IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-31211

JON LEIGH SHOULDERS, 

 Plaintiff - Appellee

v.

LORENZO C. COLEMAN, Individually and in their official capacity as City 

of Baton Rouge and Baton Rouge Police Department Officers, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:09-CV-00494

Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Jon Leigh Shoulders sued Lorenzo Coleman, an officer with the Baton 

Rouge Police Department, for the use of excessive force in violation of the 

Fourth Amendment. The district court refused to grant summary judgment to 

Coleman on the basis of qualified immunity. Coleman appeals. We DISMISS

the appeal for lack of jurisdiction.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 18, 2015

Lyle W. Cayce

Clerk

 

 Case: 13-31211 Document: 00512973749 Page: 1 Date Filed: 03/18/2015
No. 13-31211

FACTUAL AND PROCEDURAL BACKGROUND

In July 2008, Shoulders attended a concert in Baton Rouge, Louisiana. 

In the concert arena, Coleman and another officer arrested Shoulders. They

removed him from the arena in order to issue a misdemeanor summons for 

smoking marijuana. Coleman instructed Shoulders to stand with his hands on 

the roof of Coleman’s vehicle while he wrote the summons. At one point, 

Shoulders removed his hands from the vehicle and Coleman told him to put his 

hands back on the vehicle. Shoulders complied.

Before Coleman finished writing the summons, Coleman alleges he saw 

Shoulders moving towards him with fists clenched. He alleges that, upon 

seeing Shoulders move towards him, he struck Shoulders with a control 

technique called the “Brachial Plexus Stun Maneuver,” which involved striking 

the back of Shoulder’s neck with the edge of his right hand. The impact caused 

Shoulders to lose consciousness, fall, and strike his head on the pavement. His

injuries included a fractured skull, brain bleeding, and permanent damage to 

the frontal lobe of his brain.

Shoulders filed suit against multiple defendants, including Coleman, for 

damages under 42 U.S.C. § 1983 and Louisiana tort law. Coleman and the 

other officers sued in their individual capacity filed a motion for summary 

judgment on qualified immunity grounds. Shoulders voluntarily dismissed his 

claims against all defendants except for Coleman. The district court denied 

summary judgment, concluding there were disputes of material fact as well as 

insufficient evidence to determine whether the force Coleman used was clearly 

excessive and objectively unreasonable. Coleman appealed. 

DISCUSSION

Coleman raises only one issue on appeal. He argues that the district 

court erred when it denied qualified immunity because his actions in response 

2

 Case: 13-31211 Document: 00512973749 Page: 2 Date Filed: 03/18/2015
No. 13-31211

to Shoulders were objectively reasonable in light of clearly established law at 

the time of the incident.

If this court has jurisdiction, it is under 28 U.S.C. § 1291 and the 

collateral order doctrine. Although a denial of summary judgment is typically 

not subject to appeal, defendants have a limited ability to contest the denial of 

qualified immunity. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en 

banc) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). Under the 

collateral order doctrine, we may immediately review a district court’s denial 

of qualified immunity if it is “based on a conclusion of law.” Naylor v. State of 

La., Dept. of Corr., 123 F.3d 855, 857 (5th Cir. 1997) (citations omitted). “[W]e 

do not have jurisdiction to review the genuineness of any factual disputes but 

can decide whether the factual disputes are material.” Kovacic v. Villarreal, 

628 F.3d 209, 211 n.1 (5th Cir. 2010) (citations omitted). In addition, orders

denying qualified immunity “are not immediately appealable if they are based 

on sufficiency of the evidence.” Naylor, 123 F.3d at 857 (citation omitted). 

“Where factual disputes exist in an interlocutory appeal asserting 

qualified immunity, we accept the plaintiff[’s] version of the facts as true.” 

Kinney, 367 F.3d at 348 (citations omitted). “In reviewing the district court’s 

conclusions concerning the legal consequences – the materiality – of the facts, 

our review is of course de novo.” Id. at 349 (citations omitted).

Accordingly, if we have jurisdiction to review the denial of qualified 

immunity, our analysis has two prongs. We first consider whether Shoulders 

“has adduced sufficient evidence to raise a genuine [dispute] of material fact 

suggesting [Coleman’s] conduct violated an actual constitutional right.” 

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citation omitted). 

“[W]e must then consider whether [Coleman’s] actions were objectively 

unreasonable in light of clearly established law at the time of the conduct in 

question.” Id. (citation and internal quotation marks omitted). 

3

 Case: 13-31211 Document: 00512973749 Page: 3 Date Filed: 03/18/2015
No. 13-31211

Under the Fourth Amendment, Shoulders had a right to be free from an 

excessive use of force by police effecting a seizure. See Graham v. Connor, 490 

U.S. 386, 394-95 (1989). Whether the force used was excessive or unreasonable 

depends on “the facts and circumstances of each particular case.” Id. at 396. 

“[R]elevant considerations include ‘the severity of the crime at issue, whether 

the suspect pose[d] an immediate threat to the safety of the officers or others, 

and whether he [was] actively resisting arrest or attempting to evade arrest by 

flight.’” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (alterations in 

original) (quoting Graham, 490 U.S. at 396). Our review of reasonableness 

must also “‘allow[] for the fact that police officers are often forced to make splitsecond judgments – in circumstances that are tense, uncertain, and rapidly 

evolving – about the amount of force that is necessary in a particular 

situation.’” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004) 

(alterations in original) (quoting Graham, 490 U.S. at 396-97).

The district court denied qualified immunity for two related reasons. 

The court found that there was a genuine dispute of material fact as to “the 

actions of Plaintiff that led to the relevant incident” and about “the 

reasonableness of Defendant Coleman’s conduct,” making summary judgment 

improper. The court explained its first finding – that there were genuine 

disputes of material fact regarding reasonableness – by stating, “Coleman used 

an extremely strong level of force to combat the least-serious level of 

resistance.” The court held that Coleman’s actions were in “disproportion” to 

Shoulder’s resistance. As to the factual issues regarding Coleman’s conduct, 

the district court found an absence of evidence as to key details. Specifically, 

the court noted that Coleman’s report merely stated that Shoulders “stepped 

up” to Coleman with his “fist clench[ed].” It was undisputed that Shoulders did 

not throw a punch. It was important to the district court that the police report 

did not detail “the specific actions that Plaintiff took”; it only used the 

4

 Case: 13-31211 Document: 00512973749 Page: 4 Date Filed: 03/18/2015
No. 13-31211

ambiguous term “stepped up.” The court contrasted the narratives in 

Coleman’s deposition and written report with his separate report on his use of 

force, saying the evidence provided more than one view of what happened. 

The district court found both that there was insufficient evidence to 

explain Shoulders’ actions just before Coleman struck him, and that there were 

disputes of material fact. For both reasons, no ruling on qualified immunity 

could be made at that stage. 

Coleman argues that the facts the district court found were not 

genuinely in dispute. For example, Coleman quotes at length from his own 

deposition, then argues: “This testimony makes clear that [Coleman] 

reasonably perceived himself to be in danger of receiving an imminent physical 

attack upon his person.” We have already discussed that a district court’s 

determination that there are factual disputes is unreviewable on interlocutory 

appeal; the party challenging the denial of qualified immunity must instead 

show those disputes do not concern material facts, and Coleman fails to do so. 

See Kovacic, 628 F.3d at 211 n.1. The district court also found there was 

insufficient evidence of what Coleman saw and would have perceived to be a 

threat. In this “interlocutory appeal we cannot challenge the district court's 

assessments regarding the sufficiency of the evidence – that is, the question 

whether there is enough evidence in the record for a jury to conclude that 

certain facts are true.” Kinney, 367 F.3d at 347 (citation omitted).

We DISMISS Coleman’s appeal for lack of jurisdiction.

5

 Case: 13-31211 Document: 00512973749 Page: 5 Date Filed: 03/18/2015