     Case: 17-30902   Document: 00514539083    Page: 1   Date Filed: 07/03/2018




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

                                                                        FILED
                                No. 17-30902                          July 3, 2018
                              Summary Calendar                       Lyle W. Cayce
                                                                          Clerk

RICHARD DOUGLAS, individually and on behalf of his son, Joshua Dale Powe
Douglas; L.C., individually and on behalf of the minor child, G.D.; JESSICA
SHEPPARD, individually and on behalf of the minor child, M.S.,

             Plaintiffs - Appellants

v.

MATTHEW DEPHILLIPS, individually and in his official capacity as Deputy,
St. Tammany Parish Sheriff’s Office; JAMES KELLY, individually and in his
official capacity as Deputy, St. Tammany Parish Sheriff’s Office; JACOB
JENKINS, individually and in his official capacity as Deputy, St. Tammany
Parish Sheriff’s Office; CRISTEN GRAHAM, individually and in her official
capacity as Deputy First Class, St. Tammany Parish Sheriff’s Office; ALEX
DANTAGHAN, individually and in his official capacity as Sergeant, St.
Tammany Parish Sheriff’s Office; RANDY SMITH, as successor to Rodney
“Jack” Strain, and as Sheriff, St. Tammany Parish, in his individual and
official capacities; RODNEY JACK STRAIN, JR., former Sheriff, St. Tammany
Parish, individually and in his official capacity as the Sheriff, St. Tammany
Parish, during times relevant to the shooting; JOSH WILLIAMS, individually
and in his official capacity as Corporal, St. Tammany Parish Sheriff’s Office;
GREY THURMAN, individually and in his official capacity as Deputy First
Class, St. Tammany Parish Sheriff’s Office; FRED OSWALD, individually and
in his official capacity as Chief Deputy, St. Tammany Parish Sheriff’s Office;
BRIAN TRAINOR, individually and in his official capacity as Deputy Chief,
Legal, St. Tammany Parish Sheriff’s Office; UNIDENTIFIED PARTIES,

             Defendants - Appellees
     Case: 17-30902        Document: 00514539083           Page: 2     Date Filed: 07/03/2018


                                        No. 17-30902


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:17-CV-2305


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Richard Douglas (“Richard”), individually and on behalf of his son,
Joshua Dale Powe Douglas (“Douglas”); L.C., individually and on behalf of the
minor child, G.D.; and Jessica Sheppard, individually and on behalf of the
minor child, M.S., (collectively, “Appellants”) challenge the district court’s
dismissal of their civil rights complaint against the St. Tammany Parish
Sheriff’s Office and several of its police officers. For the reasons explained
below, we AFFIRM. 1




       * 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.
       1 Appellants also contend that they are appealing the district court’s denial of their
motion for relief from judgment under Federal Rule of Civil Procedure 60(b) and,
alternatively, to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).
The notice of appeal was filed prior to the order denying Appellants’ Rule 60(b) and 59(e)
motion, and Appellants never amended the notice of appeal to challenge the order denying
their post-judgment motion as required by Federal Rule of Appellate Procedure 4(a)(4)(B)(ii).
Under our precedent, “a brief may serve as the ‘functional equivalent’ of an appeal if it is filed
within the time specified by [Federal Rule of Appellate Procedure] 4 and gives the notice
required by [Federal Rule of Appellate Procedure] 3.” Taylor v. Johnson, 257 F.3d 470, 475
(5th Cir. 2001) (per curiam) (quoting Smith v. Barry, 502 U.S. 244, 247–49 (1992)). Here,
because Appellants’ brief was not filed within the time specified by Rule 4, we lack
jurisdiction to review the district court’s order denying the Rule 60(b) and 59(e) motion. See
id. Even if we did have jurisdiction to review this order, Appellants waived the issue due to
inadequate briefing. See Douglas W. ex rel. Jason D. W. v. Hous. Indep. Sch. Dist., 158 F.3d
205, 210 n.4 (5th Cir. 1998) (per curiam) (“[F]ailure to provide any legal or factual analysis
of an issue on appeal waives that issue.”).

                                                2
    Case: 17-30902    Document: 00514539083    Page: 3   Date Filed: 07/03/2018


                                No. 17-30902

                               I. Background
      Douglas was shot and killed by Deputy Matthew DePhillips following a
car chase in St. Tammany Parish, Louisiana. According to the First Amended
Complaint, Douglas attempted to evade police officers pursuing him for driving
with a stolen license plate. Douglas’s girlfriend, Jessica Sheppard, sat in the
passenger seat and was about five months pregnant. Deputies DePhillips,
James Kelly, and Jacob Jenkins pursued Douglas into a dead-end square.
After Douglas backed into a ditch, Deputies DePhillips, Kelly, and Jenkins
allegedly rushed to Douglas’s immobilized vehicle with their weapons drawn.
Sheppard held her hands in the air, screaming she was pregnant. Douglas
held his hands near the top of Sheppard’s arms, and his head was within inches
of Sheppard’s and turned slightly towards Deputy DePhillips.            Deputy
DePhillips fatally shot Douglas near his right eye. According to Appellants,
Deputy DePhillips later stated that he believed Douglas had a gun in his hand
and was hiding it underneath Sheppard’s hair behind the headrest. No gun
was ever found in Douglas’s vehicle.
      Deputy Jenkins purportedly came around to the passenger side door,
removed Sheppard from the vehicle, and threw her to the ground on her
stomach despite Sheppard being visibly pregnant and screaming that she was
pregnant.    Appellants allege that this incident caused temporary and
permanent injury to Sheppard’s then-unborn child, M.S. After the scene was
declared safe, EMS arrived, checked Douglas’s pulse, and declared him dead.
Appellants allege that Douglas survived for some time after being shot, and
they suggest that he may have survived had EMS been called sooner.
      Appellants sued the St. Tammany Parish Sheriff’s Office and several of
its police officers involved in Douglas’s death and Sheppard’s apprehension.
On appeal, Appellants challenge the dismissal of their federal civil rights
claims under 28 U.S.C. § 1983 for excessive force against Douglas, Sheppard,

                                       3
     Case: 17-30902          Document: 00514539083          Page: 4   Date Filed: 07/03/2018


                                         No. 17-30902

and M.S. under the Fourth Amendment, failure to render medical care to
Douglas under the Fourteenth Amendment, Richard’s claim for deprivation of
familial association under the Fourteenth Amendment, and Monell 2 liability
against the Sheriff of St. Tammany Parish. 3 Appellants also challenge the
district court’s denial of their request to replead and the dismissal of their
intentional spoliation claim. 4
                                        II. Discussion
       As an initial matter, the appellate briefing regarding Monell liability and
excessive force against Douglas and Sheppard merely refers us to the district
court briefing without citing any supporting authority. Accordingly, these
issues are waived due to inadequate briefing. Summers v. Dretke, 431 F.3d
861, 870 (5th Cir. 2005); see also Rigas v. United States, 486 F. App’x 491, 497
(5th Cir. 2012) (per curiam) (“[W]e consider these arguments to be waived due
to inadequate briefing because the [appellants] attempt to incorporate their
arguments before the district court by reference without citing any supporting
authorities in their appellate brief.”). 5              This determination also defeats
Richard’s familial association claim and M.S.’s excessive force claim, which
were based on excessive force against Douglas and Sheppard. 6 We similarly


       2   Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
       3Appellants do not challenge the dismissal of their unwarranted seizure claim under
the Fourth Amendment.
       4 We review de novo the dismissal of a complaint under Federal Rule of Civil Procedure
12(b)(6), and we review for abuse of discretion the denial of leave to amend a complaint. See
Carroll v. Fort James Corp., 470 F.3d 1171, 1173–74 (5th Cir. 2006).
       5 Although Rigas is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
       6  It was Appellants’ burden to show that the defense of qualified immunity is
unavailable because the officers’ conduct violated clearly established statutory or
constitutional rights. See Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (per
curiam). They failed to do so. This is not a case involving an obvious constitutional violation,
and the briefing only discusses these claims at “a high level of generality” and failed to show
clearly established law “particularized” to the facts of this case. See White v. Pauly, 137 S.
                                                 4
     Case: 17-30902       Document: 00514539083          Page: 5     Date Filed: 07/03/2018


                                       No. 17-30902

affirm dismissal of the claim brought on behalf of Douglas against several
police officers for failure to render medical care because the briefing does not
challenge the district court’s determination that the officers were entitled to
qualified immunity. 7 Askanase v. Fatjo, 130 F.3d 657, 668 (5th Cir. 1997) (“All
issues not briefed are waived.”).
       Appellants argue that the district court should have allowed them to
amend their First Amended Complaint based on their request to amend in
their opposition to the motion to dismiss. 8 Federal Rule of Civil Procedure
15(a) provides that leave to amend should be freely given when justice so
requires. To take advantage of this rule, “the party requesting amendment,
even absent a formal motion, need only ‘set forth with particularity the
grounds for the amendment and the relief sought.’” United States ex rel. Doe
v. Dow Chem. Co., 343 F.3d 325, 330–31 (5th Cir. 2003) (quoting United States
ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 386–87 (5th
Cir. 2003)).
       Here, Appellants failed to set forth with sufficient particularity the
grounds for the amendment. At the end of their opposition to the motion to
dismiss, Appellants stated that they “should be given an opportunity to amend
. . . to further state any claims considered deficient” and “to plead further”


Ct. 548, 552 (2017). Therefore, we affirm the district court’s dismissal of their claims based
on qualified immunity. See id.
       7  The briefing merely argues that the First Amended Complaint stated a claim for
failure to render medical care. But Appellants are required to point to case law showing that
the officers are not entitled to qualified immunity. See Cass, 814 F.3d at 728. They failed to
do so, and this is not a case where a constitutional violation is obvious. See White, 137 S. Ct.
at 552. Thus, even if this issue were not waived, we would still affirm the district court’s
dismissal of the claim based on qualified immunity. See id.
       8 Appellants also argue that the district court erred by failing to expressly rule on
their request to amend. However, because the district court dismissed all of the federal
claims with prejudice and declined to exercise supplemental jurisdiction over the state law
claims, the request to amend was impliedly denied. See Davis v. United States, 961 F.2d 53,
57 n.6 (5th Cir. 1991).

                                               5
     Case: 17-30902       Document: 00514539083         Page: 6    Date Filed: 07/03/2018


                                      No. 17-30902

Richard’s claims. These statements are insufficient to constitute a request for
leave to amend under Rule 15(a). See Goldstein v. MCI WorldCom, 340 F.3d
238, 254–55 (5th Cir. 2003) (perceiving no abuse of discretion in denying leave
to amend where the plaintiffs “tacked on a general curative amendment
request to the end of their response in opposition to the defendants’ motion to
dismiss,” which stated, “Should this Court find that the Complaint is
insufficient in any way, however, plaintiffs respectfully request leave to
amend”); Willard, 336 F.3d at 387 (“[A] bare request in an opposition to a
motion to dismiss—without any indication of the particular grounds on which
the amendment is sought—does not constitute a motion within the
contemplation of Rule 15(a).” (alteration in original) (internal citation omitted)
(quoting Confederate Mem’l Ass’n v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993))).
       AFFIRMED. 9




       9 Appellants also contend that they stated a claim for intentional spoliation and that
the district court failed to address that claim in its order dismissing the First Amended
Complaint. Appellants’ intentional spoliation claim was clearly based on Louisiana law, and
the district court dismissed all of the state law claims without prejudice after declining to
exercise supplemental jurisdiction. Appellants do not challenge the district court’s decision
not to exercise supplemental jurisdiction.

                                             6
