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

                                                                            FILED
                                                                            May 2, 2008

                                     No. 07-20482                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ROBERT BARKLEY

                                                  Plaintiff-Appellant
v.

DILLARD DEPARTMENT STORES INC; HARRIS COUNTY TEXAS;
WILLIAM WILKINSON, Individually

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-CV-0843


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Before the court is an appeal by Plaintiff-Appellant Robert Barkley
(“Barkley”) of the district court’s order granting the summary judgment motions
of Defendants-Appellees Dillard’s Department Stores, Inc. (“Dillard’s”) and
Harris County, Texas (“Harris County”). Because Dillard’s is not a state actor
for purposes of 42 U.S.C. § 1983, we AFFIRM the district court’s grant of



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-20482

summary judgment to Dillard’s. Further, because Barkley failed to create a
genuine issue of material fact that his injuries resulted from a policy or custom
of Harris County, we AFFIRM the district court’s grant of summary judgment
to Harris County.
                              I. BACKGROUND
      The allegations in this case concern an incident that took place on May 7,
2004, when Barkley was shot three times by Defendant-Appellee William
Wilkinson (“Wilkinson”), a Harris County Sheriff’s Deputy. At the time of the
shooting, Wilkinson was not on-duty as a deputy but was working as a private
security guard for Dillard’s. Wilkinson was inside Dillard’s when he received a
radio communication from James Wheat (“Wheat”), a Dillard’s employee who
monitored all of the security cameras in Dillard’s. Wheat informed Wilkinson
that a black male in a blue dress shirt (Barkley) who had previously shoplifted
from Dillard’s was in the men’s department with a large Dillard’s bag. Wheat
instructed Wilkinson to proceed to the men’s department in case the man
attempted to shoplift again. While Wilkinson was making his way to the men’s
department, Wheat informed Wilkinson that the man had just stolen Dillard’s
merchandise and was leaving the store. Wheat then told Wilkinson that the
man turned left upon exiting the store.
      Barkley’s account of the events that followed differs markedly from that
of Wilkinson. Although we set forth both sets of facts, we take Barkley’s version
as true for purposes of summary judgment. See Crawford v. Formosa Plastics
Corp., 234 F.3d 899, 902 (5th Cir. 2000). Barkley admits that he shoplifted
merchandise from Dillard’s and that he exited the store and walked at a “fast
pace” to his car. Barkley states that it was only after he had backed out of his
parking space that he heard Wilkinson yelling at him. Barkley lifted his hands
off of the steering wheel and did not put the car into drive. Wilkinson then shot



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him three times, hitting him in the arm, jaw, and hand. Barkley managed to put
his car in park and fell out of the door, at which time Wilkinson arrested him.
      Wilkinson, on the other hand, asserts that, upon exiting the store, Barkley
turned around and saw Wilkinson pursuing him. Barkley began to run toward
his car, and Wilkinson ran after Barkley ordering him to stop. According to
Wilkinson, Barkley quickly backed out of the parking space and began driving
toward Wilkinson at a fast speed. Wilkinson claims that he was “caught” in a
confined area and feared for his life, so he discharged his weapon into the car
three times. The car stopped, and Wilkinson arrested Barkley.
      Barkley filed suit against Dillard’s, Harris County, and Wilkinson,
bringing claims under 42 U.S.C. § 1983 and Texas state law.            All three
defendants moved for summary judgment. The district court granted summary
judgment to each defendant on Barkley’s federal law claims and then declined
to exercise supplemental jurisdiction over Barkley’s remaining state law claims.
See 28 U.S.C. § 1367(c). Barkley has appealed the judgment of the district court.
Because he makes no arguments that the district court erred in granting
Wilkinson’s motion for summary judgment, Barkley has abandoned that claim
on appeal. Therefore, we consider only the claims against Dillard’s and Harris
County.
                               II. DISCUSSION
A.    Standard of Review
      We review a district court’s order granting summary judgment de novo.
High v. E-Systems Inc., 459 F.3d 573, 576 (5th Cir. 2006). Summary judgment
is appropriate when there is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law. U.S. ex rel. Taylor-Vick v.
Smith, 513 F.3d 228, 230 (5th Cir. 2008); see also FED. R. CIV. P. 56(c). The
moving party has the initial burden of identifying the pleadings and evidence
which it believes demonstrate the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party then
has the responsibility of demonstrating specific facts showing that there is a
genuine issue for trial. Id. at 324. A genuine issue of material fact exists “‘if the
evidence is such that a reasonable jury could return a verdict for the non-moving
party.’” U.S. ex rel. Taylor-Vick, 513 F.3d at 230 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). All facts are considered in the light most
favorable to the non-moving party, and all inferences must be drawn in that
party’s favor. Crawford, 234 F.3d at 902.
B.    Claims Against Dillard’s
      In its summary judgment order, the district court concluded that Barkley
failed to show that Dillard’s was a state actor for purposes of establishing
liability under 42 U.S.C. § 1983. Barkley contests that conclusion on appeal.
      “To state a claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). However,
a person need not be a state officer in order to act under color of state law.
Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) (per
curiam). Instead, “a private entity acts under color of state law when that entity
performs a function which is traditionally the exclusive province of the state.”
Id. (internal quotation marks and citation omitted); see also Evans v. Newton,
382 U.S. 296, 299 (1966) (noting that a private entity operates as a state actor
when it is “endowed by the State with powers or functions governmental in
nature”). Barkley contends that, when Dillard’s hired Wilkinson to “Enforce all
State and Federal Laws” in his Harris County Sheriff’s uniform, Dillard’s
became a state actor in that it was performing traditional state functions.
      This court has previously set forth the standard for demonstrating state
action in circumstances such as this. In Morris v. Dillard Department Stores,

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Inc., 277 F.3d 743 (5th Cir. 2001), the court considered whether Dillard’s was a
state actor for purposes of a Fourth Amendment claim when it employed a
municipal police officer as a private security guard and the officer arrested an
individual suspected of shoplifting.       After reviewing the court’s previous
decisions, we concluded that “we will not subject a merchant to § 1983 liability
unless an officer has failed to perform [an] independent investigation” and that
“evidence of a proper investigation may include such indicators as an officer’s
interview of an employee, independent observation of a suspect, and the officer
writing his own report.” Id. at 750. In Morris, the officer questioned the
employee making the report of shoplifting, observed the alleged shoplifter (who
did nothing illegal during that time), wrote down the license plate number of the
alleged shoplifter’s car, arrested the alleged shoplifter after she confronted him,
and wrote up his own police report detailing his actions and investigation. Id.
The officer testified without contradiction that he did not make his decision to
arrest the alleged shoplifter until after the individual confronted him, indicating
that he was not acting solely on the basis of the employee’s report. Id. We held
that this was evidence of an independent investigation that removed Dillard’s
from liability as a state actor. Id.
      In this case, taking the facts in the light most favorable to Barkley, the
evidence shows that Wilkinson received a report of shoplifting. He then spotted
Barkley, who fit the description of the shoplifter, walking at a fast pace to his car
while carrying a large Dillard’s bag. Dillard’s never ordered Wilkinson to arrest
Barkley, and Wilkinson asserted without contradiction in his affidavit that he
made the decision to apprehend Barkley based on his own analysis. Wilkinson
further asserts that he would not have arrested an individual solely on the basis
of a report by a Dillard’s employee without making his own investigation of the
matter. In this instance, Wilkinson claims that he determined that, regardless



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of Dillard’s rules, he had the duty as a police officer to try and prevent any theft
that might be occurring.
      Taking all of these facts into account, Barkley has failed to present
sufficient evidence that Dillard’s was a state actor. Although Dillard’s notified
Wilkinson of the shoplifter, Wilkinson made an independent decision to chase
after and attempt to apprehend the suspect. These facts are in contrast with
those in Smith v. Brookshire Brothers, Inc., 519 F.2d 93 (5th Cir. 1975) (per
curiam), in which we found that Brookshire was a state actor because “the police
and [Brookshire] maintained a pre-conceived policy by which shoplifters would
be arrested based solely on the complaint of the merchant.” Morris, 277 F.3d at
748-49. There is no evidence of a pre-conceived policy in this case. Therefore,
based on the facts described above, we conclude that the district court did not err
in deciding that Dillard’s was not a state actor. Consequently, we affirm
summary judgment for Dillard’s.
C.    Claims Against Harris County
      We turn now to Barkley’s claims against Harris County. The district court
granted summary judgment to Harris County because it first granted summary
judgment to Wilkinson. The district court reasoned that because no claims could
be brought against Wilkinson, Harris County could not be liable. See, e.g., City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no
constitutional injury at the hands of the individual police officer, the fact that
the departmental regulations might have authorized the use of constitutionally
excessive force is quite beside the point.”). The district court erred in employing
this reasoning, however. Barkley’s claims against Wilkinson were dismissed, not
because of a lack of a constitutional violation, but because Barkley failed to serve
Wilkinson in a timely fashion, which permitted the statute of limitations to run.
A ruling that Barkley’s claims against Wilkinson are untimely says nothing
about whether Harris County (which was timely served) had a policy or custom

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that caused the deprivation of Barkley’s constitutional rights.1 Indeed, Harris
County does not argue that the decision should be affirmed on this basis.
Consequently, the district court erred in granting summary judgment to Harris
County based solely on the grant of summary judgment to Wilkinson.
       Our inquiry does not end there, however, as we may affirm the grant of
summary judgment on grounds other than those relied upon by the district court
when the record contains an adequate and independent basis for the result. See
Montgomery v. Brookshire, 34 F.3d 291, 297 (5th Cir. 1994); see also Stanley v.
Trinchard, 500 F.3d 411, 428 (5th Cir. 2007) (noting that the court “may affirm
summary judgment on any legal ground raised below, even if it was not the basis
for the district court’s decision” (internal quotation marks omitted)). Harris
County urges us to consider the merits of Barkley’s claim against it, specifically,
whether Barkley has evidence of a policy or custom of Harris County that caused
his injuries.
       It is well established that governmental liability under § 1983 must be
premised on a government policy or custom that causes the alleged
constitutional deprivation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). A policy may be a policy statement, ordinance, regulation, or decision
that is officially adopted and promulgated by the government’s lawmaking
officers or by an official to whom the lawmakers have delegated policy-making
authority. Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003). A
custom is shown by evidence of a persistent, widespread practice of government
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 government policy. Id. Here, Barkley argues that Harris

       1
          Similarly, a municipality can be liable for a constitutional violation even when its
police officers are entitled to qualified immunity for their actions. See, e.g., Glenn v. City of
Tyler, 242 F.3d 307 (5th Cir. 2001) (finding that police officers were entitled to dismissal based
on qualified immunity but that claims remained against the city).

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County had a policy or custom of inadequately training its deputies, especially
with respect to shooting at individuals in vehicles, and not properly investigating
alleged instances of excessive force, thereby creating an atmosphere that
permitted such uses of force.
       Wilkinson relies on three main pieces of evidence in making his claim: (1)
allegations that Wilkinson previously used excessive force against Bonafacio
Juarez (“Juarez”); (2) two newspaper articles detailing various incidents of
officers shooting at vehicles and the government’s response; and (3) the expert
report of Roger Clark.
       Turning first to the allegations regarding Juarez, Barkley asserts that
Wilkinson used excessive force when he assaulted Juarez on October 6, 2003,
and that Harris County therefore knew that Wilkinson was prone to using
excessive force and did nothing about it.2 At the time of the alleged assault,
Juarez was under arrest for drunk driving and handcuffed to a bench.
Wilkinson claimed he hit Juarez after Juarez began to kick him. Harris County
cleared Wilkinson of any wrongdoing, and Juarez subsequently pleaded guilty
to attempted assault on a peace officer, although he currently denies those
charges. This single allegation of excessive force is not sufficient evidence to put
Harris County on notice that Wilkinson might need closer supervision or
training, especially in light of the fact that the victim pleaded guilty to
attempting to assault Wilkinson. Cf. Brown v. Bryan County, 219 F.3d 450, 454-
55, 458 (5th Cir. 2000) (noting that deputy’s prior arrests for assault and battery,
resisting arrest, public drunkenness, driving while intoxicated, possession of
false identification, and other crimes indicated a need for further training).




       2
        Barkley also asserts that Wilkinson used excessive force in shooting another individual
some time after the events of the instant case. We do not consider that shooting as it could not
have informed Harris County’s judgment of Wilkinson at the time of Barkley’s shooting.

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      Barkley also presented two articles from the Houston Chronicle that detail
a four-month investigation into the use of force by Harris County deputies and
Houston police officers. The first article noted that officers and deputies were
going against their training by intentionally placing themselves in danger by
stepping in front of vehicles, leading to an unusual number of shootings by
officers. The second article reported that the Harris County Sheriff had adopted
a new policy to further restrict when force could be used when a suspect was
inside a vehicle.    We first note that newspaper articles are hearsay and
inadmissible. Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005)
(stating that newspaper articles are “classic, inadmissible hearsay”). Regardless,
these articles do not evidence a policy or custom of unconstitutional shootings.
Although the authors indicate their belief that many of the shootings were not
justified, there is no evidence that the authors were employing any sort of
constitutional standard. Further, the articles indicate that the officers were
acting “in violation” of their training and that Harris County took steps to
correct the matter as a result of the findings of the reporters. Thus, even were
we to consider the articles as evidence, they do not indicate that Harris County
had a policy or custom of permitting unconstitutional uses of force or that Harris
County was deliberately indifferent to the need to train.
      Barkley next relies on the report of his police practices expert Roger Clark
(“Clark”). In his report, Clark opines that Harris County has a custom and
practice of permitting the use of excessive force by its deputies. To reach this
conclusion, Clark states that he reviewed sixty-eight internal affairs files from
Harris County regarding police shootings. His report then lists the name of each
file and marks with an asterisk the ones in which Clark concluded the shooting
was not justified. While Harris County found five of the sixty-eight shootings to
be unjustified, Clark believed forty-two were not justified. Clark, however,
provides no explanation for his conclusions—only asterisks. There is nothing in

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the report to suggest Harris County acted improperly other than Clark’s bare
conclusion that numerous shootings were not justified. We do not accept such
conclusory statements as sufficient evidence to overcome summary judgment.
Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005) (“A claim cannot stand
or fall on the mere ipse dixit of a credentialed witness.” (internal quotation
marks omitted)); Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th
Cir. 2002) (noting that conclusory allegations and unsubstantiated assertions are
insufficient to overcome summary judgment).         Thus, Clark’s report is not
sufficient to create a genuine issue of material fact regarding policy or custom.
      In order to hold Harris County liable for its lack of training, Barkley was
required to present evidence that Harris County was deliberately indifferent to
the need for more or better training. See City of Canton v. Harris, 489 U.S. 378,
389 (1989). Barkley has not identified any training deficiency. Indeed, there is
no evidence of what training Wilkinson or any other officer received with respect
to excessive force. Similarly, Barkley has not identified any deficiency in Harris
County’s investigation of officer shootings, other than his disagreement with the
conclusions reached by Harris County. Therefore, there is no evidence that
Harris County failed to train Wilkinson or that it used improper methods to
investigate officer shootings.
      Barkley bases part of his argument on the theory of ratification that we
used in Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985), which
concerned allegations that the police shot an innocent man. In Grandstaff, we
upheld a jury verdict against a city based on a custom of reckless disregard for
human life that was prevalent among the officers. Id. at 170-72. There, the
entire night shift of the Borger police department “poured” gunfire into a slow-
moving pick-up truck “without awaiting any hostile act or sound . . . .” Id. at 168
(“They simply saw a target and fired.”). We characterized the events leading to
the shooting as an “incompetent and catastrophic performance” and a “gross . . .

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abuse of the use of deadly weapons . . . .” Id. at 171. We concluded that, because
the officers received no reprimands or discharges from the city following such a
flagrant use of excessive force, there must have been a preexisting disposition
and policy of reckless disregard for life. Id. at 171-72. Barkley urges us to reach
the same result in this case.
      Grandstaff, however, has not enjoyed wide application in our circuit.
Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1988). We have limited its
ratification theory to “extreme factual situations.” Id. at 798 (refusing to apply
Grandstaff to case in which police shot fleeing suspect in the back); Coon v.
Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir. 1986) (noting that a policymaker may
defend the actions of his employees without incurring liability). The instant
situation is not an extreme factual situation as in Grandstaff, but is more like
Snyder, in which a single officer was involved in shooting a fleeing suspect.
Consequently, we decline to apply the theory used by the court in Grandstaff.
      For the foregoing reasons, Barkley has failed to meet his burden of
creating a genuine issue of material fact regarding whether his injuries were
caused by a policy or custom of Harris County. We therefore affirm summary
judgment for Harris County.
                                III. CONCLUSION
      Because Dillard’s is not a state actor and because there is no evidence that
Harris County had a policy or custom that caused Barkley’s injuries, we
AFFIRM the judgment of the district court.
      AFFIRMED.




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