### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30867 Summary Calendar

MICHELLE STOGNER, Plaintiff-Appellant
v. CHRIS STURDIVANT, Livingston Parish Sheriff’s Officer; BRANT MELERINE, Town of Livingston Police Department Officer, Defendants-Appellees

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:10-CV-125

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM: * Plaintiff M ichelle Stogner is the widow of Donel Stogner (“Stogner”), who died after a traffic stop and ensuing altercation with Defe n d a n t s Chris Sturdivant, a Livingston Parish She r i f f ’ s Deputy, and Brandt Melerine, a Livingston Police Officer. Plaintiff file d s u it alleging an excessive force claim under § 1983 and state law claims for battery, e xcessive force, f ailure to perform U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February26, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30867 Document: 00512156294 Page: 1 Date Filed: 02/26/2013No. 12-30867

duties in a safe and reasonable manner, and torture. The district court awarded
summary judgment to D efendants on the basis o f qualified immunity. Plaintiff appeals. For the reasons that follow, we AFFIRM. The traffic s t o p and subsequent events were c a p tured by Deputy Sturdivant’s dashboard c amera. The t r affic stop w as conducted b y Sturdivant. After Sturdivant and Stogner pulled over t o the s ide of the road, b oth men exited their vehicles and proceeded to converse amicably. S turdivant n oticed a small plastic bag in S t o g n e r’s hand. When Sturdivant inquired about the bag and asked Stogner to r elease it, Stogner denied he was h o lding anything and resisted efforts to show his hand and then to be handcuffed. After a bout s i x minutes, Officer Melerine and another officer arrived at the scene, where Melerine helped Sturdivant restrain Stogner on the ground. The officers f inally handcuffed him. A fourth officer who h ad a rri v ed noticed that Stogner w as not breathing. The officers attempted to remove the plastic bag from Stogner’s mouth, administered CPR, and called for an ambulance. Stogner was transported t o t h e hospital, where he was pronounced d ead

. T h e b a g contained methamphetamine. The evidence is that Sto g n e r had cardiomegaly (an over-sized heart) and 95% narrowing of his l eft anterior descending coronary artery; that 4,400 nanograms per millileter of m etamphetamine were found in Stogner’s blood d uring an autopsy, which is approximately 4,000 ng/ml more than necessary to induce violent and irrational behavior; and t hat Stogner’s pre-existing heart conditions and the metamphetamine abuse contributed to Stogner’s death. The issue o n appeal i s whether Sturdivant a nd M e lerin e a re entitled to qualified immunity. We review the district court’s grant of summary judgment de novo , applying the same standards as the district court. Hillman v. Loga , 697 F.3d 2 9 9 , 302 (5th Cir. 2012). As a general rule, summary judgment is appropriate where “the movant s hows that there i s no genui n e dispute to any material fact.” Fed. R. Ci v . P

. 56(a). Where the officer p leads qualified

2 Case: 12-30867 Document: 00512156294 Page: 2 Date Filed: 02/26/2013No. 12-30867

immunity in good faith, the burden then shifts t o the plaintiff, w ho “bears the b u r d e n o f negating the defense and cannot rest on conclusory allegations an d assertions but m ust demonstrate genuine issues o f material f act regarding the reasonableness of the officer’s conduct.” Michalik v. H ermann , 422 F.3d 252, 262 (5th Cir. 2005). In order to meet her burden, the plaintiff must show that “the officers’ actions were obje c t i v e l y u nreasonable, in l ight of clearly-established law at the ti m e , a nd in light of the information the officers possessed.” Wagner v. Bay City, Tex. , 227 F.3d 3 1 6 , 3 2 1 (5th Cir. 2000). “Qualified immunity thus protects an official whose conduct was objectively reasonable, even if the conduct infringed u pon a constitutional right o f t h e plaintiff.” Id. (internal quotations and citation omitted). Having reviewed the dashboard video, we agree with the district court’s reasoning and t hus conclude that Sturdivant’s a nd M elerine’s actions were not objectively unreasonable. T h e c r u x of Plaintiff’s argument is that there is a genuine issue of m aterial fact as to w hether and how h er husband resisted arrest. Plaintiff does n ot d ispute that Defend a n ts’ a ctions were in themselves legally permissible. 1 Rather, her central complaint is that Defendants’ actions

were not commensurate with her husband’s actions b ecause her husband did not actively resist arrest and, relatedly, did not pose a physical threat to the officers; thus, she contends that Defendants’ actions were objectively unreasonable. 2

1 For ins tance, although it is arguable w hether a chok e- hold w as ever us ed on Stogner ( the vid eo s how s Sturd ivant w r a p p i n g h i s arm s around Stogner’s neck to prevent him f rom s w allow ing the p las tic bag) , chok e- hold s in t h e m s elves are not legally im p erm is s ible. See Wa gner , 227 F. 3 d a t 3 24 ( 5th Cir. 2000) (hold ing chok e- hold not objectively unreas onable
w here s us p ect phys ical l y res is ted arres t)

. Lik ew is e, ap p lication of f orce to the throat to p reven t d e s t r u c t ion of evid ence is not in its elf legally im p erm is s ible. See U ni ted Sta tes v . H a rri son , 432 F. 2d 1328, 1330 ( D

. C. Cir. 1970) ( hold ing p olice d id not act w ith und ue f orce or brutality by grabbing d e f e nd ant by the throat to p revent him f rom s wallow ing an envelop e w ith ten heroin cap sules )

.

2 Throughout her ap p eal b r i e fs , P laintif f argues a d is tinction betw een “p as sive res is tance” an d “ a ctive res is tance, ” the latter p res um ably encom p as s ing ins tances w hen a 3 Case: 12-30867 Document: 00512156294 Page: 3 Date Filed: 02/26/2013No. 12-30867

However, the dashboard video d e monstrates otherwise. Stogner repeatedly refused t o comply with Sturdivant’s requests to “spit [the bag] out” and to place his hands b ehind his back. Sturdivant struggled to restrain Stogner, a relatively large man, a gainst the h ood of h is patrol c ar and o n the g r ound. At no point from the beginning of Sturdivant’s initial request t o release the plastic bag until the end of the struggle did S togner attempt to comply with Sturdivant; indeed, Sturdivant had to exert considerable force t o keep Stogner even minimally still. We cannot conclude from this evidence that Sturdivant’s conduct was objectively unreasonable. Likewise, the v ideo d oes not show that Melerine acted with objective unreasonableness in attempting to restrain Stogner. At the moment t h at Melerine arrived, Sturdivant had not succeeded in handcuffing Stogner, and Sturdivant and Stogner were still engaged in a s truggle. Melerine’s application of force to Stogner’s body was not clearly unreasonable in light of that struggle. For these reasons, we conclude that Sturdivant’s and Meleri n e’s actions

were not objectively unreasonable, and thus the officers were entitled to qualified immunity. This conclusion also decides Plaintiff’s state law claims, all of which require unreasonable conduct. Plaintiff acknowledges this result, stating in her appeal b rief that “the state l a w claims against Deputy Sturdiavnt and Officer Melerine arise from the same s et of facts” as that o f the § 1983 claim, and t h us resolution of t h e § 1983 claim preordai n s r e s o lution of the state law claims.

s us pect phy s i c a l l y s trik es an of f icer. Plaintif

f cites no authority f

or why “active res is tance” is a p rerequis ite f

or the reas onablenes s of of f icers ’ cond uct in circum s tances s uch as thes e, and
w e are not convinced that this d is tinction alters the outcom e. Sim ilarly, w e are not convinced t h a t Stogner’s p res enting a p hys ical threat to of f icers w as a p rerequis ite f or t h e reas onablenes s of the of f icers ’ cond uct, es p ecially w here he w as otherw is e res is ting arres t and
w here the of

f icers w ere law f

ully p erm itted to p revent the d es truction of evid ence.

4 Case: 12-30867 Document: 00512156294 Page: 4 Date Filed: 02/26/2013No. 12-30867

Accordingly, the district court pr o perly awarded summary judgment to D e f e n d ants Sturdivant and Melerine on Plaintiff’s § 1983 claim and her stat e law claims. We emphasize that we agree with the district court that S togner’s death is unfortunate, but “given Mr. Stogner’s intransigence in the face of Sturdivant’s l awful requests , the Court cannot deny Deputy S turdivant [and Officer Melerine] the qualified immunity [they are] entitled to under the law.” AFFIRMED.

5 Case: 12-30867 Document: 00512156294 Page: 5 Date Filed: 02/26/2013