     Case: 14-10679      Document: 00513124692         Page: 1    Date Filed: 07/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10679
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 22, 2015
TERRANCE WOODS,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

DEPUTY CONSTABLE JOHN KEIFFER,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-957


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Terrance Woods appeals the dismissal of his claims under 42 U.S.C.
§ 1983 and Texas law against John Kiefer, a Tarrant County deputy constable,
in his individual and official capacities. The claims arose from Kiefer’s actions
in executing a writ of possession to evict Woods from a residence. Our review
is de novo, “applying the same standard as the district court.” Michalik v.
Hermann, 422 F.3d 252, 257 (5th Cir. 2005).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10679

      We reject Woods’s contention that Kiefer is not entitled to summary
judgment based on qualified immunity on the Fourth Amendment and
excessive force claims against him. Kiefer properly supported his summary
judgment motion with an affidavit establishing “that he was acting within the
scope of his discretionary authority” in evicting Woods pursuant to a writ of
possession. Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.
2001) (internal quotation marks and citation omitted).        This shifted the
summary judgment burden to Woods, who was required to rebut the qualified
immunity defense by showing that Kiefer’s “conduct violated clearly
established law.” Id. (internal quotation marks and citation omitted). No
warrant or probable cause is necessarily required when a state actor executes
an eviction under court order. See Soldal v. Cook County, Illinois, 506 U.S. 56,
71 (1992); Freeman v. City of Dallas, 242 F.3d 642, 647 (5th Cir. 2001). And
even if a constitutional right were assumed, Woods fails to show that it was
clearly established when Kiefer acted. See Rockwell v. Brown, 664 F.3d 985,
990-91 (5th Cir. 2011).
      Woods filed no counteraffidavit and offered only argument rather than
evidence. See id. at 490; Foval v. First Nat’l Bank of Commerce in New Orleans,
841 F.2d 126, 129 (5th Cir. 1988). Consequently, we may not assume that
Woods could or would prove the facts necessary to prevail. Wallace v. Texas
Tech University, 80 F.3d 1042, 1048 (5th Cir. 1996). All that the evidence
shows is that Kiefer mistakenly tried to evict Woods on the wrong day. That
evidence does not bar Kiefer’s invocation of the qualified immunity defense;
qualified immunity allows “ample room for mistaken judgments.” Malley v.
Briggs, 475 U.S. 335, 343 (1986).
      We reject also the excessive force claim that is based on allegations that
Kiefer and other officers shoved Woods aside, screamed at him, and drew their



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                                  No. 14-10679

guns when first attempting to evict him. When executing warrants, officials
“may take reasonable action to secure the premises and to ensure their own
safety and the efficacy of the search.” Los Angeles County, California v. Rettele,
550 U.S. 609, 614 (2007).      “The risk of harm to both the police and the
occupants is minimized if the officers routinely exercise unquestioned
command of the situation.” Id. at 615 (internal quotation marks, citation, and
alteration omitted).    Woods’s barebones argument points us to no case
establishing that the parameters of the right Woods claims were so clearly
established that a reasonable official would have understood that Kiefer’s
actions violated that right. See Pierce v. Smith, 117 F.3d 866, 871 (5th Cir.
1997); see also Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994); Rettele, 550
U.S. at 614. This claim is meritless.
      Additionally, we find no merit in the official capacity claim, which was
in reality a claim against Tarrant County. See Goodman v. Harris County, 571
F.3d 388, 395 (5th Cir. 2009). Woods failed to allege facts that would show that
Kiefer acted in accordance with any official policy or custom of the county or to
show deliberate indifference by the county to any actions or omissions by
Kiefer, a prerequisite to county liability. See City of Oklahoma City v. Tuttle,
471 U.S. 808, 823-24 (1985).      Woods’s conclusory assertions of an official
eviction-preferred policy and of incompetence are insufficient to reverse the
district court. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
      Woods fails to address the district court’s reasons for dismissing the state
law claims. Failing to identify error in a district court’s ruling dismissing a
claim is the same as not having appealed the dismissal at all. 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).




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                                 No. 14-10679

      The district court did not abuse its discretion in denying Woods leave to
amend his complaint. See Jones v. Robinson Prop. Grp., 427 F.3d 987, 994-95
(5th Cir. 2005); FED. R. CIV. P. 15(a). Woods advised the district court that the
proposed amendments to his complaint would not affect the substance of his
claims. Therefore, denial of leave to amend caused Woods no harm.
      AFFIRMED.




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