### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 10101

VERNON LINICOMN,

Plaintiff

- Appellant

v.
MAURICO HILL; CHERYL MATTHEWS; DOES 1

- 3, Inclusive,

Defendants

- Appellees

Appeal from the United States District Court for the Northern District of Texas

Before KING, DENNIS, and COSTA, Circuit Judges

. JAMES L. DENNIS, Circuit Judge : Ve rnon Linicomn brought this 42 U.S.C. § 1983 action asserting that Dallas , Texas, police officers violated his Fourth Amendment rights by forcibly
enter ing his ho use without a warrant , without his consent , and without reason to believe that any person inside was in imminent danger of harm ; and by assault ing and arresting him with excessive force. Two of the officers, Maurico Hill and Cheryl Matthews, filed a mo tion for judgment on the pleadings under Fed eral Rule of Civil Procedure 12(c) , which the district court granted

. Vernon

now appeal s

. United States Court of Appeals Fifth Circuit 

### FILED September 5, 2018 Lyle W. Cayce Clerk Case: 17-10101 Document: 00514628263 Page: 1 Date Filed: 09/05/2018No. 17

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2 I A We review a district court’s grant of a Rule 12(c) motion for judgment on the pleadings de novo. Machete Prods., L.L.C. v. Page , 809 F.3d 281, 287 (5th Cir. 2015). A Rule 12(c) motion may dispose of a case when there are no disputed material facts and the court can render a judgment on the merits based on “the substance of the pleadings and any judicially noticed facts.” Id. An adequate pleading must contain a “short and plain statement of the c laim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A pleading offering only “labels and conclusions,” “naked assertions,” or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 557 (2007)). To avoid dismissal, a plaintiff must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” In re Great Lakes D redge & Dock Co. LLC , 624 F.3d 201, 210 (5th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). We must construe the complaint in the light most favorable to the plaintiff. Id. Public officials are entitled to qualified immunity unless the plaintiff can plea d specific allegations demonstrating (1) the violation of a constitutional right that (2) was clearly established at the time of the alleged misconduct. Pearson v. Callahan , 555 U.S. 223, 232 (2009). A right is “clearly established” when “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Rice v. ReliaStar Life Ins. Co. , 770 F.3d 1122, 1130 (5th Cir. 2014) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Case: 17-10101 Document: 00514628263 Page: 2 Date Filed: 09/05/2018No. 17

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3 B Vernon Linicomn alleged the following facts in his pleadings. 1 H e was awarded primary custody of his two minor children in his divorce from their mother, Linda, who suffers from mental disorders that render her unfit to be a custodial parent

. After the divorce , and prior to the incident involved in this lawsuit , Linda falsely reported to the City of Dallas ’s P olice D epartment on numerous occasions that the welfare of the children was endangered while they resided with Vernon

. However, although the police responded on each occasion, no action was taken against Vernon because each of the reports proved to lack substance or justification. On October 23, 2011, at approximately 4:40 p.m. , Linda called 911 regarding the welfare of the childre n and told dispatch that Vernon was

“ abusing ” the children. Officers Gilbert and Oliver went to Vernon’s house , knocked on the door, but received no response; they departed without taking further action. At 9:20 p.m. that same night, Linda again called t he police department and reported a “ disturbance ” pertaining to the children at Vernon ’s residence

. The D efendants, O fficers Hill and Matthews, responded 2 and arrived at Vernon’s house between 9:30 and 10:41 p.m. 3 Upon arrival, the

o fficers met Linda and Dallas paramedics and firefighters outside . L inda informed the o fficers that her daughter was “ lethargic and sick ” inside Vernon ’s ho use . The paramedics stated that they had been unable to gain

1 At the motion to dismiss stage, we take the facts, as alleged or admitted by Vernon , as true. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 589 (2007).
2 We note that the Defendants, Officers Hill and Matthews , claim that they were not aware of Linda’s prior false reports to the Dallas Police Department, including Linda’s report earlier on the day of the incident giving rise to this litigation.
3 The pleadings are incon sistent with respect to when the officers arrived at Vernon’s house

. Case: 17-10101 Document: 00514628263 Page: 3 Date Filed: 09/05/2018No. 17

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4 entry to Vernon ’s house. The o fficers tried to contact Vernon by calling his cell phone and knocki ng repeatedly at his front door

. Vernon did not respond

. Officer Hill contacted his supervisor, Sergeant Melquiades Irizarry, who arrived on the scene soon after

. Sergeant Irizarry spoke with Linda and directed Hill to announce through the police public address system that they would enter the house

— with or without Vernon’s cooperation. Eventually, Vernon answered the door

. Vernon advised Sergeant Irizarry and Officer Hill, who were standing at the threshold of the doorway, that his daughter was asleep and did not need medical assistance. Meanwhile , Officer Matthews stood off to the side of the door with her back to Vernon and the other officers.
T he o fficers did not have a warrant to enter Vernon ’s house. Vernon refused to allow anyone entry without a warrant. Sergeant Irizarry placed his hand on Vernon ’s shoulder and asked him to step aside so that paramedics could enter and verify that Vernon ’s daughter w as safe.
Vernon pushe d Sergeant Irizarry’s hand away . Officer Hill then clasped
Vernon ’s right arm and shoulder

. Vernon pushed Officer Hill away , retreated, and tried to close the door to the house. Officer Hill and Sergeant Irizarry prevented Vernon from closing the door, and Vernon ran toward the back of the house. Officer Hill ran after Vernon

. Officer Matthews entered the house but remained near the front door. Inside the house, a struggle ensu ed. Officer Hill grabbed Vernon and tried to take him to the floor

. Vernon resisted. Sergeant Irizarry sprayed Vernon with pepper spray. Vernon was then handcuffed, escorted outside, and treated by paramedics. The o fficers spoke with Vernon ’s children and confirmed that they had been asleep and were not ill. The children also confirmed that Linda had a history of making exaggerated claims about their welfare. Case: 17-10101 Document: 00514628263 Page: 4 Date Filed: 09/05/2018No. 17

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5 C
Vernon filed suit in Texas state court against O fficers Hill and Matthews , 4 alleging as sault and battery as well as clai ms under 42 U.S.C. § 1983 for violations of his Fourth Amendment rights. T he state court dismissed the assault and battery claims , and Officers Hill and Matthews removed the case to federal court. Officers Hill and Matthews affirmatively
assert ed th e defense of qualified immunity, and the district court ordered Vernon to re ply to that defense under Federal Rule of Civil Procedure 7(a)

. The district court ultimately granted the o fficers’ motion for a judgme nt on the pleadings under Federal Rule of Civil Procedure 12(c) , dismissing Vernon ’s § 1983 claims with pre judice. Vernon appeals that judgment. For the following reasons, we AFFIRM.
II The district court granted the o fficers’ Rule 12(c) motion for judgment on the pleadings, holding that Vernon ’s amended complaint and Rule 7(a) re ply to the Officers’ answers did not overcome the o fficer s’ qualified immunity defense

. 5 Vernon challenges that order , arguing that his pleadings sufficiently de monstrate that the o fficers acted objectively unreasonably and violated his clearly established Fourth Amendment right s by (1) entering his house without a warrant and (2) using excessive force by assaulting and pepper spraying him.

4 Vernon also sued the City of Dallas and three unidentified officers (Does 1

– 3). However, Vernon abandoned his claims against the City in the district court by failing to name it as a d efendant in his amended complaint. MacArthur v. Univ. Tex. Health Ctr. , 45 F.3d 890, 896 (5th Cir. 1995). T he district court ultimately dismissed the claims against Does 1

– 3, after Vernon did not show good cause for his failure to effect service on them. See Fed. R. Civ. P. 4(m) and 6(b). Vernon has abandoned these claims by failing to brief them on appeal

. MacArthur , 45 F.3d at 896.
5 The court assumed, arguendo, that Vernon sufficiently alleged violations of his constitutional rights, deciding only whether the Officers’ conduct was objectively reasonable in light of the clearly established law at the time

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6 A The Supreme Court has held that we have discretion to address either prong of the qualified immunity analysis first. See Pearson , 555 U.S. at 236 (holding that the two

- step , qualified

- immunity sequence set forth in Saucier v.
Katz , 533 U.S. 194 (2001), “ should not be reg ar ded as mandatory in all cases ”). Furth er, the Court recognized that, even where defendants are clearly entitled to qualified immunity under the second prong , undertaking the two

- step procedure “is often beneficial . . . [because it] promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” I d. We believe this to be the case here. Accordingly, al though we ultimately conclude that the officers were entitled to a judgment on the pleadings based on the second prong of the qualified

- immunity inquiry , we begin our analysis with the first prong. See id.
1 Under the first prong of the qualified

- immunity analysis, we consider whether the o fficers’ actions violated Vernon ’s Fourth Amendment rights. See Trammell v. Fruge , 868 F.3d 332, 339 (5th Cir. 2017) (citing Saucier , 533 U.S. at 201)

. Vernon argues that the o fficers enter ed his house without a warrant and absent exigent circumstances or any other exception to the warrant requirement. “P hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. U.S. Dist. Ct. , 407 U.S. 297, 313 (1972). A warrantless search of a person’s home is presumptively unreasonable, unless an exception to the warrant requirement applies. Carroll v. Ellington , 800 F.3d 154, 169 (5th Cir. 2015) (citing Brigham City v. Stuart , 547 U.S. 39 8, 404 (2006))

. One exception is the existence of e xigent circumstances justifying immediate action

. Rice , 770 F.3d at 1130

– 31 (citing Case: 17-10101 Document: 00514628263 Page: 6 Date Filed: 09/05/2018No. 17

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7 Stuart , 547 U.S. at 403)

. Whether exigent circumstances exist to justify a warrantless search depends on whether, give n the totality of the circumstances, the search was objectively reasonable. See Stuart , 547 U.S. at
404

. O fficers cannot manufacture exigency through their own action or inaction. United States v. Jones , 239 F.3d 716, 720 (5th Cir. 2001)

. In assessing whether the officers created the exigency, we focus on the “reasonableness of [their] investigative tactics leading up to the warrantless entry.” Id. at 720. Exigent circumstances exist wher e, inter alia, officers must enter a home
to provide emergency assistance to preserve life or prevent serious injury

. Officers may enter a home “ without a warrant to r ender emergency assistance to an injured occupant or to protect a n occupant from imminent injury

. ” Stuart , 547 U.S. at 40 3 (finding exigent circumstances where officers looked through a window and witnessed a bloody fight inside the house ). “ O fficers do not need ironclad proof of a likely serious, life

- threatening injury to invoke the emergency aid exception.” Michigan v. Fisher , 558 U.S. 45, 4 8 (2009) (internal quotation mark s omitte d)

. The Supreme Court has found exigent circumstances where the responding officers “ encountered a tumultuous situation in the house

— and . . . also found signs of a recent injury .” Id. at 4 9 ;

s ee also Stuart , 547 U.S. at 400

– 01

. We have declined to apply the emergency aid exception absent strong evidence of an emergency at the scene or an imminent need for medical attention

. In Gates v. T ex. Dep ’ t of Protective & Reg

. Servs. , 537 F.3d 404 , 42 2 (5th Cir. 2008) , we concluded that there were no exigent circumstances justifying the warrantless entry of social workers into a home to investigate whether children were being abused and neglected . This conclusion was based on several findings: the alleged abuser was not at home and the children were not in immediate danger; the purpose of the entry was to interview the children Case: 17-10101 Document: 00514628263 Page: 7 Date Filed: 09/05/2018No. 17

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8 and not to guard them against immediate danger; and one of the social workers testified that he did not witness any exi gent circumstances or emergencies at the home

. Id. at 422

– 23. Additionally, in United States v. Troop , we held that it was unreasonable for border patrol agents to conclude that the persons they tracked to a house needed immediate aid based solely on the fact that their foot prints showed signs of fatigue. 514 F.3d 405, 410 (5th Cir. 2008). We found that signs of fatigue alone, absent evidence “of medical distress requiring immediate aid, such as loss of blood, signs of physical illness, or evidence that the individual had been carried or dragged,” did not constitute e xigent circumstances justifying immediate entry into the house

. Id. The o fficers argue that they acted reasonably in entering Vernon ’s house , claiming that they were un aware of Linda’s mental illness and history of making groundless 911 calls and therefore had reason to take her call seriously that day , as she was the children’s mother

. Even so , under the facts alleged and admitted by Vernon , their warrantless entry was still not justified by exigent circumstances. Linda’s 911 call that night alleged that there was a “disturbance” at Vernon ’s address

. But t he o fficers had the burden of proving the existence of exigency, and failed to corroborate her call. See Welsh v. Wisconsin , 466 U.S. 740, 750 (1984) (“ Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. ”); see also United States v. Rico , 51 F.3d 495, 500

– 01 (5th Cir. 1995) (officers have the burden of proving the existence of exigency) . The record reflects that the

o fficers spoke to Linda outside Vernon ’s house, but the o fficers allege only that Linda informed them that her daughter was “letharg ic and sick” before they decided to enter. The o fficers’ responsive pleadings do not demonstrate that they inquired into the bas i s for Linda’s assertion that the children were Case: 17-10101 Document: 00514628263 Page: 8 Date Filed: 09/05/2018No. 17

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9 “lethargic and sick,” or the circumstances surrounding Vernon ’s possession of the children on that day. Moreover , t he o fficers d o not contend that Linda told them Vernon hurt either child or in any way caused his daughter ’s condition ; nor do they claim that they were aware of Linda’s first 911 call that day , alleging that Vernon was abusing the children

. Cf

. Gates , 537 F.3d at 422 (finding “no immediate danger” to the children where the alleged abuser was not home) ; Wernecke v. Garcia , 591 F.3d 386, 389, 396 (5th Cir. 2009) (holding that the warrantless entry of a state official to investigate the medical neglect of a child was jus tified by exigent circumstances, where the investigator had a temporary

- custody order based on a court’s finding that the child’s physical health and safety were in “immediate danger , ” the child was known to have Hodgkin’s disease , and the child’s parents had refused to consent to radiation treatment).
T he o fficers arrived at Vernon’s house up to one hour and twenty

- one minutes after Linda placed the call. U nlike the tumultuous situations the officers encountered in Stuart and Fisher , the o fficers arrived at Vernon ’s house to find a relatively calm scene outside with no external signs of struggle indicating the need to prevent violence or restore order. Although Vernon did not answer his cell phone and did not initially respond to the repeated knocks at his front door, his failure to respond did not constitute exigency. See Troop , 514 F.3d at 411 ( holding that when a person does not answer the door, officers should “ch ange[] their strategy by retreating cautiously, seeking a search warrant, or conducting further surveillance.” (citing United States v. Gomez

- Moreno , 479 F.3d 350, 355

– 56 (5th Cir. 2007) ) );

s ee also United States v. Hill , 649 F.3d 258, 266 (4th Cir. 2011) (an officer’s belief that there was someone inside the house who was not answering the door “is simply not sufficient evidence to support a warrantless entry into a private home without some articulable fact that just ified urgent entry by police”). And Case: 17-10101 Document: 00514628263 Page: 9 Date Filed: 09/05/2018No. 17

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10 w h en Vernon eventually did come to the front door, he told the o fficers that his daughter “was asleep, not ill, a nd not in need of assistance.” 6 Th e o fficers have not demonstrated that they observed or received any information, aside from Linda’s 911 call, indicat ing that Vernon ’s daughter ’s condition had devolved beyond “lethargic and sick ,” or that she needed immediate emergency aid. 7 Cf

. United States v. Flores

- Castaneda , 384 F. App’x 364, 367 (5th Cir. 2010) (finding imminent danger justifying warrantless entry where smugglers held hostages inside a home ; they had a cell phone and possible weapons; the officers heard movement inside , but no one opened the door for two minutes ; and a man inside the residence spotted the officers , turned, and ran back into the interior of the house ). Thus, the o fficers did not show that the y reasonably believed their warrantless entry was justified by exigent circumstances

. Finally, the o fficers contend that they were justified in entering Vernon ’s home to prevent him from obtaining a weapon inside. However, the o fficers do not allege that they had any information indicating the presence of a weapon inside the home, nor did they articulate such a suspicion before entering. And the pleadings demo nstrate that Vernon attempted to close the door and retreat into his house as a result of the o fficers’ request to ente r without a warrant. Vernon ’s retreat in response to the o fficers ’ actions did not give rise to exi gen t circumstances

. Cf

. Jones , 239 F.3d at 720 (finding that the suspect, not the

6 In their answer to the amended complaint, the o fficers stated that Vernon appeared “irate and upset” upon answering the door, and Vernon admitted the allegation. But an appearance of anger, without more, d oes not establish exigency. Cf

. Thacker v. City of Columbus , 328 F.3d 244, 254 (6th Cir. 2003) (finding that the totality of the circumstances justified entry to secure the safety of the police, paramedics, and other people possibly inside the home where “[s]omeone had placed a 911 call reporting an emergency

— a cutting or stabbing

— at the residence. [The plaintiff] an swered the door shirtless, with blood on his legs and boxer shorts. It was apparent that [the plaintiff] himself was injured . . . [he] acted belligerently and used profanity. . . . [and] [h]e appeared intoxicated.”).
7 As explained above, Officers Hi ll and Matthews claim they had no knowledge of Linda’s call earlier that day, alleging that Vernon was abusing the children. See supra note 2. Case: 17-10101 Document: 00514628263 Page: 10 Date Filed: 09/05/2018No. 17

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11 officers , created the exigen cy where the suspect left the door open with a handgun in plain view)

. In sum, as Vernon adequately alleged in his amended complaint, “[a]t the time of Defendants’ warrantless entr y, Defendants observed no crime being committed, and observed no fact or circumstance tending to give rise to an objectively reasonable concern for the safety of Plaintiff’s children , ” apart from Linda’s uncorroborated statement that her child was “lethargic and sick

. ” We therefore conclude that Vernon has facially pleaded sufficient facts to support a plausible claim that the o fficers violated
hi s Fourth Amendment right s when they entered his house without a warrant and absent proof or showing of exigent circumstances. See In re Great Lakes , 624 F.3d at 210 (quoting Iqbal, 556 U.S. at 678)

. 2 Though we find plausible Vernon’s allegations that the officers ’ warrantless entry into his house violated his Fourth Amendment right , we cannot conclude, under the second prong of the qualified immunity analysis, that this right was clearly established under the circumstances of this cas e at the time of the officers’ entry. See Trammell , 868 F.3d at 343. T he law is clearly established when there is “controlling authority

— or a ‘robust consensus of persuasive authority’

— that defines the contours of the right in question with a high degree of particularity.” Hogan v. Cunningham , 722 F.3d 725, 735 (5th Cir. 2013) (citing Morgan v. Swanson , 659 F.3d 359, 371

– 72 (5th Cir. 2011) (en banc)). The Supreme Court “ does not require a case directly on point for a right to be clearly established, [but] existing precedent must have placed the statutory or constitutional question beyond debate.” See Kisela v. Hughes , 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly , 137 S. Ct. 548, 551 (2017)). An officer is entitled to qualified immunity “unless all reasonable officials in the defendant’s circumstances would have then known that the Case: 17-10101 Document: 00514628263 Page: 11 Date Filed: 09/05/2018No. 17

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12 defendant’s conduct violated the United States Constitution.” Thompson v. Upshur Cty. , 245 F.3d 447, 457 (5th Cir. 2001). Vernon argues that, under Troop , the Officers should have known that no exigent circumstances existed to justify their warrantless entry into his house. In Troop , we found that signs of fatigue in footsteps “alone [were] insufficient to demonstrate exigent circumstances requiring an imm ediate entry into the house, ” noting the lack of evidence “of medical distress requiring immediate aid, such as loss of blood, [or] signs of physical illness .” 514 F.3d at
410. H ere , however, the o fficers acted in response to Lind a ’s 911 call asking for assistance checking on her sick and lethargic child. Because Linda’s call could reasonably be construed as evidence that her daughter was physically ill, Troop does not clearly establish that the officers’ actions were unreasonable in light of clearly est ablished law . While Troop may be relevant to the question of whether the exigent circumstance s exception applie s , i t is not “controlling authority

. . . that defines the contours of the right in question with a high degree of particularity. ” Hogan , 722 F.3d at 735. Nor does Troop “ place[] the statutory or constitutional question beyond debate.” See Kisela , 138 S. Ct. at
1152. Vernon does not cite to any controlling authority establishing that the officers ’ entry into his house would have violated a clearly established right under the circumstances. Accordingly, we affirm the district court’s decision to grant the officers ’ motion for judgment on the pleadings on the basis of qualified immunity.
B The district court concluded that the o fficers used reasonable force in light of the clearly established law at the time . The court noted Vernon ’s admission that he was not pepper sprayed by the o fficers , but by Sergeant Irizarry . It further concluded that Officer Matthews did not touch Vernon , Case: 17-10101 Document: 00514628263 Page: 12 Date Filed: 09/05/2018No. 17

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13 exce pt to assist hi m outside of the house to receive medical care. Finally , the
court found that Vernon failed to allege any facts to negate the assertion that Officer Hill’s use of force was reasonable to prevent him from accessing any weapons inside his hou se

. Vernon argues that his pleadings de monstrate that he was assaulted and pepper sprayed and suffered great bodily harm as a result of the o fficers’ unreasonable use of force

. To prevail o n an excessive force claim, the plaintiff must show (1) an injury (2) that resulted directly and only from the use of force that wa s clearly excessive to the need and that (3) the force used was objectively unreasonable. Goodson v. City of Corpus Christi , 202 F.3d 730, 740 (5th Cir. 2000). Excessive force claims are fact

- intensive, and courts must consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Deville v. Marcantel , 567 F.3d 156, 167 (5th Cir. 2009) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “ The ‘reasonableness’ of a particular use of force must be judged from the perspectiv e of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Hogan v. Cunningham , 722 F.3d 725, 734 (5th Cir. 2013) (quoting Graham , 490 U.S. at 396)

. We evaluate the reasonableness of each officer’s actions separately. Poole v. City of Shreveport , 691 F.3d 624, 628 (5th Cir. 2012). We agree with the district court’s findings and conclusions as to the

o fficers’ use of force. First, Vernon conceded that he was pepper sprayed by the o fficers’ supervisor, Sergeant Irizarry. Ser geant Irizarry is not a defendant in this case. 8 Vernon ’s allegations of being pepper sprayed therefore do not

8 In Vernon ’s original petition in state court, he alleged that Doe 1 “entered Plaintiff’s home without a warran t” and “assaulted Plaintiff, causing great bodily harm.” To the extent Case: 17-10101 Document: 00514628263 Page: 13 Date Filed: 09/05/2018No. 17

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14 “focus[] specifically on the conduct of” Officers Hill and Matthews and cannot help him overcome the ir defense of qualified immunity. See Reyes v. Sazan , 168 F.3d 158, 161 (5th Cir. 1999) (a plaintiff must allege facts focusing specifically on the conduct of the individuals who caused the plaintiff’s injury)

. Second, Vernon did not allege any facts demonstrating that Officer Matthews used a ny force on him at all. And he admitted t he allegations contained in Officer Matthews’s answer to his complaint, which does not describe Officer Matthews as having any contact with Vernon until she helped escort him outside for medical treatment. Finall y, Vernon claims that Officer Hill used excessive force in restraining him

. However, his claim is undermined by his admission of the facts in Officer Hill’s answer to his complaint. 9 Vernon admitted that Officer “Hill clasped [Vernon’s] right arm and shoulder” after Vernon push ed Sergeant Irizarry’s hand away. Vernon next admitted that Officer Hill “grabbed [him] and attempted to take him to the ground” after he pushed Officer Hill’s hand away and ran into the house. Vernon further adm itted that he and Officer Hill struggled in the hallway

. Lastly , Vernon admitted that Officer Hill handcuffed and escorted him outside for medical treatment after Vernon was pepper sprayed by Sergeant Irizarry. In light of Vernon ’s admission that Officer Hill used force only after Vernon made physical contact with him and Sergeant Irizarry , and again after Vernon fled to the back of his house and engaged in a physical struggle with Officer Hill , we conclude that Vernon ’s pleadings do not sufficiently establish that Officer Hill’s use of force was objectively

un reasonable

. See Poole , 691 F.3d at 629 (finding that officers responded to

that Vernon intended to name Sergeant Irizarry as Doe 1, he has abandoned this claim, as discussed above. See supra note 3.
9 Vernon admitted the facts in Officer Hill’s answer to his complaint “with the exception that he [had] no information and belief with respect to the beliefs or mental status of the officers.” Case: 17-10101 Document: 00514628263 Page: 14 Date Filed: 09/05/2018No. 17

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15 plaintiff ’ s “ escalating verbal and physical resistance ” with “ measured and ascending ” actions where plaintiff persistently resisted t he officers’ commands ); Galvan v. City of San Antonio, 435 F

. App ’x 309, 311 (5th Cir. 2010) ( finding the same where officers reacted with verbal warnings, then pepper spray, then hand

- and

- arm manipulation techniques , then a Taser, after plaintiff ran from officers, responded aggressively when they caught him, and engaged in a physical struggle ). Accordingly, we affirm the d istrict court ’s judgment as to this claim.

*** For the se rea sons, we AFFIRM the district court’s judgment. Case: 17-10101 Document: 00514628263 Page: 15 Date Filed: 09/05/2018