                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 4, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-41648
                         Summary Calendar



GREGORY JEROME DAY,

                                    Plaintiff-Appellant,

versus

ROGERS, Chief; EVELYN WELLS ROBINSON; RICK BOYLE,
Captain; TWO UNKNOWN NAMED, Two Unknown Named Galveston
Police Officers; FERNANDO BERTRAND; MCLANE, Officer;
K. TRUSSELL, Officer; CITY OF GALVESTON,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. G-96-CV-487
                      USDC No. G-96-CV-619
                      --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Gregory Jerome Day, currently Texas inmate # 635963,

proceeding pro se and in forma pauperis (“IFP”), appeals the

district court’s dismissal as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2) of his civil rights complaint.   Day contends that

Officer Bertrand’s conduct constituted the use of excessive force

in violation of his rights under the Fourth Amendment.      He

     *
        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that this opinion should not be published and is not precedent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. 02-41648
                                -2-

contends that the constitutional right at issue was clearly

established and that Bertrand acted unreasonably.     He argues that

the City of Galveston is liable for Bertrand’s conduct and for

the inadequate training of its officers.

     Day has abandoned his claims against Police Chief Rogers by

failing to assert them sufficiently in his initial brief.      Price

v. Roark, 256 F.3d 364, 369 n.2 (5th Cir. 2001); Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Accordingly, we AFFIRM the dismissal of Day’s claims against

Chief Rogers.   See Bickford v. International Speedway Corp., 654

F.2d 1028, 1031 (5th Cir. 1981).

     Qualified immunity shields police officers from suit “unless

their conduct violates a clearly established constitutional

right.”   Mace v. City of Palestine,       F.3d    , 2003 WL

21313717, *2 (5th Cir. Jun. 24, 2003).     “Claims of qualified

immunity require us to decide (1) whether the alleged facts taken

in the light most favorable to the party asserting the injury

“show that the officer’s conduct violated a constitutional

right”; and (2) if so, “‘whether the right was clearly

established--that is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.’”   Id.

     Claims that police officers used excessive force are

analyzed under the Fourth Amendment’s objective reasonableness
                             No. 02-41648
                                  -3-

standard.   Id.   This reasonableness determination requires a

balancing of “the nature and intrusion on the individual’s Fourth

Amendment interests’ against the countervailing governmental

interests at stake.”     Gutierrez v. City of San Antonio, 139 F.3d

441, 447 (5th Cir. 1998).     We consider “the severity of the crime

at issue, whether the suspect pose[d] an immediate threat to the

officers or others, and whether he [was] actively resisting

arrest or attempting to evade arrest by flight.     Id.    The fact

that police officers are required to make split second judgments

under tense and rapidly evolving circumstances is considered.

Id.   If the officer reasonably but mistakenly used excessive

force, he is entitled to qualified immunity.     See id.

      Day’s allegations, taken as true, could constitute a

constitutional violation.     See Saucier v. Katz, 533 U.S. 194,

201-02 (2001); Tennessee v. Garner, 471 U.S. 1, 3 (1985).

However, on the present record, we cannot decide whether there

was a violation of a clearly established right, and whether if

so, the officer’s conduct was objectively reasonable.

      Day, in verified pleadings, alleged that Officer Bertrand

used the police car to run him down from behind in order to

apprehend him.    Verified documents may serve as competent summary

judgment evidence.     King v. Dogan, 31 F.3d 344, 346 (5th Cir.

1994).   The defendants provided sworn affidavits in which they

stated that as Officer Bertrand was positioning the patrol car so

that Officer Fleming could exit and pursue Day on foot, Day ran
                            No. 02-41648
                                 -4-

into the patrol car.   The district court decided that “Bertrand

did not drive up onto the sidewalk and run Day down, nor did he

chase Day in the street and run over him.”

     The district court’s finding is based on disputed facts and

is material to the determination whether there was a violation of

a clearly established constitutional right and whether Bertrand’s

conduct was objectively reasonable.       Accordingly, we REVERSE the

judgment of the district court and REMAND for further

consideration of Day’s claims against Officer Bertrand and the

City of Galveston.

     Day asserts that Officer Bertrand acted in retaliation to

avenge an injury that occurred to Officer Oliver.       Day asserts

that he raised the retaliation issue in the district court in a

document filed on April 30, 1998, and that the district court did

not address his retaliation claim.       Leave of court is required

before a party may amend his complaint if service has been

effected.   FED. R. CIV. P. 15(a).    Day did not request leave to

amend his complaint to add a retaliation claim.

     Day asserts that his allegations of excessive force

constituted a claim of assault and battery under Texas law.       Day

did not assert an assault and battery claim and a mental anguish

claim in his complaints or in his amended complaint.       Further,

Day does not allege that the district court erred by failing to

consider his state law claims.       The failure to assert error in

the district court’s treatment of an issue is the same as if the
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                                 -5-

appellant had not appealed that judgment.    Brinkmann, 813 F.2d at

748.

       AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
