*1 Bradley CLARK, Joseph
Plaintiff-Appellant Deputy MASSENGILL, Sergeant;
John Moran; Branning; Kenneth
Justin Brisolara, Sheriff, Defen-
Melvin
dants-Appellees.
No. 14-60412. Appeals, Court of
United States
Fifth Circuit. 9, 2016.
March MS, Pascagoula, Bradley
Joseph pro se. Broom, Esq.,
Haley Shannon Necaise Dukes, Ozerden, Dukes, Keating & Ladner MS, Faneca, P.A., for Defen- Gulfport, dants-Appellees. *2 BARKSDALE, DAVIS, grant
Before
We review de novo the
of sum-
DENNIS,
mary judgment,
Judges.
applying
Circuit
the same stan-
by
dard used
the district
Nickell v.
court.
*
DENNIS,
Judge;
JAMES L.
Circuit
L.L.C.,
Biloxi,
762,
Beau View
636 F.3d
(6th Cir.2011). Summary judgment
764
Bradley
pris-
Joseph
Mississippi
proper only
genuine
where “there is no
09867,
pro
oner #
raising
filed a
se lawsuit
dispute
any
as to
material fact and the
§
against Sergeant
U.S.C.
1983 claims
to judgment
movant is entitled
as a matter
Miller,
Massengill, Sergeant Ray
John
66(a).
of law.”
A dispute
Fed.R.Civ.P.
Deputy
Branning, Deputy
Justin
Kenneth
“genuine”
about material fact is
if “the
Moran,
Brisolara,
and Sheriff Melvin
all of
[summary judgment] evidence is such that
County
the Harrison
Sheriffs Office.
jury
a reasonable
return
verdict
alleged
that
had
the defendants
used
nonmoving party.”
Anderson v.
arresting
excessive force
him in-
when
Inc.,
242,
Liberty
248,
Lobby,
477 U.S.
structing a
to
him
using
canine
attack
2506,
(1986).
Although assertions, to the or the excessiveness are need” speculation stantiated fact, Rockwell v. “objectively unreasonable.” genuine issue to show insufficient Miss., Brown, County, Lowndes Jones v. (internal “Ex (5th Cir.2012), marks provide quotation did necessarily are fact- cessive force claims evidence via affidavit
summary judgment *3 intensive; the force used is finding a whether ‘ex support could deposition that and on ‘the depends or ‘unreasonable’ pops and had cessive’ of heard three taser use: he of stomach, particular each subjectively com- facts and circumstances he on his knots ” Marcantel, 156, Deville v. F.3d his from case.’ 567 bruising to stomach plained of Cir.2009) (5th (quoting hospital, 167 Graham treated at the tasing when was 386, 1865, Connor, 396, 109 that 490 U.S. S.Ct. stated there hospital worker and a (1989)). If allega 104 443 Viewing this L.Ed.2d bruising to his abdomen. was true, Branning to tions are and Miller tased light most favorable the evidence lying on the Clark, infer- him three times when he was drawing the reasonable and re therefrom, injured, stopped after he had juror ground, a reasonable could ences judgment sisting. Viewing summary the and conclude that Clark was tased suffered Clark, a light most facts favorable injury as result. a genuine dispute of material fact exists discounting Clark’s ver- therefore erred clearly of offi- to whether this use force was accepting of the events and sion Edna, objectively unreasonable. excessive and City cers’ See Tarver v. version. 154, 177 (5th 745, Ellington, 800 See Carroll F.3d 753 (citing Anderson v. McCa im Branning is entitled (5th Cir.2012) leb, 768, Fed.Appx. 480 773 if, viewing munity only the evidence curiam),3 City Bay (per and Autin v. light drawing to Clark and most favorable town, Fed.Appx. Cir. 174 185 in his the reasonable inferences therefrom 2005), that standing proposition for the favor, that to demonstrate Clark has failed a “repeated applications of a Taser after (1) one of Branning’s conduct violated arrested, subdued, long ‘no suspect is (2) that rights constitutional ” resisting may clearly be exces er arrest’ at the time of right clearly established was unreasonable). sive and — Cotton, violation. Tolan v. See -, 1861, 1868, respect prong, the second With U.S. S.Ct. Katz, (2014); clearly law established at the time Saucier v. 53 was L.Ed.2d 895 194, 201, “once a has suspect Clark’s arrest that U.S. L.Ed.2d subdued, (2001). respect to the first handcuffed and been With longer resisting, subsequent an officer’s is entitled to prong, Carroll, 800 summary judgment stage use of force is excessive.” immunity at the if, summary clearly It was also established only viewing F.3d 177. Clark, of force that an officer the amount facts in the favorable Furthermore, Although Anderson was not decided until the bulk of Clark’s 3. dismissal. for the brief contests the basis court there held in December district court's de- police "should known a officer have —the claim that a taser termination that Clark’s suspect] he could not beat after [the unsupported by deployed "wholly was. resisting Fed.Appx. at arrest.” 480 Clark asserts that the use of record” —and right his Fourth Amendment taser violated to be the use excessive force. free from “depended] severity BARKSDALE, use RHESA HAWKINS issue, suspect Judge, dissenting: crime at whether the Circuit safety, officer’s threat to the posed appeal, agree For this I with the suspect resisting arrest that, because, alia, for- inter Strain, attempting to Bush v. flee.” dog-bite presented, mer claim is not Credit- an claim excessive-force allegations, at this as we must allegedly “tasing” Clark re- stage proceedings, an un- But, mains. that taser claim fails for the right hip man with an armed artificial reasons, following including its crippled right just arm who had driven Therefore, appeal. waived on I must dis- tree, car into a while lying was tased sent. ground, after on the he had submitted and repeatedly by after he had been bitten *4 I. dog. alleged facts police “These are suffi- In apprehended by Clark was law ciently egregious to a denial of warrant enforcement after a high-speed chase. qualified immunity because a reasonable chase, involved vehicle which degree officer would have known that the driving, Clark maintains was not struck unconstitutionally force was of excessive tree, into after which Clark fled a wood- a Deville, circumstances.” ed area. Clark contends: after 169; Bush, F.3d at see also 513 F.3d at canine, police tracked and a subdued (“While Fourth Amendment’s rea- (with Miller, Branning Officer Officer dis- capable precise ‘not of sonableness test is death) missed this due application,’ definition mechanical him, deployed though a taser even is enough test [the clear officer] resisting apprehension. he was not should have known that he could not force- fully slam Bush’s into a vehicle face while of a Contending the use taser was exces- she was (quoting restrained and subdued.” of sive and a violation federal constitu- Graham, 1865)). U.S. at rights, tional a complaint, filed Branning quali- is not therefore entitled § pursuant to 42 U.S.C. 1983. Officer stage. fied at this Branning summary judgment, moved for alia, on of inter the basis immu- Branning employed Because whether a nity. thorough, In well-reasoned opin- genuine on dispute Clark involves ion, judge magis- adopted fact, 56(a), of material see Fed.R.CivP. judge’s report trate and recommendation judgment district court’s as Clark’s alia, granted, Branning’s inter Officer claim of excessive force based Bran- Miller, claim. qualified-immunity Clark v. rung’s alleged use of a taser him is 1:12CV216-LG-JMR, No. 2014 WL and REMANDED. VACATED And be- (S.D.Miss. May at *13-14 cause, summary judgment viewing the 2014). Clark, light in the facts favorable dispute of genuine material fact exists as II. Branning’s alleged to whether use force excessive, unconstitutionally reply dis- Not until his brief does se, trict court’s grant qualified immunity proceeding pro challenge is court’s respects, In all other ruling applies, having REVERSED. is in his opening the district AF- asserted brief “genuine dispute” FIRMED. factual exists for wheth- Fourth ... are waived.” United States v. Jack er Officer violated son, 304 n. 2 by tasing him after he Amendment added). (emphasis especially ap This arrest, resisting su- discussed when, here, has the plicable appellant fol- For the pra and reasons infra. proof. To allow otherwise burden low, any challenge to the he has: waived Branning. extremely prejudicial to Officer and, ruling; in the al- qualified-immunity’s Obviously, to brief because Clark failed ternative, to satisfy prong fails the first qualified-immunity ruling open in his analysis overcoming two-part our such brief, able, not immunity. brief, response in his address summary judgment, defeat [Clark] “To untimely counter the remarks genuine disputes of material must show reply immunity. such brief about Branning] fact violat [Officer for: whether preju being pro se not absolve does (Fourth Amendment) constitutional ed his dice. force; right against excessive Moreover, three-and-one-half-page in his un [the Officer’s] actions were brief, Clark men- opening does clearly- reasonable of then force, tion refers to the excessive Gulfport law.” Buchanan v. established only in of a cita- part Fourth Amendment Dep’t, Fed.Appx. Police (“[t]asering unresting tion to caselaw Cir.2013) (citing City Poole v. Shreve motorist the Fourth [sic] violated Amend- *5 (5th port, Cir.2012)), 691 F.3d Of ment”). Generously construing the facts when, importance appeal, extreme for this by presented he avers: he was here, claimed, the (now deceased), by tased Officers Miller plaintiff is on to it burden show is resisting, after he Hollins, E.g., applicable. Brumfield causing injury him knots that (“big black (5th Cir.2008). 322, 326 Clark fails to being on my formed abdomen so. do tased”). He further asserts the court stating erred Miller’s actions Officer A. circumstances, were reasonable Although pro appellants briefs se are but makes no mention of Officer construed, liberally “required] our court Therefore, affording in that context. even pre- arguments ... ... be to be briefed requisite “liberal construction” to v, Collins, Yohey served”. 985 F.2d brief, opening not mean- does R.App. P. “Fed. ingfully prong quali- address either 28(a)[] argument requires that [Clark’s] accordingly, fied-immunity analysis; his the re- contain the reasons deserves assertions are waived due to failure his quested citation to the authori- relief with them, adequately brief and his ties, parts the record relied statutes be on should resolved that basis. (internal quotation marks and on.” Id. Although the at n. 2 majority 419-20 noted, citation As Clark has the explicitly “not chal- concedes does immunity is not show burden lenge granting quali- the district court’s” but, quali- he does not mention applicable; immunity Branning, it is fied Officer immunity until two-and-one-half- fied simply challenging satisfied with Clark’s brief, page reply after such action, the dismissal which dismissal by Branning. briefed Officer immunity, in part was based being “Arguments raised the first time his assertions about a taser’s brief, litigants violation of the Fourth Amend- reply pro even used imaginative, ment. Such outcome-deter- As the notes at the medical justification for the issue’s not minative “bruising record does note to abdomen” flies in one of waived the face “objective” portion under the of the assess- appellate procedure: core issues tenets appears ment. But be the In adequately must be raised briefed. evidence, beyond self-serving testi- se, effect, majori- because Clark mony, interpreted be to contra- ty judicial him a gives pass free dict Officers’ version of events. railroad. scene, present including Officers Branning, was not testified B. deployed. portion Given “assessment” Assuming, arguendo, Clark’s conten- inju- of the medical record attributed adequately properly tions were briefed and wound[s]”, “dog ries to bite with men- preserved, req- he fails to demonstrate the taser, tion of a note the medical genuine dispute fact for uisite of material alone, bruising, about record abdominal prong qualified-immu- first of our even the does not constitute the than scin- more “a nity analysis: the excessive force. claimed tilla of City, required See Lockett New Orleans 607 F.3d evidence” sum- defeat Clark must Turner, show mary judgment. F.3d at “(1) genuine dispute injury such a an for: III.
(2) only from which resulted the use of force that excessive to reasons, foregoing For the I af- would (3) the need and force used was firm the district court. Because the ma- And, so, Id. unreasonable”. to do otherwise, especially holds jority provide “eonclusory must more than alle- through very ruling on its ill-advised waiv- assertions, gations, unsubstantiated er, I must dissent. only a scintilla evidence”. Turner v. Ctr., Baylor Richardson Med. Cir.2007) (internal quotation
marks 3 states provided “evidence via affidavit and
deposition support that could use: pops he heard three and had C.C., individually, by through his stomach, on his com- subjectively knots friends, Cripps next Charles plained of bruising to his from stomach Cripps; Cripps; Kristie Kristie tasing hospital, when he was treated at the hospital Cripps, Plaintiffs-Appellants worker there stated Charles bruising to his abdomen”. record, however, A review the reflects INDE- HURST-EULESS-BEDFORD that, although bruising Clark claimed his DISTRICT; PENDENT SCHOOL (which from resulted the use of a taser Hurbough; Emery, Damon De- Scott only the “subjective” portion reflected fendants-Appellees. the medical-encounter record sub- No. 15-10098. opposition summary judg- mitted in ment), practitioner examining the nurse Appeals, United Court of States injuries made mention of a taser Fifth Circuit. record, “objective” portion of 9, 2016. March resulting injuries instead assessed (which, “dog again, bite wound[s]” here). are not at issue