author: LOKEN, Circuit Judge. KELLY, Circuit Judge,

text:
    Samuel ZEAN, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. FAIRVIEW HEALTH SERVICES, Defendant-Appellee
    No. 16-1747
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 13, 2016
    Filed: May 26, 2017

      Counsel who presented argument on behalf of the appellant was Shawn J. Wanta, of Minneapolis, MN. The following attorneys also appeared on the appellant brief; Patricia A. Bloodgood and Christopher Daniel Jozwiak, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Bryant D. Tchida, of Minneapolis, MN. The following attorneys also appeared on the appellee brief; Todd Noteboom and Calvin P Hoffman, of Minneapolis, MN.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   LOKEN, Circuit Judge.

Fairview Health Services is a nonprofit corporation that operates hospitals and clinics in Minnesota and sells medical devices under the business name Fairview Home Medical Equipment (“Fairview”). Samuel Zean brought this putative class action, alleging that after purchasing a medical device from Fairview he received numerous telemarketing calls and voice-mail messages soliciting him to buy home medical supplies from Fairview, calls that violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The district court granted Fairview’s motion to dismiss, concluding that Zean had not stated a plausible claim that Fairview made calls without the “prior express consent of the called party.” Zean v. Fairview Health Servs., 149 F.Supp.3d 1129 (D. Minn. 2016), quoting 47 U.S.C. § 227(b)(1)(A). Zean appeals, arguing the court erred in ruling that consent is an element of his TCPA claim, relying on documents that were not embraced by the complaint, and finding that the calls were within the scope of his consent. Reviewing the Rule 12(b)(6) dismissal de novo, we affirm. See Quintero Cmty. Ass’n v. F.D.I.C., 792 F.3d 1002, 1011 (8th Cir. 2015) (standard of review).

I.

Recognizing that automated calls are often a nuisance and an invasion of privacy, Congress passed the TCPA to balance “in-dividuáis’ privacy rights, public safety interests, and commercial freedoms of speech and trade.” Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1117 (11th Cir. 2014) (quotations omitted). As relevant here, the statute prohibits any person from making “any call (other than a call made ... with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C. § 227(b)(l)(A)(iii).

Congress gave the Federal Communications Commission (“FCC”) detailed directions to “prescribe regulations to implement the requirements of this subsection” in § 227(b)(2), and enacted a private' right of action “based on a violation of this subsection or the regulations prescribed under this subsection” in § 227(b)(3). The FCC regulations provide that a nonprofit organization such as Fairview may not “[ijnitiate ... any telephone call that ... constitutes telemarketing ... to any [cellular telephone number] other than a call made with ... the prior express consent of the called party.” 47 C.F.R. § 64.1200(a)(2). Under the Hobbs Act, 28 U.S.C. § 2342 et seq., federal courts lack jurisdiction over challenges to FCC orders and regulations “other than on appeals arising from agency proceedings.” Nack v. Walburg, 715 F.3d 680, 682 (8th Cir.2013), cert. denied, — U.S.-, 134 S.Ct. 1539, 188 L.Ed.2d 581 (2014).

The FCC has issued a series of Rules and Regulations implementing the TCPA that are relevant to the issues on appeal. The 1992 Rules stated that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Red. 8752, 8769 (Oct. 16, 1992). The 2008 Rules clarified “that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible calls made with the ‘prior express consent’ of the called party.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Red. 559, 568 (Jan. 4, 2008). However, “prior express consent is deemed to be granted only if the wireless number was provided by the consumer ... during the transaction that resulted in the debt owed.” Id. at 564-65. In addition, because “creditors are in the best position to have records ... showing such consent,” if a question arises as to whether express consent was provided, “the burden will be on the creditor to show it obtained the necessary prior express consent.” Id. at 565.

The FCC’s 2015 Rules applied the agency’s 2008 interpretation to more than debt collection: “regardless of the means by which a caller obtains consent, under longstanding Commission precedent, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Red. 7961, 7990 (July 10, 2015). The FCC also confirmed that “the scope of consent must be determined upon the facts of each situation.” Id. at 8028 (quotations omitted). “[N]either the Commission’s rules nor its orders require any specific method by which a caller must obtain ... prior express consent.” Id. at 7990.

II.

Zean’s Class Action Complaint alleged that he purchased a medical device from Fairview in September 2014 that requires periodic purchases of replacement supplies. Zean began receiving on his cellular telephone automated telemarketing calls from Fairview referring to the device he had purchased and asking if he would like Fairview to send replacement supplies, including masks, headgear, filters, and tubing. When the calls went to Zean’s voice-mail, Fairview left a two-and-a-half-minute prerecorded message instructing Zean to press one to receive supplies, or press two if he did not wish to receive supplies. The Complaint alleged that Zean received approximately twenty-five calls between September 2014 and August 2015, when he filed the Complaint. He further alleged that he asked a Fairview employee to refrain from calling him with supply offers. “The employee agreed, and instructed Plaintiff to call ... when he needed to order, supplies.” The Complaint did not date that conversation or allege that Fair-view made any automated telemarketing calls after Zean asked Fairview to stop calling. Paragraph 40 alleged:

40. The telephone calls were made and the voicemail messages left through the use of an automated dialing service or an artificial or prerecorded voice and without the express written consent of [Zean] and the proposed Class members.

Fairview moved to dismiss the Complaint for failure to state a claim. In support, Fairview submitted employee Jill McCartney’s declaration attaching two “Fairview business records relating to the Plaintiff, Samuel Zean.” Exhibit A, identified as a “true and correct copy of a redacted Fairview business record executed by Plaintiff,” includes the following unre-dacted text:

Communication: I understand Fairview may need to contact me in regard to my services and accounts. I give permission for Fairview and its approved agents to contact me by phone (including my cell phone). This may include the use of auto-dialers or pre-recorded messages.

Below this line and more redacted text are Zean’s unredacted signature and the date, “8-29-14.” Exhibit B, identified as a “true and correct copy of a redacted Fairview business record in which Plaintiff provided his cellular telephone number to Fair-view,” is a heavily redacted document that includes a heading, “Questionnaire,” followed by unredacted text: “Name: Samuel G. Zean,” and “cell phone .. .-1594.” On page 6 appear Zean’s unredacted signature and a date, “8/23/13.”

At the hearing on Fairview’s motion to dismiss, counsel for Zean argued:

Defendant has submitted the Affidavit of Jill McCartney and two exhibits, Exhibit A and Exhibit B, on which they ask the Court to rule as a matter of law that Plaintiff provided consent within the meaning of the TCPA. This is Exhibit A, and it is completely redacted. We do not know what it is.... [Everything is redacted except what purports to be my client’s signature and the date and this assertion ... that he understands Fair-view may need to contact him in regard to their services and accounts, and he gives permission to have them contact him. Again, we do not know what this is. My client hasn’t seen it, doesn’t have a copy of it. I haven’t seen it, and the Court hasn’t seen it without redactions. So, it’s obviously a very private document.
This is Exhibit B.... It is completely redacted except for the last page, which interestingly was signed a year earlier than Exhibit A. My client ... purchased a medical device from Fairview in September of 2014. This was signed apparently in 2013.

The district court asked counsel for Fair-view during rebuttal, “How in the blazes do you expect me to trust documents that are totally redacted?” Counsel replied, “L would love, actually, to be able to have the full documents before you.... [b]ut I think I’ve got a problem under [HIPAA], and I think I’ve got a bigger problem under the Minnesota Health Records Act. ... You actually have to have a written, signed consent and authorization to release records from a patient with protected health information.” Counsel for Zean did not reply to this colloquy.

The district court granted Fairview’s motion to dismiss, concluding that the plain language of 47 U.S.C. § 227(b)(1)(A) means that “lack of prior express consent is an element of a Zean’s prima facie case under the TCPA,” that Exhibits A and B are documents “embraced by the pleadings” that may be considered in deciding the motion to dismiss, and that Exhibits A and B establish that Zean gave Fairview prior express consent to make calls to his cell phone relating to the purchase of replacement supplies for the medical device he purchased from Fairview. Zean, 149 F.Supp.3d at 1132-35.

III.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Quintero, 792 F.3d at 1009, quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

A. On appeal, Zean first argues the district court erred in concluding, contrary to governing FCC rulings, that lack of “prior express consent” is an element of his prima facie TCPA case, rather than an affirmative defense that Fairview must plead and prove. This contention ignores the relevant inquiry. The TCPA statute provides that Fairview is not liable if it made the calls in question “with the prior express consent of the called party.” Regardless of which party bears the ultimate burden of persuasion on the question of consent, Zean’s Class Action Complaint would not have stated a facially plausible claim for TCPA relief without an allegation that Fairview did not have his “prior express consent” to make the calls. Moreover, even if a TCPA complaint lacking a no-consent allegation could survive a Rule 12(b)(6) motion to dismiss, Zean’s Complaint in fact included that allegation.

Thus, whether consent is an affirmative defense is irrelevant to the Rule 12(b)(6) inquiry under Iqbal. If an affirmative defense “is apparent on the face of the complaint ... [it] can provide the basis for dismissal under Rule 12(b)(6).” Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 983 (8th Cir. 2008) (citation omitted); see Steinhoff v. Star Tribune Media Co., 2014 WL 1207804, at *3 (D. Minn. Mar. 24, 2014) (dismissing TCPA claim on pleadings where prior express consent was apparent).

B. Zean next contends the district court erred in dismissing his Complaint because his prior express consent was not apparent from the face of the Complaint, and the district court erred in considering Exhibits A and B because they were not “embraced” by the Complaint. This is a recurring issue presented in a novel context. “Though ‘matters outside the pleadings’ may not be considered in deciding a Rule 12 motion to dismiss, documents necessarily embraced by the complaint are not matters outside the pleading.” Enervations, Inc, v. Minn. Min. & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004) (quotations omitted). If matters outside the pleadings “are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).

In general, materials embraced by the complaint include “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleadings.” Ashanti v. City of Golden Yalley, 666 F.3d 1148, 1151 (8th Cir. 2012) (quotation omitted). Stated more comprehensively:

While courts primarily consider the allegations in the complaint in determining whether to grant a Rule 12(b)(6) motion, courts additionally consider “matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned;” without converting the motion into one for summary judgment.

Miller v. Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012), quoting 5B Wright & Miller, Federal Practice & Procedure § 1357 (3d ed. 2004).

Zean argues that Exhibits A and B were not embraced by his Complaint because they contradict the no-consent allegation in Paragraph 40. It is generally true that the district court must convert a Rule 12(b)(6) motion into one for summary judgment if it considers evidence “in opposition to the pleading.” BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 688 (8th Cir. 2003). But the issue is not so simple in this case. “In a case involving a contract, the court may examine the contract documents in deciding a motion to dismiss.” Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700 (8th Cir. 2003). This is true even if contract documents not attached to the complaint refute a breach-of-contract claim, or a claim that defendant breached a statutory or common law duty. See Gorog v. Best Buy Co., 760 F.3d 787, 793 (8th Cir. 2014); Dittmer Props., L.P. v. F.D.I.C., 708 F.3d 1011, 1021 (8th Cir. 2013); Enervations, 380 F.3d at 1069; Steinhoff, 2014 WL 1207804, at *2 (order form providing plaintiffs cellular number “embraced by” TCPA pleadings).

Here, the Complaint alleged breach of a statutory TCPA duty arising out of a contractual relationship, Zean’s purchase of a medical device from Fairview. The Complaint alleged in conclusory fashion that Zean did not give Fairview express consent to make the calls. Exhibits A and B purport to be documents reflecting the contractual relationship that refute this conclusory allegation. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quotation omitted). In these circumstances we agree with the district court that “the exhibits at issue are embraced by the pleadings and will be considered by the Court.” Zean, 149 F.Supp.3d at 1134.

C. Zean further argues that the district court erred in considering the heavily redacted Exhibits A and B because he challenged their authenticity. We do not doubt that a genuine dispute as to the authenticity of a document claimed to be embraced by the pleadings may require conversion of a motion to dismiss into one for summary judgment. But in this case, authenticity is a bogus issue.

Fairview submitted Exhibits A and B with its motion to dismiss. In response, Zean argued that the motion was based on matters outside the pleadings and that, “on its face, the purported written consent” did not extend “to prerecorded, telemarketing voicemails.” At the hearing, counsel for Zean referred to the apparent consent reflected in Exhibit A and complained, “we do not know what this is.” Though Zean objected to the district court considering these exhibits, at no time did Zean argue that the documents were not properly authenticated in accordance with Rule 901 of the Federal Rules of Evidence. Thus, the district court did not commit plain error in concluding that Exhibits A and B were properly authenticated documents reflecting an aspect of the parties’ contractual relationship. See Woods v. Wells Fargo Bank, 733 F.3d 349, 356 (1st Cir. 2013); Davis v. HSBC Bank Nev., 691 F.3d 1152, 1160-61 (9th Cir. 2012); Kling v. Fidelity Mgmt. Trust Co., 270 F.Supp.2d 121, 127-28 (D. Mass. 2003).

In response to Zean’s objection, Counsel for Fairview explained that disclosure of the unredacted document without Zean’s consent risked violating HIPAA and the more stringent MHRA. Zean did not respond further at the hearing. And at no time before the district court ruled did Zean (i) give consent to disclose the unre-dacted documents, (ii) affirm or deny that he signed Exhibit A and Exhibit B and they are or are not part of his contractual relationship with one or more Fairview entities, or (iii) ask the court to convert the motion to dismiss into one for summary judgment and permit limited discovery on the issues of prior express consent, the scope of any prior consent given, and the authenticity of Exhibits A and B. The reason for this tactical decision is not hard to infer, because opening up these fact-intensive issues would likely preclude class certification or establish that Zean was not a member of the putative class. Given the contractual relationship alleged in the Complaint, the district court did not err in considering the documents as reflecting Zean’s pre-purchase consent.

D. Zean next argues the district court erred in finding that Fairview’s telemarketing calls were within the scope of the consent established by Exhibit A to call the cell phone number appearing on Exhibit B. Pointing to the first sentence, “I understand Fairview may need to contact me,” Zean argues Fairview has not shown a need to contact. The district court noted that the FCC’s 2015 Rule provided “that the call must be closely related to the purpose for which the telephone number was originally provided.” 30 FCC Red. at 8029 n.474. Here, the court concluded, Zean expressly consented to Fairview calling his cell phone number in regard to services and accounts. “Although Fairview may have been trying to ensure that it, rather than another supplier, procured Zean’s business, the calls also served as a reminder and a means for Zean to purchase new supplies for his medical equipment.” 149 F.Supp.3d at 1134-35. We agree. Looking to the Complaint and Exhibits A and B, which are contractual documents embraced by the Complaint, it is apparent that Zean gave his prior express consent for the calls at issue. Accordingly, the Complaint failed to state a claim. “[WJhether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

The judgment of the district court is affirmed.

KELLY, Circuit Judge,

dissenting.

I respectfully dissent because I disagree with the court’s conclusion in Part III.C that the authenticity of the documents (Exhibits A and B) is not a viable issue in genuine dispute. Fairview attached to its motion to dismiss a declaration from a Fairview employee, along with two exhibits that Fairview characterizes as business documents. Exhibit A consists of two pages. The first page is entirely redacted; it contains no visible text aside from the designation “Page 1 of 2” in the bottom right-hand corner. The second page is entirely redacted with these exceptions: a single paragraph labeled “Communication,” which includes language regarding apparent consent; a signature purportedly belonging to Zean; and a date, August 29, 2014. Exhibit A does not contain Zean’s phone number or contact information.

The second document, Exhibit B, contains even less. Of Exhibit B’s six pages, four are entirely redacted—meaning that all of the text on each of these four pages, save a page number, is covered by a large black box. As to the remaining two pages, the first is redacted such that only the word “Questionnaire,” the handwritten printed name Samuel G. Zean, and the last' four digits of a cell phone number remain. The second page contains only a signature that Fairview alleges belongs to Zean and a date, August 23, 2013. Notably, Exhibit B—the only document containing a phone number—is dated a foil year before the purchase giving rise to the calls in this case allegedly occurred. Neither Exhibit B nor the attached affidavit explains how Exhibit B relates to Zean’s transaction with Fairview one year later or how Exhibit B relates to Exhibit A.

In deciding a motion to dismiss, a court may consider documents necessarily embraced by the pleadings, including “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleadings.” Ashanti, 666 F.3d at 1151 (internal quotation omitted). Assuming a contract between Fairview and Zean regarding his 2014 purchase is necessarily embraced by the pleadings, the court has no evidence aside from Fair-view’s affidavit that these heavily redacted exhibits are that contract. See Court v. Hall Cty., 725 F.2d 1170, 1172 (8th Cir. 1984) (defendant’s affidavit constitutes matter outside the pleading that must be excluded in ruling on a Rule 12(b)(6) motion). And, the authenticity of the exhibits is disputed. Zean objected to the court’s consideration of the exhibits in deciding the motion to dismiss in both his 'written opposition and at oral argument.

Rule 12(b)(6) is not permissive. It states: “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d); see also BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 688 (8th Cir. 2003) (finding error in district court’s consideration of documents outside the pleadings where the documents “may or may not be the only legal agreements relevant to [the plaintiffs] alleged contract with [the defendant],” and “the documents provided by [the defendant] were neither undisputed nor the sole basis for [the plaintiffs] complaint”). Despite Zean’s objections and the district court’s skepticism about the exhibits, the court considered these documents in ruling on Fairview’s motion to dismiss, finding that they were necessarily embraced by the pleadings. Because I believe the court erred in relying on these heavily redacted and contested documents without converting the motion into one for summary judgment, and Zean’s complaint alleges that he did not consent to receive roboealls, cfi BJC Health Sys., 348 F.3d at 688 (finding harmless error), I would remand the case.

      . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.

      . These were references to restrictions in the federal Health Insurance Portability and Accountability Act ("HIPAA") and in the Minnesota Health Records Act ("MHRA”), Minn. Stat. § 144.293, subd. 1, which controls if its restrictions are more stringent than HIPAA's. See 45 C.F.R. § 160.203(b).

      . The FCC rule is sensible, based on callers’ superior access to records likely to show consent. See Schaffer v. Weast, 546 U.S. 49, 60, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) ("[T]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."). Other circuits applying the FCC's rule have noted that consent is an "affirmative defense.” See Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1044 (9th Cir. 2017); Murphy v. PCI Biologicals Orlando, LLC, 797 F.3d 1302, 1305 (11th Cir. 2015). But the FCC’s 2015 Order did not use the term “affirmative defense” and did not address the "important distinction between [a defendant’s] burden of going forward with evidence establishing a prima facie case for [a defense or exception], and [a plaintiff’s] ultimate burden of persuasion.” NLRB v. Seedorff Masonry, Inc., 812 F.3d 1158, 1168 (8th Cir. 2016). The "ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims." Schaffer, 546 U.S. at 56, 126 S.Ct. 528. In this case, we need not, and do not, decide whether the FCC's characterization of consent as the caller's burden should be construed as limited to the burden of going forward with evidence on the issue. Cf. Dir., Office of Workers' Comp. Programs, Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 272, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994).


source: Caselaw Access Project

author: BENTON, Circuit Judge.

license: Public Domain

text:
    Showin Keon DAVIS, Petitioner-Appellee v. UNITED STATES of America, Respondent-Appellant
    No. 16-1840
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 10, 2017
    Filed: May 26, 2017

      Counsel who presented argument on behalf of the appellant was Matthew Green-ley, AUSA, of Fargo, ND.
    Counsel who presented argument on behalf of the appellee was Charles Stock, of Crookston, MN.
    Before LOKEN, MURPHY, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

After rejecting two plea offers, Showin K. Davis pled guilty to one count of conspiracy to possess with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court sentenced him to 120 months’ imprisonment. Davis moved to vacate the conviction and sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. The district court granted the motion in part, ordering the government to reoffer an earlier plea deal. The government appeals. Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court reverses in part and remands.

I.

Davis was indicted for conspiring to distribute controlled substances, a charge with a mandatory ten-year sentence. The government made three plea offers; the second and third are at issue here.

The first, offered months before trial, was a standard cooperation agreement. Daniel E. Hopper, Davis’s appointed attorney, explained the agreement to him. He rejected it.

A week before trial, the government offered Davis a five-year deal (the second offer). Hopper recommended he take it, explaining a jury likely would find him guilty. He rejected it. They again discussed the five-year deal the first morning of trial. Davis showed no interest in it.

On the second day of trial, the government made a third offer. It had a mandatory ten-year sentence, but limited the type and quantity of controlled substances attributable to Davis. He accepted. The district court sentenced him to 120 months.

Davis moved to vacate his conviction and sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. He asserted four claims. The district court found they

cluster[ed] around two separate theories: (a) during the course of the pretrial proceedings Hopper did not afford Davis an opportunity to review discovery and did not file any pretrial motions; and (b) Hopper failed to provide Davis with the information to make an informed decision on the proposed plea agreement and ultimate change of plea.

After an evidentiary hearing, the court rejected the first theory, but granted the motion on the second:

While Hopper’s representation was not entirely ineffective, during the immediate pretrial preparation phase, Hopper failed to effectively communicate the law of conspiracy in a way that Davis was capable of comprehending; Hopper failed to explain the risks and benefits of the plea offer in a way that Davis could comprehend; and Hopper misinformed Davis of his eligibility for the safety valve. These failures and conveyance of misinformation constitute ineffective assistance of counsel within the meaning of Strickland v. Washington.

The court vacated the conviction and sentence. It ordered the government to reof-fer the five-year deal. The government appeals.

This court reviews de novo ineffective assistance claims under § 2255, and the underlying factual findings for clear error. United States v. Regenos, 405 F.3d 691, 692-93 (8th Cir. 2005). To establish ineffective assistance during plea negotiations, the petitioner must show “ ‘counsel’s representation fell below an objective standard of reasonableness’ ” and “that such deficient performance prejudiced” the defense. Id. at 693, quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice requires “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “[Scrutiny of counsel’s performance must be highly deferential.” Hamberg v. United States, 675 F.3d 1170, 1172 (8th Cir. 2012) (internal quotation marks omitted). There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” United States v. Taglor, 258 F.3d 815, 820 (8th Cir. 2001), citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

II.

The district court concluded Hopper was ineffective because he did not communicate “the law of conspiracy” and “the risk and benefits of the plea offer in a way that Davis could comprehend.” The court found:

(1) “At the outset, it should be noted that the claim that Hopper never spent a sufficient amount of time consulting with Davis would be easily disposed of in the ordinary case. Hopper spent more than 27 hours in conference with Davis over the course of pretrial preparation. Under ordinary circumstances, this length of time is typically sufficient to meet with a criminal defendant in a case of this nature.”

(2) “The record does not make plain, but it appears that from the outset that Davis had limited interest in cooperating with the prosecution. It is clear that from the very earliest stages of his representation of Davis, Hopper tried to convince Davis that cooperation was the best strategy. The record also makes plain that Davis believed that the United States would have difficulty both positively identifying him as a person involved in the conspiracy and establishing a role for him in the conspiracy. It is equally clear that upon review of the discovery that Hopper had reached a different conclusion.”

(3) “[0]n March 4, 2013 ... Davis met with Hopper and Hopper’s senior partner Cash Aaland for two hours in the morning and another three and a half hours in the afternoon for a total of 5.5 hours. During this meeting a comprehensive review of the discovery, the likelihood of success on the merits, and a discussion of a possible plea agreement took place. Davis rejected the idea of a change of plea and indicated a desire to proceed to trial.”

(4) “[0]n March 25, 2013, approximately ten days prior to trial ... [there was a] meeting lasting] four hours [which] included a further review of the evidence and a plea offer.”

(5) “Davis spent more than 27 hours in consultation with Hopper. The record makes plain that Davis had approximately five hours on March 4, 2013, to review the discovery and another four hours on March 25, 2013. It is also apparent from the time records that Hopper had numerous lengthy phone conferences with Davis discussing the case and the evidence against him.”

(6) “The record is plain that Davis was given sufficient opportunity to review the discovery and he was fully informed about the evidence that would have been presented to support the charge at the change of plea hearing.”

(7) “Davis’s lawyers, Hopper, Lange, and Aaland each forcefully attempted to explain the law of conspiracy and how Davis might be convicted, paying particular attention to the possible penalties he faced.”

(8) “It is apparent that Hopper along with his partners Aaland and Lange attempted to explain the law of conspiracy in ways that Davis could understand.”

(9) “During [the time leading up to the rejection of the plea offer], Hopper reviewed discovery and offered up explanations of potentially viable defenses. He also informed Davis of the difficulties that an identification defense might present. The discussions at this point were essentially moot since Davis had indicated an unwillingness to cooperate with the government and was focused on the merits of an identification defense. Based on the record, the court cannot say that Hopper provided ineffective assistance of counsel at this stage of the proceedings.”

(10) “Davis is not the first defendant to fail to hear the message being delivered by his lawyer.”

Despite these findings, the court concluded Hopper “failed to effectively communicate the law of conspiracy in a way that Davis was capable of comprehending,” because: “(1) Davis suffers from mental illnesses and conditions that impair his ability to focus and to make reasoned decisions, something his lawyers should have been aware of and taken into account; and (2) Hopper’s communication style and heavy reliance on telephone communication did not mesh well with Davis’s difficulties.”

i.

The district court based its first finding—that Davis suffers from mental illness that impaired his ability to understand repeated advice from Hopper and make reasoned decisions (and that Hopper should have known this)—primarily on mental health records presented to support Davis’s 2255 motion. The records do not support this finding.

The records show: (1) Davis was admitted to the hospital two months before trial for a possible overdose/suicide attempt; (2) he was prescribed antidepressants (Zoloft and Trazodone); and (3) at discharge he was diagnosed with malingering, anxiety disorder, mood disorder, and cannabis dependence. The examining doctor said: “Fund of knowledge, insight and judgment are fair. He is oriented to time, place and person. Attention and concentration are intact, as well as recent and remote memory.” The doctor also reported: “The patient does not give any reliable information”; “I strongly believe that patient is malingering, and he is trying to evade his legal problems”; “He is just not being truthful here and I believe that he is malingering”; and “Patient will be discharged on the same day of admission.” Reviewing the records, the district court concluded, “Davis suffers from serious mental health problems” including “problems with attention, anxiety (including agoraphobic traits), depression, and learning” and this mental illness made it difficult for Davis to understand “what his lawyers were trying to tell him.”

The district court clearly erred in finding that Davis suffered from mental illness that impaired his ability to understand legal advice and make reasoned decisions. The mental health records show no learning or comprehension limitations. To the contrary, the records show his “[a]t-tention and concentration are intact” and he understood an array of topics, including “patient contract agreements,” “necessity, risks, benefits, and possible side effects of medications,” “individualized treatment plants],” “variables affecting anticipated length of stay,” and “outcomes that must be achieved prior to discharge.” If anything, the records show he has a history of lying about his mental health in order to evade legal problems.

The finding also contradicts the district court’s earlier findings that Davis was competent to plead guilty and be sentenced. At the change of plea, the court found Davis competent: “I see a person here who does seem to be functioning well within the bell curve who does seem to understand the proceedings, does seem to be in a position to assist his counsel in his defense and I find that he is competent to proceed.” See Shafer v. Bowersox, 329 F.3d 637, 650 (8th Cir. 2003) (the question “whether the accused was competent” means “did he have the ability to understand the proceedings”). And although the court now believes that “Davis was actually suffering from more profound mental illness than the court understood at the time of the change of plea,” it affirmed its competency findings in the 2255 order. Thus, the court still believes Davis was able to understand legal advice and make reasoned decisions the day he pled guilty.

The district court also clearly erred in finding that Hopper “should have known” that Davis was not able to understand legal advice or make reasoned decisions. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s 'perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (emphasis added). Davis’s mental illness provides a basis for ineffective assistance of counsel only if Hopper knew or should have known of it at the time. See Crenshaw v. Wolff, 504 F.2d 377, 380 (8th Cir. 1974) (affirming denial of post-conviction relief where “there was no evidence that the trial attorney knew or should have known about petitioner’s possible incompetency”).

There is no evidence that Hopper should have known that Davis’s mental health issues—not his steadfast denial of wrongdoing—were the reason for his failure to follow Hopper’s legal advice. See Jones v. Barnes, 463 U.S. 745, 751, 108 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (“[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty.”). To the contrary, the evidence shows Hopper had no reason to believe Davis could not understand legal advice or make reasoned decisions. Davis testified he is the “kind of a person where I don’t like sharing information about my well-being meaning that I take medications.” All parties testified to his competence on the day he pled guilty, a week after he initially rejected the 5-year plea offer and a day after he rejected it a second time. At the change of plea hearing, Davis testified that he understood “the nature of the charge” against him, “the potential penalties ... including the 10-year mandatory minimum sentence,” his right to a jury trial, and the unavailability of parole. Hopper similarly testified he had not “seen anything that would cause [him] to question [Davis’s] legal competence.” (Davis later testified he did not know whether Hopper knew about his anxiety the first day of trial, and he not ask Hopper to help him with it). At the plea hearing, the district court found him competent to plead guilty:

Here’s what I think I’ve seen and observed. The defendant has related that he has some history of mental illnesses and that he’s taking medications for them; that he was taking his medications; that he skipped yesterday. After he took his medications that things seemed clearer to him and that he wants to plead guilty. That to the Court seems to be a rational decision at this point.
I see a person here who does seem to be functioning well within the bell curve who does seem to understand the proceedings, does seem to be in a position to assist his counsel in his defense and I find that he is competent to proceed.

The court reiterated these findings in its 2255 order: “It is also clear that at the time he entered his plea, Davis was in a position to understand the charge against him, the penalties that he faced, his constitutional and statutory rights, and that he was in a position to assist his lawyer in his defense.” At sentencing, the district court did not question his competence.

The record shows that when he pled guilty, Davis, Hopper, and the district court all believed Davis was competent to understand legal counsel and make reasoned decisions. The court’s finding that “Davis suffers from mental illnesses and conditions that impair his ability to focus and to make reasoned decisions, something his lawyers should have been aware of and taken into account” is thus influenced by “the distorting effects of hindsight,” and is clear error. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

ii.

The second finding—that “Hopper’s communication style and heavy reli-anee on telephone communication did not mesh well with Davis’s difficulties”—does not provide a basis for ineffective assistance of counsel. First, it is a close call whether this finding is supported by the record. The court described Hopper’s communication style:

On March 25, 2013, the United States extended an offer that would have allowed Davis to plead to a reduced quantity thus reducing the mandatory minimum sentence from ten years to five years. Davis spent four hours with Hopper on March 25 reviewing discovery and discussing the plea offer. Following those discussions, Davis rejected the plea offer.
The court is familiar with Hopper, a capable and competent lawyer. His personal style of communication is soft-spoken, inferential, and non-confrontational. He is a person who prefers to provide information and allow the listener to draw his or her own conclusions. If the listener has difficulty reaching the most apparent conclusion, Hopper tends to conversationally and rationally, and sometimes repetitively, explain the conclusion and the ramifications.

The court also found that Hopper “attempted to explain the law of conspiracy in ways that Davis could understand.” These findings show that Hopper thoroughly and repeatedly explained the law, and yet Davis continued to reject plea offers. The district court does not say how Hopper more thoroughly could have explained the law. In fact, the court recognized that many of Hopper’s explanations were moot because Davis was unwilling to cooperate:

During this remote preparation period, Hopper reviewed discovery and offered up explanations of potentially viable defenses. He also informed Davis of the difficulties that an identification defense might present. The discussions at this point were essentially moot since Davis had indicated an unwillingness to cooperate with the government and was focused on the merits of an identification defense.

It is hard to reconcile how Davis could have been “focused on the merits of an identification defense” without understanding the law of conspiracy generally. The court also recognized Hopper was not ineffective during other phases of the trial: “The record is -plain that Davis ... was fully informed about the evidence that would have been presented to support the charge at the change of plea hearing.” It similarly is hard to reconcile how Hopper could have “fully informed” him “about the evidence that would have been presented to support the charge” but not clearly explained the law of conspiracy underlying it.

Regardless, the fact that Hopper’s communication style—“conversational ], rational], and sometimes repetitive[]—did not “mesh” well with Davis is insufficient to find ineffective assistance of counsel. See Lindhorst v. United States, 658 F.2d 598, 603 (8th Cir. 1981) (denying 2255 motion, acknowledging that while “the attorney could have explained [the casp] in greater detail,” “the failure to more fully discuss the case does not constitute a breach of the duty to act as a reasonably competent attorney”).

Evaluating Hopper’s “conduct ... from [his] perspective at the time,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, Davis cannot meet his “heavy burden” of showing that Hopper was ineffective in explaining conspiracy law. See DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000). The district court erred in granting the motion on this basis.

III.

The district court also concluded Hopper was ineffective because he did not correctly advise Davis about the safety-valve exception to the mandatory minimum 10-year sentence under 18 U.S.C. § 3553(f). On the morning of the plea, Hopper argued that Davis’s criminal history was overrepresented, implying the safety valve may reduce the sentence. The district court disagreed:

The Eighth Circuit case law says that we can’t find overrepresentation as a basis to get to the safety valve. And so all that’s going to happen on the safety valve analysis is we’re going to go and count the points. And it looks to me like he’s got four one-point offenses, and if he’s got four one-point offenses he’s certainly going to be outside a Criminal History Category I. He’s going to be in Criminal History Category III, and so he’s clearly not safety valve eligible if that all scores up the way that it looks. I mean, in which case the mandatory minimum is going to apply. What he gains' then is simply the benefit of the two-level downward departure for acceptance.

The court suggested Hopper and Davis speak with the probation officer about his criminal history. After a fifteen-minute recess, Hopper informed the court that Davis still wanted to plead guilty.

At the evidentiary hearing, Davis testified that even after the district court said he was not safety-valve eligible, Hopper promised him otherwise. In one part of its order, the district court found this testimony credible: “At the evidentiary hearing, Davis credibly testified that during the break Hopper and Jesse Lange, a senior partner of Hopper’s, told him that they would get AUSA Chris Myers to accept the safety-valve because the prior offenses were minor.” Later, however, the court noted the testimony was “directly contrary” to his plea colloquy: '

While the record of the plea hearing makes plain that Hopper was uninformed of the nature of the safety-valve, the court informed Davis, that it was unlikely that he would qualify for the safety-valve. Davis admitted that his decision to accept the plea was to avoid an increase in the drug quantity attributable to him. While he now claims that he was promised by Hopper that Hopper would get the prosecutor to agree to safety-valve eligibility, Davis’s contention is directly contrary to the plea colloquy where he indicated that no other promise or threats had been made. Hopper provided effective assistance of counsel during the plea hearing.

Thus, it is not clear whether Davis believed he was safety-valve eligible when he pled guilty. Regardless, the district court did not err in finding Hopper deficient in failing to explain the safety-valve exception. See United States v. Langmade, 236 F.3d 931, 932 (8th Cir. 2001) (reducing a defendant’s criminal history category based on overrepresentation “does not delete criminal history points for the purposes of the safety valve”).

Based on Hopper’s misunderstanding of the safety valve, the district court ordered the government to reoffer the five-year plea agreement. But the court does not explain how the safety-valve misunderstanding affected rejection of the five-year deal. Instead, the court’s analysis of the safety valve focuses only on the decision to plead guilty to the ten-year deal rather than proceed to trial:

The record makes plain that Hopper was aware that Davis’s criminal history placed him in a Category II or higher. [Hopper] was, however operating under the notion that he [Davis] could still qualify for the safety-valve exception because his criminal history was overstated. The law of this circuit has long been that the criminal history point calculation is separate and distinct from the decision that a particular defendant’s criminal history is overstated. Simply put, it has been the law of this circuit for nearly two decades that while a court is free to find that the criminal history is overstated—it is not empowered to reduce the point total for purposes of the safety-valve calculation. Thus, Hopper was entirely mistaken when he told Davis that he could still qualify for the safety-valve because his criminal history was overstated. Based on this misrepresentation of the law, Davis reasonably believed that by pleading guilty he would not be subject to the ten year mandatory minimum. It is plain from the change of plea hearing that as late as the morning of April 3, 2013, Davis believed that he would be eligible for the safety-valve.

(emphasis added) (citations omitted).

Davis similarly focused on the 10-year deal in arguing the safety-valve issue in his 2255 motion:

Davis will testify at the hearing on his Motion that attorney Hopper advised him on the morning of the second day of his trial (while in attorney Hopper’s office) that Davis needed to plead guilty because he was going to lose, that his “name was on the wall”, but that Davis would likely qualify for the safety valve provision under the Federal Sentencing Guidelines, and thus not be subjected to the mandatory minimum sentence of ten years.
Davis will also testify that, had he known he was going to get at least the minimum mandatory even if he pled guilty, he would have taken his chances with a trial rather than pleading.

In briefing before this court, Davis now asserts he rejected the five-year offer because he believed he was safety-valve eligible:

For all Davis knew, he was safety valve eligible regardless of whether he went to trial, accepted the 5-year plea agreement, or pleaded to the Indictment just as he did. Simple deductive reasoning results in the inescapable conclusion that if Hopper didn’t understand the safety valve eligibility requirements when he advised Davis to just “answer the questions and stick with the plea” on April 3, 2013, Hopper clearly didn’t know any different during the earlier time frame of him representing Davis. Hopper’s incorrect advice clearly permeated Davis’s decisions on the plea offers.

But there is no evidence Hopper and Davis discussed safety-valve relief when the five-year deal was offered. The safety-valve exception is thus not relevant to his rejection of the five-year offer. Additionally, Davis testified he rejected the five-year deal because he believed he was innocent, not because he believed he was safety-valve eligible. Thus, he cannot show that but for the misleading advice, he would have accepted to the five-year deal. See Lafler v. Cooper, 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (“To establish Strickland prejudice a defendant must ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”), quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052; United States v. Norvell, 729 F.3d 788, 795 (8th Cir. 2013), as corrected (Sept. 4, 2013) (holding that “[t]o show prejudice, the defendant must establish that he would have accepted the plea but for counsel’s advice” and defendant cannot show a legal misunderstanding prejudiced him where counsel still advised him to accept the plea) (internal quotation marks omitted).

At most, Hopper was deficient on the morning of the plea colloquy, when the five-year deal was no longer available and he encouraged Davis to accept the ten-year deal. The proper remedy was not to reoffer the five-year deal. The district court erred in directing the government to do so.

Finally, it is not clear whether Davis was prejudiced by the safety-valve advice. The district court examined whether, but for counsel’s erroneous safety-valve advice, he would have accepted the five-year offer. But as discussed, the proper inquiry was whether he would have rejected the ten-year offer and proceeded to trial had he properly been advised by attorney Hopper—as he was advised by the district court—that he was ineligible for safety valve relief from any applicable mandatory minimum sentence. The district court did not make a finding on this issue.

This court remands to the district court to determine whether Davis was prejudiced by the safety-valve advice. If prejudiced, the court should allow Davis to withdraw his guilty plea and proceed to trial. If not prejudiced, the court should dismiss the motion.

⅜ ⅜ ⅜ ⅜ ⅝ ⅝ ⅜

The judgment is vacated, and the case remanded.

      . At the evidentiary hearing, Davis testified that the first time he reviewed the five-year offer was April 2, the first day of trial. The district court did not credit this testimony:


author: SMITH, Circuit Judge.

text:
    OUACHITA WATCH LEAGUE; Newton County Wildlife Association; Shawn Porter; G. Thomas McKinney; David Reagan; Susan Gateley; Robert B. Leflar; Sarah May Leflar; Kimberly Ison; John Ison; Billy Lindsey; Carol Lindsey; James Mitchell; Ruth Mitchell; John Lawrence Poff, Plaintiffs Ozark Society, Plaintiff-Appellant v. UNITED STATES FOREST SERVICE; Judith L. Henry, Forest Supervisor, Ozark-St. Francis National Forests; Department of Agriculture; Department of Interior, Bureau of Land Management; Department of Defense, United States Army Corps of Engineers, Little Rock District; United States Department of the Army; Bureau of Land Management; Dr. John Lyon, in his official capacity of Eastern States Director, Bureau of Land Management; Bruce Dawson, in his official capacity as Eastern States Field Manager, Bureau of Land Management, Defendants-Appellees
    No. 16-1952
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 11, 2017
    Filed: May 30, 2017

      Counsel who presented argument on behalf of the appellant was Ross Allen No-land, of Little Rock, AR.
    Counsel who presented argument on behalf of the appellees was Avi Kupfer, of Washington, DC. The following attorney(s) appeared on the appellee brief; Ruth Ann Storey, Jennifer Scheller Neumann, Romney S. Philpott, and Lane N. McFadden of Washington, DC.
    Before SMITH and KELLY, Circuit Judges, and SIPPEL, District Judge.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

      . The Honorable Rodney W. Sippel, Chief Judge, United States District Court for the Eastern District of Missouri, sitting by designation.

   SMITH, Circuit Judge.

The United States Forest Service (“Forest Service”) developed a management plan for the Ozark-St. Francis National Forests and analyzed the plan’s environmental effects in 2005. At that time, the Forest Service anticipated 10-20 new natural-gas wells within ten years. That expectation arose from projections about natural-gas development in north central Arkansas’s Fayetteville Shale Play. The projection missed the mark. Three years later, the Forest Service discovered that the better prediction was not 10-20 new wells, but 1,730. It nevertheless concluded, after consulting various experts, that this 85-fold increase in predicted drilling did not require a “correction, supplement, or revision” to the original environmental analysis. The Ozark Society (“the Society”) challenges this conclusion, contending that the Forest Service did not look hard enough at the environmental effects of drilling 1,730 wells versus 10-20. Because the Society has not identified any particular member who stands to be harmed by the government action it challenges, it lacks a concrete interest in this dispute, and we must dismiss for lack of jurisdiction.

I. Background

The National Forest Management Act of 1976 requires the Secretary of Agriculture to develop “land and resource management plans” for each national forest. 16 U.S.C. § 1604(a); see also Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 728-29, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). This duty devolves to the Forest Service, which manages the national-forest system. Ohio Forestry Ass’n, 523 U.S. at 729, 118 S.Ct. 1665. Another act, the National Environmental Policy Act, requires that “major Federal actions significantly affecting the quality of the human environment”'—such as the development of a land and resource management plan—be accompanied by an environmental impact statement. 42 U.S.C. § 4332(2)(C)(i). An agency must supplement an environmental impact statement if there is major federal action yet to occur and it discovers significant new information “relevant to environmental concerns and bearing on the proposed action.” 40 C.F.R. § 1502.9(c)(1)(ii); see also Norton v. S. Utah Wilderness All., 542 U.S. 55, 72-73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). The Forest Service policy manual requires it to explain its decision not to supplement an environmental impact statement in a document sometimes called a “Supplemental Information Report” (SIR). Forest Service Handbook 1909.15 § 18.1. This case concerns a 2010 SIR involving the Ozark-St. Francis National Forests.

The Ozark and St. Francis national forests are two separate national forests—one mostly in northern Arkansas’s Ozark Mountains and the other in eastern Arkansas’s delta region—that are managed together. The latest management plan for these forests dates from 2005. It took four years to develop. This “major federal action” required an environmental impact statement. That statement, also published in 2005, exceeds 500 pages. It notes 49 active gas wells in the Ozark National Forest and anticipates 10-20 new wells within ten years.

By 2007, discovery of natural gas in north central Arkansas led to a boom in drilling in the Fayetteville Shale. See Thomas A. Daily & W. Christopher Barrier, Well, Now, Ain’t That Just Fugacious!: A Basic Primer on Arkansas Oil and Gas Law, 29 U. Ark. Little Rock L. Rev. 211, 211 (2007). That year, the Forest Service asked the Bureau of Land Management to make an updated prediction about future gas development in the Ozark National Forest. In 2008, the Bureau came back with a number more than 85-times higher than the Forest Service’s original prediction: 1,730 new wells. The Forest Service talked to specialists over the next two years and in 2010 issued a SIR. It concluded that this dramatic increase in predicted drilling required no “correction, supplement, or revision” to the original environmental impact statement. In effect, the agency concluded that the original statement was still reliable.

The Society sued various federal-agency defendants in October 2011 to challenge the decision embodied in the 2010 SIR. The Society is a nonprofit conservation and recreation group that seeks to protect the natural character of Arkansas’s Ozark Mountains, particularly its scenic wilderness. The Society sought a judgment declaring that the 2010 SIR decision was arbitrary and capricious and therefore in violation of the Administrative Procedures Act. It also sought to enjoin further mineral leasing in the Ozark National Forest. The district court held that the Society had standing to sue but denied preliminary injunctive relief. It later granted summary judgment to the federal agencies for four reasons. First, the 2010 SIR was not a final agency action subject to judicial review. Second, the Forest Service was not obligated to supplement the 2005 environmental impact statement. Third, the federal agencies did not have to allow public participation when deciding whether to supplement the environmental impact statement. And fourth, the Society’s challenge to one particular drilling permit was moot because the well had already been drilled. The Society appeals.

II. Discussion

First we must address whether the Society has standing to challenge the agency action at issue. Our constitutional responsibility is to “redress or prevent actual or imminently threatened injury,” and unless a party has suffered such an injury, we have “no charter to review and revise ... executive action.” Summers v. Earth Island Inst., 555 U.S. 488, 492, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). Put another way, we may adjudicate only “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. The doctrine of standing keeps us to this business. It requires, among other things, that the plaintiff have an actual or imminent injury before invoking a federal court’s aid. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury need not be physical; harm to recreational or esthetic interests may suffice. Summers, 555 U.S. at 494, 129 S.Ct. 1142. And the injury need not be asserted directly by the injured party; organizations like the Ozark Society may assert the standing of their members. Id. But “generalized harm to the forest or the environment will not alone support standing.” Id.

Having a “specific and concrete plan ... to enjoy the national forests” distinguishes a particular harm to a recreational interest from mere generalized harm. Id. at 495, 129 S.Ct. 1142. When the plaintiff is a group, this plan must belong to an identified group member, not merely to the group at large. Id. at 498, 129 S.Ct. 1142; see also Associated Gen. Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013). The burden of establishing the specific plan of an individual member to enjoy the forest—in other words, the burden to establish standing—rests on the party asking a federal court to adjudicate its dispute. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

The district court in this case concluded that the Society’s “allegations and the affidavit of Robert Cross ... adequately set forth alleged concrete and particularized harm which will result from the drilling activities.” Paragraph 12 of the Society’s complaint describes the organization’s background and its relationship with the Ozark National Forest:

The Ozark Society membership utilizes the Ozark National Forest, roadless areas, wilderness areas, and wild and. scenic rivers for hiking, boating, and other outdoor recreation activities. The Ozark Society regularly schedules outings in the Ozark National Forest.... The Ozark Society has a vested interest in the environmental health of the Ozark National Forest.

Paragraph 80 describes the harm flowing from the defendants’ actions:

The defendants have engaged in a course of action which has caused, and will continue to cause, irreparable environmental harm in the Ozark National Forest. This harm causes a direct adverse impact on the Ozark Society’s interest. The defendants have also denied the Ozark Society and the public the right to participate in the [National Environmental Policy Act] process for assessing such environmental harm. The defendants’ actions have caused harm to the Ozark Society’s interest in the management and environmental well-being of the Ozark National Forest, and the Ozark Society’s ability to participate in those management decisions.

The other alleged support for standing comes from the declaration of Robert Cross, the Society’s President. Cross declared that he has led and participated in hikes in the Ozark National Forest. He also recalled the Society holding a meeting there.

On de novo review, Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006), we conclude that the complaint and declaration do not establish the Society’s standing. Paragraph 80 is a series of general and conclusory legal allegations—it provides no facts about how the defendants’ actions have harmed or will harm the Society, and it speaks only for the Society as a whole, rather than for an identified member. Paragraph 12 does allege that the Society “regularly schedules outings” in the Ozark National Forest, which might be sufficient to establish a specific plan to use the Forest in the future because it implies an ongoing use. Yet paragraph 12, like paragraph 80, attributes this plan only to the Society generally, rather than to an identified member. It stands to reason that some of the Society’s members share the group’s mission but not its use of the Forest. And while it is statistically probable that paragraph 12’s language describes at least one particular member, “[t]his requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity.” Summers, 555 U.S. at 498-99, 129 S.Ct. 1142. The Society has not argued that the Forest Service’s actions necessarily would affect all its members in a concrete way, and we would have to speculate to con-elude as much. The Cross declaration presents the opposite shortcoming: it identifies a particular member with no stated plan to enjoy the Forest in the future. See id. at 495,129 S.Ct. 1142.

The Society attempts to distinguish Summers by pointing out that the parties there had resolved their dispute about a particular forest project. But Summers also noted that the plaintiffs had “identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members.” Id. The Court came to this conclusion after considering an affidavit that showed no “specific and concrete plan” by a particular member to enjoy the national forests. Id. The Society also notes that the agency action in Summers involved agency-wide regulation while this case involves a single agency decision. Assuming this is a distinction, it still does not supply any member of the Society with an interest in the national forests affected by this agency decision.

Nor are we persuaded that this case is like Pacific Rivers Council v. United States Forest Service, on which the Society relies. 689 F.3d 1012 (9th Cir. 2012), vacated as moot, — U.S.-, 133 S.Ct. 2843, 186 L.Ed.2d 881 (2013). In Pacific Rivers, the organization’s chairman declared that he lived near and frequented the potentially affected area. Id. at 1022. The Ninth Circuit concluded that the chairman had “clearly stated that he and a number of Pacific Rivers’ members have used, and will continue to use, the national forests in the Sierras in a variety of places and in a variety of ways.” Id. The Society, on the other hand, has alleged only that as a group it regularly uses the Ozark National Forest and that one identified member has used it in the past. This is short of the mark.

Because the Society challenges federal action affecting the Ozark National Forest without alleging that a particular member has a specific plan to use that forest, there is no case or controversy before us, and we lack authority to adjudicate this dispute.

III. Conclusion.

Accordingly, we dismiss the appeal for lack of jurisdiction.

      . It turns out that the 10-20 well prediction was closer to reality than the later 1,730 well prediction. In 2014, the Forest Service noted that "[f]rom 2006 through 2013 forty one producing natural gas wells, five exploratory wells, and two non producing or dry holes have been developed on the Forest.... During the last two years, no natural gas wells have been developed on the Forest.”

      . As defendants, the Society joined the Forest Service, the Bureau of Land Management, the Supervisor of the Ozark-St. Francis National Forests, the Eastern States Director of the Bureau of Land Management, and the Eastern States Field Manager of the Bureau of Land Management.


text:
    Ricky Barnard TATUM, Plaintiff-Appellee v. Willie ROBINSON, Sr. Captain, Arkansas State Police, Defendant-Appellant Bobby Norman, Director, Law Enforcement Standards, AR State Police; John Does, Dillards Store Manager, Dillards CEO; Corizon, Defendants
    No. 16-1908
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 12, 2017
    Filed: May 30, 2017
    Rehearing and Rehearing En Banc Denied August 3, 2017

      Counsel who presented argument on behalf of the appellant was Jennifer L. Merritt, AAG, of Little Rock, AR.
    Counsel who presented argument on be'half of the appellee was Sandy Sidney McMath, of Little Rock, AR.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.

       Judge Loken would grant rehearing by the panel.

   LOKEN, Circuit Judge, dissents from Parts III.A. and IV.

BENTON, Circuit Judge.

This is a qualified immunity appeal. Willie Robinson, a senior corporal in the Arkansas State Police, arrested Ricky B. Tatum. Tatum sued Robinson, claiming he used excessive force by pepper spraying and choking him. The district court denied Robinson qualified immunity. Robinson appeals. Having jurisdiction under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), this court affirms in part, reverses in part, and remands.

I.

On April 29, 2014, a security camera operator at a Dillard’s department store in Little Rock saw Tatum grab eight pairs of shorts from a display and walk toward nearby exit doors. The camera operator remotely locked the doors. Tatum tried to exit without paying. Finding the doors locked, he put down the shorts, walked around the store, told Dillard’s staff the doors were locked, and returned to the area near the display. The camera operator alerted an assistant store manager and mall security. She also contacted Robinson, who was working off-duty as a security officer, and told him about Tatum’s actions. Another mall security officer and at least two Dillard’s employees waited near Tatum for Robinson to arrive.

Robinson, in plain clothes, walked up to the smaller Tatum. He said he was a law enforcement officer. He told Tatum he was under arrest and to put his hands on a clothes rack. Tatum argued with Robinson and did not comply. According to the other security officer at the scene, Robinson told Tatum that he would pepper spray him if he did not calm down.

About 14 seconds after walking up to Tatum, Robinson pepper sprayed his face for one second. The two then crashed into a display table. Tatum says he did not fight or resist. Robinson, however, says Tatum “began wrestling and fighting with him into a table.” They struggled, and Robinson’s hands got injured. With the other security officer’s assistance, Robinson handcuffed Tatum. Tatum says Robinson was choking him to the point he could not breathe. Robinson then walked Tatum to the store’s security room with his arm around Tatum’s neck. Tatum says he was choked the entire way. Robinson says he did not choke Tatum and Tatum was resisting. Once in the security room, Tatum says, Robinson repeatedly stomped, kicked, and slammed him, and called him “n* ⅜ * *r mothafucker.” Robinson denies all this, saying that, because Tatum kept getting up from his seat, he pushed Tatum back into his seat several times and then kicked his feet out from under him.

Video from- Dillard’s security cameras shows some of Tatum’s acts before Robinson approached him, and some of their interactions before entering the security room. There is no audio. No video or audio was recorded inside the security room.

Tatum later pled guilty to felony robbery and misdemeanor resisting arrest and theft of property.

Tatum, incarcerated and pro se, sued Robinson for using excessive force. He submitted affidavits describing the events of April 29. Robinson moved for summary judgment on the basis of qualified immunity, citing witness affidavits, Tatum’s guilty pleas, and the security footage. The district court denied qualified immunity on Tatum’s claims that Robinson used excessive force by pepper spraying and choking him. Robinson appeals.

II.

This court reviews de novo a district court’s denial of summary judgment on the basis of qualified immunity, viewing the evidence most favorably to the plaintiff. Tolan v. Cotton, - U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Shannon v. Koehler, 616 F.3d 855, 861-62 (8th Cir. 2010). See also Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (ex-f plaining court should not adopt a party’s version of events if a video “clearly contradicts” its version of the story); Mann v. Yarnell, 497 F.3d 822, 826-27 (8th Cir. 2007) (holding a plaintiff does not create a genuine issue of material fact by offering “a dark and often unintelligible video coupled with an entirely speculative and wishful recitation of events that is neither substantiated by anything displayed in the video nor by the memory of any observer or participant present at the altercation”). To overcome an assertion of qualified immunity, a plaintiff “must present sufficient facts to show not only (1) that the officer’s conduct violated a constitutional right, but also (2) that the right was clearly established at the time of the alleged violation.” Peterson v. Kopp, 754 F.3d 594, 600 (8th Cir. 2014).

Officers’ excessive uses of force violate the Fourth Amendment if “objectively unreasonable.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Objective unreasonableness is “judged from the perspective of a reasonable officer on the scene,” in light of “the facts and circumstances of each particular case, including 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.” Id. at 396,109 S.Ct. 1865.

A “defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Plumhoff v. Rickard, — U.S.-, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014). Under “existing precedent,” the constitutional question that the officer faced must have been “beyond debate.” Id. While the court must not “define clearly established law at a high level of generality,” id., there does not need to be “a case directly on point.” White v. Pauly,-U.S. -, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017) (per curiam).

Robinson contests the district court’s findings that he violated Tatum’s clearly established Fourth Amendment rights by pepper spraying and choking him.

III.

Viewing the evidence of Robinson’s use of pepper spray most favorably to Tatum: Dillard’s security staff told Robinson a shoplifter in the men’s department had tried to exit the store. Robinson approached Tatum, identifying himself as a law enforcement officer and telling Tatum he was under arrest. Robinson told Tatum to put his hands on a nearby clothes rack. Tatum did not put his hands on the clothes rack. He argued angrily with Robinson but did not physically fight him. Robinson told Tatum he would pepper spray him if he did not calm down. Robinson then pepper sprayed Tatum’s face for one second.

The district court based its decision on Robinson’s witnesses’ declarations and the security video. The court did not mention the affidavits that Tatum submitted— one says “I made no attempt to fight, but was choked and maced”—but it could have considered them. See Fed. R. Civ. P. 56(c)(3). This court may affirm the district court on any basis supported by the record, which includes those affidavits. See Greenman v. Jessen, 787 F.3d 882, 887 n.10 (8th Cir. 2015). See also Fed. R. App. P. 10(a).

A.

The objective reasonableness of Robinson’s use of pepper spray turns on all the facts and circumstances, from the perspective of a reasonable officer on the scene. Graham directs this court’s attention to three factors: “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.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. By these factors and other facts and circumstances, a reasonable jury could find that Robinson’s use of pepper spray was objectively unreasonable.

First, Tatum’s suspected crime at the time of pepper-spraying—theft of eight pairs of shorts—was not severe. Tatum was, as the district court found, a “nonviolent, suspected misdemeanant.” See Peterson, 754 F.3d at 600; Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009).

Second, a reasonable officer would not have thought Tatum posed an “immediate” threat to anyone’s safety. There is no dispute that Tatum argued angrily with the larger Robinson and did not comply with an order. This court has found it may be unreasonable to pepper spray someone who refuses to comply with an officer’s orders to leave a bus stop, calls the officer “rude,” asks for his badge number, and tells the officer “you can’t handle me like that.” Peterson, 754 F.3d at 597, 599-601. Here, a reasonable officer might have thought that Tatum’s angry arguing could eventually escalate to physical violence. But a reasonable officer would not think Tatum—-who was angrily arguing but made no verbal threats or physical movements indicating a threat—posed an “immediate” safety threat. See Johnson v. Carroll, 658 F.3d 819, 827 (8th Cir. 2011) (finding use of force against person “interjecting her body between [arrestee] and the officers” unreasonable because there was “no evidence that [she] actively pushed the officers away from [arrestee], threatened them, or took any other action against them”); Brown, 574 F.3d at 497 (finding no threat posed by suspect, despite officer’s stated belief that she might have used glass tumblers as weapons, because “[s]he did not reach for them, and she did not threaten the officers, verbally or physically”). Cfi Cook v. City of Belld Villa, 582 F.3d 840, 849 (8th Cir. 2009) (finding officer, alone and outnumbered by unpredictable intoxicated people, reasonably tased individual who yelled at and stepped toward him).

Third, a reasonable officer would not believe Tatum was “actively” resisting arrest. True, witness affidavits describe Tatum as fighting and resisting Robinson. But the district court found these statements inconsistent with the security footage. On appeal, Robinson does not contend that Tatum physically struggled with him, threatened him, or attempted to flee before he used the pepper spray. Noncompliance and arguing do not amount to active resistance. Compare Peterson, 754 F.3d at 600 (concluding plaintiff was not resisting even though he refused to comply with orders and argued with officer), and Brown, 574 F.3d at 497 (finding plaintiff who disobeyed commands to end 911 call was not actively resisting), with Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir. 2017) (finding plaintiff “appeared to be resisting” when he ignored officer’s instructions and “continued walking”), and id. at 1007-08, 1011 (determining officers “reasonably could have interpreted” pinned-down plaintiffs “behavior of continuing to lay on his hands and refusing to comply with instructions as resistance”). Cf. Ark. Code Ann. § 5-54-103(a) (defining “resisting arrest” to require “using or threatening to use physical force or any other means that creates a substantial risk of physical injury to any person”). Viewing the facts most favorably to Tatum, a reasonable officer would not think he was “actively” resisting arrest.

Robinson contends that pepper spraying Tatum was reasonable partly because Tatum was armed and pled guilty to resisting arrest. Officers found a metal shank in Tatum’s co,at pocket after he was in the security office. This later discovery does not justify Robinson’s earlier use of pepper spray because there is no evidence he knew or suspected that Tatum had the shank at the time he used pepper spray. See Graham, 490 U.S. at 396, 109 S.Ct. 1865 (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”). Neither does Tatum’s later guilty plea justify Robinson’s use of pepper spray. The guilty plea does not show when he resisted arrest. Viewed most favorably to Tatum, it does not show Tatum was resisting arrest before Robinson used the pepper spray.

Robinson used force on a non-resisting, non-fleeing individual suspected of a completed, non-violent misdemeanor—the type of individual against whom the use of force is “least justified.” See Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013). However, just because force is “least justified” against a suspect like Tatum does not mean it is never justified. As Graham says, “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Gra ham, 490 U.S. at 396, 109 S.Ct. 1865. When a suspect poses a non-immediate safety threat by repeatedly refusing to comply with officers’ reasonable, lawful commands, officers may reasonably use some force to secure compliance. See Hollingsworth v. City of St. Ann, 800 F.3d 985, 988, 990 (8th Cir. 2015) (acknowledging it was reasonable to use “some force” when a recently arrested person repeatedly refused to change into a jumpsuit and waived a finger at officer, telling him not to use a taser). But even when officers are justified in using some force, they violate suspects’ Fourth Amendment rights if they use unreasonable amounts of force. See id. For example, officers justified in using “some force” against noncom-pliant suspects posing non-immediate safety threats may act unreasonably by pepper spraying them without warning or by tas-ing them. See id. at 987, 990 (determining use of taser on noncompliant suspect may be unreasonable); Peterson, 754 F.3d at 600-01 (finding use of pepper spray on noncompliant suspect may be unreasonable); Brown, 574 F.3d at 497-98 & n.4 (finding use of taser on a “frightened” suspect “quietly” disobeying orders unreasonable).

Here, by the undisputed facts, Robinson informed Tatum he was a police officer, told him he was under arrest, told him to put his hands on a clothes rack, warned him he would use pepper spray if he did not calm down, and then pepper sprayed him. Tatum was given an opportunity to comply. He did not, instead arguing angrily with Robinson. It was reasonable for Robinson to use some force. But it was not reasonable to immediately use significant force. In addition to the lack of justification from the three Graham factors, other facts and circumstances indicate only limited force was reasonable. Robinson was not alone—another security officer was close by, as were at least two Dillard’s employees. See Brown, 574 F.3d at 498 (finding force less justified where four officers were present than where only one officer was present). Robinson was off-duty and in plain clothes. See Rogers v. Carter, 133 F.3d 1114, 1118 (8th Cir. 1998) (acknowledging it was “prudent” for plaintiff to retreat from plainclothes officer who “did nothing more than declare himself a police officer” and “neither wore nor produced a badge or any other indicia of authority as a police officer, even after [plaintiff] specifically asked to see identification”).

It was not reasonable for Robinson to immediately use pepper spray. Pepper spray can cause more than temporary pain. See Peterson, 754 F.3d at 601; Brown, 574 F.3d at 500 n.6 (citing testimony that “Taser and pepper spray are coequals on the use of force continuum”). Robinson presents no evidence he attempted to use other force to secure compliance—no evidence he tried to grab Tatum’s hands and place them on the clothes rack, for example. See Hollingsworth, 800 F.3d at 990 (“The issue in this case is whether [officer], having justification to use some force ... violated [plaintiffs] clearly established rights by deploying the Taser rather than employing other means such as physical restraint and forcible removal of clothing”). Instead, he proceeded to pepper spray Tatum 14 seconds after he encountered him, and necessarily fewer seconds after Tatum failed to comply with his command.

Robinson emphasizes an Eleventh Circuit case that says, “Courts have consistently concluded that using pepper spray is reasonable ... where the plaintiff was either resisting arrest or refusing police requests.” Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002). That Eleventh Circuit case cites an Eighth Circuit case for support. See Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995). There, an “emotionally disturbed” Ludwig “had a strong grip on something underneath his poncho” and repeatedly refused to show his hand. An officer sprayed his chest with mace. Id. at 468. Ludwig then pulled a knife, switched it from hand to hand, and looked like he might throw it. Officers repeatedly asked him to drop the knife. He did not. An officer then maced him in the face. Id. at 468-69. This court held that police “violated no clearly established right by macing Ludwig.” Id. at 471. When police maced Ludwig, he was actively resisting arrest and posing an immediate safety threat. When Robinson pepper sprayed Tatum, he was doing neither of those things.

Given the limited justification for using force against Tatum, a jury could find that Robinson used an unreasonable amount of force when he pepper sprayed Tatum.

B.

To determine whether Robinson violated clearly established law by pepper spraying Tatum, this court looks to the law at the time he used force. See Peterson, 754 F.3d at 601. As of April 29, 2014, the question that Robinson faced was not “beyond debate.” The district court, relying on Brown, found otherwise. Brown clearly established “it was unlawful to Taser a nonviolent, suspected misdemeanant who was not fleeing or resisting arrest, who posed little to no threat to anyone’s safety, and whose only noncompliance with the officer’s commands was to disobey two orders to end her phone call to a 911 operator.” Brown, 574 F.3d at 499. But the situation Robinson faced differed in significant ways from the situation the officer faced in Brown. Tatum was angrily arguing; Brown was sitting quietly. Robinson warned Tatum before he used the pepper spray; the officer did not warn Brown before tasing her. Other cases decided before April 29, 2014, indicated an officer might be justified in using pepper spray (or similar force) on an angrily arguing individual after giving a warning. See Johnson, 658 F.3d at 827 (emphasizing lack of warning before spraying mace); Cook, 582 F.3d at 849 (finding officer reasonably tased individual who was yelling at officer and took step toward him, where other facts indicated force was reasonable).

Tatum’s right to be free from the use of pepper spray under these facts was not sufficiently definite. A reasonablé officer in Robinson’s shoes could have believed he was not violating Tatum’s rights by pepper spraying him because Tatum was angrily arguing and was warned before the pepper spray was used. The district court erred in concluding Tatum’s right to not be pepper sprayed was clearly established.

IV.

Tatum submitted an affidavit that states:

I was first sprayed in the eyes with mace then choked very aggressively to the point w[h]ere I couldn’t breath[e]. I begged Officer Robinson to please stop choking me because I was not fight[ing] or resisting. I then begged for someone to please put handcuffs on me so Officer Robinson would stop choking me that’s when a man came over and put my hands in cuffs. At this time I was unable to see nor had use of my hands so why was I still pulled by the neck and still choked to the escalator, up the escalator and to the [Djillard’s security office?

A.

Viewing the evidence most favorably to Tatum, Robinson choked him for an extended period of time although he was restrained and not resisting. A reasonable jury could find that Robinson’s use of force was objectively unreasonable. As explained, Robinson pepper sprayed Tatum when the Graham, factors “least justified” use of force. After Robinson used the pepper spray, there was no justification for choking a restrained, non-fighting, non-resisting Tatum. Suspects’ Fourth Amendment rights to be free from excessive force are violated if officers choke, kick, or punch them when they are restrained, not fighting, and not resisting. Chambers v. Pennycook, 641 F.3d 898, 902, 907-08 (8th Cir. 2011) (choking and kicking); Krout v. Goemmer, 583 F.3d 557, 566 (8th Cir. 2009) (kicking and punching); Henderson v. Munn, 439 F.3d 497, 502-03 (8th Cir. 2006) (pepper spraying and kneeing).

Arguing his use of force was reasonable, Robinson says he was not choking Tatum and Tatum was resisting. These contentions are directly contradicted by Tatum’s affidavit. This court may not resolve genuine disputes of material fact in Robinson’s favor at the summary judgment stage. See Tolan, 134 S.Ct. at 1866. Viewing the evidence most favorably to Tatum, Robinson unreasonably used excessive force by choking him.

B.

As of April 29, 2014, it was clearly established that a suspect’s Fourth Amendment rights were violated by uses of force like Robinson’s. See Chambers, 641 F.3d at 907-08 (establishing it violates Fourth Amendment to kick and choke restrained, non-resisting suspect even if the kicking and choking causes only de minimis injuries); Krout, 583 F.3d at 566 (“It was clearly established that the use of this type of gratuitous force against a suspect who is handcuffed, not resisting, and fully subdued is objectively unreasonable under the Fourth Amendment.”); Henderson, 439 F.3d at 503 (holding use of pepper spray on a suspect who was “subdued and restrained with handcuffs” “may have been a gratuitous and completely unnecessary act of violence and thus violated Henderson’s Fourth Amendment rights” (internal quotation marks omitted)). These cases put the question of the constitutionality of choking Tatum beyond debate because they clearly establish that it violates the Fourth Amendment to choke a suspect who is handcuffed and not resisting. The district court correctly denied qualified immunity on the choking claim.

The judgment of the district court is affirmed in part, reversed in part, and the case remanded for proceedings consistent with this opinion.

      . Robinson’s witnesses' declarations say Tatum was “combative” and "fighting” before he used pepper spray. The district court found that the security video showed no combat or fighting before Robinson used pepper spray. On appeal, Robinson does not contend that Tatum physically fought before the pepper spraying, asserting instead that Tatum argued angrily.