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

                                                                            FILED
                                                                          March 12, 2008

                                     No. 07-10676                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ALLEN CARLTON JR

                                                  Plaintiff-Appellant
v.

C FEARNEYHOUGH, #3231, Officially and Individually

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:05-CV-711-Y


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       This appeal challenges the district court’s entry of summary judgment in
favor of Defendant-Appellee on Plaintiff-Appellant’s federal and state law claims
arising from an arrest. For the following reasons, we affirm the district court’s
judgment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10676

                  I. FACTS AND PROCEDURAL HISTORY
       On November 4, 2004, Plaintiff-Appellant Allen Carlton, Jr. (“Carlton”),
went to the parking lot of a Family Dollar Store to meet a friend. While waiting
for his friend, Carlton spoke to Jim Blackwell (“Blackwell”), who was protesting
in front of the store and handing out flyers. Blackwell handed a flyer to Carlton
and left the parking lot. Meanwhile, the store’s manager, Donald Steele, Jr.
(“Steele”), called the police to report that he believed Carlton and Blackwell were
harassing customers. The parking lot had posted signs reading “No Solicitors
or Peddlers Allowed” and “No Loitering.”                   Defendant-Appellee Chris
Fearneyhough, a Forth Worth Police Department officer, responded to the call.
Fearneyhough questioned Carlton and asked him for identification. When
Carlton refused to comply,1 Fearneyhough handcuffed Carlton and placed him
in Fearneyhough’s patrol car.             At some point during this exchange,
Fearneyhough threw a wadded-up flyer at Carlton’s face.
       When Fearneyhough’s backup officer, J.D. Garwacki (“Garwacki”) arrived,
Fearneyhough directed Garwacki to ask Carlton for his identification. At that
time, Carlton complained that his handcuffs were too tight. Garwacki claims
that Carlton was lying on his back in the car, a position which put much of his
body weight on his hands.             Garwacki obtained Carlton’s identification
information and Fearneyhough determined that Carlton had a pending arrest
warrant.
       Carlton again complained about the handcuffs. In order to check the
tightness of the handcuffs, Garwacki attempted to remove Carlton from the car.
When Carlton resisted, Garwacki applied his thumb to a pressure point on
Carlton’s neck, causing some pain. Carlton then complied. Once out of the car,
Garwacki tested Carlton’s handcuffs by inserting two fingers between the cuffs


       1
        Carlton claims he was cooperative. Fearneyhough claims Carlton was resistant, rude,
and profane.

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                                       No. 07-10676

and Carlton’s wrists. Garwacki determined the handcuffs were not too tight.
Ultimately, Fearneyhough arrested Carlton for his outstanding warrant and
issued citations for violating a city ordinance and failure to identify.
      Carlton filed suit in state court against Fearneyhough, Garwacki, Steele,
and Family Dollar Store.2 In his claims against Fearneyhough, Carlton alleged
Eighth Amendment violations, use of excessive force, malicious prosecution,
intentional infliction of emotional distress, and conspiracy. Fearneyhough
removed the case to federal district court, which granted summary judgment to
Fearneyhough on all claims. Carlton, acting pro se, filed this appeal.
                            II. STANDARD OF REVIEW
      We have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We
review a district court’s order granting summary judgment de novo. Morris v.
Equifax Info. Servs., L.L.C., 457 F.3d 460, 464 (5th Cir. 2006). Summary
judgment is appropriate when, after considering the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits, “there is no
genuine issue as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c); Bulko v. Morgan Stanley DW, Inc., 450
F.3d 622, 624 (5th Cir. 2006). A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering
a summary judgment motion, all facts and evidence must be taken in the light
most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros.,
453 F.3d 283, 285 (5th Cir. 2006).
      We construe a pro se party’s briefs liberally. Price v. Digital Equip. Corp.,
846 F.2d 1026, 1028 (5th Cir. 1988). Nevertheless, even pro se litigants must
brief arguments in order to preserve them for appellate review. Id.


      2
          Steele, Family Dollar Store, and Garwacki are not parties to this appeal.

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                              III. DISCUSSION
A.    Federal Law Claims
      In his complaint, Carlton made two claims that implicate federal
constitutional and statutory rights: an Eighth Amendment claim and a Fourth
Amendment excessive force claim. The district court granted Fearneyhough’s
summary judgment motion on both claims on the basis of qualified immunity.
      Public officials performing discretionary duties enjoy immunity from suits
for damages, provided 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). In the Fifth Circuit, we
employ a three-part inquiry to determine whether an officer enjoys qualified
immunity:
      First, we examine whether the plaintiff has alleged the violation of
      a constitutional right.      Second, we determine whether the
      constitutional right was clearly established at the time the
      defendant acted. A constitutional right is clearly established if the
      unlawfulness of the conduct would be apparent to a reasonably
      competent official. The second prong of the qualified immunity
      inquiry therefore requires an assessment of whether the official’s
      conduct would have been objectively reasonable at the time of the
      incident. Finally, we determine whether the record indicates that
      the violation occurred, or gives rise to a genuine issue of material
      fact as to whether the defendant actually engaged in the conduct
      that violated the clearly established right.

Conroe Creosoting Co. v. Montgomery County, 249 F.3d 337, 340 (5th Cir. 2001)
(internal citations and quotation marks omitted). The plaintiff bears the burden
of proving that the qualified immunity defense does not apply. McClendon v.
City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). In this case, we
agree with the district court that Carlton’s claims fail on the first prong of the
qualified immunity inquiry.




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                                  No. 07-10676

      First, the Eighth Amendment prohibits excessive bail or fines and “cruel
and unusual punishments.” U.S. CONST. amend. VIII. The district court held
that Carlton’s Eighth Amendment claim lacked merit because the Eighth
Amendment applies only to convicted prisoners, not individuals in pretrial police
custody. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996). Because he was
in pretrial custody, Carlton simply fails to make any cognizable claim under the
Eighth Amendment.
      Second, the district court held that Carlton did not show sufficient injury
to sustain his Fourth Amendment excessive force claim. In the qualified
immunity context, a plaintiff must show the following to succeed on an excessive
force claim: “(1) an injury (2) which resulted directly and only from the use of
force that was clearly excessive to the need and (3) the force used was objectively
unreasonable.” Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). The
district court concluded that Carlton’s claims that the handcuffs were too tight
and that Fearneyhough threw a wad of paper in Carlton’s face did not allege
more than de minimis injury. See id. at 703-04 (“In determining whether an
injury caused by excessive force is more than de minimis, we look to the context
in which that force was deployed. The amount of injury necessary to satisfy our
requirement of ‘some injury’ and establish a constitutional violation is directly
related to the amount of force that is constitutionally permissible under the
circumstances.” (internal quotation marks omitted)). The court also noted that
Carlton, in response to Fearneyhough’s request for admissions, conceded that he
suffered no injury as a result of the arrest. This is a binding factual admission
that Carlton may not dispute on appeal. FED. R. CIV. P. 36(b); see also Am. Auto.
Ass’n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir.
1991) (“This conclusive effect applies equally to those admissions made
affirmatively and those established by default, even if the matters admitted
relate to material facts that defeat a party’s claim.” (footnote omitted)).

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Therefore, Carlton failed to make out a prima facie case of an excessive force
claim.
      In this appeal, Carlton also alleges that (1) Fearneyhough did not have a
reason to investigate Carlton on the date in question, (2) Carlton was not
violating any law at the time Fearneyhough questioned him, and (3) Carlton
cooperated with Fearneyhough’s initial inquiry. However, Carlton fails to point
out any specific error in the district court’s grant of summary judgment, only
vaguely charging that the district court’s decision was “made on an arbitrary
basis and not based on the evidence.” Finding no merit in Carlton’s challenges,
we affirm the district court’s summary judgment in favor of Fearneyhough on
Carlton’s federal law claims.
B.    State Law Claims
      In his complaint, Carlton alleged the state law claims of malicious
prosecution, intentional infliction of emotional distress, and conspiracy.
Fearneyhough asserted official immunity. Official immunity is an affirmative
defense. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). Therefore,
to obtain summary judgment, a government officer must conclusively prove each
element of the defense. Id. However, the district court never reached the issue
of official immunity because it concluded that Carlton failed to make a prima
facie case on any of his state law claims.
      In Texas, a plaintiff brining a malicious prosecution claim must establish:
“(1) the commencement of a criminal prosecution against the plaintiff; (2)
causation (initiation or procurement) of the action by the defendant; (3)
termination of the prosecution in the plaintiff’s favor; (4) the plaintiff’s
innocence; (5) the absence of probable cause for the proceedings; (6) malice in
filing the charge; and (7) damage to the plaintiff.” Richey v. Brookshire Grocery
Co., 952 S.W.2d 515, 517 (Tex. 1997). “Courts must presume that the defendant
acted reasonably and had probable cause to initiate criminal proceedings. To

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                                      No. 07-10676

rebut this presumption, the plaintiff must produce evidence that the motives,
grounds, beliefs, or other information upon which the defendant acted did not
constitute probable cause.” Kroger Tex. LP v. Suberu, 216 S.W.3d 788, 793 (Tex.
2006) (citation omitted). The malice element may be inferred from a lack of
probable cause. Id. at 798.
       Before the district court, Carlton alleged that Fearneyhough maliciously
prosecuted him solely because Carlton is black.3 The district court reasoned that
Carlton’s claim of racial bias in Fearneyhough’s actions was unsupported by any
admissible evidence. In responding to Fearneyhough’s requests for admissions,
Carlton admitted that he had “no evidence that defendant Fearneyhough took
any action or made any decision based on [his] race.” See FED. R. CIV. P. 36(b);
see also Am. Auto. Ass’n, 930 F.2d at 1120 (noting that such admissions are
binding unless revoked). Therefore, without his claim of racial bias, the district
court reasoned that Carlton has no basis on which to support his malicious
prosecution claim.
       Carlton argues that Fearneyhough acted in bad faith by arresting Carlton
“on charges that were non-existence [sic] for the crimes cited.” Presumably,
Carlton alludes to reports that although Fearneyhough cited a “solicitation of a
business” ordinance as the reason for arresting Carlton, the cited ordinance does
not prohibit lawful picketing of a business. However, this does not constitute
evidence that Carlton’s “motives, grounds, beliefs, or other information” did not
support probable cause. In fact, Carlton’s own summary judgment evidence
supports a conclusion that Fearneyhough—after speaking to the store manager,
Steele—had a good faith belief that a man in the Family Dollar Store parking lot
was handing out flyers and harassing customers. Fearneyhough arrived at the
parking lot and found Carlton holding a flyer. When Fearneyhough initially

       3
       Carlton also leveled charges that the City of Forth Worth has no evidence that Carlton
committed a crime, though that claim does not implicate Fearneyhough.

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                                  No. 07-10676

questioned Carlton, he replied with profanity and failed to identify himself.
Fearneyhough arrested Carlton based on what he reasonably believed were
violations of local solicitation of business, disorderly conduct, and “refusal to
identify” laws.     See Richey, 952 S.W.2d at 517 (“The probable-cause
determination asks whether a reasonable person would believe that a crime had
been committed given the facts as the complainant honestly and reasonably
believed them to be before the criminal proceedings were instituted.”). Finally,
we note that Carlton conceded in his second amended petition that proceedings
were still pending on the citations Fearneyhough issued, making it impossible
for Carlton to support the fourth (termination of the prosecution in the plaintiff’s
favor) and fifth (plaintiff’s innocence) elements of a malicious prosecution claim.
      Regarding Carlton’s intentional infliction of emotional distress claim, the
district court concluded that Carlton failed to allege the essential elements of
that tort. To state a prima facie claim for intentional infliction of emotional
distress under Texas law, a plaintiff must show “(1) the defendant acted
intentionally or recklessly; (2) the defendant’s conduct was extreme and
outrageous; (3) the defendant’s actions caused the plaintiff emotional distress;
and (4) the resulting emotional distress was severe.” Hoffman-LaRoche, Inc. v.
Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004). As a “gap-filler” tort, intentional
infliction of emotional distress is available only “in those rare instances in which
a defendant intentionally inflicts severe emotional distress in a manner so
unusual that the victim has no other recognized theory of redress.” Id. at 447
(“The tort’s clear purpose . . . was to supplement existing forms of recovery by
providing a cause of action for egregious conduct that might otherwise go
unremedied.” (internal quotation marks omitted)). The district court held that
because the crux of Carlton’s claim is another tort—arising from Fearneyhough’s
use of force during the incident—his intentional infliction of emotional distress
claim is not cognizable. Carlton offers no specific criticism of the district court

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on this point, and we therefore hold that summary judgment was proper on this
claim.
      Finally, the district court concluded that because Fearneyhough was
entitled to summary judgment on all of Carlton’s other claims, the conspiracy
claim also must fail. See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996)
(“[A] defendant’s liability for conspiracy depends on participation in some
underlying tort for which the plaintiff seeks to hold at least one of the named
defendants liable.”).   In challenging the district court’s judgment on his
conspiracy claim, Carlton merely rehashes his version of the facts in this case,
but he makes no claims that would support a substantive right of recovery.
Primarily, Carlton argues that inconsistent statements in various police reports
demonstrate “the mind set of the officers in the planning and execution of the
charge and arrest of Carlton for non-existent charges.” Finding no basis for
recovery on any underlying tort, we conclude that summary judgment in favor
of Fearneyhough was appropriate on this claim.
                             IV. CONCLUSION
      For the reasons stated, we affirm the district court’s entry of summary
judgment in favor of Fearneyhough.
      AFFIRMED.




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