     Case: 17-20620      Document: 00515029995         Page: 1    Date Filed: 07/11/2019




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

                                                                                FILED
                                      No. 17-20620                          July 11, 2019
                                                                           Lyle W. Cayce
LEROYCE EUGENE MCDONALD,                                                        Clerk


                                                 Plaintiff-Appellee,

v.

CHIEF OF POLICE CHARLES A. MCCLELLAND, JR.; POLICE OFFICER
GREGG GREEN; SERGEANT OF POLICE M.D. NEWCOMB; POLICE
OFFICER R. MASSEY,

                                                 Defendants-Appellants.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:16-CV-68


Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellee Leroyce Eugene McDonald alleges Houston police
officers used excessive force while executing a no-knock search warrant at his
apartment. He sued numerous police officers and the chief of police under 42
U.S.C. § 1983 claiming, inter alia, that the officers violated his Fourth
Amendment rights. Defendants-Appellants asserted qualified immunity and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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moved for summary judgment. The district court denied their motion as to
McDonald’s Fourth Amendment excessive-force claim. We reverse in part,
vacate in part, and remand for further proceedings.
                                      I.
                                      A.
      This case arises from a narcotics raid on McDonald’s apartment on
January 8, 2014. Houston police were investigating McDonald for trafficking
cocaine. McDonald had previously been convicted of aggravated assault with
a deadly weapon, and police had reason to believe he possessed a firearm at
his apartment. The police obtained a no-knock warrant.
      As authorized by the warrant, police breached the apartment door by
force and used “flash bang” diversionary devices. Officer R.D. Massey was the
first officer to enter the apartment. He encountered McDonald standing just
inside the apartment door. Officer Massey ordered McDonald to get on the
ground. McDonald lay “down on the floor” with his “arms stretched out.” The
other officers entered behind Officer Massey and proceeded to secure the
apartment. That included pursuing and arresting another suspect, who tried
to flee out a window. Their search revealed 13.3 grams of cocaine, 26.6 grams
of marijuana, and two firearms—one of which they found lying in plain view
in the living room.
      McDonald’s Fourth Amendment excessive-force claim arises from what
happened immediately after the officers entered the apartment. McDonald
says that while he was lying compliant on the floor, one of the officers kicked
him in the face, breaking his glasses and injuring his right eye. Upon arrest
he had a small cut under his eye and his right eyelids were swollen.
      In his original complaint, McDonald named Officer Massey as the kicker.
But in his amended complaint, McDonald expressly withdrew that allegation,

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stating “[t]he Plaintiff will also remove the allegation . . . regarding . . .
Defendant R. Massey kicking him in the eye.” Instead, the amended complaint
alleged “the first officer to enter the apartment, kicked the plaintiff in the eye.”
And at his deposition, McDonald testified he does not “know who it was
exactly”—it “could have been any one of [them].”
      The officers attest Officer Massey was the first to enter the apartment.
Officer Massey swears he “did not kick, mistreat, or insult Mr. McDonald
during or after the execution of the narcotics search warrant,” and he “did [not]
observe any [other] police officer” do so. The other officers say the same.
      After the raid, the officers reported they saw a “metal rod” sticking out
from under a sofa near where McDonald dropped to the floor. They believed
he hit his head on the protruding metal. McDonald was given first aid and
transported to jail, where medical staff treated his eye with ibuprofen and an
ice pack. He was eventually convicted of trafficking cocaine.
                                        B.
      McDonald sued three of the officers who raided his apartment—Officer
Massey, Officer Gregg Green, and Sergeant M.D. Newcomb—under 42 U.S.C.
§ 1983. He also sued Houston Chief of Police Charles A. McClelland, Jr., who
was not present at the raid. McDonald says one of the officers kicked him in
violation of his Fourth Amendment rights and the other officers failed to
intervene. He also claims the subordinate officers were inadequately trained
and supervised.
      Defendants asserted qualified immunity and moved for summary
judgment. McDonald did not file a response to the summary judgment motion.
      The district court denied summary judgment on McDonald’s Fourth
Amendment excessive-force claim. Pointing to McDonald’s original verified
complaint, the district court said “McDonald raises specific facts which show

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excessive force by Massey and possibly other police officers.” The district court
did not acknowledge the existence of McDonald’s amended complaint, did not
explain whether it superseded the original complaint, and did not decide
whether the amended complaint was sufficient to defeat qualified immunity.
Defendants appealed.
                                       II.
      Though the denial of a motion for summary judgment is not a final
judgment, it can be appealed immediately under the collateral order doctrine.
See Mitchell v. Forsyth, 472 U.S. 511, 528–30 (1985).     We have described our
interlocutory appellate jurisdiction as limited to “the purely legal question
whether the defendants are entitled to qualified immunity on the facts that
the district court found sufficiently supported in the summary judgment
record.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc); see
Johnson v. Jones, 515 U.S. 304, 313 (1995). So “[w]here the district court has
identified a factual dispute, we ask whether the officer is entitled to summary
judgment even assuming the accuracy of the plaintiff ’s version of the facts.”
Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc). Once we have
identified “the relevant set of facts and drawn all inferences in favor of the
nonmoving party to the extent supportable by the record,” the reasonableness
of the officer’s conduct is a question of law, Scott v. Harris, 550 U.S. 372, 381
n.8 (2007) (emphasis omitted), and we review it de novo, see Melton, 875 F.3d
at 261.
                                       A.
      McDonald says we lack jurisdiction over the excessive-force claim
because the district court denied summary judgment based on questions of
fact. But we have jurisdiction to determine whether “the district court erred
in assessing the legal significance of the conduct that the court deemed

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sufficiently supported.” Collins v. Ainsworth, 382 F.3d 529, 541 (5th Cir. 2004);
accord Melton, 875 F.3d at 261. That includes whether the alleged wrongdoing
would violate clearly established law—a question the district court failed to
answer.
      With regard to the facts, it is impossible to identify what the district
court determined. The entirety of its explanation consists of one sentence:
“McDonald raises specific facts which show excessive force by Massey and
possibly other police officers.”    This sentence says nothing about clearly
established law.     It does not specify which facts the district court found
“sufficiently supported for purposes of denying summary judgment.” Collins,
382 F.3d at 541. And it cites only McDonald’s original complaint, with no
acknowledgment or analysis of his amended complaint. That is an important
omission because a superseded complaint, even if verified, “does not constitute
competent summary judgment evidence.” King v. Dogan, 31 F.3d 344, 346 (5th
Cir. 1994) (per curiam). And “an amended complaint supersedes and replaces
an original complaint, unless the amendment specifically refers to or adopts
the earlier pleading.” Eubanks v. Parker Cty. Comm’rs Court, 44 F.3d 1004, at
*2 (5th Cir. 1995) (per curiam) (quotation omitted); see also King, 31 F.3d at
346. In situations like this, we must “undertake a cumbersome review of the
record to determine what facts the district court, in the light most favorable to
the nonmoving party, likely assumed.” Johnson, 515 U.S. at 319; see also
Behrens v. Pelletier, 516 U.S. 299, 313 (1996).
      We have carefully reviewed the record and construed the facts in
McDonald’s favor. In doing so, we have remained cognizant that McDonald
appeared pro se.      McDonald’s original complaint alleged Officer Massey
“purposely kick[ed] the plaintiff in his face” and contained specific factual
allegations describing the incident. (Emphasis added.) But McDonald omitted

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most of those factual allegations from his amended complaint. And the record
is mixed on whether McDonald intended his amended complaint to supersede
or supplement his original complaint. Therefore, as the record appeared before
the district court, there may have been insufficient evidence surrounding the
circumstances of the alleged kick for McDonald’s claims to survive summary
judgment.
      The Defendants’ principal argument on appeal is, in effect, “no one
kicked anyone.” That of course is an argument we have no jurisdiction to
consider.   See Johnson, 515 U.S. at 316 (holding there is no appellate
jurisdiction on interlocutory appeal of a qualified-immunity denial to consider
the argument “we didn’t do it”). The Defendants acknowledge McDonald’s
amended complaint, but they do not address McDonald’s suggestion that he
intended to supplement rather than replace his original complaint. And the
Defendants have not helped us identify whether and to what extent the record
might include other evidence the kick—the existence of which we’re bound to
assume on appeal—was intentional and unreasonable.
      In these circumstances—where the Defendants’ briefing is not
comprehensive, where the district court’s entire analysis consists of a single
sentence citing an arguably inoperative pleading, and where the district court
failed to address half of the qualified-immunity inquiry—we exercise our
discretion to send the excessive-force question back for further consideration.
                                      B.
      To deny qualified immunity at the summary judgment stage, the district
court must answer “yes” to two questions. See Pearson v. Callahan, 555 U.S.
223, 236 (2009).     “The first question is whether the officer violated a
constitutional right.” Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).
Accidental contact between an officer and a civilian is not a Fourth

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Amendment seizure—even if it injures the civilian—so a § 1983 plaintiff
claiming excessive force must show that force was applied intentionally. See
Brower v. Cty. of Inyo, 489 U.S. 593, 596–97 (1989) (explaining that a seizure
occurs only when a suspect’s “freedom of movement” is terminated “through
means intentionally applied” by the governmental actor); Gorman v. Sharp,
892 F.3d 172, 175 (5th Cir. 2018) (holding there can be no § 1983 liability for
excessive force “in the absence of intentional conduct”). And even if the seizure
involves intentional conduct, the district court must consider whether it was
unreasonable under the specific circumstances of the seizure. See, e.g., City of
Escondido v. Emmons, 139 S. Ct. 500, 503–04 (2019) (per curiam) (reversing
the denial of qualified immunity where officers threw a man to the ground
during an arrest). “Such specificity is especially important in the Fourth
Amendment context, where the Court has recognized that it is sometimes
difficult for an officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer confronts.”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation
marks and alterations omitted).
      “The second question is whether the ‘right at issue was “clearly
established” at the time of [the] alleged misconduct.’ ” Morrow, 917 F.3d at 874
(alteration in original) (quoting Pearson, 555 U.S. at 232). If the right was not
clearly established, the officer is entitled to qualified immunity even if his
conduct violated the plaintiff ’s constitutional rights.    See Vann v. City of
Southaven, 884 F.3d 307, 310 (5th Cir. 2018) (per curiam). To be clearly
established, “existing precedent” must “ ‘squarely govern[ ]’ the specific facts at
issue.” Morrow, 917 F.3d at 876 (quoting Kisela v. Hughes, 138 S. Ct. 1148,
1153 (2018) (per curiam)); see also Whitley v. Hanna, 726 F.3d 631, 647 n.13
(5th Cir. 2013).

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      Both parties and the district court failed to address qualified immunity’s
second question.     The district court did not consider whether Defendants’
conduct—even assuming it violated the Fourth Amendment—violated clearly
established law. See Morrow, 917 F.3d at 874. McDonald points to no such law
on appeal. On remand, the parties and the district court must focus on whether
clearly established law at the time of this police raid prohibited the force used
under the circumstances. See Escondido, 139 S. Ct. at 503–04.
                                      III.
      McDonald’s original complaint invoked the bystander liability doctrine
and sought recovery for failure to train and supervise. It is not clear whether
these theories remain in the case.         But Defendants think they do, and
McDonald does not disagree. So we address them briefly.
                                       A.
      Under our bystander liability doctrine, “an officer who is present at the
scene and does not take reasonable measures to protect a suspect from another
officer’s use of excessive force may be liable under section 1983.” Hale v.
Townley, 45 F.3d 914, 919 (5th Cir. 1995). To prove bystander liability, the
plaintiff must show “the officer ‘(1) knows that a fellow officer is violating an
individual’s constitutional rights; (2) has a reasonable opportunity to prevent
the harm; and (3) chooses not to act.’ ” Whitley, 726 F.3d at 647 (quoting
Randall v. Prince George’s Cty., 302 F.3d 188, 204 (4th Cir. 2002)). As always
when qualified immunity is asserted, the plaintiff must point to clearly
established law that would require intervention under the circumstances. See
id. at 647 n.13.
      Chief McClelland was not present, so he cannot be liable as a bystander.
See id. at 646. And the uncontroverted evidence is that none of the defendant
officers saw any other officer kick McDonald. Bystander liability cannot attach

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if the officer did not know about and acquiesce in the constitutional violation.
See id. at 647. McDonald’s bystander liability theory fails as a matter of law.
                                       B.
      Supervisors cannot be held vicariously liable under § 1983 for the
conduct of others. Estate of Davis ex rel. v. City of N. Richland Hills, 406 F.3d
375, 381 (5th Cir. 2005). To hold a supervisor liable, a § 1983 plaintiff must
show the supervisor’s own conduct violated his constitutional rights.          Id.
McDonald seeks to do so on the theory that Chief McClelland and Sergeant
Newcomb failed to train and supervise the officers who executed the warrant
regarding the proper use of force.
      To establish liability based on a failure to train or supervise, a § 1983
plaintiff must show not only a failure to supervise or train the officer in
question, but also that the failure was causally related to the plaintiff’s injury
and amounts to deliberate indifference. Davis, 406 F.3d at 381. “ ‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.”               Id.
(alteration in original) (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown,
520 U.S. 397, 410 (1997)). It usually requires a plaintiff to “demonstrate a
pattern of violations and that the inadequacy of the training is ‘obvious and
obviously likely to result in a constitutional violation.’” Cousin v. Small, 325
F.3d 627, 637 (5th Cir. 2003) (per curiam) (quoting Thompson v. Upshur Cty.,
245 F.3d 447, 459 (5th Cir. 2001)).
      There is no dispute of material fact regarding deliberate indifference
here. McDonald points to no evidence of prior Fourth Amendment violations—
by any Houston police officer—that could have put supervisors on notice of a
need to further train or supervise. More importantly, there’s no evidence Chief
McClelland or Sergeant Newcomb were aware of any prior violations. See

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Davis, 406 F.3d at 381. McDonald’s failure to train and supervise theory fails
as a matter of law.
                                *     *       *
      We REVERSE as to bystander liability and supervisory liability,
VACATE as to excessive force, and REMAND for further proceedings
consistent with this opinion.




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