 016 ). We first (A) explain why Officer Younger is entitled to qualified immunity on Grice’s Fourth Amendment claim. We next (B) explain why Grice’s other claims on appeal fail too.

A.

Officer Younger is entitled to qualified immunity unless he violated a constitutional righ t (prong one) that was clearly established at the time of the challenged conduct (prong two)

. Ontiveros v. City of Rosenberg , 564 F.3d 379,

382 (5th Cir. 2009) ; see also P ea rson v. Callahan , 555 U.S. 223, 236 (2009) ( courts may address either prong first )

. Even a ssuming Officer Younger violated Grice’s Fourth Amendment rights , she must demonstrate that “the violated constitutional right was Case: 22-20144 Document: 00516669914 Page: 4 Date Filed: 03/08/2023No. 22

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5 clearly established.” Lytle v. Bexar Cnty. , 560 F.3d 404, 41 7 (5th Cir. 2009). She can do that in one of two ways

. First, Grice can win by pointing to binding precedent that places “the statutory or constitutional question beyond debate.” Kisela v. Hughes , 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting White v. Pauly , 580 U.S. 73, 79 (2017)) . Because qualified immu nity protects “all but the plainly incompetent or those who knowingly violate the law,” i bi

d. , governing precedent “must be clear enough that every reasonable official would interpret it to establish the particular rule.” District of Columbia v. Wesby , 138 S. Ct. 577,
590 (2018)

. That means the legal principle must “clearly prohibit the officer’s conduct in the particular circumstances before him.” I bi

d. (emphasis added) ; Mullenix v. Luna , 577 U.S. 7, 12 (2015) (per curiam) (instructing courts not to define clearly established law at a “high level of generality”); Ashcroft v. al

- Kidd , 563 U.S. 731, 742 (2011) (same)

. In the Fourth Amendment context, the Supreme Court has recognized that specificity is “especially important” d ue to the highly specific nature of each factual situation. Mullenix , 577 U.S. at 12; Kisela , 138 S. Ct. at 1152

– 53; Wesby , 138 S. Ct. at 590. And within the Fourth Amendment context, the Supreme Court has particularly marked out excessive force as “an are a of law ‘in which the result depends very much on the facts of each case,’ and thus police officersare entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” Kisela , 138 S. Ct. at 1153 (quotation omitted )

.

A ssuming circuit cases can clearly establish the law (something the Supreme Court has never said), only one of the published cases Grice cites is even in the factual ballpark. See Marks v. Hudson , 933 F.3d 481, 486 (5th Cir. 2019) (unpublished cases can’t clearly establish the law). That’s Deville v. Marcantel , 567 F.3d 156 (5th Cir. 2009) (per curiam)

. There, an officer Case: 22-20144 Document: 00516669914 Page: 5 Date Filed: 03/08/2023No. 22

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6 stopped a woman and her grandchild for a minor traffic violation. Id. at 161. The officer ordered the woman to step out of the car , but she refused because she didn’t want to leave her grandchild alone. I bi

d. A fter another officer arrived , both officers broke the driver’s side window of the car , dr agged the woman out of the car, an d threw her against the side of the ir police car causing injury to her abdomen

. Id. at 162. U nlike in Deville where the grandmother

was at most passively resisting and not complying with the officers ’ commands, it’s perfectly clear from the video in this case that Grice was not only passively noncompliant with Officer Younger’s commands

— she was actively physically resisting his attempts to handcuff her. And the minor traffic offense at issue in Deville is miles away from Grice’ s much more serious offense of driving while intoxicated at three times the legal limit

.
Grice’s other cases are also readily distinguishable. In Ramirez v. Martinez , an officer tased an arrestee a second time after the arrestee was already handcuffed . 716 F.3d 369 , 378 (5th Cir. 2013). But here, Grice was repeatedly, physically resist ing Officer Younger’s attempts to handcuff her when he took her to the ground . And in Newman v. Guedry , the officer gave no commands and no warning before using force. 703 F.3d 757 , 76 3 (5th Cir. 2012). That’s not the case here because Officer Younger repeatedly gave Grice commands she ignored and repeatedly warned her about the consequences of continued resistance before using force. Last, in Goodson v. City of Corpus Christi , the officer s used excessive force on a pedestrian after conducting a stop and frisk without reasonable suspicion. 202 F.3d 730 , 7 40 (5th Cir. 2000). Here, Officer Younger arrested Grice on suspicion of driving while intoxicated after (1) sh e failed three field sobriety tests, (2) she appeared intoxicated, and (3) he found fifteen empty beer cans and an empty wine bottle in her car.
N one of the cases Grice cites “squarely govern” the facts at issue here

. Even though Grice ca n’t identif y an o n

- point case, she can also win if Case: 22-20144 Document: 00516669914 Page: 6 Date Filed: 03/08/2023No. 22

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7 she can show this is the “ rare obvious case.” Wesby , 138 S. Ct. at 590 (quotation omitted). That’s a case “where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Id. While the obvious case exception isn’t a nullity, “a body of relevant case law is usually necessary to clearly establish the answer.” Id. (quotation omitted).

But this case isn’t close to the obvious case. Here, Officer Younger used increasing levels of force as Grice continued to resist and disobey his commands. He physically turned her around, pushed her against the side of the ambulance, and grabbed her arm as she swung it sideways all in an attempt to handcuff her . He told her he would “put her on the ground” if she kept resisting and pulling away . When she pulled away again , Officer Younger took her to the ground as he had warned her he would

. Because every reasonable official in Officer Younger’s shoes wouldn’t think it obvious that taking

a noncompliant, physically resistant suspect to the ground (after trying multiple les ser measures) violates the Constitution, Officer Younger is entitled to qualified immunity.

B.

Grice’s other claims fail too. Officer Younger is statutorily immune from Grice’s IIED claim against him under the Texas Tort Claims Act (“TTCA”). That ’s because “a plaintiff who sues under the TTCA must elect pursuant to § 101.106 of that act between suing a governmental unit and suing an employee of that unit.” Bustos v. Martini Club, Inc. , 599 F.3d 458,

4 62 (5th Cir. 2010) (emphasis added) . Where a plai ntiff “sues both the governmental unit and any of its employees under the TTCA, ‘the employees shall immediately be dismissed on the filing of a motion by the governmental unit.’” Id. (quoting **Tex. Civ. Prac. & Rem. Code** § 101.106(e)); accord Bustillos v. El Paso Cnty. Hosp. Dist. , 891 F.3d 214, 223 Case: 22-20144 Document: 00516669914 Page: 7 Date Filed: 03/08/2023No. 22

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8 (5th Cir. 2018) . Here, the express language in Grice’s Amended Complaint clearly indicates that Grice brought Texas tort claims against both the City and Officer Younger

. Thus, her IIED claim against Officer You nger is barred by the TTCA

. Finally , Grice’s various municipal liability c laims a gainst the C ity under § 1983 also fail because she has pled no specific facts to support them

. See Peterson v. City of Fort Worth , 588 F.3d 838, 847 (5th Cir. 2009) ; see also Piotrowski v. City of Houston , 237 F.3d 567, 580 (5th Cir. 2001) (noting that courts must “adhere to [the] rigorous requirements of culpability and causation” when evaluating municipal liability claims lest municipal liability “collapse[] into respond eat superior liability” (quotation omitted) ). We ascertain no constitutional violation from Grice’s rote recitation of the municipal liability elements in the absence of specific facts indicating culpability and causation.

**AFFIRM ED** 

. Case: 22-20144 Document: 00516669914 Page: 8 Date Filed: 03/08/2023