IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Michelle Stogner is the widow of Donel Stogner (“Stogner”), who

died after a traffic stop and ensuing altercation with Defendants Chris

Sturdivant, a Livingston Parish Sheriff’s Deputy, and Brandt Melerine, a

Livingston Police Officer. Plaintiff filed suit alleging an excessive force claim

under § 1983 and state law claims for battery, excessive force, failure to perform

United States Court of Appeals

Fifth Circuit

F I L E D

February 26, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-30867

duties in a safe and reasonable manner, and torture. The district court awarded

summary judgment to Defendants on the basis of qualified immunity. Plaintiff

appeals. For the reasons that follow, we AFFIRM.

The traffic stop and subsequent events were captured by Deputy

Sturdivant’s dashboard camera. The traffic stop was conducted by Sturdivant. 

After Sturdivant and Stogner pulled over to the side of the road, both men exited

their vehicles and proceeded to converse amicably. Sturdivant noticed a small

plastic bag in Stogner’s hand. When Sturdivant inquired about the bag and

asked Stogner to release it, Stogner denied he was holding anything and resisted

efforts to show his hand and then to be handcuffed. After about six minutes,

Officer Melerine and another officer arrived at the scene, where Melerine helped

Sturdivant restrain Stogner on the ground. The officers finally handcuffed him. 

A fourth officer who had arrived noticed that Stogner was not breathing. The

officers attempted to remove the plastic bag from Stogner’s mouth, administered

CPR, and called for an ambulance. Stogner was transported to the hospital,

where he was pronounced dead. The bag contained methamphetamine. The

evidence is that Stogner had cardiomegaly (an over-sized heart) and 95%

narrowing of his left anterior descending coronary artery; that 4,400 nanograms

per millileter of metamphetamine were found in Stogner’s blood during an

autopsy, which is approximately 4,000 ng/ml more than necessary to induce

violent and irrational behavior; and that Stogner’s pre-existing heart conditions

and the metamphetamine abuse contributed to Stogner’s death.

The issue on appeal is whether Sturdivant and Melerine are 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 299, 302 (5th Cir. 2012). As a general rule, summary judgment is

appropriate where “the movant shows that there is no genuine dispute to any

material fact.” Fed. R. Civ. P. 56(a). Where the officer pleads qualified

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immunity in good faith, the burden then shifts to the plaintiff, who “bears the

burden of negating the defense and cannot rest on conclusory allegations and

assertions but must demonstrate genuine issues of material fact regarding the

reasonableness of the officer’s conduct.” Michalik v. Hermann, 422 F.3d 252, 262

(5th Cir. 2005). In order to meet her burden, the plaintiff must show that “the

officers’ actions were objectively unreasonable, in light of clearly-established law

at the time, and in light of the information the officers possessed.” Wagner v.

Bay City, Tex., 227 F.3d 316, 321 (5th Cir. 2000). “Qualified immunity thus

protects an official whose conduct was objectively reasonable, even if the conduct

infringed upon a constitutional right of the plaintiff.” Id. (internal quotations

and citation omitted).

Having reviewed the dashboard video, we agree with the district court’s

reasoning and thus conclude that Sturdivant’s and Melerine’s actions were not

objectively unreasonable. The crux of Plaintiff’s argument is that there is a

genuine issue of material fact as to whether and how her husband resisted

arrest. Plaintiff does not dispute that Defendants’ actions were in themselves

legally permissible.1 Rather, her central complaint is that Defendants’ actions

were not commensurate with her husband’s actions because 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 instance, although it is arguable whether a choke-hold was ever used on Stogner

(the video shows Sturdivant wrapping his arms around Stogner’s neck to prevent him from

swallowing the plastic bag), choke-holds in themselves are not legally impermissible. See

Wagner, 227 F.3d at 324 (5th Cir. 2000) (holding choke-hold not objectively unreasonable

where suspect physically resisted arrest). Likewise, application of force to the throat to

prevent destruction of evidence is not in itself legally impermissible. See United States v.

Harrison, 432 F.2d 1328, 1330 (D.C. Cir. 1970) (holding police did not act with undue force or

brutality by grabbing defendant by the throat to prevent him from swallowing an envelope

with ten heroin capsules).

2 Throughout her appeal briefs, Plaintiff argues a distinction between “passive

resistance” and “active resistance,” the latter presumably encompassing instances when a

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However, the dashboard video demonstrates otherwise. Stogner repeatedly

refused to comply with Sturdivant’s requests to “spit [the bag] out” and to place

his hands behind his back. Sturdivant struggled to restrain Stogner, a relatively

large man, against the hood of his patrol car and on the ground. At no point

from the beginning of Sturdivant’s initial request to release the plastic bag until

the end of the struggle did Stogner attempt to comply with Sturdivant; indeed,

Sturdivant had to exert considerable force to keep Stogner even minimally still. 

We cannot conclude from this evidence that Sturdivant’s conduct was objectively

unreasonable.

Likewise, the video does not show that Melerine acted with objective

unreasonableness in attempting to restrain Stogner. At the moment that

Melerine arrived, Sturdivant had not succeeded in handcuffing Stogner, and

Sturdivant and Stogner were still engaged in a struggle. 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 Melerine’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 brief that “the state law claims against Deputy Sturdiavnt

and Officer Melerine arise from the same set of facts” as that of the § 1983 claim,

and thus resolution of the § 1983 claim preordains resolution of the state law

claims.

suspect physically strikes an officer. Plaintiff cites no authority for why “active resistance”

is a prerequisite for the reasonableness of officers’ conduct in circumstances such as these, and

we are not convinced that this distinction alters the outcome. Similarly, we are not convinced

that Stogner’s presenting a physical threat to officers was a prerequisite for the

reasonableness ofthe officers’ conduct, especially where he was otherwise resisting arrest and

where the officers were lawfully permitted to prevent the destruction of evidence.

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Accordingly, the district court properly awarded summary judgment to

Defendants Sturdivant and Melerine on Plaintiff’s § 1983 claim and her state

law claims. We emphasize that we agree with the district court that Stogner’s

death is unfortunate, but “given Mr. Stogner’s intransigence in the face of

Sturdivant’s lawful requests, the Court cannot deny Deputy Sturdivant [and

Officer Melerine] the qualified immunity [they are] entitled to under the law.”

AFFIRMED.

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