     Case: 15-60489      Document: 00513485161         Page: 1    Date Filed: 04/28/2016




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

                                      No. 15-60489
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             April 28, 2016

RAYMOND KIMBRIEL,                                                           Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellant

v.

CITY OF GREENVILLE, MISSISSIPPI; ADRIAN SMITH, in her Official and
Individual Capacity; JOHN DOE,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 4:14-CV-26


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Raymond Kimbriel appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 claims on the motion for summary judgment filed by the City of
Greenville and Officer Adrian Smith. Kimbriel sued Officer Smith of the
Greenville Police Department in her “individual and official capacity” for false
arrest and imprisonment, i.e., an unreasonable seizure, under the Fourth



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60489
Amendment of the U.S. Constitution, and the City of Greenville for policies or
customs that allegedly caused the violation of Kimbriel’s constitutional rights. 1
For the reasons that follow, we AFFIRM the district court’s dismissal of
Kimbriel’s § 1983 claims.
                                               I.
       Kimbriel’s claims arise from an encounter with Officer Smith, during
which Officer Smith pulled Kimbriel over because she allegedly saw Kimbriel’s
vehicle weaving. Through their conversation, Officer Smith learned Kimbriel
had been drinking at some point during the evening, so she conducted a field
sobriety test. Ultimately, Officer Smith arrested Kimbriel and transported
him to the Greenville Police Department, where another officer administered
two breathalyzer tests that recorded a blood alcohol content of .02. Officer
Smith charged Kimbriel with driving under the influence (“DUI”) and with
careless driving, and Kimbriel was transported to a county jail.                      He was
released on bond the next morning. Kimbriel’s DUI charge was dismissed in
municipal court in exchange for his guilty plea to the careless driving charge. 2



       1  Kimbriel sued Officer Smith in her “individual and official capacity,” but does not
brief the “official capacity” claims on appeal. Any claims against Officer Smith in her official
capacity have thus been abandoned, see Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999),
except to the extent Kimbriel may be alluding to allegations of municipal liability based on
Officer Smith’s conduct, which we reject herein for inadequate briefing. Kimbriel also filed
suit pursuant to 42 U.S.C. § 1985 and various provisions of state law, but he conceded the
dismissal of his § 1985 claim before the district court and does not challenge that dismissal
on appeal. Kimbriel also does not challenge the district court’s decision not to retain
supplemental jurisdiction over the state law claims in the event that we affirm the dismissal
of his federal claims, as we do here. We will not address these conceded and abandoned
claims. See Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983).
       2   The facts of the encounter between Officer Smith and Kimbriel are not materially
in dispute. We state them here merely as background, mindful of our obligation to construe
them in Kimbriel’s favor. See Haverda v. Hays Cty., 723 F.3d 586, 591 (5th Cir. 2013).
Though Kimbriel was found to have only a .02 blood alcohol content, less than the legal limit
of .08, such a reading would not have prevented his arrest for “common-law DUI” in
Mississippi, based on other evidence that his driving was impaired by alcohol. See Pittman
v. City of Starkville, 151 So. 3d 1055, 1058 (Miss. Ct. App. 2014).
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                                       No. 15-60489
Kimbriel has not challenged the legitimacy of his careless driving conviction,
and has stated that he does not seek to do so through his § 1983 claims.
       Kimbriel filed this suit in federal court against Officer Smith in her
individual and official capacity and against the City of Greenville, 3 claiming,
as relevant here, that the arrest and incarceration violated his Fourth
Amendment rights under 42 U.S.C. § 1983.                   The Defendants 4 moved for
summary judgment, arguing there was no constitutional violation, that Officer
Smith was entitled to qualified immunity in any event, and that Kimbriel
failed to produce any evidence to support municipal liability under § 1983. The
district court granted the motion for summary judgment, dismissing Kimbriel’s
§ 1983 claims, because it concluded Kimbriel failed to show that Officer Smith
lacked probable cause to arrest him, at the very least, for careless driving. The
district court declined to exercise supplemental jurisdiction over Kimbriel’s
state law claims and denied the Defendants’ motion for summary judgment as
to those claims, dismissing them without prejudice.                  Final judgment was
entered, and Kimbriel timely appealed.
                                              II.
       We have jurisdiction over the final judgment of the district court in this
§ 1983 case under 28 U.S.C. § 1291. We review the grant of summary judgment



       3  When we refer to the “City of Greenville,” we mean the City itself and Officer Smith
in her official capacity, as discussed supra at note 1.
       4   When we use the term “Defendants,” we refer to Officer Smith in her individual
capacity, the City of Greenville, and Officer Smith in her official capacity. Kimbrel also sued
“John Doe” in her original complaint, but he was never mentioned again. His presence in the
district court complaint does not affect the finality of the court’s judgment. A judgment of
dismissal is final and appealable under 28 U.S.C. § 1291 even if it does not dispose of claims
made against a party that has neither been served nor appeared before the court. See Nagle
v. Lee, 807 F.2d 435, 437–38 (5th Cir. 1987) (concluding that a judgment dismissing a case
against only some of the defendants was final despite the fact that claims against “ABC
Insurance Company” had never been addressed). Kimbriel does not mention “John Doe” on
appeal, so any argument concerning him is waived. See Hughes, 191 F.3d at 613.
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                                  No. 15-60489
de novo, inquiring, as did the district court, whether the Defendants showed
there is no genuine dispute as to any material fact such that the Defendants
were entitled to judgment as a matter of law. See Cuadra v. Hous. Indep. Sch.
Dist., 626 F.3d 808, 812 (5th Cir. 2010); see also FED. R. CIV. P. 56(c). We
consider all facts and evidence in the light most favorable to Kimbriel, the
nonmoving party, but to avoid summary judgment, Kimbriel had to “go beyond
the pleadings and come forward with specific facts indicating a genuine issue
for trial.” See Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (citation
omitted).
      We may affirm summary judgment on any basis raised below and
supported by the record. See City of Alexandria v. Brown, 740 F.3d 339, 350
(5th Cir. 2014).     Although the district court dismissed Kimbriel’s claims
because it found Officer Smith possessed probable cause to arrest him for
either DUI or careless driving, we need not reach this issue. Officer Smith
argued before the district court, and continues to press before this court, that
she is entitled to qualified immunity for the actions Kimbriel seeks to
challenge.   Kimbriel failed to establish—or even argue before the district
court—that Officer Smith’s actions violate clearly established law, of which an
objectively reasonable officer in Smith’s situation would have known. This
defect is fatal to Kimbriel’s § 1983 claim against Officer Smith. See Cass, 814
F.3d at 732–33.
      An official sued in her individual capacity is immune from civil liability
“to the extent that [her] conduct does not violate clearly established statutory
or constitutional rights.” Id. at 728. “‘A good-faith assertion of qualified
immunity alters the usual summary judgment burden of proof,’ shifting it to
the plaintiff to show that the defense is not available.” Id. (quoting Trent v.
Wade, 776 F.3d 368, 376 (5th Cir. 2015)). Officer Smith has consistently
claimed qualified immunity in this case. On summary judgment, the burden
                                         4
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                                       No. 15-60489
therefore shifted to Kimbriel to show: “(1) that [Officer Smith] violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’
at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 131
S. Ct. 2074, 2080 (2011).         We may address either prong of the qualified
immunity analysis first, and the second prong is satisfied “only if ‘the state of
the law at the time of the incident provided fair warning to the defendants that
their alleged [conduct] was unconstitutional.’” Cass, 814 F.3d at 728 (quoting
Tolan v. Cotton, ___ U.S. ___, 134 S. Ct. 1861, 1866 (2014)).
       Kimbriel failed to meet his burden to show that Officer Smith’s conduct
violated Kimbriel’s clearly established rights, as required by the second prong
of the qualified immunity analysis. See id. at 732–33. Before the district court,
Kimbriel solely argued that Officer Smith’s conduct violated Kimbriel’s
constitutional rights because she lacked probable cause to arrest Kimbriel for
either DUI or careless driving and that the arrest was in fact associated with
the DUI charge, not the careless driving charge. 5 These arguments correspond
only to the first prong of the qualified immunity analysis. See al-Kidd, 131 S.
Ct. at 2080. For the first time before this court, Kimbriel now also argues
Officer Smith could not have arrested Kimbriel for careless driving under
Mississippi law because Mississippi’s careless driving offense merely
prescribes a fine and does not explicitly allow for incarceration as a form of
punishment. See MISS. CODE ANN. § 63-3-1213 (2013). While this contention
could arguably be construed to apply to the second prong of the qualified
immunity analysis, see al-Kidd, 131 S. Ct. at 2080, Kimbriel waived this
argument and cannot now raise it on appeal, see Keelan v. Majesco Software,
Inc., 407 F.3d 332, 339–40 (5th Cir. 2005). “It is well settled . . . that the scope


       5 Given the disposition of this case, we need not and do not address the effect of Heck
v. Humphrey, 512 U.S. 477, 486 (1994), on Kimbriel’s arguments regarding his careless
driving conviction.
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                                       No. 15-60489
of appellate review on a summary judgment order is limited to matters
presented to the district court”; therefore, “[i]f a party fails to assert a legal
reason why summary judgment should not be granted, that ground is waived
and cannot be considered or raised on appeal.” Id. at 339–40 (quoting Keenan
v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002)). Quite simply, before the district
court, Kimbriel failed to make any legal argument about whether Officer Smith
violated clearly established law in arresting and incarcerating Kimbriel. We
thus “conclude that on this record, [Kimbriel] ha[s] not shown a violation of
clearly established law so as to satisfy this burden.” Cass, 814 F.3d at 732–33.
       We also do not address Kimbriel’s conclusory contentions that the City
of Greenville should be held liable under § 1983, because Kimbriel has
inadequately briefed the issue of municipal liability before this court. See
Young v. Repine (In re Repine), 536 F.3d 512, 518 n.5 (5th Cir. 2008); see also
FED. R. APP. P. 28(a)(8). In his opening brief, Kimbriel devotes barely two
sentences to the issue of municipal liability, claiming in a conclusory fashion
that Officer Smith’s purportedly unconstitutional conduct resulted from “the
Greenville Police Department’s policy that gives the arresting officer a veto
power over the officer who has the greater knowledge concerning the
intoxication of the criminal defendant.” Kimbriel’s opening brief also argues
the City is liable “under the theory of respondeat superior, as well as it’s [sic]
failure to train Officer Smith and to permit Officer Smith to imprison a
knowingly innocent man with the full knowledge, cooperation, and
acquiescence of her superiors.” 6 Kimbriel’s scant, bald assertions do not even
come close to meeting the rigorous standards for making a municipal liability



       6 Kimbriel makes further argument on this issue in his reply brief, but “[a]n appellant
abandons all issues not raised and argued in its initial brief on appeal.” Cinel v. Connick, 15
F.3d 1338, 1345 (5th Cir. 1994). We therefore do not consider arguments raised for the first
time in Kimbriel’s reply brief.
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                                  No. 15-60489
claim. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)
(describing the elements plaintiffs must prove to establish municipal liability
under § 1983 in accordance with Monell v. Dep’t. of Social Services, 436 U.S.
658, 691–94 (1978)). First, we have held that municipal liability under § 1983
may not be predicated on a theory of respondeat superior. See Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). Second, Kimbriel fails to
cite any authority whatsoever to support his arguments or to explain why the
vague policies he describes suffice to show “a policy maker[,] an official policy[,]
and a violation of constitutional rights whose ‘moving force’ is the policy or
custom.”   Piotrowski, 237 F.3d at 578 (quoting Monell, 436 U.S. at 694).
Accordingly, Kimbriel has abandoned his municipal liability claim. See United
States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006) (“Inadequately briefed
issues are deemed abandoned.”).
      AFFIRMED.




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