UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

KEVIN KELLY JOE BATES,

Institutional ID No. 02442793

Plaintiff,

v. No. 5:22-CV-00102-H

SGT. JEREMY TIDWELL, et al.,

Defendants.

OPINION AND ORDER

In this 42 U.S.C. § 1983 civil-rights action, Plaintiff Kevin Kelly Joe Bates complains 

about a use-of-force incident that occurred while he was a pretrial detainee in the Lubbock 

County Detention Center (LCDC). Proceeding pro se and in forma pauperis, Bates seeks to 

recover monetary damages from three LCDC officers involved in the incident—Davian 

Moore, Jeremy Tidwell, and Martin Rosas. Defendants filed a motion for summary 

judgment on the ground that they are entitled to qualified immunity. Bates filed a response, 

and Defendants filed a reply. As explained below, the Court grants Defendants’ motion. 

1. Background1

On April 20, 2022 at 12:20 a.m., LCDC Officer Roxann Mitchell observed Bates 

masturbating in his cell, which is located in a pod unit that houses inmates who have a 

history of disciplinary issues and pose a risk of violence. When Bates ignored Mitchell’s 

1 The following facts are undisputed and gleaned from the exhibits offered by Defendants in support 

of their motion, including video recordings of the incident, Bates’s verified complaint, and his sworn 

testimony at a Spears hearing. Dkt. Nos. 1, 31, 58, 59; see Spears v. McCotter, 766 F.2d 179, 181–82 

(5th Cir. 1985). Bates does not present any evidence in response to Defendants’ motion. 

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directive to stop, she told him that he would receive a disciplinary charge. Approximately 

one hour later, the incident giving rise to this lawsuit occurred. 

Around 1:20 a.m., Bates left his cell to take a shower. He approached the officer 

station where he asked for shaving clippers. His request was denied, and Officer Thompson

informed Bates that he was receiving an additional disciplinary charge for intentionally 

masturbating in front of a female officer. Bates became angry and began to curse at and 

argue with officers at the station. Officer Thompson directed Bates to return to his cell, but 

he refused. The Detention Response Team (DRT) was called to “deescalate and assist with 

the situation.” DRT Officers Jeremiah Garza and Rojelio Lara tried to calm Bates down 

and convince him to return to his cell voluntarily. When Bates refused, Garza and Lara 

each grabbed one of Bates’s arms and escorted him to his cell. While doing so, Bates 

became verbally and physically combative and refused to comply with their instructions to 

place his arms behind his back. A physical struggle ensued, which prompted Garza and 

Lara to try and subdue him. Bates resisted their efforts, so Officer Garza tased him. Bates 

fell to his knees but tried to get back up. Officer Garza instructed Bates to stop resisting and 

place his arms behind his back, but Bates refused. Garza tased him a second time, causing

Bates to fall to the ground in a prone position. Once there, Bates continued to resist and 

held his arms below his body. 

To assist Garza and Lara in removing Bates’s arms out from under his body so that 

he could be handcuffed, and to otherwise control Bates’s physical resistance, Officer Davian 

Moore placed his hands on Bates’s neck and upper back. Bates continued to resist, so 

Garza tased Bates a third time to gain compliance. After Bates was handcuffed, Moore left 

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his hand on Bates’s neck for approximately 30 seconds.

2 Once the situation was under 

control, Bates was escorted back to his cell in the “Uncooperative Carry Position,” i.e., still 

handcuffed and in a prone position. Bates claims that Moore’s actions caused him to

sustain swelling in his face and neck that lasted approximately one week. 

There are only three live claims pending before the Court.3 Bates alleges that

(1) Moore used excessive force against him after he was handcuffed, and (2) Sergeant 

Jeremy Tidwell and Corporal Martin Rosas, who were unit supervisors and present during 

the incident, are liable as bystanders for Moore’s unlawful conduct.

2. Legal Standards

A. Summary Judgment

A party is entitled to summary judgment if it can demonstrate that there is no 

genuine issue of material fact and that it is entitled to judgment as a matter of law. Ragas v. 

Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)); see Fed. R. Civ. P. 56(c). Once a movant who does not have the 

burden of proof at trial makes a properly supported motion, the burden shifts to the 

nonmovant to show that a summary judgment should not be granted. Ragas, 136 F.3d at 

2 Bates alleges that, after he was handcuffed, Moore placed his knee on Bates’s head and neck and 

was grinding his head into the concrete. Dkt. No. 31 at 15–16. But Bates’s allegations are wholly 

contradicted by the five video recordings of the incident, which the Court has thoroughly reviewed. 

Although Moore’s knee is near Bates’s head, Moore at no time places his knee on Bates’s neck or 

head. Dkt. Nos. 58, 59 (DX A-5 through A-9, which are contained on a thumb drive). As explained

further below, under these circumstances, the Court may not accept Bates’s factual allegations as 

true for purposes of ruling on a motion for summary judgment. Moreover, as noted by Defendants, 

Judge Bryant made the same finding in his March 28, 2023 Findings, Conclusions, and 

Recommendation and Order of Transfer, to which Bates never filed objections. Dkt. No 36 at 3. 

The Court accepted Judge Bryant’s finding and conclusions on June 27, 2023. Dkt. No. 49. 

3 Several of Bates’s original claims—including excessive-force claims against Garza and Lara—were 

dismissed during judicial screening. See Dkt. Nos. 25 & 27.

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458 (citations omitted). A party opposing summary judgment may not rest upon mere 

allegations contained in the pleadings but must set forth and support by summary-judgment 

evidence specific facts showing the existence of a genuine issue for trial. Id. (citing Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 255–57 (1986)). However, factual allegations made in 

verified pleadings and Spears hearing testimony given under penalty of perjury serve as 

competent summary-judgment evidence. See Hart v. Harrison, 343 F.3d 762, 765 (5th Cir. 

2003); Grimon v. Collins, 30 F.3d 1491 (5th Cir. 1994). 

When ruling on a motion for summary judgment, courts “view the facts in the light 

most favorable to the non-moving party and draw all reasonable inferences in its favor.” 

Bagley v. Guillen, 90 F.4th 799, 802 (5th Cir. 2024) (quoting Deville v. Marcantel, 567 F.3d 

156, 164 (5th Cir. 2009)). However, factual allegations arising out of events captured on 

video are viewed “in the light depicted by the videotape.” Bagley, 90 F.4th at 802 (quoting 

Scott v. Harris, 550 U.S. 372, 381 (2007)). “When opposing parties tell two different stores, 

one of which is blatantly contradicted by the record, so that no reasonable jury could believe 

it, a court should not adopt that version of facts for purposes of ruling on a motion for 

summary judgment.” Id. 

Unsubstantiated assertions are not competent summary judgment evidence. Ragas, 

136 F.3d at 458 (citation omitted). The party opposing summary judgment is required to 

identify specific evidence in the record and to articulate the precise manner in which the 

evidence supports his or her claim. Id. Rule 56 does not impose upon the district court a 

duty to sift through the record in search of evidence to support a party’s opposition to 

summary judgment. Id. at 459 (citation omitted). 

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B. 42 U.S.C. § 1983 & Qualified Immunity

Section 1983 “provides a claim against anyone who ‘under color of any ordinance, 

regulation, custom, or usage, of any State’ violates another’s constitutional rights.” Whitley 

v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). “A plaintiff makes out a [Section] 1983 claim if 

he ‘shows a violation of the Constitution or of federal law, and then shows that the violation 

was committed by someone acting under color of state law.’” Rich v. Palko, 920 F.3d 288, 

293–94 (5th Cir. 2019) (quoting Brown v. Miller, 519 F.3d 23, 236 (5th Cir. 2008)). 

However, even if a plaintiff can show that a defendant violated his or her 

constitutional rights, the defendant is not necessarily liable for his actions under Section 

1983. Defendants who perform discretionary duties may invoke the affirmative defense of 

qualified immunity in response to a plaintiff’s Section 1983 suit. The doctrine of qualified 

immunity protects government officials from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known. Guerra v. Castillo, 82 F.4th 278, 285 (5th Cir. 2023) 

(citations omitted). It protects all but the plainly incompetent or those who knowingly 

violate the law. Cunningham v. Castloo, 983 F.3d 185, 190 (5th Cir. 2020) (citations omitted). 

Courts undertake a two-pronged analysis to determine whether a public official is 

entitled to qualified immunity, inquiring: (1) whether the facts that the plaintiff has alleged 

make out a violation of a constitutional right; and (2) whether the right at issue was “clearly 

established” at the time of the defendant’s alleged conduct. Guerra, 82 F.4th at 285

(citations omitted). Courts exercise their discretion in deciding which of the two prongs of 

the qualified-immunity analysis should be addressed first. Id.

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When an official raises qualified immunity on summary judgment, the usual 

summary-judgment burden is altered and shifts to the plaintiff, who must show that the 

defense does not apply. See Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 329–30 (5th 

Cir. 2020) (citations omitted); see also Castloo, 983 F.3d at 191 (citing Bryant v. Gillem, 965 

F.3d 387, 391 (5th Cir. 2020)). Specifically, the plaintiff must show that (1) there is a 

genuine dispute of material fact and that a jury could return a verdict entitling him to relief 

for a constitutional injury; and (2) his version of those disputed facts constitutes a violation 

of clearly established law. Bartlett, 981 F.3d at 330. 

The “clearly established” prong is difficult to satisfy. The Supreme Court has 

repeatedly told courts not to define clearly established law at a high level of generality. 

Castloo, 983 F.3d at 191 (citing Mullenix v. Luna, 577 U.S. 7, 12 (2015)). A clearly 

established right is one that is clear enough that every reasonable officer would have 

understood that what he is doing violates that right. Id. This inquiry must be undertaken in 

light of the specific context of the case, not as a broad, general proposition. Id. 

There are two ways for a plaintiff to demonstrate that a defendant’s conduct violated 

clearly established law. See Batyukova v. Doege, 994 F.3d 717, 726 (5th Cir. 2021). Under the 

first, more typical approach, the plaintiff must “identify a case” or “body of relevant case 

law” in which “an officer acting under similar circumstances ... was held to have violated 

the [Constitution].” Id. (citing Bartlett, 981 F.3d at 330). While there need not be a case 

directly on point, the unlawfulness of the challenged conduct must be beyond debate. Id. 

Under the second approach, there can be the rare “obvious case,” where the unlawfulness of 

the officer’s conduct is so egregious that it is sufficiently clear even though existing 

precedent does not address similar factual circumstances. See Doege, 994 F.3d at 726 (citing 

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Dist. of Columbia v. Wesby, 538 U.S. 48, 65 (2018)); see also Brosseau v. Haugen, 543 U.S. 194, 

199 (2004). 

“In determining what constitutes clearly established law, [the Fifth Circuit] looks to 

Supreme Court precedent and then to [its] own.” Hicks v. LeBlanc, 81 F.4th 497, 503 (5th 

Cir. 2023) (quoting Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018)). When 

there is no direct controlling authority, “[the Fifth Circuit] may rely on decisions from other 

circuits to the extent that they constitute robust consensus of cases of persuasive authority.” 

Id. 

C. Excessive Force

Force against a pretrial detainee is “excessive” and a violation of the Fourteenth 

Amendment when the force was objectively unreasonable. Fairchild v. Coryell Cnty., Tex., 40 

F.4th 359, 362–63 (5th Cir. 2022) (citing Kingsley v. Hendrickson, 576 U.S. 389, 396–97)). 

Objective reasonableness turns on the facts and circumstances of each particular case.

Kingsley, 576 U.S.at 397 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). 

Assessments of the reasonableness of force must be made from the perspective of the 

jailer who is often forced to make split-second decisions in tense situations. Fairchild, 40 

F.4th at 263 (citations omitted). The reasonableness of the force must be assessed from the 

perspective and with the knowledge of the defendant officer and with deference to policies

and practices needed to maintain order and institutional security. See Kingsley, 576 U.S. 

399–400. A pretrial detainee can prevail only if he shows that the defendant applied force in 

a manner that was not rationally related to a legitimate nonpunitive governmental purpose, 

or that the actions were excessive in relation to that purpose. Id. at 398. 

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The following non-exclusive factors bear on the reasonableness inquiry: (1) the 

relationship between the need for the use of force and the amount of force used; (2) the 

extent of the plaintiff’s injury; (3) any effort made by the officer to temper or limit the 

amount of force; (4) the severity of the security problem at issue; (5) the threat reasonably 

perceived by the officer; and (6) whether the plaintiff was actively resisting. Fairchild, 40 

F.4th at 363 (citing Kingsley, 576 U.S. at 397). 

D. Bystander Liability

The theory of bystander liability applies to Section 1983 claims for use of excessive 

force against a pretrial detainee. See Kitchen v. Dallas Cnty., Tex., 759 F.3d 468, 480 (5th Cir. 

2014). Bystander liability may be established where an officer “(1) knows that a fellow 

officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to 

prevent the harm; and (3) chooses not to act.” Id. (quoting Whitely v. Hanna, 726 F.3d 631, 

646–47 (5th Cir. 2013)). The Fifth Circuit has held “that officers have a reasonable 

opportunity to intervene if they are present at the scene and that they violate their duty to 

intervene if their conduct demonstrates they acquiesced to the unconstitutional conduct 

engaged by others.” Austin v. City of Pasadena, Tex., 74 F.4th 312, 331 (5th Cir. 2023) (citing 

Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995)). Thus, it is clearly established law in the 

Fifth Circuit that officers have a duty to intervene, rather than to acquiesce, in the 

unconstitutional conduct of others. Austin, 74 F.4th at 331 (citation omitted). However, an 

officer will not be liable on a plaintiff’s bystander-liability claim if the plaintiff cannot prove

an underlying constitutional violation. See Kitchen, 759 F.3d at 480 (citations omitted); see 

also Reynolds v. Wood Cnty., Tex., No. 22-40381, 2023 WL 3175467, at *4 (5th Cir. May 1, 

2023).

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3. Analysis

Moore argues that he is entitled to qualified immunity because Bates cannot show 

that his actions were objectively unreasonable under clearly established law. Dkt. No. 57 at 

29. It is unclear whether Moore intends to argue that Bates fails to satisfy the first prong of 

the qualified-immunity analysis, i.e., whether there is a genuine issue of material fact that 

would allow a jury to find that he used excessive force. Out of an abundance of caution, the

Court will address both prongs. 

A. Excessive Force

Bates alleges that Moore used excessive force against him by leaving his hand on his 

neck for approximately 30 seconds after he was handcuffed. Moore contends that the force 

he used against Bates was objectively reasonable because the Kingsley factors weigh in his 

favor. After viewing the facts and drawing all reasonable inferences in Bates’s favor, the 

Court agrees with Moore. 

i. The extent of Bates’s injury (Factor Two)

At the Spears hearing, Bates testified that Moore’s use of force caused him to sustain

swelling in his face and neck for approximately one week. Dkt. No. 31 at 20. Moore argues 

that, because such injuries are minor and arguably considered de minimis under the 

jurisprudence of this circuit, this factor weighs heavily in his favor. The Court agrees. 

First, Bates does not respond to Moore’s argument or point to any evidence in the 

record to refute it. Second, the record clearly supports Moore’s contention. The video 

recordings show that medical personnel were called to the scene after the incident. 

Although Bates can be heard complaining about pain in his wrist, he does not complain 

about having any pain in or injuries to his neck or face. And the authenticated LCDC

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medical records show that, on April 21, 2022, one day after the incident, Bates sought pain 

relief for injuries to his lower back and left wrist only. Dkt. No. 58 at 30. The Court finds 

this factor weighs heavily in favor of Moore.

ii. Effort made by Moore to temper or limit the amount of force (Factor 

Three)

Moore argues that this factor weighs in his favor because he applied only light, 

downward pressure to Bates’s neck and back and refrained from using more severe force. In 

support of his argument, Moore cites to his, Tidwell’s, and Rosas’s declarations made under 

penalty of perjury. Dkt. No. 58 at 38–52. Moore states that, after Bates had been

handcuffed, he kept one hand on Bates’s back and the other on his neck for less than 30 

seconds. He then moved both hands to Bates’s back, where he applied light pressure. 

Moore explains that he did so because “Bates had not complied with any of the orders given 

to him prior to being tased three times, and even after being handcuffed he arched his back 

and tried to get back up.” Dkt. No. 58 at 40. Moore believed that it was necessary to keep 

his hand on Bates’s back and neck because he perceived that, in light of Bates’s repeated 

refusal to obey orders to stop resisting, Bates would “attempt to get away again,” and he 

needed to ensure that he stayed down to avoid another potential security threat. Id. at 40–

41. Moore states that the pressure he applied was light enough so Bates could breathe, talk, 

and move his head; he did not, at any time, hit, strike, tase, or shoot Bates. Id. at 41. The 

statements made by Tidwell and Rosas in their declarations, along with the video recordings 

of the incident, are factually consistent with the statements made by Moore in his

declaration.

Bates does not specifically respond to Moore’s argument addressing his efforts to 

temper the amount of force used. Rather, in his response, Bates insists that, after he had 

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been handcuffed and was no longer resisting, Moore placed his knee on his head and/or 

neck and began “grinding or smashing” his head into the ground. Dkt. No. 60. Bates refers 

the Court to a photo included in Defendants’ brief. Id. at 5. The photo is a screenshot taken 

from one of the video recordings, DX A-7. Bates insists that it shows Moore’s knee on his 

neck area. 

Bates is incorrect. As previously noted, the Court has reviewed all five video 

recordings of the incident, including DX A-7. Moore does not, at any time, place his knee 

on Bates’s head or neck. Because the video recordings contradict these specific factual 

allegations, the Court cannot accept Bates’s version of them as true. Moreover, because 

Bates does not point to any evidence that refutes the officers’ declarations concerning 

Moore’s efforts to temper the amount of force used, the Court finds that this factor weighs

heavily in Moore’s favor.

iii. Severity of the security problem at issue and the threat reasonably 

perceived by the officer (Factors Four and Five)

Moore argues that these factors weigh in his favor because his perception that Bates 

posed a significant security risk to the unit was reasonable. He cites his, Tidwell’s, and 

Rosas’s declarations, along with the video recordings, to show that (1) throughout the 

incident, Bates continually refused to obey various officer directives even after being tased, 

and (2) the incident and Bates’s continued resistance required seven officers to become 

involved, diverting their attention away from maintaining security throughout the unit. 

Dkt. No. 58 at 38–52; DX A-5 through A-9. When explaining why he continued to place 

pressure on Bates’s back after he had been handcuffed, Moore explains: 

I needed to make sure that [Bates] stayed down and did not get up 

because I perceived that [Bates] was going to attempt to get away from 

officers again and I was concerned about this becoming a security 

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threat. Bates began his resistance in an open area of the housing unit 

and not in his cell. His resistance caused not only two officers 

assigned to that housing unit to become involved but required the 

involvement of five other officers. This alone took resources from the 

monitoring and care of the other inmates in the 3-C/D posts and left 

the housing unit vulnerable. 

Dkt. No. 58 at 41. 

Tidwell, a supervisory officer, states that Bates’s defiance and continued resistance, 

in conjunction with the amount of officer involvement needed to control the situation, 

created a “huge drain on resources [that] left other areas of the jail unattended and this 

inherently created a security threat to the facility.” Dkt. No. 58 at 46. Tidwell also explains

that, because Bates was aggressive and angry during the entire incident, he was concerned 

for officer safety. Id. In addition, Rosas explains that, even after Bates was handcuffed, 

Garza decided that it was necessary to carry Bates back to his cell because he believed that 

Bates would not stop resisting. Dkt. No. 58 at 51. The video footage is factually consistent 

with Rosas’s statements.

Bates does not specifically respond to Moore’s argument addressing these factors. 

Nor does point to any evidence in the record to refute Moore’s assertion that it was 

reasonable for him to perceive that Bates’s actions posed a significant security threat in the 

unit. Thus, the Court finds these factors weigh heavily in Moore’s favor.

iv. The relationship between the need for the use of force and the 

amount of force used and whether Bates was actively resisting 

(Factors One and Six)

Lastly, Moore argues that his applying light pressure to Bates’s neck for 

approximately 30 seconds after Bates was handcuffed was necessary and reasonable under 

the circumstances because (1) Bates posed a heightened security risk and consistently 

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disobeyed officer orders throughout the incident, and (2) Bates continued to actively resist

by “remaining tense and moving in a potentially dangerous manner.” Dkt. No. 57 at 42. 

For the same reasons stated in subsection (c), the Court finds that the first Kingsley

factor—the relationship between the need for the use of force and the amount of force 

used—weighs heavily in Moore’s favor. Specifically, Moore’s application of force to Bates’s 

neck was reasonable because the unrefuted evidence shows that Bates posed a security 

threat.

In support of his argument that Bates was actively resisting, Moore again points to

his declaration. He explains that he kept his hand on Bates’s neck “because [Bates] had not 

complied with any of the orders given to him prior to being tased three times, and even after 

being handcuffed he arched his back and tried to get back up.” Dkt. No. 58 at 40. In 

response, Bates insists that the video recordings show that he did not resist officers after 

being handcuffed. 

Having carefully reviewed all five video recordings, the Court finds that they do not 

conclusively establish whether Bates was actively resisting officers, as Moore contends, by 

arching his back or trying to get up, after he was handcuffed. In all the videos, Bates

appears to be still and under control. Under these circumstances, the Court must take 

Bates’s factual allegation as true and view this aspect of the video recordings in his favor. 

Thus, at this stage of the case, the Court cannot find that Bates was actively resisting during 

the 30 seconds that Moore kept his hand on Bates’s neck. 

However, the uncontroverted video evidence establishes that Bates actively resisted

officers’ attempts to restrain him for several minutes immediately before the force in 

question, including attempting to get up after being tased multiple times. Consequently, 

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Moore’s brief application of light force—downward pressure for 30 seconds—as the chaotic 

struggle came to an end was “the sort of ‘split-second judgment’ in a difficult situation that 

qualified immunity is designed to protect.” Griggs v. Brewer, 841 F.3d 308, 316 (5th Cir. 

2016) (citing Graham, 490 U.S. at 396–97). And because assessments of the reasonableness 

of force must be made from the perspective of the jailer who is often forced to make these 

sorts of split-second decisions in tense situations, the Court finds Moore’s short-lived, 

continued application of light pressure after Bates was handcuffed was not excessive in 

relation to his reasonable perception that Bates posed a security risk. Thus, the Court finds 

the sixth Kingsley factor weighs in Moore’s favor. 

Because all the Kingsley factors weigh in Moore’s favor, the Court finds that Bates 

has failed to create a genuine issue of material fact as to whether Moore’s use of force

against him was objectively reasonable. In other words, Bates cannot show a constitutional 

violation and, therefore, cannot satisfy his burden to overcome the first prong of the 

qualified-immunity defense. 

B. Clearly Established Law

Even if Bates had raised a genuine issue of material fact that would allow a jury to 

find that Moore’s conduct was unconstitutional, the Court concludes that Bates cannot 

satisfy his burden to overcome the second prong of the qualified-immunity defense. 

Specifically, as noted by Moore in his reply, Bates fails to show that Moore’s conduct 

violated law that was clearly established at the time of the incident. 

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It is Bates’s burden to identify caselaw that put Moore on notice that his particular

conduct was unlawful. Bates has not done so.

4 In turn, Bates cannot demonstrate that all 

reasonable officers, when faced with similar factual circumstances as those presented here,

would have believed it was a violation of his constitutional rights to keep a hand placed on

his neck for 30 seconds after he was handcuffed. Nor can he show that Moore’s conduct 

was so egregious that it was clearly unlawful.

C. Bystander Liability

Because Bates failed to meet his burden to show that Moore’s use of force against 

him violated clearly established law, the Court, in turn, concludes that his related bystanderliability claims against Defendants Rosas and Tidwell fail as a matter of law. See Kitchen, 

759 F.3d at 480 (citations omitted).

4. Conclusion

For these reasons, the Court grants Defendants’ motion for summary judgment on 

the grounds that they are entitled to qualified immunity and dismisses Bates’s claims against 

them with prejudice. Dkt. No. 56. Bates shall take nothing on his claims against 

Defendants.

4 In his untimely “objection” to Defendants’ motion, which was stricken by the Court (Dkt. Nos. 63,

66), Bates cites Tucker v. City of Shreveport, 998 F.3d 165, 181–82 (5th Cir. 2021), for the general 

proposition that “a use of force that may begin as reasonably necessary in order to obtain 

compliance may cease to be so as a suspect becomes more compliant.” Dkt. No. 63 at 2. Even if the 

Court were to consider Bates’s objection, this broad general proposition does not clearly establish

that Moore’s particular conduct was unlawful because the factual circumstances presented in Tucker

are different than those presented here. Tucker involved a Fourth Amendment claim where the

plaintiff alleged that officers forced him to the ground and beat him in order to place him in 

handcuffs. The plaintiff in Tucker did not complain that an officer placed pressure on his neck after 

he had been handcuffed. Moreover, the Fifth Circuit ultimately reversed the district court’s

conclusion that factual issues precluded dismissal of plaintiff’s claims against the officers on 

qualified-immunity grounds.

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The Court will enter judgment accordingly. 

Dated March 6, 2024. 

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