* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40064

RYAN SULLIVAN,

Plaintiff-Appellant,

v.

JOSHUA ALLRED, R. VELA AND R. OWENS,

Defendants-Appellees.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:06-CV-680

Before DAVIS, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Ryan Sullivan appeals the judgment of the district

court granting summary judgment in favor of the three defendants, Galveston

police officers Joshua Allred, R. Vela and R. Owens based on qualified immunity.

For the reasons set forth below, we vacate and remand. 

I.

We state the facts below in the light most favorable to the non-movant,

Sullivan. On October 30, 2004, Sullivan went to Buck’s Bar in Galveston, Texas

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2008

Charles R. Fulbruge III

Clerk
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with some friends. Shortly after arriving at the bar, Sullivan sat down at a table

while his friends went to the dance floor. A short time later, a woman

approached Sullivan and informed him that he was sitting in her chair. No one

had indicated to Sullivan or his friends that the chair had been previously

occupied. When Sullivan refused to vacate the chair, the woman left to seek

assistance. 

Officer Allred, an off-duty Galveston police officer working security at the

bar, was informed of the situation by the woman. Allred, who was wearing his

police uniform, approached Sullivan from behind and ordered him to get up.

Sullivan attempted to turn around to see who was addressing him, but before he

could do so, Allred lifted him from the chair and told him to go outside. Allred

was wearing his police uniform but did not identify himself to Sullivan as a

police officer. Once standing, Allred put his arm on Sullivan’s neck and again

directed him to go outside. Sullivan shrugged Allred’s arm away and moved

towards the dance floor and away from the exit. Sullivan did not act

aggressively towards Allred. Allred came up behind Sullivan, put his arm

around Sullivan in a choke hold, and put weight on Sullivan’s back, at which

point both men fell to the floor.

Officer Vela, another off-duty Galveston police officer working at the bar,

approached the two men on the floor. Sullivan was on all fours, not resisting

Allred. Vela jumped on Sullivan’s back and used a choke hold, restricting

Sullivan’s breathing, while Allred punched Sullivan. Sullivan’s friends saw

Allred punch Sullivan repeatedly. Another off-duty Galveston officer working

at the bar, Officer Owens, came upon the three men. After coming in contact

with Sullivan’s legs, Owens ended up on the floor as well. Upon regaining his

feet, Owens pulled out his baton and used it on Sullivan’s legs and back. 
No. 08-40064

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Eventually, the officers placed handcuffs on Sullivan and brought him to

his feet. Although all three officers were wearing their Galveston police

uniforms, Sullivan asserts that it was at this point that he realized he had been

fighting with police officers. The officers did not strike Sullivan after he was

placed in handcuffs. The officers took Sullivan outside and put him in a police

car. Sullivan was then taken to a medical clinic. Sullivan received cuts and

bruises but none of his injuries required stitches or staples. From the clinic he

was transported to the city jail. 

Sullivan filed this civil rights suit under 42 U.S.C. § 1983 for unlawful

arrest and the use of excessive force by the defendants. The district court

concluded that the officers were entitled to qualified immunity and granted the

defendants’ motion for summary judgment. Sullivan timely appeals that order.

II.

This Court reviews a district court’s grant of summary judgment de novo.

Waltman v. Payne, 535 F.3d 342, 349 (5th Cir. 2008) (citing FED.R. CIV.P. 56(c)).

Summary judgment is proper “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to

any material fact.” FED. R. CIV. P. 56(c). The moving party must identify the

evidence it believes demonstrates there is no such issue. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Where the parties have submitted contradictory facts,

those controversies are resolved “in favor of the nonmoving party.” Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc). Reasonable

inferences that can be drawn from the evidence should also be made in favor of

the nonmoving party. See Disraeli v. Rotunda, 489 F.3d 628, 631 (5th Cir. 2007).

“A sufficient showing cannot rest on ‘mere allegations or denials’ in the

pleadings, but must set forth ‘specific facts’ that establish an issue for trial.”

Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987)

(quoting FED. R. CIV. P 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
No. 08-40064

4

(1986)). After those reasonable inferences are made, there is an issue of material

fact only if a rational trier of fact could find for the non-moving party. See Burch

v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999). 

A qualified immunity defense requires a two step analysis. The first

question in is whether the facts alleged,“[t]aken in the light mostfavorable to the

party asserting the injury . . . show the officer’s conduct violated a constitutional

right.” Saucier v. Katz, 533 U.S. 194, 201 (2001); Freeman v. Gore, 483 F.3d 404,

410 (5th Cir. 2007). This question is necessary, for “[i]f no constitutional right

would have been violated were the allegations established, there is no necessity

for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201.

If a constitutional violation is found, the qualified immunity inquiry continues

and examines whether the constitutional rights violated were clearly established

to the extentthat a reasonable person would be aware of those rights. Hathaway

v. Bazany, 507 F.3d 312, 320 (5th Cir. 2007).

III.

Sullivan argues first that he was arrested without probable cause. “An

arrest is unlawful unless it is unsupported by probable cause.” Flores v. City of

Palacios, 381 F.3d 391, 402 (5th Cir. 2004). Sullivan also argues that the officers

used excessive force. In order to present a successful claim of excessive force

under §1983, the plaintiff must show 1) an injury 2) that resulted directly and

only from a use of force that was excessive to the need for force, and 3) that the

use of force was objectively unreasonable under the circumstances. Ramirez v.

Knoulton, 542 F.3d 124, 128 (5th Cir. 2008), Bush v. Strain, 513 F.3d 492, 501

(5th Cir. 2008), Freeman, 483 F.3d at 416 (citing Tarver v. City of Edna, 410 F.3d

745, 751 (5th Cir. 2005)). 

Sullivan was sitting in a chair at a bar when Allred, who he did not know

was a police officer, approached him and demanded that he leave. When Sullivan

walked away to inform his friends of what was happening, Allred followed and
No. 08-40064

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employed a choke hold on Sullivan and brought him to the floor. Accepting

Sullivan’s version of the facts, as we must, this action by Allred seems excessive

given the fact that Sullivan’s only offenses were sitting in another patron’s chair

and walking away from Allred. The description of the ensuing struggle offered

by the officers and Sullivan’s friends differ as to the extent of force used.

Sullivan’s friends stated they saw the officers punch Sullivan multiple times, an

officer sitting on Sullivan’s legs, multiple baton strikes to Sullivan’s body, and

that Sullivan was not resisting or struggling in any way. The officers claim

Sullivan was resisting and that they used the force necessary to subdue him. 

In viewing these disputed facts in the light most favorable to Sullivan, it

is clear that there are genuine issues of material fact that must be resolved.

Whether Sullivan inappropriately resisted arrest, giving the officers probable

cause to arrest him, and whether the officers used excessive force in making the

arrest must be determined by a trier of fact. Both of these issues are fact

intensive and must be left to a trier of fact.

IV.

For the reasons set forth above, we vacate the district court’s grant of

summary judgment and remand this case to the district court for further

proceedings consistent with this opinion. 

VACATED and REMANDED.