Willie MCGREGORY, Sr.; Lucy McGregory, Plaintiffs-Appellants v. The CITY OF JACKSON, MISSISSIPPI; Mayor Frank Melton, In his Official Capacity as Mayor of the City of Jackson; Jackson City Council; John Does A-Z, Defendants-Appellees.
No. 08-60944.
United States Court of Appeals, Fifth Circuit.
June 26, 2009.
335 Fed. Appx. 446
In short, the district court properly performed its gatekeeping function, both in pre-trial screening and throughout Killingsworth‘s trial testimony.
As for DeArmond‘s post-trial motion for judgment as a matter of law, or, in the alternative, for a new trial, the district court made short work of his claim. As noted supra, the district court determined: “there [was] no error” in allowing Killingsworth‘s testimony; and, it had “performed the Daubert gatekeeping function here, and the testimony of Mr. Killingsworth was appropriate to his level of experience“. Essentially for those reasons, the denial of DeArmond‘s post-trial motion was properly denied.
For the foregoing reasons, the judgment is AFFIRMED.
Landman Teller, Jr., William Briggs Hopson, III, Teller, Chaney, Hassell & Hopson, Vicksburg, MS, Wayne Eric Stracener, Hawkins, Stracener & Gibson PLLC, Jackson, MS, for Plaintiffs-Appellants.
Pieter Teeuwissen, City Attorney‘s Office for the City of Jackson, Jackson, MS, for Defendants-Appellees.
Before WIENER, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This
On May 18, 2005, McGregory Jr. was pulled over for outstanding warrants. He fled the scene and was pursued by police to his father‘s tire shop, where a standoff between McGregory Jr. and a large group of Jackson police officers ensued. McGregory pleaded with his son to surrender and was overheard by at least one police officer doing so. Eventually McGregory Jr. was shot by the police in the leg and then surrendered. McGregory came out of the tire shop behind his son and was ordered to lay down on the ground. He complied by laying down on his stomach. While he was on the ground an unidentified officer told him to place his hands behind his back and handcuffed him. An unidentified officer (potentially the same officer) then put a gun to McGregory‘s head and ordered him to roll over. McGregory, who is over 60, advised the officer that he was physically unable to do so and that the handcuffs were too tight. The officer told him that if he did not turn over he would “blow his fucking brains out.” McGregory was still unable to turn over, however, and an officer (again, potentially the same officer) kicked him in the side, breaking one of his ribs. McGregory testified that he did not know if it was one, two, or three officers involved in his arrest because he did not see the officer(s) and all of the officers present on the scene denied, in their depositions, having any idea who arrested or assaulted McGregory.
McGregory was put in a police car and taken to the station, where he was questioned. Although McGregory‘s handcuffs were capable of being double-locked to prevent unintentional (or intentional) tightening, it appears that the police failed to engage this feature. He complained during the ride that the handcuffs were too tight but he was ignored. At some point at the station, after he complained again, his handcuffs were removed. Because his left wrist was swollen, the police officer assigned to drive him back to his shop and release him was told not to handcuff him for the ride, but did so anyway. Upon returning to the repair shop McGregory told Detective James Roberts (“Detective Roberts“) that he had been kicked in the side while handcuffed. McGregory declined an ambulance; his wife arrived and took him to the hospital, where he was diagnosed with a broken rib and an abra-
A report filed by Detective Roberts on the standoff reflects McGregory‘s complaint of having been kicked. However no investigation was done and no action was taken until McGregory and his wife filed suit on October 6, 2006, against several named officers, the City of Jackson, the mayor of Jackson in his official capacity, the Jackson City Council, and John Does A-Z (representing the police officers present during the arrest).1 The lawsuit sought to recover damages for false arrest and excessive use of force under
II. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo. Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008). Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
III. ANALYSIS
On appeal McGregory contends that the City is liable for wrongful arrest and excessive force under
- A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the munici-
pality‘s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or - A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body has delegated policy-making authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc) (per curiam). Where a custom has been established, knowledge must be attributable to a policymaker. Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984) (en banc).3 Actual knowledge on the part of the policymaker must be shown directly, but “[c]onstructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities.” Id. However, “[i]solated violations are not the persistent, often repeated, constant violations that constitute custom and policy.” Id. at 768 n. 3.
McGregory‘s primary claim seems to be that he was subject to an unconstitutional use of excessive force by whichever officer(s) kicked him in the ribs and handcuffed him, and that such force was used because the police department had a custom of ignoring reports of excessive force, failing to investigate reports of excessive force, and protecting its own members through a code of silence, thus allowing or encouraging police officers to use excessive force without fear of repercussions. We need not reach the question of whether McGregory has produced enough evidence to raise a genuine issue of material fact as to whether a custom of a code of silence existed in the Jackson City Police Department based upon this one incident. Although McGregory‘s allegations, if true, should be of great concern to the Jackson City Police Department, the law requires that, even assuming he can show a custom, McGregory identify a policymaker who can be charged with actual or constructive knowledge of the code of silence that he has identified as the alleged custom. Bennett, 728 F.2d at 768-69. McGregory did not identify a policymaker in the proceedings below. Despite mention of this failure in the district court‘s opinion, McGregory still did not identify a policymaker in his initial brief to this court, nor did he identify one in his reply brief even after this omission was again pointed out by the City in its response. At oral argument, for the first time, McGregory finally identified the City Council as the policymaker and argued that the policymaker‘s knowledge could be inferred from the acquiescence of the City Council in the alleged cover-up in this case.
Arguments not made below are generally waived and cannot be raised for the first time on appeal. See, e.g., LeMaire v. La. Dep‘t. of Trans. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). Even were we to consider the identification of the City Council as the required policymaker, McGregory has presented no evidence that raises a genuine issue of material fact as to whether the
McGregory also claims that the City is liable for wrongful arrest. He contends that the police knew generally that he was trying to convince his son to surrender and that there was therefore no reason to take him into custody. McGregory does not clarify what custom he believes gave rise to his arrest, nor does he identify a policymaker who can be charged with actual or constructive knowledge of any alleged custom leading to his arrest, apart from the aforementioned code of silence. This claim must therefore fail as well.
The facts in this case are deeply troubling, and we do not address whether McGregory has a case against the officers (in their individual capacities) responsible for arresting him, for cuffing him too tight-ly, or for transporting him in handcuffs after his wrist injuries were already known. We hold only that without providing any evidence as to whether the City Council knew or should have known about the alleged code of silence or the events in this case, McGregory cannot survive summary judgment on the question of municipal liability for the alleged constitutional violations that led to his injuries. The grant of summary judgment is AFFIRMED.
Renode COLLINS, Plaintiff-Appellant v. Richard L. STALDER, Secretary of Corrections; Burl Cain, Warden; Louisiana State Penitentiary; Curly Alfred, Correctional Officer at Louisiana State Penitentiary; Health Care Provider # 71; B. Johnson; Health Care Provider # 17; Health Care Provider # 66; John Doe, Doctor, Defendants-Appellees.