     Case: 18-60268      Document: 00514689844         Page: 1    Date Filed: 10/19/2018




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

                                                                                FILED
                                      No. 18-60268                       October 19, 2018
                                                                           Lyle W. Cayce
KENNETH J. WASHINGTON,                                                          Clerk


              Plaintiff - Appellant

v.

COPIAH COUNTY BOARD OF SUPERVISOR; COPIAH COUNTY GRAND
JURIES; SHERIFF HAROLD JONES; UNDER SHERIFF DEREK CUBIT;
DETECTIVE TOMMY ROBERTS; DEPUTY PERCY CALHOUN; NOTARY
CECIL HALLMAN; UNKNOWN BLACK; INVESTIGATOR SHARON
KELLY; INVESTIGATOR MILTON TWINNER; JUSTICE COURT
PROSECUTOR ELISE MUNN; JUSTICE COURT JUDGE VICKY B.
RAMSEY; JUSTICE COURT CLERK MONA LISA CARR; DISTRICT
ATTORNEY ALEXANDER MARTIN; LESLIE BROWN; ATTORNEY
GENERAL JIM HOOD; HONORABLE HENRY WINGATE; HONORABLE
LINDA ANDERSON; CLERK TONYA CARRUTH; COURT REPORTER
BRENDA WOLVERTON; ARTHUR JOHNSON,

              Defendants - Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:16-CV-629


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60268
       This is an appeal from the district court’s grant of summary judgment in
favor of the Appellees, Copiah County Sheriff Harold Jones and Millerson
Black, the Administrator of the Copiah County Detention Center (“CCDC”).
Appellant, Kenneth J. Washington (“Washington”), proceeding pro se, brought
this civil rights suit against the Appellees, alleging constitutional violations
relating to his arrest by Copiah County officers and the conditions of
confinement at the CCDC when he was a pretrial detainee. 1 42 U.S.C. § 1983.
Finding no reversible error, we AFFIRM the district court’s grant of summary
judgment in favor of the Appellees.
       Washington’s principal argument on appeal is that the district court
erred in granting summary judgment in favor of the Appellees on his claims
against them in their official capacity because they failed to move for summary
judgment on the claims against them in their official capacity. Appellees
concede that they only moved for summary judgment on the claims against
them in their individual capacity. Washington thus asserts that the district
court should have entered a default judgment in his favor with respect to the
claims against the Appellees in their official capacity. Washington is mistaken.
As explained below, the district court properly followed the Federal Rules of
Civil Procedure when it entered summary judgment on the claims against the
Appellees in their official capacity.
       The district court allowed Washington to file an amended complaint in
which he clarified that he was also suing the Appellees in their official
capacity. 2 The Appellees filed an answer to the amended complaint and moved



       1  There were numerous other defendants involved in the instant lawsuit; however,
Washington only appealed the order dismissing the suit in favor of the two Appellees set forth
above.
        2 Washington states that the Appellees failed to file an appeal from the district court’s

order granting him leave to amend his complaint. A final decision typically is one that “ends
the litigation on the merits and leaves nothing for the court to do but execute the judgment.”
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                                       No. 18-60268
the court to stay the previously entered case-management order and allow
limited, immunity-related discovery. The district court granted the motion.
After limited discovery was conducted, the Appellees filed a motion for
summary judgment based on qualified immunity. Washington filed a response
in opposition to the motion, and the Appellees filed a reply to his response. The
district court subsequently granted the Appellees’ motion for summary
judgment on the individual capacity claims, finding that the Appellees were
entitled to qualified immunity. Additionally, the district court expressly stated
that Federal Rule of Civil Procedure 56(f)(2) authorized it to grant summary
judgment on grounds not raised by a party after giving notice and affording a
reasonable opportunity to respond. The court then gave Washington notice of
its intention to grant summary judgment on his official capacity claims and
gave him 10 days to state why summary judgment would not be proper.
Washington timely filed a response and a Rule 60(b) motion. The district court
denied Washington’s motion and entered summary judgment in favor of the
Appellees on the official capacity claims.
       Washington does not argue that the district court failed to give him
notice or a reasonable opportunity to respond to the court’s intention to sua
sponte grant summary judgment with respect to the official capacity claims.
See Rule 56(f)(2) (“After giving notice and a reasonable time to respond, the
court may: . . . grant the motion on grounds not raised by a party.”). 3 Indeed,
as indicated above, Washington filed a response objecting to the district court’s
intention to grant summary judgment.                      Under these circumstances,



Catlin v. United States, 324 U.S. 229, 233 (1945). Because that order did not end the
litigation on the merits, it was not a final and appealable order.
        3 Washington incorrectly accuses the district court of acting as Counsel for the

Appellees. Brief at 9. Instead, as set forth above, the district court was acting in accordance
with Rule 56(f)(2) when it granted summary judgment in favor of the Appellees with respect
to the official capacity claims.
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                                       No. 18-60268
Washington has failed to show that the district court erred in granting
summary judgment in favor of the Appellees with respect to the official
capacity claims. 4
       Washington also states that he has rights pursuant to the Prison
Litigation Reform Act, the Health Insurance Portability and Accountability
Act, and the laws of the State of Mississippi. However, he does not explain
how his rights were violated. “‘Although we liberally construe the briefs of pro
se appellants, we also require that arguments must be briefed to be
preserved.’” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price
v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)).                         Thus,
Washington’s failure to brief this issue renders it forfeited.
       Finally, Washington asserts that the district court erred in dismissing
his claim against the Copiah County Board of Supervisors (“Board”). The
district court granted the Board’s motion for judgment on the pleadings,
holding that Washington’s claims against the Board were barred by res
judicata. Washington had filed a previous lawsuit against Copiah County
based on his June 17, 2013 arrest and detention, which is the same arrest and
detention at issue on this appeal. See Washington v. Copiah County, 650 F.
App’x 189 (5th Cir. 2016) (affirming the district court’s dismissal of the civil
rights lawsuit). First, Washington did not file a notice of appeal from the
November 1, 2016 order dismissing the Board; instead, he only filed a notice of
appeal from the April 3, 2018 order dismissing the two Appellees on this



       4  Washington asks whether the immunity defense applies when he brought suit
against a municipality. This Court has explained that a municipality cannot be held liable
under 42 U.S.C. § 1983 if no constitutional violation has been committed by a municipal actor.
Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th Cir. 2010). Because Washington has
failed to demonstrate that the Appellees committed a constitutional violation, his claim
against the municipality also fails.

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                                 No. 18-60268
appeal. In any event, Washington does not argue how the district court erred
in holding that the suit against the Board was barred by res judicata. Thus,
even if this claim had been appealed, it is forfeited. Yohey, 985 F.2d at 225.
      For the above reasons, the district court’s judgment is AFFIRMED.




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