IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10023 (Summary Calendar)

LAWRENCE PROTHRO, on behalf of Jason Prothro; DEBORAH PROTHRO, on behalf of Jason Prothro,

Plaintiffs-Appellees,

versus

CITY OF GARLAND; R. DUDLEY, individually and in his official capacity; K. PRYOR, individually and in his official capacity; J. JESSEE, individually and in his official capacity; D. SCRUGGS, individually and in his official capacity,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Northern District of Texas (3:98-CV-119-BF-X) -------------------- September 29, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendants-Appellants the City of Garland and four of its

police officers —— Robert Dudley, Kirk Pryor, James S. Jessee, and

David Scruggs—appeal the district court’s denial of their motion

for summary judgment based on qualified immunity in a civil rights

lawsuit brought on behalf of Jason Prothro. The district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. denied the motion in its entirety, holding that none of the

officers were entitled to qualified immunity on any of the claims.

We have jurisdiction to review the district court’s denials to the

extent they turned on matters of law, including whether any issues

of disputed fact are material. Colston v. Barnhart,

(5th Cir. 1998). Our review is de novo. Lemoine v. New

Horizons Ranch and Ctr., Inc.,

(5th Cir. 1999).

The officers argue first that the district court erred in

concluding that they were not entitled to qualified immunity on

Prothro’s excessive-force claim. Viewing the summary judgment

evidence in the light most favorable to Prothro, as we must on this

appeal, we reject Officer Pryor’s arguments that his actions were

objectively reasonable and that Prothro suffered no more than a de

minimis injury. See Ikerd v. Blair,

, 434 & n.9 (5th

Cir. 1996). We conclude, however, that Officers Dudley and Jessee

are entitled to qualified immunity because they had no “reasonable

opportunity to realize the excessive nature of the [alleged] force

and to intervene to stop it.” Hale v. Townley,

(5th Cir. 1995). As there exists a genuine issue of material fact

as to whether Officer Scruggs —— who, with a police dog, was

located nearby at the relevant time —— had a reasonable opportunity

to intervene but failed to do so, he is not entitled to a summary

judgment dismissal based on qualified immunity. See

The officers also argue that the district court erred in

holding that they were not qualifiedly immune on Prothro’s false-

arrest claim. We reject Prothro’s contention that this issue is

2 not properly before us. On the merits and given the circumstances

that the officers faced, we conclude that reasonable officers could

have believed that probable cause existed to arrest Prothro for

theft of a motor vehicle. See Sorenson v. Ferrie,

(5th Cir. 1998). Thus, the district court erred in holding

that the officers were not entitled to qualified immunity on the

false-arrest claim.

As for Prothro’s state law assault and battery claims, we hold

for reasons similar to those addressed in relation to the

excessive-force claim, that the district court correctly determined

that Officer Pryor was not entitled to qualified immunity: A

reasonably prudent officer would not have used the amount of force

alleged by Prothro. See Cantu v. Rocha,

(5th Cir.

1996). The district court did err, however, when it denied

immunity to the other three officers. See

Prothro has not

alleged that any of the other three, even Officer Scruggs, made

inappropriate physical contact. See Preble v. Young,

(Tex. App. 1999, no writ) (noting that actual touching is

a necessary element to assault and battery claims). Finally,

inasmuch as Texas does not recognize a separate tort of “official

oppression,” all of the officers are entitled to state-law

qualified immunity on that claim, which the court failed to

address. See Cantu,

.

To recap: (1) We affirm the district court’s holding that

neither Officer Pryor nor Officer Scruggs was entitled to qualified

immunity on Prothro’s excessive-force claims, but we reverse the

3 court’s holding that Officers Dudley and Jessee were not entitled

to immunity on such claims; (2) on the summary judgment evidence,

reasonable officers could have believed that probable cause existed

to arrest him, so we reverse the district court’s holding that the

officers were not qualifiedly immune on the false-arrest claim; (3)

we affirm the court’s holding that Officer Pryor was not entitled

to qualified immunity on Prothro’s state-law assault and battery

claims, but we reverse like holdings on this claim as to the other

three officers; and (4) we conclude de novo that all the officers

are qualifiedly immune from Prothro’s official-oppression claim.

The case is therefore remanded with instructions to enter the

dismissals indicated above and to conduct further proceedings

consistent herewith.

AFFIRMED in part; REVERSED and REMANDED in part, with instructions.

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