     Case: 14-30809       Document: 00513189034         Page: 1     Date Filed: 09/10/2015




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

                                       No. 14-30809
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                            September 10, 2015

BOBBY CHARLES BYRD,                                                            Lyle W. Cayce
                                                                                    Clerk
              Plaintiff–Appellant,
v.

CITY OF BOSSIER; CITY OF SHREVEPORT; ROY SHORT, individually and
in his official capacity, also known as Officer Short; CHRIS YARBOROUGH,
individually and in his official capacity; W. W. LINDSEY, individually and in
his official capacity; R. GORDON, individually and in his official capacity,

              Defendants–Appellees.


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:12-CV-1956


Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
PER CURIAM:*
       Plaintiff–Appellant Bobby Byrd filed the present suit under 42 U.S.C.
§ 1983, alleging that Defendants–Appellees Officer Roy Short of the City of
Bossier Police Department and Officer Chris Yarborough, Sergeant W.W.
Lindsey, and Detective Robert Gordon of the Shreveport Police Department
(collectively “the Officers”) used excessive force in the course of arresting him



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-30809
on suspicion of burglary. Byrd also alleged that the City of Shreveport and the
City of Bossier failed to train the Officers properly. Byrd appeals the district
court’s order granting summary judgment in favor of the Officers and the
Cities. We reverse the district court’s grant of summary judgment for Officer
Short, Sergeant Lindsey, and Detective Gordon. We affirm summary judgment
for Officer Yarborough, the City of Bossier, and the City of Shreveport.
                                I. BACKGROUND
        In July 2011, officers from the Shreveport, Louisiana Police Department
were investigating a string of business burglaries. Video evidence from one of
the burglaries depicted a white or Hispanic suspect driving a light-colored
minivan that was missing a front hubcap. Later that month, Detective Gordon
observed Byrd driving a vehicle matching this description. Officers in marked
police cars attempted to effect a traffic stop, with lights and sirens, but Byrd
drove away, crossing from Shreveport into Bossier and fleeing toward the Red
River. Byrd abandoned the vehicle on the riverbank.
        Shortly thereafter, Officer Yarborough arrived with Mico, a police
canine. Mico tracked Byrd down a trail, overgrown with vegetation, that ran
along the river. After Yarborough arrived at the riverbank, the ground caved
under Mico, and the canine fell into the river. To avoid being pulled into the
river, Yarborough let go of the leash. Ignoring Yarborough’s command to
return, Mico swam toward Byrd, who had just surfaced in the middle of the
river. Mico reached Byrd and bit him; Byrd forced Mico’s head underwater.
Mico became disoriented and swam to Yarborough on the bank.
        Meanwhile, Officer Short and Sergeant Lindsey arrived at the riverbank.
Short waded into the river to retrieve Byrd. After pulling Byrd back to shallow
water in a fireman’s carry, Short ordered Byrd to place his hands behind his
back.


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                                  No. 14-30809
      At this point, the parties’ stories diverge. The Officers claim that Byrd
resisted arrest by grabbing a submerged tree limb and refusing to comply with
the instruction to place his hands behind his back. They further contend that
Byrd reached toward his waistband, which was below the water. In light of
Byrd’s noncompliance and fearing he might be reaching for a weapon, the
Officers applied “distraction strikes” to Byrd’s head and neck to subdue him.
They maintain that they ceased using force after Byrd was handcuffed.
      In contrast, Byrd claims that he complied with the instructions to place
his hands behind his back, and that each use of force took place after the
Officers handcuffed him. 1 As a result of the Officers’ use of force, Byrd
sustained several injuries, including a dog bite, wounds to both forearms, a
broken nose, a broken orbital floor requiring surgical reconstruction with a
titanium plate, kidney trauma, and abrasions to his ribs.
      Byrd filed suit in July 2012 seeking relief under 42 U.S.C. § 1983 and
the Louisiana Constitution. The district court granted summary judgment to
the Officers, the City of Bossier, and the City of Shreveport on qualified
immunity grounds because it concluded that certain photographs taken while
the Officers were apprehending Byrd contradicted his key factual contentions.
Byrd v. City of Bossier, 23 F. Supp. 3d 665, 666–79 (W.D. La. 2014). The district
court declined to continue to exercise supplemental jurisdiction under 28
U.S.C. § 1367(c)(3) and dismissed the Louisiana constitutional claims. Id. at
679. Byrd timely appealed.
                                II. DISCUSSION
      The district court had jurisdiction over Byrd’s claims pursuant to 28
U.S.C. §§ 1331 and 1367. We have jurisdiction to review the district court’s
final judgment under 28 U.S.C. § 1291.


      1 “[COUNSEL]: Before you were handcuffed, were you struck at any time? [BYRD]:
No. Not before I was cuffed.”
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      We review de novo a district court’s grant of summary judgment,
applying the same standards as the district court. Poole v. City of Shreveport,
691 F.3d 624, 627 (5th Cir. 2012). Summary judgment is appropriate if “the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
genuine dispute for trial exists when a rational trier of fact could find for the
non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574,
586–87 (1986). When the movant and the non-movant’s version of the facts
diverge, we must accept the non-movant’s version. Scott v. Harris, 550 U.S.
372, 378–79 (2007). However, “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of a ruling on a motion for summary judgment.” Poole, 691
F.3d at 631 (quoting Scott, 550 U.S. at 380).
      “Qualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.” Hogan v.
Cunningham, 722 F.3d 725, 731 (5th Cir. 2013) (quoting Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012)). To determine whether an official is entitled to
qualified immunity, we examine “(1) whether the facts that the plaintiff has
alleged make out a violation of a constitutional right; and (2) whether the right
at issue was clearly established at the time of the defendant’s alleged
misconduct.” Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (quoting
Brown v. Strain, 663 F.3d 245, 249 (5th Cir. 2011)).
A.    Excessive Force Claim Against Yarborough
      Byrd claims that Yarborough used excessive force against him in
violation of the Fourth Amendment when Yarborough deployed Mico, the
canine. To establish a Fourth Amendment excessive force claim, Byrd must

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                                No. 14-30809
show “(1) injury (2) which resulted directly and only from a use of force that
was clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.” Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (quoting
Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008)).
       The only evidence in the record indicates that Mico fell into the river by
accident and then ignored Yarborough’s commands to return to shore. 2 Byrd
does   not    dispute     Yarborough’s      account,     and although        he    contends
Yarborough’s claim that he dropped the leash to avoid being pulled under is
pretextual, he offers no evidence to support this conclusion. Byrd’s best
evidence for the proposition that Yarborough sicced Mico on Byrd is Byrd’s
testimony that, as Mico held onto Byrd, “[Byrd] heard one of [the Officers]
hollering, [‘]Get him. Get him,[’] or something like that or [‘]He is getting him.[’]
Then the officer hollered for the dog.” Byrd also maintains it was in error for
Yarborough to release the dog knowing that a suspect was nearby.
       Viewing the evidence in the light most favorable to Byrd, we conclude
that no reasonable jury could find that Yarborough’s handling of Mico resulted
in a clearly unreasonable use of force against Byrd. Byrd has offered no clearly
established law indicating that an officer violates the Fourth Amendment
when he loses control of his canine, which proceeds to injure a suspect. Indeed,
Fifth Circuit authority suggests Yarborough’s handling of Mico was
constitutionally adequate, see Ballard v. Hedwig Vill. Police Dep’t, 408 F. App’x
844, 845 (5th Cir. 2011) (per curiam) (affirming summary judgment where the
plaintiff “failed to point to any evidence . . . that [the] officers had a reasonable



       2 Byrd makes reference in passing to the expert evidence he offered before the district
court via the testimony of Lloyd Grafton. The district court excluded Byrd’s expert under
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 592–93 (1993), and Byrd has abandoned any argument that the district court abused its
discretion in excluding Grafton’s testimony, see United States v. Scroggins, 599 F.3d 433,
446–47 (5th Cir. 2010).
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                                 No. 14-30809
opportunity to prevent or stop the attack”), and there is no robust consensus of
circuit authority to the contrary, see Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084
(2011) (noting that law may be clearly established through “a robust ‘consensus
of cases of persuasive authority’” (quoting Wilson v. Layne, 526 U.S. 603, 604
(1999))). 3 Accordingly, the district court properly granted qualified immunity
to Officer Yarborough.
B.     Excessive Force Claims Against Short, Lindsey, and Gordon
       1.     Photographic Evidence
       Byrd contends that Lindsey, Gordon, and Short beat him while he was
handcuffed and subdued. His excessive force claim rests on his testimony that
he was wholly compliant with the Officers’ commands and that “all of the
strikes and punches . . . occurred after” he was handcuffed. But the district
court determined that it could not give credence to this testimony because a
photograph taken during the arrest allegedly shows the parties struggling
before Byrd was handcuffed; the district court concluded that this “blatantly
contradict[s]” Byrd’s testimony. 4
       The photograph at issue is far from conclusive. It depicts Byrd in waist-
deep water, two or three feet from the shore. An officer standing on the shore
is pressing Byrd’s head down toward the water. Two officers are standing in


       3  Compare Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009) (per curiam)
(concluding “it was objectively reasonable . . . to use a canine to locate and apprehend” a
plaintiff who “was suspected of having committed one, and perhaps two, armed robberies,”
who may have been armed and dangerous, and who “actively fled from the police—first in his
vehicle, and then by foot after crashing his vehicle into a marked patrol car—and attempted
to hide in a densely wooded area”), with Priester v. City of Riviera Beach, 208 F.3d 919, 925
(11th Cir. 2000) (overturning qualified immunity for an officer whose dog’s attack on the
restrained plaintiff “may have lasted as long as two minutes”), and Chew v. Gates, 27 F.3d
1432, 1441 (9th Cir. 1994) (reversing summary judgment for officer–defendants where a
police dog “was sent to locate a concealed suspect,” and therefore “would almost necessarily
be out of sight of its handler, and hence beyond the reach of a countermanding order,” when
the dog reached and attacked the suspect).
        4 “Having reviewed the photo, the Court finds that no reasonable jury could believe

Mr. Byrd’s testimony regarding the officers’ use of force.” Byrd, 23 F. Supp. 3d at 672.
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                             No. 14-30809
the water next to Byrd—one to his side and one behind him. The officer to
Byrd’s side appears to be grasping Byrd’s right forearm, which is raised in the
air, roughly parallel with the water. The district court concluded that the
photograph is consistent with the Officers’ story that Byrd was resisting being
handcuffed and that it “blatantly contradict[s]” Byrd’s testimony that “he
allowed himself to be handcuffed peacefully and that the officers then began to
strike him.” 5 The district court therefore chose not to consider Byrd’s testimony
under Scott. 550 U.S. at 380 (“When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes
of a ruling on a motion for summary judgment.”).
       We conclude that the district court erred in disregarding Byrd’s
testimony under Scott. Byrd stated the following in his deposition:
            [COUNSEL FOR BYRD]: All of the strikes and punches that
       we have discussed took place after you were handcuffed?
            [BYRD]: After Officer Short pulled me up and put my hands
       behind my back and Detective Gordon came and dunked my head
       under the water is when the strikes began.
            Q: So Officer Gordon came and grabbed you by your hair and
       dunked you into the water—
              A: Yes ma’am.
              Q: And pulled you up?
              A: Yes, ma’am.
             Q: And at that time is it correct that you were struck by you
       believe two officers?


       5 The district court conceded that the photo “could also conceivably be consistent with
a story that was more favorable to Mr. Byrd,” such as that Byrd “was complying with the
instructions to place his hands behind his back but that the officers attacked him before he
could be handcuffed” or “that he was simply attacked before he even had a chance to comply.”
Byrd, 23 F. Supp. 3d at 673. Nevertheless, the district court maintained that Byrd’s actual
testimony—that he was not hit until after he was cuffed—could not be reconciled with the
picture. Id.
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                                 No. 14-30809
            A: Yes, ma’am.
            ...
            [COUNSEL FOR THE DEFENDANTS]: With regards to the
      question whether you resisted at any time the officers’ efforts to
      move any part of your body, it is your testimony that you were,
      quote, completely compliant. Is that right?
            [BYRD]: Yes, sir.
      While the photograph tends to discredit Byrd’s testimony, it does not
blatantly contradict it. Unquestionably, Byrd was not yet handcuffed at the
time the photograph was taken. But although the photo shows the Officers
using physical contact to restrain Byrd, the photo does not necessarily depict
the Officers “striking” Byrd in the manner that caused his injuries. A jury could
conclude that the Officers were not yet using force when the photo was taken:
rather, Short held Byrd’s forearm, without resistance, to put Byrd’s hands
behind his back. Or a jury could conclude that the photo supports Byrd’s
version of events because it was taken mere seconds before the Officers
successfully cuffed Byrd. Following that, the Officers might have proceeded to
dunk Byrd’s head underwater and beat him in the manner he described.
Finally, the photo does not necessarily show that Byrd resisted arrest, though
that is one rational conclusion that could be drawn from it. A jury could
conclude that Byrd—recently rescued from the water—was flailing or grasping
for a branch.
      A jury may not find Byrd’s narrative credible, but the photograph does
not blatantly contradict it. Accordingly, the district court erred in refusing to
consider Byrd’s deposition testimony in its summary judgment analysis. See
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam).
      2.    Qualified Immunity Analysis
      Taking into account Byrd’s previously excluded testimony, we now turn
to his contention that Lindsey, Gordon, and Short applied excessive force in

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                             No. 14-30809
violation of Byrd’s Fourth Amendment rights. 6 As noted, to establish an
excessive force claim, Byrd must show “(1) injury (2) which resulted directly
and only from a use of force that was clearly excessive, and (3) the
excessiveness of which was clearly unreasonable.” Harris, 745 F.3d at 772
(quoting Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008)). To gauge the
reasonableness of the force used, we consider “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). We ask whether the Officers’
actions were objectively reasonable at the time rather than from “the 20/20
vision of hindsight.” Graham, 490 U.S. at 396. It is clearly established that use
of gratuitous force against a detainee who has been subdued and restrained is
unreasonable. Bush, 513 F.3d at 501–02.
       Here, Byrd’s testimony is that the Officers beat him after he was
handcuffed and subdued and that this use of force resulted in wounds to both
forearms, broken facial bones, kidney trauma, and fractured ribs. The
defendants admit that, if Byrd’s testimony “were accepted as true, his
testimony may be sufficient to create a genuine dispute of material fact for
trial.” We agree. The competent evidence viewed in the light most favorable to



       6 We consider “each individual defendant’s entitlement to qualified immunity
separately,” Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir. 2007) (quoting Jabobs v. W.
Feliciana Sheriff’s Dep’t., 228 F.3d 388, 395 (5th Cir. 2000)), but because here the evidence
indicates that Short, Lindsey, and Gordon each delivered the “distractionary strikes” that
Byrd claims caused his injuries, the analysis is the same for all three. The defendants argue
that Byrd failed to allege Short caused his injuries, pointing to a portion of Byrd’s deposition
where he claims Short did not strike him. However, Short admits to striking Byrd on the
back and torso, and Byrd testified that he was injured by blows from several officers whom
he could not distinguish. Therefore, on summary judgment we consider the record evidence
that Short delivered distractionary strikes to Byrd’s torso consistent with his forearm wounds
and fractured ribs.
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                                No. 14-30809
Byrd raises a genuine issue of material fact as to whether the force the Officers
applied was clearly excessive and violated Byrd’s Fourth Amendment rights in
light of clearly established law. Therefore, the district court improperly
granted summary judgment to Lindsey, Short, and Gordon.
C.     Municipal Liability
       We liberally construe pro se briefs to avoid waiver. Audler v. CBC
Innovis, Inc., 519 F.3d 239, 255 (5th Cir. 2008). Even so, Byrd fails to advance
any argument against the municipal defendants in his appellate brief. Because
he has failed to set forth “his contentions and the reasons for them, with
citations to the authorities and parts of the record on which [he] relies,” Fed.
R. App. 28(a)(8)(A), Byrd has abandoned any claim against the Cities. See
Yohey v. Collins, 985 F.2d 222, 224–225 (5th Cir. 1993).
                             III. CONCLUSION
       For the foregoing reasons, we REVERSE the judgment of the district
court as to Officer Short, Detective Gordon, and Sergeant Lindsey. We
AFFIRM summary judgment for Officer Yarborough, the City of Bossier, and
the City of Shreveport. We VACATE the district court’s dismissal of the
Louisiana constitutional claims, and we leave it in the district court’s sound
discretion whether to continue to exercise supplemental jurisdiction over these
state-law claims on remand. We REMAND to the district court for further
proceedings consistent with this opinion.




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