     Case: 10-50136 Document: 00511453485 Page: 1 Date Filed: 04/21/2011




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

                                              FILED
                                                                  April 21, 2011
                               No. 10-50136
                             Summary Calendar                     Lyle W. Cayce
                                                                       Clerk



Consolidated with 10-50443

BRENDA SHAW, Individually and as Next Friend to C.M., a Minor; LAKISHA
MCCALISTER,

                                          Plaintiff - Appellant

v.

PHIL HARDBERGER, Mayor, City of San Antonio, in his Official Capacity, City
of San Antonio; SAPD OFFICER K. ALLEN, Individually and in Official
Capacity; SAPD OFFICER R. LUNA, Individually and in Official Capacity;
SAPD OFFICER JASON J. BRISENO, Individually and in Official Capacity;
CASEY CAMPOS, Individually and in Official Capacity; GERALD FULLER,
Individual and in Official Capacity; DAVID MCELWAIN, Individually and in
Official Capacity,

                                          Defendants - Appellees


__________________________________________________
BRENDA SHAW, Individually and as Next Friend to C.M., a Minor,

                                          Plaintiff - Appellant

v.

PHIL HARDBERGER, Mayor, City of San Antonio, in his Official Capacity, City
of San Antonio; K. ALLEN, SAPD Officer, Individually and in Official Capacity;
R LUNA, SAPD Officer, Individually and in Official Capacity; JASON J.
BRISENO, SAPD Officer, Individually and in Official Capacity; CASEY
CAMPOS, Individually and in Official Capacity; GERALD FULLER, Individual
     Case: 10-50136 Document: 00511453485 Page: 2 Date Filed: 04/21/2011

                                       No. 10-50136
                                     c/w No. 10-50443

and in Official Capacity; DAVID MCELWAIN, Individually and in Official
Capacity,

                                                   Defendants - Appellees




                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:06-CV-751


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiffs Brenda Shaw and Lakisha McCalister seek leave to proceed in
forma pauperis (IFP)in their consolidated appeal of the district court’s grant of
summary judgment in favor of San Antonio police officers Katie Allen, Ryan
Luza, Jason J. Briseno, David McElwain, Casey Campos, and Gerald Fuller in
the plaintiffs’ civil suit against the officers, the City of San Antonio, and San
Antonio Mayor Phil Hardberger. They also move for leave to file an out-of-time
reply brief. The district court denied the plaintiffs’ motions for leave to proceed
IFP on appeal under 28 U.S.C. § 1915(a) on the basis that the appeals were not
being taken in good faith.
       “An appeal may not be taken in forma pauperis if the trial court certifies
in writing that it is not taken in good faith.” § 1915(a)(3); see Baugh v. Taylor,
117 F.3d 197, 199-200 (5th Cir. 1997). The plaintiffs’ IFP motions and brief are
construed as a challenge to the district court’s certification. See Baugh, 117 F.3d
at 202.



       *
         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. 10-50136
                                c/w No. 10-50443

      The plaintiffs do not, as they did in their complaint, raise any claims
against Hardberger, the City of San Antonio, Luza, or Briseno, and they do not
allege any claims on behalf of Carl or John McCallister. Additionally, they do
not, as they did in their complaint, raise any state law negligence, intentional
tort, or malicious prosecution claims, nor do they assert that any of their claims
arise under 42 U.S.C. §§ 1981 or 1985(3). To the extent that any of the district
court’s orders concerning these claims and parties are appealable, the plaintiffs
have abandoned those claims by failing to brief them. See Hughes v. Johnson,
191 F.3d 607, 612-13 (5th Cir. 1999); Beasley v. McCotter, 798 F.2d 116, 118 (5th
Cir. 1986).
      The defendants argues that this court lacks jurisdiction to consider any of
the plaintiffs’ claims other than McCalister’s 42 U.S.C. § 1983 excessive force
claim against Officer Katie Allen because the plaintiffs stated in their notice of
appeal that they were appealing only the denial of their motion to reconsider the
district court’s grant of the defendants’ motion for summary judgment, and the
motion to reconsider addressed only McCalister’s excessive force claim against
Allen. However, because the plaintiffs referenced the grant of the defendants’
motion for summary judgment in their IFP motion and because the Government
does not allege any prejudice, the plaintiffs’ notice of appeal should be liberally
construed as merely mislabeling the judgment being appealed, and it should not
bar the plaintiffs’ appeal of any summary judgment-related issues.            See
Turnbull v. United States, 929 F.2d 173, 177 (5th Cir. 1991).
      The plaintiffs argue that the district court’s grant of the defendant police
officers’ motion for summary judgment was improper because it was the officers’
second motion for summary judgment and because the second motion for
summary judgment did not provide any new facts or law than the officers’ first
motion for summary judgment, which the district court denied in part. However,
the district court’s denial in part of the officers’ first motion for summary


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                                   No. 10-50136
                                 c/w No. 10-50443

judgment was without prejudice and was based on the district court’s inability
to consider the issues raised at the time due to a procedural issue. Under these
circumstances, the district court’s decision to consider a second motion for
summary judgment should be left to the district court’s discretion. See Enlow
v. Tishomingo Cty, 962 F.2d 501, 506-07 & n.16 (5th Cir. 1992).
      The plaintiffs argue that there was a genuine issue of material fact
concerning the issue whether Officers Allen, McElwain, Campos, and Fuller
were entitled to qualified immunity from the plaintiffs’ 42 U.S.C. § 1983 Fourth
Amendment excessive force claims due to the objective unreasonableness of the
officers’ actions. They further contend that because the officers did not raise the
issue of injury their motion for summary judgment, the district court erred in
granting summary judgment concerning their excessive force claims on that
basis. However, the defendants demonstrated the absence of a genuine issue of
material fact concerning their qualified immunity defense to the plaintiffs’
Fourth Amendment excessive force claims. See Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). Therefore, because the plaintiffs did
not provide any competent summary judgment evidence of any injuries that they
received and because proof of injury is necessary for the success of a Fourth
Amendment excessive force claim, the plaintiffs have not shown that there was
a genuine issue of material fact. See F ED. R. C IV P. 56(e)(2); Hill v. Carroll Cty.,
Miss., 587 F.3d 230, 234 (5th Cir. 2009) (requiring a plaintiff to show, inter alia,
injury, to succeed on a Fourth Amendment excessive force claim); Whitt v.
Stephens County, 529 F.3d 278, 282 (5th Cir. 2008).
      Finally, Shaw argues that the district court’s taxation of costs against her
in favor of Hardberger should be vacated because she is indigent and because
her claims were nonfrivolous and were raised for the public benefit. However,
§ 1915(f)(1) expressly provides that when a party proceeds IFP, “[j]udgment may
be rendered for costs at the conclusion of the suit or action as in other


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                                  No. 10-50136
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proceedings,” and Shaw has not shown that her case was nonfrivolous.
Accordingly, the district court did not abuse its discretion in taxing Shaw for
costs. See Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985).
      In light of the foregoing, the plaintiffs have not shown that their appeals
involve legal points arguable on their merits (and therefore not frivolous).” See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the plaintiffs’
motions for leave to proceed IFP on appeal are denied, and the plaintiffs’ appeals
are dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5 TH C IR. R. 42.2.
      DENY MOTIONS FOR LEAVE TO PROCEED IFP ON APPEAL; GRANT
MOTION TO FILE OUT-OF-TIME REPLY BRIEF; DISMISS APPEAL AS
FRIVOLOUS.




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