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            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         January 10, 2012

                                       No. 10-31263                        Lyle W. Cayce
                                                                                Clerk

NARRA BATISTE, individually and on behalf of Tylen Pierre, on behalf of
Brennan Batiste, on behalf of Othello J. Pierre Estate; HARRY PIERRE;
JEAN PIERRE; FLORINA PIERRE.

                                                  Plaintiffs-Appellees
v.

RONALD J. THERIOT, individually and in his official capacity as Sheriff of
St. Martin Parish; KAYLA MALLORY, individually and in her official
capacity as Deputy with the St. Martin Parish Sheriff’s Office; SHAWN
EDWARD JOHNSON, individually and in his official capacity as Deputy with
the St. Martin Parish Sheriff’s Office; DONNIE LASHER, individually and in
his official capacity as Deputy with the St. Martin Parish Sheriff’s Office;
LEE VERNI, individually and in his official capacity as Deputy with the St.
Martin Parish Sheriff’s Office,

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                  6:09-CV-1109


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-31263

      Narra Batiste and other members of her family (“Plaintiffs”) brought civil
claims against the St. Martin Parish Sheriff and Sheriff’s deputies for
constitutional violations under 42 U.S.C. § 1983 after the death of their relative
following a police chase and tasing. Plaintiffs alleged claims for (1) deadly or
excessive force; (2) failure to provide medical care to a detainee; (3) wrongful
death; (4) failure to train; and (5) state law claims for wrongful death. The
defendants moved for summary judgment based on qualified immunity and lack
of causation on the federal claims, and moved to dismiss the state law claims.
The district court granted the Sheriff qualified immunity in his individual
capacity but denied qualified immunity for the deputies. The appellants appeal
the denial of qualified immunity and the decision not to dismiss the failure to
train and state law claims. Because we find that the district court erred by not
granting the officers’ qualified immunity requests and by not dismissing the
failure to train and state law claims, we REVERSE.
                                     FACTS
      Othello Pierre attended a Fourth of July party at his uncle’s house.
Shortly after arriving at the house, he got into an argument with a cousin and
was “cussing” and “raising all kind of hell.” His uncle called 9-1-1 for assistance
and St. Martin Parish Sheriff’s deputies Donnie Lasher and Shawn Johnson
responded to the call. They approached Pierre and told him to calm down.
Another Deputy Sheriff, Kayla Mallory, was part of the extended family and was
also at the party. She approached Lieutenant Lasher and told him that she
thought Pierre might have a warrant out for his arrest.
      Pierre waited with the officers while one of them ran his name in the
database and found that Pierre had an outstanding felony arrest warrant for
simple burglary. Lasher told Pierre he was under arrest at which point Pierre
broke the grasp of Lasher, said “not this time,” and began to flee. Lasher and
Johnson pursued him on foot at 6:54 p.m. according to the dispatch center logs.

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       Lieutenant Lasher found Pierre hiding behind an old camper shell and
ordered him not to move. Pierre again began to flee. Lasher pursued and fired
his taser at Pierre at 6:56 p.m., hitting him in the arm and head, and shocking
him with a single five second cycle. At 6:58 p.m., Acadian Ambulance was
dispatched to the location and, according to ambulance records, arrived at the
scene at 7:11 p.m.1 Pierre was transported to the Lafayette General Medical
Center and his condition worsened. Approximately one hour after the incident,
Pierre suffered a cardiac event and was pronounced dead at 10:29 p.m.
       The official autopsy determined that Pierre died of “multidrug
intoxication.” His bloodwork showed the presence of methamphetamine, MDMA,
Lorazepan, THC-COOH, cocaine, benzoylecognine, and ethanol as well as
caffeine, nicotine, and cotinine. The autopsy also showed no signs of physical
injuries except for the small cuts made by the taser. The Plaintiffs’ expert
witness testified that Pierre died of a condition known as “sickle cell trait” which
was caused by physical exertion when he fled from the officers. He did not
attribute the death directly to the tasing but did find fault with the actions of the
EMS officials who arrived on the scene. He stated that Pierre should have been
given intravenous fluids, intubated, given oxygen, and immediately transported
to the hospital. Instead, approximately thirty minutes elapsed between EMS’s
arrival and Pierre’s transportation from the scene.
       Pierre’s family (“Batiste”) brought § 1983 claims of excessive force, failure
to provide medical care, and failure to train, as well as state law claims for
wrongful death. The officers argued that the claims should be dismissed because
of qualified immunity and lack of causation and moved for summary judgment.
The district court granted the Sheriff qualified immunity in his individual


       1
           Deputy Mallory indicated in a written statement that she estimated that it took 20 minutes
for the ambulance to arrive but the validity of the dispatch records are not in dispute even though the
Plaintiffs have attempted to use this statement as an indication of a factual dispute.

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capacity but denied qualified immunity on all other grounds. The district court
did not enter a written order but simply stated that the motions were denied
during a hearing on the matter. The officers appeal the denial of qualified
immunity and the decision not to dismiss the failure to train and state law
claims. For the reasons stated below, we REVERSE the district court’s denial of
qualified immunity, and GRANT judgment as a matter of law on the remaining
claims.
                           STANDARD OF REVIEW
      The denial of qualified immunity, although not a final order, is
immediately appealable under the collateral order doctrine. Turner v. Houma
Mun. Fire & Pol. Civil Serv. Bd., 229 F.3d 478, 482 (5th Cir. 2000). Qualified
immunity protects officials acting under color of state law “from liability of civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The clearly established part of
the test is a high bar for a plaintiff to meet as he must show that “the contours
of the right [were] sufficiently clear that a reasonable official would understand
that what he is doing violates a right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). An officer is entitled to qualified immunity even if he violated a
constitutional right, so long as his actions were objectively reasonable. Spann
v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993). Unless all reasonable officers in
the defendants’ circumstance would have known that the conduct in question
violated the constitution, the defendant is entitled to qualified immunity.
Thompson v. Upshur Cty, Tex., 245 F.3d 447, 457 (5th Cir. 2001). To overcome
a qualified immunity defense, the plaintiff has the burden of showing that the
actions were not objectively reasonable and that they violated clearly established
law. Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994).



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      In addition, this court reviews the district court’s decision on summary
judgment de novo. McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 301 (5th Cir.
1993). Summary judgment is appropriate when the pleadings, viewed in the
light most favorable to the non-movant, “show that there is no genuine issue as
to any material fact.” Anderson v. Liberty Lobby Inc., 447 U.S. 242, 247 (1986).
Conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for trial. S.E.C. v. Recile, 10
F.3d 1093, 1097 (5th Cir. 1993). To avoid summary judgment on a qualified
immunity defense, the plaintiffs must show more than “mere allegations.” Manis
v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
                                  DISCUSSION
Excessive Force Claims:
      For the reasons discussed more fully below, we reverse the district court’s
denial of qualified immunity for the officers. Plaintiffs allege that the officers
used excessive force in chasing and tasing Pierre and that the district court
properly denied the Defendants’ motion for summary judgment on the issue of
excessive force. They argue that Tennessee v. Garner indicates that it is unlawful
to use deadly force against a fleeing felon who does not pose a sufficient threat
of harm to an officer. 471 U.S. 1, 11-12 (1985). While we agree that this is an
appropriate characterization of Garner, we find no support, and Plaintiffs offer
none, for the inference that the use of a taser is comparable to discharging a
firearm. There are no cases in this circuit that support this proposition and we
decline to so rule.
      Plaintiffs claim that because the taser was discharged while the officer
was running, while the suspect was running, or because the taser hit the suspect
in the head, the use of the taser amounts to deadly force. If the taser was used
while the discharging officer was running, it was in violation of Sheriff’s

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department training and outside the manufacturers’ guidelines for taser use.
However, Plaintiffs did not demonstrate that the use of the taser in the manner
they described created an unreasonable risk of death. Even if Plaintiffs
accurately describe the tasing, they have not shown that the use of a non-lethal
weapon in a less than optimal manner necessarily equates to the use of a loaded
firearm as was the case in Garner. In addition, there is some dispute about
whether Pierre was running when the taser was deployed or whether he ducked
when the officer told Pierre he was going to tase him. Under the circumstances
of this case, the constitutionality of deploying a taser does not fluctuate based
on whether Pierre was actually in motion at the time of the discharge or whether
he was at a standstill. Either way he was a fleeing suspect. Even if tasing a
moving suspect violated department protocol, in this instance, Plaintiffs’
assertions that the use of a taser on a fleeing suspect amounted to deadly force
are unfounded.
      Because we decline to find that the use of the taser on Pierre amounted to
deadly force, Plaintiffs’ claim is therefore one of excessive use of force. An
excessive force claim under the Fourth Amendment must demonstrate (1) injury,
(2) which resulted directly and only from a clearly excessive force, and (3) the
excessiveness of which was clearly unreasonable. Fontenot v. Cormier, 56 F.3d
669, 675 (5th Cir. 1995). Batiste’s claim fails on the second prong since neither
the medical expert who performed the autopsy, nor Batiste’s own expert,
testified that Pierre’s injuries were the direct result of the tasing. The injury did
not result from the tasing regardless of its reasonableness. This eliminates
tasing as a basis for an excessive force claim.
      Without the tasing, Plaintiffs can only claim that somehow chasing Pierre
was excessive force. While it is true that Lasher and Johnson were told by
Mallory that she knew where Pierre lived and that they could arrest him at a
later time, knowledge of his residence in itself does not make Lasher’s chasing

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of a suspect with an outstanding felony arrest warrant unreasonable. Even
accepting plaintiffs’ expert’s testimony that Pierre’s death was caused by
“sickling” brought on by exertion, there is no doubt that chasing a suspect with
an outstanding warrant who was resisting arrest is objectively reasonable.
      Finally, Plaintiffs’ claim that the officers should have recognized that
Pierre was in a state of “excited delirium.” But such recognition would not make
their use of the taser any less reasonable under the test for excessive force. Even
if “excited delirium” were the cause of death, the condition as described by
Plaintiffs’ expert was not caused by the actions of the officers but rather by some
combination of the fleeing, the multitude of drugs, and the hereditary traits of
the suspect. Because there is no proof the tasing caused Pierre’s death, and
because even if the tasing did, it is reasonable for officers to chase and taser a
fleeing suspect with a felony arrest warrant, we hold the district court erred in
denying the officers’ qualified immunity defense.
Denial of Medical Care Claims:
      Plaintiffs allege that the officers at the scene denied Pierre medical
attention and in doing so, violated Pierre’s constitutional rights under 42 U.S.C.
§ 1983. The Plaintiffs urge this court to examine the actions of the police officers
under both the Eighth Amendment and the Due Process Clause. They
characterize Pierre’s right to medical attention as the right to protection from
harm and the right to medical care while a pretrial detainee. Under the
Plaintiffs’ offered standard, drawn from Hare v. City of Corinth, Miss., 74 F.3d
633, 636 (5th Cir. 1996), they must establish that the officials acted with
“subjective deliberate indifference.” The official must be aware of the facts from
which an inference of substantial risk of serious harm could be drawn, and
actually draw that inference, and the official’s response must indicate that he
subjectively intended that harm to occur. Id. at 649-50. Knowledge may be



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inferred if the risk was obvious. Easter v. Powell, 467 F.3d 459, 463 (5th Cir.
2006).
      Alternatively, the defendants submit that the proper precedent for looking
at an arrestee’s pre-trial medical care is the Fourteenth Amendment. See Nerren
v. Livingston Police Dep’t, 86 F.3d 469, 473 (5th Cir. 1996). They suggest that to
violate the deliberate indifference prong, the officers had to intend to act with
the unnecessary and wanton infliction of pain proscribed by the Constitution.
Smith v. Wade, 461 U.S. 30, 37-38 (1983). The analysis is similar under either
proposed standard and both lead to the same conclusion.
      The Plaintiffs’ case for deliberate indifference to medical attention fails
because they concede that the officers at the scene never thought that there was
a serious medical emergency. Their brief states: “[T]he deputies failed to
recognize that Othello was in the midst of a medical emergency.” This court has
held that “[m]ere negligence or failure to act reasonably is not enough. The
officer must have the subjective intent to cause harm.” Mace v. City of Palestine,
333 F.3d 621, 626 (5th Cir. 2003). The failure to realize there was a medical
emergency, and the concession of such by the Plaintiffs, negates any claim of
deliberate indifference unless the risk of serious harm was so patently obvious
that it should negate the knowledge requirement.
      In Pierre’s case, the harm was anything but obvious as the medical experts
arriving on the scene found no reason to transport Pierre to a hospital for over
thirty minutes. If trained experts did not see the need for more extensive
medical attention, Pierre’s situation simply cannot rise to the level of a serious
medical need for which “treatment has been recommended or for which the need
is so apparent that even laymen would recognize that care is required.” Gobert
v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
      The officers’ actions were reasonable given the circumstances and they
should have been granted qualified immunity. The records show that they called

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for an ambulance to be dispatched a mere two minutes after the tasing, as was
required by department policy. While the officers removed the taser from the
suspect prior to the arrival of the EMTs in contravention of department policy,
there is no indication that removing the taser in any way contributed to Pierre’s
death.
        Much of the Plaintiffs medical care claim rests on the testimony of two
people. First, Pierre’s uncle asserts that the officers waited before calling an
ambulance. Second, Mallory reported that there was a delay in providing
medical care.2 Their recollections of the event do not stand up to the undisputed
time line from the police and ambulance dispatch records, and are not enough
to raise a serious question of fact such that summary judgment should be denied.
This analysis is further bolstered by the fact that both Pierre’s uncle and Mallory
did not arrive on the scene of the tasing until after the ambulance had already
been called, thus calling into question their knowledge of whether the ambulance
was already on its way. Furthermore, the length of time it took the ambulance
to arrive and the treatment provided by the ambulance crew is beyond the
control of the defendant officers, and a delay not caused by the officers cannot
rise to the level of a constitutional violation on their part. Because the officers’
actions were objectively reasonable and because they did not act with deliberate
indifference or wantonness, the district court erred in denying the officers’
motion on this issue.
Wrongful Death Claims:
        Plaintiffs also assert that they are entitled to recover for Pierre’s wrongful
death and that the district court was correct in denying the Defendants’ motion
for summary judgment on Plaintiffs’ wrongful death claims. This court has held

        2
           The district court and the Plaintiffs focus on this possible delay, but it appears to be a
mischaracterization of the record. Mallory testified “The officer then said to me that’s ok we got him. He
was tased. The officer then said to me Acadian ambulance is on the way.” Doc. No 67-2, Page No. 575.
This testimony gives no indication that there was a delay or indifference on the part of the officers.

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that wrongful death claims are viable under § 1983. Phillips v. Monroe Cnty.,
311 F.3d 369, 374 (5th Cir. 2002). A plaintiff must show “both the alleged
constitutional deprivation required by § 1983 and the causal link between the
defendant’s unconstitutional acts or omissions and the death of the victim as
required by the state’s wrongful death statute.” Id. at 374. Plaintiffs contend
Pierre died from “sickling” that could have been avoided had he received
immediate medical attention. The official autopsy states that the cause of death
was multiple drug overdose, but even accepting Plaintiffs’ assertion that Pierre’s
death could have been prevented by more immediate medical care, the record
indicates that the officers did not commit an unconstitutional act or omission
leading to Pierre’s death. As discussed above, chasing the suspect or deploying
the taser were not unconstitutional acts. The only potential omission on the part
of the police would be a delay in providing medical care, but again the record
indicates that the police immediately called the ambulance per department
protocol.
      There are a number of non-binding cases that uphold the proposition that
a delay in meeting the medical needs of an arrestee or detainee can negate the
need to find that the act or omission on the part of the police was the proximate
cause of death, and Plaintiffs urge us to adopt that reasoning here. See Estate
of Owensby v. City of Cincinatti, 414 F.3d 596, 604 (6th Cir. 2005). However,
this court has never adopted that position and we decline to do so. The cases
cited by the Plaintiffs only go so far as to suggest proximate cause need not be
proven in situations where the “obvious need” for medical care is apparent or “so
obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Id. at 604. As described earlier, there is concrete evidence that there
was no delay in trying to obtain medical care. Further, the hereditary ‘sickling’
phenomenon described by Plaintiffs’ expert is hardly the kind of obvious medical
need that a non-medical expert would understand required attention. According

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to the Plaintiffs’ expert’s testimony, the trait appears through heavy breathing
and fatigue, both of which are easily confused with symptoms of someone who
had just run over a quarter mile while fleeing the police. Assuming Plaintiffs’
version of events, even if this court were to adopt case law from other circuits
which negates the proximate cause requirement, there was still no delay or
obvious medical need which gives rise to the wrongful death cause of action. The
absence of either factor means that the district court erred in not granting the
officers’ motion.
Plaintiffs’ Claims Against the Sheriff:
      The Plaintiffs make a number of claims against Sheriff Theriot in his
official and individual capacities. The court below granted Theriot qualified
immunity in his individual capacity, but denied summary judgment to him in his
official capacity. On appeal, Plaintiffs assert that the district court properly
denied the Defendants’ motion for summary judgment against Sheriff Theriot
in his official capacity. We disagree, and reverse the denial of summary
judgment on the claims against the Theriot in his official capacity.
       In order to hold a supervisor liable under § 1983, a plaintiff must show
that (1) the supervisor failed to train or supervise, (2) there is a link between the
failure and the violation of the plaintiff’s rights, and (3) the failure amounts to
deliberate indifference. Estate of Davis ex rel. McCully v. City of N. Richland
Hills, 406 F.3d 375, 381 (5th Cir. 2005). Claims against the Sheriff in his official
capacity are really claims against the municipality itself. If the Plaintiffs are
arguing that a custom or policy was responsible for the constitutional violation,
they must show that such a policy was the “moving force behind the
constitutional violation at issue, or that [Pierre’s] injuries resulted from
the. . .policy.” Spiller v. City of Tex. City Police Dept, 130 F.3d 162, 167 (5th Cir.
1997) (internal quotation marks and citation omitted). “The description of a
policy or custom and its relationship to the underlying constitutional violation,

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moreover, cannot be conclusory; it must contain specific facts.” Id. Finally, a
plaintiff may not infer a policy “merely because harm resulted from some
interaction with a government entity,” and instead must identify the policy or
custom that caused the violation. Colle v. Brazos Cnty., Tex., 981 F.2d 237, 245
(5th Cir. 1993).
      The Plaintiffs assert a number of claims against Sheriff Theriot including
that he: (1) failed to train his officers in providing medical care especially after
tasing, (2) was indifferent in the screening of potential hires, (3) failed to train
proper apprehension procedures, and (4) failed to safeguard the constitutional
rights of citizens with whom his personnel came into contact.
      The failure to train claim fails for a number of reasons. First, Plaintiffs do
not show a pattern or policy existed. The Plaintiffs’ expert stated that officers
should have known that the suspect needed to be placed upright, rather than on
his stomach, after being tased. He also testified that tasing should not have been
carried out on the run or directed at the head, and that a tasing victim should
be under constant medical attention.
      Even if that were true, Plaintiffs fail to show that this is a continuing or
repeated failure and the Supreme Court has held that a single incident, standing
alone, is usually insufficient as a matter of law to establish a failure to train
violation. See Connick v. Thompson, 131 S. Ct. 1350, 1361-62 (2011) (holding
that a district attorney’s office cannot be held liable for failing to train its
prosecutors when the plaintiff proves only a single violation that has allegedly
arisen from the inadequate training); Oklahoma City v. Tuttle, 471 U.S. 808,
821-22 (1985). Nowhere in their brief do the Plaintiffs assert a pattern of
incidents or incompetence on the part of the police which would be a prerequisite
to proving a failure to train claim.
      Second, there is also the continuing problem of causality—namely, there
is no evidence that any purported constitutional violation actually caused

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Pierre’s death. Third, the Plaintiffs do not demonstrate or even assert any
systemic changes that should have been made in the training program or
describe the training failures in anything but conclusory fashion. Fourth, the
record indicates that the officers, including Lasher, were trained in the use of
tasers, and the policy indicated that they were not supposed to use tasers on
moving subjects—similar to Plaintiffs’ claims about the proper use of tasers. The
fact that this was part of each officer’s training undercuts the Plaintiffs’ failure
to train claim, and although it might bolster their other arguments, such as
excessive force, those claims still fail for the reasons described above. Fifth, the
officers were trained, and department policy mandated, that an ambulance be
called whenever someone was tased. That is exactly what happened here, and
per department policy, the officer sought immediate medical attention for a taser
subject. The department policy is very much in line with Plaintiffs’ expert’s
recommendations.
      The only remaining issue on the failure to train claim is whether the
officers were or should have been trained to stand an arrestee upright rather
than on his stomach. However, at most this presents the possibility that a one-
time action led to an adverse reaction in a subject with a rare hereditary
condition, which is not a pattern or practice sufficient to establish a failure to
train claim. In sum, the Plaintiffs’ arguments regarding the failure to train on
the proper use of a taser or proper medical care fall short of presenting a viable
claim.
      With regard to the screening of potential hires, training in apprehension
procedures, and the Plaintiffs’ catch-all “failure to safeguard constitutional
rights” claim, they present no evidence or even more than a passing reference to
these arguments in their briefs and, as such, those arguments are waived, and
the Sheriff’s motion for summary judgment in his official capacity is granted.
State Law Claims

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                                  No. 10-31263

      Plaintiffs also assert state law negligence claims for excessive force in the
arrest of Pierre under Louisiana Civil Code article 2315. They urge this court
to uphold the district court’s denial of the Defendants’ motion for summary
judgment as to the Plaintiffs’ state law claims.
      In the interest of judicial economy, we may exercise pendent appellate
jurisdiction to decide these remaining state law claims because they are
intertwined with Plaintiffs’ federal claims. See, e.g., Morin v. Caire, 77 F.3d 116,
122-23 (5th Cir. 1998) (deciding corresponding state law claims after ruling on
§1983 claims); See also Burge v. Parish of St. Tammany, 187 F.3d 452, 482 (5th
Cir. 1999) (stating “whether we can exercise pendent appellate jurisdiction over
[Plaintiffs]’ ordinary state law tort claims against [the Defendant] depends on
whether we have jurisdiction over [Defendant’s] appeal of the denial of qualified
immunity”). Because we have jurisdiction to hear the appeal, we can exercise
pendent jurisdiction where the facts or elements of the state and federal claims
are intertwined. Cf. Gros v. City of Grand Prairie, 209 F.3d 431, 436 (5th Cir.
2000) (declining to exercise pendent appellate jurisdiction where “each [claim]
has unique elements and relevant facts”). Since we undoubtedly have
jurisdiction to hear the appeal of the denial of Defendant’s qualified immunity
claims, because Plaintiffs’ state law claims are neither novel nor complex, and
because, the state law claims revolve around an identical set of facts and have
nearly identical elements to the federal claims and thus are sufficiently
intertwined, this court has pendent appellate jurisdiction to review the state
law claims.
      For Plaintiffs to recover on their state law negligence claims they must
show that (1) the Defendants’ conduct was the cause in fact of the harm, (2) the
Defendants owed a duty of care to Pierre, (3) the duty was breached, and (4) the
risk was in the scope of harm afforded by the duty. See Syrie v. Schilhab, 693
So.2d 1173, 1177 (La. 1997). Again, the Plaintiffs’ claim fails because they

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cannot show that the defendants’ supposed excessive force caused the harm to
Pierre since even their own expert states that Pierre died of “sickling” rather
from the tasing.
       Even assuming the tasing was the cause in fact of death, there is still a
serious question as to whether any duty was breached.3 Plaintiffs assert that
the use of force was unreasonable under Louisiana law. To determine the
reasonableness of the force used and to determine if a duty was breached,
Louisiana law looks at a number of factors: (1) the known character of the
arrestee, (2) the risks or dangers faced by the officers, (3) the nature of the
offense, (4) the chance of escape if that means of force is not employed, (5) the
existence of alternative methods of arrest, (6) the physical strength, size and
weaponry of the officers as compared to the arrestee, and (7) the exigencies of
the moment. Kyle v. City of New Orleans, 353 So.2d 969, 973 (La. 1977).
       Under Louisiana law, an officer need only choose a reasonable course of
action, rather than the best course of action. “[T]he scope of an officer’s duty to
act reasonably under the circumstances does not extend so far as to require that
the officer always choose the ‘best’ or even ‘better’ method. . . . Officers . . . are
only required to choose a course of action within that range described as
‘reasonable.’” Mathiue v. Imperial Toy Corp., 646 So.2d 318, 325-26 (La. 1994).
       Even assuming the Plaintiffs could prove cause-in-fact, there is no
indication that the use of force was unreasonable under state law. The law
requires the officers to take a reasonable course of action rather than the best
course of action. Weighing in favor of the defendants are the facts that the
suspect had a felony arrest warrant, he was fleeing police after repeatedly being
told to stop, and he appeared agitated and was excited enough to have had his
own family call the police. In addition, there is a dispute about whether Pierre

       3
         Neither party disputes that the officers owed some duty to the suspect so we will assume for
now that the second prong of the analysis is met.

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                                   No. 10-31263

verbally threatened Mallory prior to the arrival of other officers, which could add
to the reasonableness of the police actions. Weighing in favor of the Plaintiffs is
the fact that Mallory apparently knew Pierre had an arrest warrant prior to the
incident and felt no need to arrest him upon arrival at the party. In addition, she
knew where he lived, making the existence of alternative methods of arrest very
high. Finally, Pierre was unarmed and posed little danger to Lasher at the time
of the tasing. Although this is a close issue, the officers chose a reasonable course
of action given that Pierre was a felon and repeatedly ignored the officers’
orders. As such, even if the Plaintiffs’ “sickling” theory was somehow linked to
the officers’ actions, their actions were still not unreasonable under Louisiana
law, and the district court erred in not granting summary judgment to the
officers on the Plaintiffs’ state law claims.
                                 CONCLUSION
      Accordingly, we REVERSE and REMAND to the district court for further
proceedings consistent with this opinion.




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