UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CESAR SALINAS,

Plaintiff,

v. No. 4:22-CV-0837-P

STEVE LOUD, ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER

Before the Court is Defendant Officer Teresa Torres’s and Defendant 

Officer Steve Loud’s motions to dismiss under Federal Rule of Civil 

Procedure 12(b)(6). See ECF Nos. 8 (Torres); 15 (Loud). Because the 

Court finds that Defendants are entitled to qualified immunity, their

motions are GRANTED.

FACTUAL BACKGROUND

Plaintiff Cesar Salinas sued Defendants—two Fort Worth police 

officers—under 28 U.S.C. § 1983 after he was arrested at the Stockyards 

in Fort Worth, Texas on September 20, 2020. ECF No. 1 at 3. According 

to his complaint, Defendants were investigating a woman’s report that 

a man had groped her outside of a bar. Id. at 3–4. Although Plaintiff had

not yet been identified as the perpetrator, Defendants approached, 

questioned, and ultimately arrested him. Id. at 4. Plaintiff asserts that 

Defendants used excessive force by smashing his face into the ground—

causing him to bleed from the mouth—during his arrest. Id. at 12–14, 

18–25. For support, Plaintiff included several screenshots of video 

footage from Officer Loud’s body camera in his complaint. See id. at 7–

17.

The actual body camera footage depicts a different story. The video 

begins with Officer Loud following Plaintiff as Plaintiff walked away 

from him while talking on his cell phone. ECF No. 11 at 0:00–1:00. 

Officer Loud asked for Plaintiff’s identification, and Plaintiff complied, 

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handing Officer Loud his driver’s license. Id. at 0:25. Officer Loud then 

asked Plaintiff to follow him to his police vehicle, but Plaintiff was 

uncooperative. Id. at 1:00.

Officer Loud signaled with his flashlight for another officer to assist. 

Id. at 1:01. In response, Officer Torres approached Officer Loud and 

Plaintiff who was still talking on the phone. Id. at 1:07. Officer Loud told 

Officer Torres that a female had been groped by either Plaintiff or an 

unidentified individual and that Plaintiff would not cooperate. Id. at 

1:08–20. She then gently tapped Plaintiff on the back, asking to speak 

with him, but he ignored her, all the while continuing to talk on the 

phone. Id. at 1:23. Officer Torres stated that she was “taking over,” but 

Plaintiff ignored her. Id. at 1:28. Officer Torres then grabbed Plaintiff’s 

hand that held his phone up to his ear, attempting to handcuff him and 

pull his hand away from his face and behind his back. Id. at 1:30. 

Plaintiff resisted, so Officer Torres told him to “stop” four times. Id. at 

1:31–1:37. Plaintiff did not stop resisting, which caused Plaintiff and 

Officer Torres to spin around in a physical struggle. Id. at 1:37–1:40. 

With Officer Loud’s help, Officer Torres then took Plaintiff to the ground

and handcuffed him. Id. at 1:45. During the takedown, Plaintiff hit his 

face on the cement, causing his mouth to bleed. Id. Following the 

takedown, Plaintiff shouted profanities and racial slurs at Defendants

and refused medical care. Id. at 1:45–4:00.

Plaintiff sued Defendants on September 19, 2022—one day before the 

two-year statute of limitations expired—under § 1983 asserting an 

excessive force claim in violation of the Fourth Amendment. ECF No. 1

at 18. Summons were issued the same day, but Officer Torres was not 

served until October 18, 2022, and Officer Loud was not served until 

October 24, 2022. ECF Nos. 4–6. Defendants each moved to dismiss the 

case under Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 8; 15. 

Defendants contend that this case should be dismissed as time-barred 

and because they enjoy qualified immunity. See ECF Nos. 8; 15.

LEGAL STANDARD

To survive a motion to dismiss for “failure to state a claim upon which 

relief can be granted,” FED. R. CIV. P. 12(b)(6), a plaintiff’s complaint 

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“must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). The Court accepts all well-pleaded facts as true, drawing all 

inference in favor of and viewing all facts in the light most favorable to 

the nonmoving party. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 

(5th Cir. 2009).

Defendants here assert qualified immunity, which “shield[s] 

[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.” Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts the 

qualified immunity defense, the burden shifts to the plaintiff to show 

that (1) he alleged a violation of a constitutional right, and (2) “the 

defendant’s conduct was objectively unreasonable in light of clearly 

established law at the time of the incident.” Waltman v. Payne, 535 F.3d 

342, 346 (5th Cir. 2008).

ANALYSIS

A. Statute of Limitations

As an initial matter, Defendants contend that Plaintiff is barred from 

bringing this case by the statute of limitations. ECF Nos. 8 at 9–14; 15 

at 4–5. Specifically, Defendants assert that—although Plaintiff filed his 

case within the applicable two-year statute of limitations—Defendants 

were not served until about one month after the statute of limitations 

expired. ECF Nos. 8 at 9; 15 at 4–5. And they argue that the delay in 

service should not be tolled because Plaintiff has not demonstrated 

continuous due diligence in serving Defendants. ECF Nos. 26 at 3–5; 27 

at 3–5. Plaintiff counters by providing affidavits detailing his due 

diligence. ECF Nos. 20; 23. But the Court cannot consider Plaintiff’s

evidence at the motion to dismiss stage and declines to convert 

Defendants’ motions to dismiss into motions for summary judgment. See 

FED. R. CIV. P. 12(d).

This is because Defendants also argue—as a separate reason for 

dismissal—that they enjoy qualified immunity. ECF Nos. 8 at 14; 15 at 

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5. Because “[q]ualified immunity is an immunity from suit rather than 

a mere defense to liability,” converting the motions into motions for 

summary judgment would defeat the purpose of qualified immunity. 

Pearson v. Callahan, 555 U.S. 223, 237 (2009). Conversion would require 

Defendants to submit evidence, thus rendering their immunity 

pointless. See Carswell v. Camp, No. 21-10171, 2022 WL 17335977, at 

*2 (5th Cir. Nov. 30, 2022). Thus, Defendants’ motions are denied 

without prejudice as to this issue—but this is ultimately 

inconsequential, given that the Court finds Defendants are entitled to 

qualified immunity.

B. Body Camera Video

Next, the Court addresses whether it may consider Officer Loud’s 

body camera video footage at the motion to dismiss stage. It can.

Ordinarily, the Court—at the motion to dismiss stage—must “do no 

more than determine whether the plaintiff has file[d] a short and plain 

statement of his complaint, a statement that rests on more than 

conclusions alone.” Anderson v. Valdez, 845 F.3d 580, 589–90 (5th Cir. 

2016) (internal quotation omitted). “When a defendant attaches 

documents to its motion that are referenced in the complaint and are 

central to the plaintiff’s claims, however, the [C]ourt can also properly 

consider those documents.” Inclusive Cmtys. Project, Inc. v. Lincoln 

Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019). Several circuit courts have 

applied this rule to “videos that were attached to, or referenced in, a 

complaint and central or integral to a plaintiff’s claims, when their 

authenticity was not disputed.” Vega v. City of El Paso, No. EP-21-CV0116, 2022 WL 789334, at *4 (W.D. Tex. March 15, 2022) (collecting 

cases); see also Robles v. Ciarletta, 797 F. App’x 821, 832 (5th Cir. 2019); 

Rivera v. City of Pasadena, 555 F. Supp. 3d 443, 452 (S.D. Tex. 2021).

Plaintiff repeatedly referenced the body camera video and included

nine screenshots of the video, annotated some of the images, and pasted

them into his complaint. See ECF No. 1 at 7–17. The video is therefore

“referenced in the complaint” and “central to the plaintiff’s claim[].” 

Inclusive Cmtys. Project, 920 F.3d at 900. Further, the video’s 

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authenticity is undisputed. Vega, 2022 WL 789334, at *4. The Court is

therefore satisfied that it may consider the video at this time.

C. Qualified Immunity

Plaintiff fails to overcome Defendants’ assertion of qualified 

immunity because, having reviewed the entirety of Officer Loud’s body 

camera video footage, the Court finds no violation of Plaintiff’s 

constitutional right to be free from excessive force. And even if there was 

a violation, Plaintiff has not met his burden of pointing to precedent 

clearly establishing that right.

1. Prong 1: Violation of Plaintiff’s constitutional rights

Plaintiff contends that Defendants used excessive force when 

arresting him in violation of the Fourth Amendment. ECF No. 1 at 18.

To state a prima facie excessive force claim, a plaintiff must allege “(1) 

[an] injury (2) which resulted directly and only from a use of force that 

was clearly excessive, and (3) the excessiveness of which was clearly 

unreasonable.” Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007) 

(citations omitted). “The determination of whether a plaintiff’s alleged 

injury is sufficient to support an excessive force claim is contextdependent and is directly related to the amount of force that is 

constitutionally permissible under the circumstances.” Id. (quotation 

omitted). The Court must “analyze the excessive force claim without 

regard to whether the arrest itself was justified.”1 Id. at 417.

Plaintiff states that he was cooperating with Officer Loud when 

Officer Torres inexplicably approached Plaintiff, grabbed his phone, 

swung him around, and slammed him into the ground, causing a cut to 

his lip, a bruise on his cheek, a “knot above his left eyebrow, and swelling 

on his head.” ECF No. 1 at 17. Plaintiff asserts that he was never told 

that he was being arrested and that Officer Torres never gave him any 

1 The Court must separately analyze qualified immunity as applied to each 

individual defendant. Carroll v. Ellington, 800 F.3d 154, 174 (5th Cir. 2015). But 

because Officer Torres had significantly more contact with Plaintiff than Officer Loud, 

given that Officer Loud only touched Plaintiff when Defendants took Plaintiff to the 

ground, the Court primarily analyzes qualified immunity as applies to Officer Torres. 

And because Officer Torres is entitled to qualified immunity, Officer Loud—who had 

far less physical contact with Plaintiff—is too.

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instructions other than to “stop,” so he was not actively resisting arrest 

when Officer Torres took him to the ground.2 See id. at 7–17. Thus, 

Plaintiff contends that the force used against him was unreasonably 

excessive. Id. at 18–25.

Much of Plaintiff’s recitation of the facts are refuted by the body 

camera video. And when a video clearly contradicts the plaintiff’s 

assertion of the facts, the Court “accept[s] the video’s depiction instead 

of the nonmovant’s account.” Quinette v. Reed, 805 F. App’x 696, 700 

(11th Cir. 2020) (quotation omitted); see Thompson v. Mercer, 762 F.3d 

433, 435 (5th Cir. 2014) (applying this rule in the summary judgment 

context). The Court must therefore consider whether the video, viewed 

in the light most favorable to Plaintiff, establishes a prima facie 

excessive force claim. It does not.

Plaintiff has established the first element of his excessive force claim. 

The first element requires that there be an actual injury. See Solis v. 

Serrett, 31 F.4th 975, 981 (5th Cir. 2022). If there is an actual injury, the 

Court then characterizes the extent of the injury using a sliding scale—

the greater the injury, the more likely the Court will find that the force 

was clearly excessive and unreasonable. See id.

Plaintiff was injured. The video shows Plaintiff’s blood pooling on the 

ground around his mouth after he was taken to the ground by 

Defendants. ECF No. 11 at 1:45–4:00. Plaintiff also asserts that he 

suffered a bruised cheek, swelling on his head, and a knot above his left 

eyebrow. ECF No. 1 at 17. But Plaintiff’s injuries are “minor,”

considering that “[c]ourts have found similar or worse injuries to be 

minor.” Solis, 31 F.4th at 982 (citing Buehler v. Dear, 27 F.4th 969, 983 

(5th Cir. 2022); Westfall v. Luna, 903 F.3d 534, 549–50 (5th Cir. 2018)). 

2 To the extent that Plaintiff contends that his arrest was unlawful, he has not 

asserted an unlawful arrest claim and the Court will consider the assertion no further. 

The Court does, however, acknowledge that “whether the force used is ‘excessive’ or 

‘unreasonable’ depends on ‘the facts and circumstances of each particular case.’” 

Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Graham v. Connor, 

490 U.S. 386, 396 (1989)). So the Court takes the fact that Plaintiff was never told that 

he was under arrest and that he had not yet been positively identified as the individual 

who groped the woman into consideration in addressing whether the force used was 

unreasonably excessive. Freeman, 483 F.3d at 417.

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Plaintiff has therefore satisfied the first element of his excessive force 

claim, but “the limited extent of [his] injuries” detracts weighs against 

him when considering the next two elements. Solis, 31 F.4th at 982.

As for the second and third elements of Plaintiff’s excessive force 

claim—the amount of force used and the reasonableness of resorting to 

such force—courts usually consider these elements together. See id.

When analyzing these elements, the Court considers four factors,

including: (1)“the severity of the crime; (2) whether the suspect poses an 

immediate threat to others; (3) whether the suspect is actively resisting 

arrest or attempting to flee; and (4) the speed at which the officers resort 

to force. See id. (quoting Graham, 490 U.S. at 396); Solis, 31 F.4th at 

983.

First, the severity of the crime at issue cuts against Defendants

because Plaintiff was suspected of committing a non-violent 

misdemeanor offense. ECF No. 1 at 20; see Trammell v. Fruge, 868 F.3d 

332, 340 (5th Cir. 2017) (acknowledging that a misdemeanor is a “minor 

offense militating against the use of force”).

Second, Plaintiff did not pose a significant threat to others. True, a 

pocketknife fell out of Plaintiff’s pocket after he was taken to the ground.

ECF No. 1 at 14–15. But nothing in the video would reasonably cause 

Defendants to believe that Plaintiff posed an immediate threat to their 

safety because they did not notice the knife until after Plaintiff was 

handcuffed. ECF No. 11 at 1:45–6:00. The Court, however, finds it 

important that Plaintiff was accused of—and does not deny—

inappropriately touching a woman outside of a bar at night. See ECF 

Nos. 1; 8 at 5. It is therefore arguable that Plaintiff posed a safety threat 

to that woman and other women in the area. On balance, the Court finds 

that this factor slightly weighs against Defendants.

Third, the Court finds that Plaintiff was resisting arrest. “[W]here 

an individual’s conduct amounts to mere ‘passive resistance,’ use of force 

is not justified.” Trammell, 868 F.3d at 341. Plaintiff contends that his 

resistance was merely passive because he simply resisted when Officer 

Torres tried to pull his arm behind his back. ECF No. 22 at 23–25. He 

relies on Trammell for support. See id. But Trammell is inapposite 

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because the plaintiff in Trammell “was not fleeing, not violent, not 

aggressive, and only resisted by pulling his arm away from an officer’s 

grasp.” 969 F.3d at 343. Moreover, the Fifth Circuit has “acknowledged 

that ‘a suspect who backs away from the arresting officers is actively 

resisting arrest—albeit mildly.’” Solis, 31 F.4th at 982–83 (quoting 

Buehler, 27 F.4th at 984).

As described above, the video clearly shows Plaintiff refusing—or at 

least ignoring—Officer Loud’s request for Plaintiff to accompany him to 

the police vehicle. ECF No. 11 at 1:00. When Officer Torres arrived soon 

after, Officer Loud told Officer Torres in front of Plaintiff that Plaintiff 

was suspected of groping a woman outside of a bar. Id. at 1:07–1:20.

Officer Torres then approached Plaintiff, gently tapped him on the back, 

and asked him for his name. Id. at 1:23. Plaintiff ignored Officer Torres’s 

request, instead stating that he already gave Officer Loud his 

identification. Id. at 1:23–1:28. Officer Torres then grabbed Plaintiff’s 

phone and placed handcuffs on his wrist, attempting to lower Plaintiff’s 

hand down and away from his face and behind his back to arrest him.

Id. at 1:30. Plaintiff physically resisted Officer Torres, to which Officer 

Torres repeatedly told him to “stop.” Id. at 1:31–1:37. Plaintiff, however, 

did not stop resisting, causing the two to spin around and resulting in 

Officer Torres and—to some extent—Officer Loud taking Plaintiff to the 

ground and arresting him. Id. at 1:37–1:45. From Defendants’ vantage 

point in the moment, Plaintiff’s actions could be viewed as actively 

resisting arrest, unlike Trammell, so this factor weighs in Defendants’ 

favor. See Solis, 31 F.4th at 983.

Fourth, “the speed with which officers resort to force” cuts against 

Plaintiff’s excessive force claim. Id. In Trammell, “only three seconds 

elapsed between [the] [o]fficer’s . . . initial request that [the plaintiff] 

place his hands behind his back and when [the officers] tackled [the 

plaintiff.” 868 F.3d at 342. The court noted that the short lapse in time 

indicated that “a jury could infer that the officers used very little, if any, 

negotiation before resorting to physical violence, and that the officers’ 

conduct did not constitute the required ‘measured and ascending’ 

actions calibrated to [the plaintiff’s] conduct.” Id. (quoting Poole v. City 

of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).

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Unlike Trammell, Defendants’ conduct here “constitute[s] the 

‘measured and ascending’ actions calibrated to [Plaintiff’s] conduct.” Id.

Eight seconds elapsed between the time that Officer Torres tapped 

Plaintiff on the back and asked for his name to when she grabbed his 

arm and tried to handcuff him. ECF No. 11 at 1:24–1:32. During the 

next five seconds, Officer Torres instructed Plaintiff to “stop” four 

multiple times, but Plaintiff continued to resist. Id. at 1:32–1:37. Officer 

Torres then attempted to force Plaintiff’s arm behind his back to 

handcuff him, but Plaintiff resisted, causing the two to spin around. Id.

at 1:37–1:42. After the two stopped spinning, Officer Torres told Plaintiff 

to “stop” two more times. Id. at 1:40–1:49. Plaintiff did not stop, so 

Officer Loud grabbed Plaintiff’s free hand, and Defendants took Plaintiff 

to the ground and handcuffed him. Id. at 1:42–1:49. In toto, about 25 

seconds passed from Officer Torres’s first contact with the suspect to 

when he was taken to the ground—more than eight times longer than 

in Trammell.

Considering these factors together, the Court cannot say that 

Defendants’ use of force against Plaintiff was “so objectively 

unreasonable as to violate [Plaintiff’s] constitutional rights.” Solis, 31 

F.4th at 983. First, Plaintiff was injured, but his injury can be classified 

only as minor, weighing in favor of qualified immunity. Second, while 

two of the four relevant factors weigh against Defendants, “qualified 

immunity can apply even when only one factor weighs against the 

plaintiff.” Id. (citing Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022)). 

Considering that Plaintiff ignored Defendants, his continuous lack of 

cooperation, and his physical resistance when Officer Torres tried to 

handcuff him, the Court finds that it was reasonable for Defendants to 

believe that “some degree of force would be necessary to subdue [him].” 

Id.; see Griggs v. Brewer, 841 F.3d 308, 311, 316 (5th Cir. 2016) 

(affirming that the defendants were entitled to qualified immunity 

where they took down the plaintiff and punched his head several times 

while detaining him).

Though Defendants may well have used more force than necessary 

to handcuff Plaintiff, the Court cannot say that Defendants’ use of force 

was clearly excessive and unreasonable. Plaintiff has thus failed to 

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establish a violation of his constitutional right to be free from excessive 

force.

2. Prong 2: Violation of a clearly established right

Even if Plaintiff were able to establish a prima facie excessive force 

claim, he fails to point to a similar case that clearly establishes a 

violation of Plaintiff’s constitutional rights. “A defendant does not 

violate ‘a clearly established right unless the right’s contours were 

sufficiently definite that any reasonable official in the defendant’s shoes 

would have understood that he was violating it.’” Rogers v. Hall, 46 

F.4th 308, 312 (5th Cir. 2022) (quoting Plumhoff v. Rickard, 572 U.S. 

765, 778–79 (2014)). This means that “the plaintiff must ‘point to 

controlling authority—or a robust consensus of persuasive authority—

that defines the contours of the right in question with a high degree of 

particularity.’” Id. at 312–13 (quoting Morgan v. Swanson, 659 F.3d 359, 

371–72 (5th Cir. 2011) (en banc)).

Plaintiff does not point to a specific case clearly establishing the 

alleged violation. Instead, he cites a plethora of cases that deal generally 

with excessive force claims, and Plaintiff provides no analysis explaining 

how those cases compare to this case. See Rivas-Villegas v. Cortesluna, 

142 S. Ct. 4, 8 (2021) (recognizing that it is the plaintiff’s burden to 

“identify a case that put[s] [a defendant] on notice that his specific 

conduct was unlawful”).

Plaintiff’s most applicable case—Trammell—falls flat. According to 

Plaintiff, Trammell establishes that Plaintiff’s physical resistance was 

merely “passive,” and thus the use of force against him was not justified. 

ECF No. 19 at 25. Nonsense. As mentioned above, the plaintiff in 

Trammell “was not fleeing, not violent, not aggressive, and only resisted 

by pulling his arm away from an officer’s grasp.” 868 F.3d at 343. 

Additionally, only three seconds elapsed between the time that the 

officers told the plaintiff to put his hands behind his back and when the 

officers took the plaintiff to the ground. Id. at 342. And, notably, the 

officers “pummeled [the plaintiff] with their knees and fists in an 

attempt to get him to put his arms behind his back” even after the 

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plaintiff told the officers that his arm was “fused,” so he physically could 

not put his arm behind his back. Id.

The facts here are a far cry from those in Trammell. As discussed 

above, Plaintiff would not cooperate with Defendants when they asked 

his name, tried to handcuff him, and told him to “stop” when he 

physically resisted being handcuffed. And Defendants here engaged 

Plaintiff for far longer than the officers in Trammell before resorting to 

the takedown maneuver that injured Plaintiff. Finally, the force that 

Defendants used here was a takedown maneuver and nothing more, 

while the officers in Trammell took the plaintiff down, repeatedly 

pummeled him after he was on the ground, and tried to force his frozen 

arm behind his back after he told them that he lacked the mobility to 

comply.

Because Plaintiff was uncooperative, physically resisted arrest, and 

Defendants only took Plaintiff to the ground and did not apply further 

force, the Court cannot say that Trammell clearly establishes a right 

that Defendants violated here. See Rogers, 46 F.4th at 312.

CONCLUSION

Certainly, sailing through the notoriously murky and choppy 

precedent from the Fifth Circuit in qualified immunity cases is a 

daunting and confusing task for any district court. Compare Crane v. 

City of Arlington, 50 F.4th 453, 458 (5th Cir. 2022) (relying in part on 

extra-record sources such as the New York Times and The Guardian in

finding no qualified immunity for officer’s use of deadly force where 

suspect resisted arrest and ran over another officer with his vehicle)

with Marie Ramirez v. Guadarrama, 844 F. App’x 710, 712–17 (5th Cir. 

2021) (holding qualified immunity barred suit when officers found 

suspect doused in gasoline, knew their tasers would ignite him, and 

quickly tased him, “causing him to burst into flames”). However, in this 

case the sailing is smooth and navigating to the legal conclusion is an 

easy task. 

Plaintiff failed to establish a violation of his Fourth Amendment 

right to be free from excessive force because Defendants’ takedown 

maneuver was not clearly excessive or unreasonable under the 

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circumstances. But even if he did, Plaintiff has not met his burden of 

pointing to precedent clearly establishing a violation of his 

constitutional rights. To the extent Plaintiff contends that Trammell

clearly establishes a right that Defendants violated, Trammell’s facts 

differ so significantly from the facts here that the Court cannot say that 

any reasonable officer would know that Defendants’ use of force violated 

Plaintiff’s constitutional rights as described in Trammell.

The Court therefore GRANTS Defendants’ motions to dismiss (ECF 

Nos. 8 (Torres); 15 (Loud)) and hereby DISMISSES this case with 

prejudice.

SO ORDERED on this 14th day of December 2022.

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