     Case: 17-60774    Document: 00514654458     Page: 1   Date Filed: 09/24/2018




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

                                                                       FILED
                                                                  September 24, 2018
                                  No. 17-60774
                                                                    Lyle W. Cayce
                                                                         Clerk
PEGGY SHUMPERT, Individually, and as Administrator of the Estate of
Antwun Shumpert, Sr., and on behalf of the heirs and wrongful death
beneficiaries of Antwun "Ronnie" Shumpert, Sr., Deceased; CHARLES
FOSTER; THE ESTATE OF ANTWUN SHUMPERT, SR.,

             Plaintiffs - Appellants

v.

CITY OF TUPELO, MISSISSIPPI; OFFICER TYLER COOK, in his
individual and official capacities,

             Defendants - Appellees




                 Appeal from the United States District Court
                   for the Northern District of Mississippi


Before STEWART Chief Judge, and WIENER and HIGGINSON, Circuit
Judges.

WIENER, Circuit Judge.
      Plaintiffs-Appellants appeal the district court’s grant of summary
judgment dismissing their Fourth Amendment, 28 U.S.C. § 1983 excessive
force and state law claims against Defendants-Appellees, the City of Tupelo
and Officer Cook. Plaintiffs also appeal the district court’s grant of Defendants’
motion for sanctions and denial of Plaintiffs’ motion for sanctions. We affirm.
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                                No. 17-60774
                         I. FACTS AND PROCEEDINGS
      In June 2016, the Tupelo Police Department (“TPD”) was conducting
surveillance of suspected narcotics activities at the Townhouse Motel. On the
evening of June 18, Officer Senter noticed a car that he suspected was involved
in such activities and followed it. Officer Senter pulled over Antwun Shumpert,
Sr. and Charles Foster for failing to use a turn signal and driving without a
working tag light. Shumpert, who was driving, stopped on the side of the road
and then ran from the car into a nearby neighborhood. Foster, the owner of the
vehicle, stayed in it. TPD officers, including Officer Cook who was in the area
with his police K9, pursued Shumpert. Officer Cook and his K9 eventually
located Shumpert hiding in a crawl space under a house. Officer Cook testified
that he opened the door to the crawl space and “gave [Shumpert] the command
to come out . . . announced that it was Tupelo Police, show me your hands, told
[Shumpert that he] had a dog and that it would bite.”
      After this warning, Shumpert ran further under the house, prompting
Officer Cook to release his dog which then bit Shumpert. Officer Cook testified
that Shumpert began to fight the dog then ran from under the house and
tackled Officer Cook. Shumpert pinned Officer Cook to the ground and
repeatedly struck him in the face. Fearing he was about to lose consciousness,
Officer Cook shot Shumpert four times. Shumpert later died as the result of
his gunshot wounds.
      During the time of Officer Cook’s encounter with Shumpert, Foster
remained with the vehicle. After Shumpert was shot, Foster was detained by
the Tupelo Police Department (“TPD”) for about one hour, after which the
investigation was turned over to the Mississippi Highway Patrol and
Mississippi Bureau of Investigation. According to Plaintiffs, Foster was
detained for a total of five or six hours. His car and person were searched,


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                                        No. 17-60774
including a body cavity search. Foster was later released and no charges were
filed against him.
      In October 2016, Foster and Shumpert’s wife, Peggy, individually and on
behalf of the heirs and wrongful death beneficiaries of Shumpert (collectively
referred to as “Plaintiffs”) filed suit against the City of Tupelo, Mississippi,
Mayor Jason Shelton and Police Chief Bart Aguirre, in their official capacities
(“the City”), and against Officer Tyler Cook in his individual and official
capacity. Plaintiffs claimed constitutional violations under 28 U.S.C. § 1983,
and excessive force, wrongful death, negligence, and negligent or intentional
infliction of emotional distress under 28 U.S.C. § 1343. Plaintiffs also asserted
Mississippi state law claims against Officer Cook.
      Both the City and Officer Cook filed motions for summary judgment. The
district court held that Plaintiffs failed to establish that the alleged
constitutional violations resulted from the City’s policies or procedures and
granted summary judgment on behalf of the City. The court also determined
that Plaintiffs did not defeat Officer Cook’s qualified immunity defense and
granted summary judgment on that ground. In response to Defendants’
motion, the district court also sanctioned Plaintiffs for discovery violations, but
declined to sanction Defendants. Plaintiffs now appeal each of the summary
judgment decisions as well as the district court’s award of sanctions.
                                         II. ANALYSIS
      This appeal raises issues regarding Monell liability, qualified immunity,
Mississippi state law, and discovery sanctions. We address each in turn.
   A. Monell Liability
      A municipality cannot be held liable under § 1983 on a theory of
respondeat superior. 1 To establish municipal liability pursuant to § 1983, a


      1   Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978).
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                                      No. 17-60774
plaintiff must demonstrate three elements: “a policymaker; an official policy;
and a violation of constitutional rights whose ‘moving force’ is the policy or
custom.” 2 An official policy must be either unconstitutional or have been
adopted “with deliberate indifference to the known or obvious fact that such
constitutional violations would result.” 3 “Deliberate indifference is a degree of
culpability beyond mere negligence or even gross negligence; it ‘must amount
to an intentional choice, not merely an unintentionally negligent oversight.’” 4
“These requirements must not be diluted, for ‘[w]here a court fails to adhere to
rigorous requirements of culpability and causation, municipal liability
collapses into respondeat superior liability.’” 5
       Plaintiffs allege that the City is liable because the TPD’s failure to train
Officer Cook caused the constitutional violations. “[T]he failure to provide
proper training may fairly be said to represent a policy for which the city is
responsible, and for which the city may be held liable if it actually causes
injury.” 6 “In resolving the issue of a city’s liability, the focus must be on
adequacy of the training program in relation to the tasks the particular officers
must perform.” 7 A plaintiff must show that (1) the municipality’s training
policy or procedure was inadequate; (2) the inadequate training policy was a
“moving force” in causing violation of plaintiff’s rights; and (3) the municipality




       2 Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436
U.S. at 694).
       3 Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309

(5th Cir. 2004).
       4 James v. Harris Cty., 577 F.3d 612, 617–18 (5th Cir. 2009) (quoting Rhyne v.

Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992)).
       5 Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (alteration in original)

(quoting Bd. of Cty. Comm’rs of Bryan Cty., v. Brown, 520 U.S. 397, 415 (1997)).
       6 City of Canton v. Harris, 489 U.S. 378, 390 (1989).
       7 Id. at 390.

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                                      No. 17-60774
was deliberately indifferent in adopting its training policy. 8 “We have said that
the connection must be more than a mere ‘but for’ coupling between cause and
effect.” 9 “The deficiency in training must be the actual cause of the
constitutional violation.” 10 Plaintiffs assert that the City violated Shumpert’s
Fourth Amendment rights and is liable under § 1983 for excessive force. They
also claim that the City is liable for violating Foster’s Fourth Amendment
rights.
              1. Shumpert’s Fourth Amendment and § 1983 claims
       Plaintiffs contend that Officer Cook was not qualified to be a K9 handler
under TPD policies, and that, after he was promoted to this position, the City
failed to train him adequately as a K9 handler. The parties agree that TPD
policy requires officers to have five years of experience, at least three of which
must be with the TPD, before they are eligible to become K9 handlers. Officer
Cook became a K9 handler after only two years with the TPD. Defendants
explain that Officer Cook was promoted because he had previous experience as
a K9 handler in the military. They emphasize that, before this incident, Officer
Cook did not have any disciplinary issues and had received K9 training and
certifications in compliance with TPD policy.
       Plaintiffs are correct that the TPD failed to follow department guidelines
in promoting Officer Cook, but they have failed to demonstrate that this
decision amounted to “deliberate indifference,” as required to impose
municipal liability. 11 To establish deliberate indifference, “[u]sually a plaintiff



       8  Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); Valle v. City of
Houston, 613 F.3d 536, 544 (5th Cir. 2010); Pineda v. City of Houston, 291 F.3d 325, 332 (5th
Cir. 2002).
        9 Valle, 613 F.3d at 546 (quoting Thompson v. Connick, 578 F.3d 293, 300 (5th Cir.

2009), rev’d sub nom. Connick v. Thompson, 563 U.S. 51 (2011) (internal quotations and
citations omitted)).
        10 Id.
        11 See Piotrowski, 237 F.3d at 578.

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                                         No. 17-60774
must show a pattern of similar violations, and in the case of an excessive force
claim, as here, the prior act must have involved injury to a third party.” 12
Plaintiffs have not established that the TPD had a routine policy—or even any
prior instances—of promoting patrol officers to K9 handlers without the
requisite experience. 13 The undisputed evidence shows that Officer Cook
received canine training and certifications and had served the TPD as a K9
handler for three years without incident. Because Plaintiffs have failed to
demonstrate that the TPD’s K9 training policies were inadequate or that the
TPD was was deliberately indifferent in training or promoting K9 officers, the
district court properly granted TPD’s summary judgment motion in regard to
Plaintiffs’ claims that the TPD failed to train Officer Cook as a K9 handler. 14
       Plaintiffs also claim that Defendants’ fluid and inconsistent policies and
procedures caused Officer Cook to violate Shumpert’s constitutional rights. In
particular, Plaintiffs aver that Cook was not adequately trained to (1) set up a
perimeter or call for backup in a barricade situation, (2) negotiate before using
force, or (3) obtain a supervisor’s approval before engaging a K9. Plaintiffs
claim that Officer Cook’s lack of training was evident based on the fact that he
used a K9 to pursue Shumpert in the first place, as K9s are only supposed to
be used when pursuing violent or serious offenders.
       Defendants respond that TPD policies did not require Officer Cook to
establish a perimeter in this case and that he had discretion whether to call
for backup. Defendants further explain that Officer Cook did not violate TPD




       12 Valle, 613 F.3d at 547.
       13 Because the single-incident “exception is generally reserved for those cases in which
the government actor was provided no training whatsoever,” Peña v. City of Rio Grande City,
879 F.3d 613, 624 (5th Cir. 2018), it does not apply to this case. Furthermore, Plaintiffs do
not raise the single-incident exception in their brief and it is therefore forfeited. United States
v. Bowen, 818 F.3d 179, 192 (5th Cir. 2016), cert. denied, 136 S. Ct. 2477 (2016).
       14 See Sanders-Burns, 594 F.3d at 381; Valle, 613 F.3d at 544; Pineda, 291 F.3d at 332.

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                                       No. 17-60774
policy in engaging the K9, because TPD policy requires supervisor notification
only after an officer uses an impact weapon. Defendants also contend that
Officer Cook did not violate department policy by using the K9 when searching
for Shumpert because Officer Cook was responding to an all-points bulletin
rather than to a specific K9 request.
       Again, Plaintiffs have failed to demonstrate that TPD’s policies were the
moving force behind the alleged constitutional violation. 15 “[M]ere proof that
the injury could have been prevented if the officer had received better or
additional training cannot, without more, support liability.” 16 Plaintiffs have
failed to present evidence that additional training would have prevented
Shumpert’s injuries. The undisputed record indicates that TPD policies
included detailed training about how to respond to a call for officer assistance
and the requirements for officers to announce their presence to a suspect.
Officer Cook did not secure the perimeter of the building in accordance with
department best practices, but TPD policy explains that “[o]fficers have wide
latitude when determining how best to deal with any situation they encounter”
and that “[i]f a second officer is unavailable, the first responder must exercise
discretion in determining the best course of action.” These policies are not
unconstitutional, and there is no evidence that the TPD was deliberately
indifferent in adopting these procedures. 17 Plaintiffs have not satisfied the
requirements for municipal liability under Monell, so the district court was
correct in granting summary judgment on behalf of the City in regard to
Shumpert’s Fourth Amendment and § 1983 claims.




       15 See Sanders-Burns, 594 F.3d at 381; Valle, 613 F.3d at 544; Pineda, 291 F.3d at 332.
       16 See Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).
       17 See Sanders-Burns, 594 F.3d at 381; Valle, 613 F.3d at 544; Pineda, 291 F.3d at 332;

Piotrowski, 237 F.3d at 578.
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                                     No. 17-60774
             2. Foster’s Fourth Amendment claims
      Plaintiff Foster alleges that the TPD violated his Fourth Amendment
rights because (1) Officer Senter did not have probable cause to stop the
vehicle; (2) TPD officers did not read Foster his Miranda rights before his
arrest; (3) Foster’s handcuffs were too tight; (4) officers did not respond to his
complaints that he could not breathe in the back of the police car; and (5) TPD
officers subjected Foster to an unreasonable search and seizure. Defendants
respond that Foster was pulled over during a valid Terry stop, and that after
just 45 minutes, the entire scene was turned over to the Mississippi State
Police. Defendants contend that Foster’s claims that his handcuffs were too
tight and that he could not breathe in the car do not demonstrate TPD officers
acted with reckless disregard for his safety and well-being. They also contend
that Plaintiffs have failed to identify any TPD policy or custom which caused
the alleged constitutional violations.
       It is true that Plaintiffs have not pointed to an official TPD policy or
policymaker that caused the alleged constitutional violations. 18 In fact,
Plaintiffs have failed to establish any causal link between the alleged
violations and a TPD policy that was unconstitutional or adopted “with
deliberate indifference to the known or obvious fact that such constitutional
violations would result.” 19 Because Plaintiffs failed to provide evidence of “(1)
an official [TPD] policy (or custom), of which (2) a policy maker can be charged
with actual or constructive knowledge” that caused Foster’s alleged
constitutional violations, the district court correctly granted Defendants’
motion for summary judgment on Foster’s Fourth Amendment claims. 20


      18  See Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694).
      19  Johnson, 379 F.3d at 309.
       20 See Pineda, 291 F.3d at 328. Additionally, to the extent Foster contends that his

Fifth Amendment rights were violated because he never received a Miranda warning, we
note that he has not alleged that his supposed interrogation led to any incriminating
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                                       No. 17-60774
   B. Qualified Immunity
       Plaintiffs also appeal the district court’s decision to dismiss their § 1983
excessive force and Fourth Amendment claims against Officer Cook in his
personal capacity on qualified immunity grounds. Government officials may
invoke qualified immunity to shield themselves “from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” 21
“Once a defendant asserts the qualified immunity defense, ‘[t]he plaintiff bears
the    burden     of   negating      qualified     immunity.’” 22     “Needless      to    say,
unsubstantiated assertions are not competent summary judgment evidence.” 23
       In reviewing a motion for summary judgment based on qualified
immunity, this court undertakes a two-step analysis. 24 We must decide (1)
whether an officer’s conduct violated a federal right and (2) whether this right
was clearly established. 25 These steps may be considered in either order. 26
        “When a plaintiff alleges excessive force during an investigation or
arrest, the federal right at issue is the Fourth Amendment right against



statements or that his statements were later used against him. Foster was not charged with
any crime, so his claims of a constitutional violation based on Miranda are entirely without
merit. See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (“[W]hen an individual is taken
into custody or otherwise deprived of his freedom by the authorities in any significant way
and is subjected to questioning, the privilege against self-incrimination is jeopardized . . . .
until such warnings and waiver are demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against him.”).
       21 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)).
       22 Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016) (quoting Brown v. Callahan, 623

F.3d 249, 253 (5th Cir. 2010)).
       23 Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
       24 Rivera v. Bonner, 691 F. App’x 234, 237 (5th Cir. 2017) (unpublished).
       25 See id.
       26 Pearson, 555 U.S. at 236 (“The judges of the district courts and the courts of appeals

should be permitted to exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.”).
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                                       No. 17-60774
unreasonable seizures.” 27 We thus must consider Officer Cook’s (1) use of K9
force and (2) use of deadly force. The resolution of this case turns primarily on
whether these rights were clearly established, so we will begin with that step
of the qualified immunity analysis.
       To determine whether a right was clearly established, we must evaluate
whether Officer Cook’s conduct was proscribed by clearly established law at
the time of the incident. “To answer that question in the affirmative, we must
be able to point to controlling authority—or a robust consensus of persuasive
authority—that defines the contours of the right in question with a high degree
of particularity.” 28 In determining what constitutes clearly established law,
this court first looks to Supreme Court precedent and then to our own. 29 If
there is no directly controlling authority, this court may rely on decisions from
other circuits to the extent that they constitute “a robust ‘consensus of cases of
persuasive authority.’” 30
       “To be clearly established, a right must be sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” 31 Ultimately, the touchstone is “‘fair warning’: The law can be clearly
established ‘despite notable factual distinctions between the precedents relied
on and the cases then before the Court, so long as the prior decisions gave



       27  Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).
       28  Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (quotation and
citation omitted).
        29 See id. at 412.
        30 al-Kidd, 131 S. Ct. at 2084 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).
        31 Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Reichle v. Howards, 132 S.

Ct. 2088, 2093 (2012)); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)) (citations omitted) (“For a constitutional right to be
clearly established, its contours ‘must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be
apparent.’”).
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                                        No. 17-60774
reasonable warning that the conduct then at issue violated constitutional
rights.’” 32
       It is “clearly established that [arrestees] ha[ve] a constitutional right to
be free from excessive force during an investigatory stop or arrest.” 33 This does
not end the inquiry, however, as “[t]he Supreme Court has carefully
admonished that we are ‘not to define clearly established law at a high level of
generality.’” 34 To defeat qualified immunity, a plaintiff must demonstrate that
“it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” 35
               1. K9 force
       Plaintiffs have the burden of demonstrating that Officer Cook violated a
“clearly established law at the time the challenged conduct occurred.” 36
Plaintiffs do not provide any legal authority to demonstrate that Officer Cook
violated clearly established law by releasing the K9. Instead, they contend
generally that Shumpert had a constitutional right to be free from excessive
force. This court has previously rejected such general contentions. 37


       32  Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope, 536
U.S. at 740).
        33 Tarver v. City of Edna, 410 F.3d 745, 753–54 (5th Cir. 2005).
        34 Hernandez v. United States, 785 F.3d 117, 120 (5th Cir. 2015) (en banc) (quoting al-

Kidd, 563 U.S. at 742).
        35 Id. (emphasis added) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)); see

also Brosseau, 543 U.S. at 198–99 (“[T]here is no doubt that Graham v. Connor clearly
establishes the general proposition that use of force is contrary to the Fourth Amendment if
it is excessive under objective standards of reasonableness. Yet that is not enough. Rather,
we emphasized in Anderson [v. Creighton] ‘that the right the official is alleged to have
violated must have been “clearly established” in a more particularized, and hence more
relevant, sense . . . .’” (citation omitted) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001))).
        36 Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008).
        37 See Cass v. City of Abilene, 814 F.3d 721, 732 (5th Cir. 2016) (“Appellants’ entire

argument on this second prong of the qualified immunity test is that ‘it is clearly established
in the law that citizens are protected against unjustified, excessive police force.’ This general
statement is insufficient to meet Appellants’ burden.”); see also al-Kidd, 563 U.S. at 742 (“We
have repeatedly told courts . . . not to define clearly established law at a high level of
generality. The general proposition, for example, that an unreasonable search or seizure
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                                        No. 17-60774
       Even if Plaintiffs had included case law to support their argument, they
would still be unable to demonstrate that Officer Cook’s conduct violated
clearly established law. At the time of the challenged conduct, neither the
United States Supreme Court nor this court had addressed what constitutes
reasonable use of K9 force during an arrest. 38 After that date, this court
decided Cooper v. Brown, which addressed the issue. 39
       In Cooper, the police initiated a traffic stop based on a suspected DUI. 40
The suspect stopped, but then ran from the police and into a residential
neighborhood. 41 The officer who initiated the stop notified officers in the area
about the fleeing suspect. 42 Officer Brown, along with his police K9, responded,
and the K9 located the suspect and bit him on the leg. 43 The dog continued to
bite Cooper for one to two minutes. 44 Cooper did not attempt to flee, did not
strike the dog, and Officer Brown could see Cooper’s hands and “appreciate[d]



violates the Fourth Amendment is of little help in determining whether the violative nature
of particular conduct is clearly established.”) (citations omitted).
        38 Other courts had found the use of K9 force justified in similar circumstances. See

Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009) (holding use of K9 force during
arrest—including 31 dog bites—was reasonable because arrestee was suspected of
committing serious crimes, actively fled from police, and police thought he might be armed);
Miller v. Clark Cty., 340 F.3d 959, 965 (9th Cir. 2003) (use of K9 force was justified against
suspect who had fled from police and was hiding in woods); Matthews v. Jones, 35 F.3d 1046,
1051 (6th Cir. 1994) (use of K9 force was reasonable when suspect fled into the dark woods
after a traffic stop, making it easier for suspect to ambush the officers); Robinette v. Barnes,
854 F.2d 909, 913 (6th Cir. 1988) (use of deadly K9 force was warranted when suspected felon
was hiding inside dark building, had been warned that a dog would be used, and still refused
to surrender).
        39 See Cooper v. Brown, 844 F.3d 517 (5th Cir. 2016). Because Cooper had not been

decided at the time of the conduct at issue, it cannot define clearly established law for this
case. Nonetheless, a discussion of Cooper is helpful in fully explaining the issues in this case,
so we include it in our analysis.
        40 Id. at 521.
        41 Id.
        42 Id.
        43 Id. Importantly, the initial bite was not at issue in Cooper, as the record indicated

that Officer Brown did not give a bite command. Instead, the excessive force claim was based
on the duration of the dog bite and the officer’s failure to intervene.
        44 Id.

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that he had no weapon.” 45 Despite these facts, Officer Brown did not order the
K9 to release the bite until he had finished handcuffing Cooper. 46 Cooper filed
a § 1983 claim against Officer Brown in his individual capacity, and Officer
Brown moved for summary judgment on the basis of qualified immunity. 47
      The court determined that Officer Brown’s use of K9 force was clearly
excessive and unreasonable given the facts and circumstances of that case, so
he was not entitled to qualified immunity. 48 The court explained that “[n]o
reasonable officer could conclude that Cooper posed an immediate threat to
Brown or others.” 49 There was no indication he was, or would be, violent.
Officer Brown knew that Cooper did not have a weapon. Once Officer Brown
found him, Cooper did not resist arrest or further attempt to flee. Rather, he
complied with Officer Brown’s instructions. Officer Brown, however, did not
stop the use of K9 force. Because Officer Brown did not attempt to negotiate
and “subjected Cooper to a lengthy dog attack that inflicted serious injuries,
even though he had no reason to believe that Cooper posed a threat,” the court
held that the use of force was clearly excessive and unreasonable. 50 Thus,
under Cooper, the law is now clearly established that when “[n]o reasonable
officer could conclude that [a suspect] pose[s] an immediate threat to [law
enforcement officers] or others,” it is unreasonable to use K9 force to subdue a
suspect who is complying with officer instructions. 51
      Even if Cooper were applicable, Officer Cook’s conduct would not violate
clearly established law. We emphasized in Cooper that “[o]ur caselaw makes




      45 Id.
      46 Id.
      47 Id.
      48 Id. at 522.
      49 Id.
      50 Id. at 523.
      51 Id.

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                                       No. 17-60774
certain that once an arrestee stops resisting, the degree of force an officer can
employ is reduced.” 52 Because the officer in Cooper continued to use force and
even increased its use while the threat to officers decreased, he violated clearly
established law. By contrast, Officer Cook did not use or increase the use of
force after Shumpert was subdued; instead, Shumpert ignored Officer Cook’s
instructions and retreated further under the home, preventing Officer Cook
from determining whether he was armed. While caselaw establishes that it is
unreasonable to use force after a suspect is subdued or demonstrates
compliance 53 this court has repeatedly held that the “measured and ascending”
use of force is not excessive when a suspect is resisting arrest—provided the
officer ceases the use of force once the suspect is subdued. 54 Because it is
undisputed that Shumpert was violently resisting arrest and that Officer Cook
did not know whether he was armed, Plaintiffs have not met their burden of
demonstrating that—under the discrete facts of this case—Officer Cook’s use
of K9 force was objectively unreasonable in light of clearly established law. 55
The district court properly determined that Officer Cook was entitled to
qualified immunity on this claim.
              2. Deadly force
       We must next determine whether Officer Cook’s use of deadly force
violated clearly established law. United States Supreme Court and Fifth
Circuit precedent is clear that an officer may use deadly force when a suspect


       52 Id. at 524.
       53 Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013); Bush, 513 F.3d at 501–02.
       54 See Bailey v. Preston, 702 F. App’x 210, 211 (5th Cir. 2017) (unpublished); Poole v.

City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (holding use of force was not
unreasonable when officers “responded with ‘measured and ascending’ actions that
corresponded to [the suspect’s] escalating verbal and physical resistance”); Galvan v. City of
San Antonio, 435 F. App’x. 309, 311 (5th Cir. 2010) (unpublished) (explaining that the use of
force was reasonable when it involved “measured and ascending responses” to a plaintiff’s
noncompliance).
       55 See cases cited, note 38.

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                                        No. 17-60774
poses a threat of serious harm either to the officer or to other individuals. 56
Whether Shumpert posed a threat of serious harm is based on the facts and
circumstances of this particular case. We review the facts in the light most
favorable to Shumpert, “but only when . . . both parties have submitted
evidence of contradictory facts.” 57 Officer Cook testified that Shumpert ran
from under the crawl space, tackled him, and repeatedly struck him in the
head. According to Officer Cook’s testimony, he tried to fight Shumpert until
he (Officer Cook) felt he might lose consciousness. At that point, he fired four
shots at Shumpert.
       Plaintiffs allege that at least one shot was fired from some distance,
discrediting Officer Cook’s testimony. Plaintiffs also contend that Dr. Mitchell,
their forensic expert, noted that one of Shumpert’s gun shot wounds was
caused from a short distance. 58 These facts, however, do not conflict with
Officer Cook’s testimony regarding the incident. The only two individuals to
witness the shooting were Officer Cook and Shumpert, who is now tragically
prevented from providing his version of the encounter. Nevertheless, Plaintiffs
still have the burden of adducing evidence that contradicts Officer Cook’s
description of the shooting. 59 They have failed to meet this burden. A



       56  Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“Where the officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the officer or to
others, it is not constitutionally unreasonable to prevent escape by using deadly force.”); Mace
v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003) (“Use of deadly force is not unreasonable
when an officer would have reason to believe that the suspect poses a threat of serious harm
to the officer or others.”).
        57 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
        58 Even if Officer Cook fired one of the four shots from a distance, the use of deadly

force was still justified, as an officer using deadly force “need not stop shooting until the
threat has ended.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014). Other officers who were
in the area, as well as Charles Foster, testified that they heard four shots fired in rapid
succession, indicating all the shots were fired before the threat ended.
        59 “At the summary judgment stage, we require evidence—not absolute proof, but not

mere allegations either.” Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 (5th Cir. 2009)
(quoting Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991)).
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                                         No. 17-60774
reasonable officer could have believed that Shumpert “posed a threat of serious
harm,” so Officer Cook’s use of deadly force under these circumstances did not
violate clearly established law. 60 He is therefore entitled to qualified immunity
on this claim. 61
   C. Mississippi State Law Claims
       Plaintiffs also appeal the district court’s decision to dismiss their state
law claims against Officer Cook. The Mississippi Tort Claims Act states:
       A governmental entity and its employees acting within the course
       and scope of their employment or duties shall not be liable for any
       claim . . . Arising out of any act or omission of an employee of a
       governmental entity engaged in the performance [of] . . . police or
       fire protection unless the employee acted in reckless disregard of
       the safety and well-being of any person not engaged in criminal
       activity at the time of injury[.] 62




       60  In their reply brief and at oral argument, Plaintiffs argued that Officer Cook is not
entitled to qualified immunity because he created the situation which led to Shumpert’s
injuries. Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994) (“When state
actors knowingly place a person in danger” the state is “accountable for the foreseeable
injuries that result from their conduct[.]”). Plaintiffs assert that “state actors may be held
liable if they created the plaintiff[’s] peril” or “increased the risk of harm.” Piotrowski v. City
of Houston, 51 F.3d 512, 515 (5th Cir. 1995)). In response, Officer Cook argues that Plaintiffs
are barred from raising a state-created danger theory at this stage in the proceedings,
because they did not raise this issue in the district court or their opening brief.
        Plaintiffs have waived this issue, as they did not sufficiently raise it in their opening
brief. United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an
argument on appeal, but fails to adequately brief it, is deemed to have waived it.”) (quoting
Knatt v. Hosp. Serv. Dist. No. 1, 327 F. App’x 472, 483 (5th Cir. 2009) (unpublished)). Even if
Plaintiffs had preserved this issue, the theory of state-created danger is not clearly
established law. See Chavis v. Borden, 621 F. App’x 283, 286 (5th Cir. 2015) (unpublished)
(“Unlike our sister Circuits, we have repeatedly declined to decide whether [a state-created
danger] cause of action is viable in the Fifth Circuit.”); see also Saenz v. City of McAllen, 396
F. App’x 173, 177 (5th Cir. 2010) (unpublished) (quoting Walker v. Livingston, 381 F. App’x
477, 479–80 (5th Cir. 2010) (unpublished)) (“[T]his court has held that the state created
danger theory is ‘not clearly established law within this circuit such that a § 1983 claim based
on this theory could be sustained[.]’”).
        61 See Hope, 536 U.S. at 739.
        62 Miss. Code Ann. § 11-46-9.

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                                     No. 17-60774
      It is undisputed that at the time of the encounter, Officer Cook was
acting in the course and scope of his police duties and that Shumpert was
engaged in criminal activity. 63 The plain language of the Mississippi Tort
Claims Act absolves officers from liability in these circumstances, so we affirm
the district court’s dismissal of Plaintiffs’ state law claims against Officer Cook.
   D. Discovery Sanctions
      Plaintiffs also appeal the district court’s decisions regarding discovery
sanctions. Defendants served Plaintiffs with the first set of interrogatories,
requests for production, and requests for admission on November 23, 2016.
Plaintiffs denied the requests for admission on December 12, 2016, but did not
answer the interrogatories or otherwise respond to the production request. Two
months after the discovery responses were due, Defendants wrote to Plaintiffs’
counsel and requested the information. When Plaintiffs’ counsel failed to
respond, Defendants filed a motion to compel. Defendants sought costs and
attorney’s fees related to the motion.
      Shortly after Defendants filed the motion to compel, Plaintiffs responded
to the discovery request and filed an opposition to Defendants’ motion to
compel. Plaintiffs claimed that they did not intend to be defiant or
noncompliant and that their failure to respond did not “thwart the discovery
process.” Defendants, however, deemed Plaintiffs’ discovery responses
insufficient, and again wrote to Plaintiffs’ counsel requesting additional
information. When Plaintiffs’ counsel did not respond, Defendants filed a
second motion to compel.




      63 See Miss. Dep’t of Pub. Safety v. Durn, 861 So. 2d 990, 997 (Miss. 2003)
(“Misdemeanor traffic offenses are criminal activities within the [Mississippi Tort Claims
Act].”).
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                                       No. 17-60774
       The magistrate judge granted both motions to compel 64 and sanctioned
Plaintiffs pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). Defendants
submitted records of the costs and fees associated with the discovery motions,
totaling $3,086.00. Plaintiffs’ counsel also filed a motion for sanctions, claiming
that Defendants filed the motions to compel before scheduling a conference
with the magistrate judge, as required by the case management order. 65
Defendants explained that they had attempted to contact Plaintiffs’ counsel
before filing the motions, but never received a response. The magistrate judge
denied Plaintiffs’ motion for sanctions and held that Defendants costs and fees
were reasonable. The district court affirmed the magistrate judge’s decisions.
              1. Standard of Review
       This court reviews Rule 37 sanctions for an abuse of discretion. 66 Factual
findings underlying the sanctions are reviewed for clear error only. 67 “A district
court has broad discretion in all discovery matters, and such discretion will not
be disturbed ordinarily unless there are unusual circumstances showing a
clear abuse.” 68 “[T]he vigor of our review of a district court’s sanction award
depends on the circumstances of the case.” 69 “If the sanctions imposed are
substantial in amount, type, or effect, appellate review of such awards will be
inherently more rigorous; such sanctions must be quantifiable with some



       64 According to the City, the first motion to compel was granted “in its entirety” and
“nearly all of the second motion to compel” was granted.
       65 Plaintiffs’ counsel filed several other motions seeking either to have the sanctions

set aside or impose sanctions on Defendants, all of which were denied by the magistrate
judge. Plaintiffs then filed motions to reconsider each of the magistrate judge’s orders. These
motions were also denied.
       66 See Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir.

2012).
       67 Positive Software Sols., Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460 (5th

Cir. 2010).
       68 Moore v. CITGO Ref. & Chems. Co., L.P., 735 F.3d 309, 315 (5th Cir. 2013) (quoting

Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000)).
       69 United States v. City of Jackson, 359 F.3d 727, 732 (5th Cir. 2004).

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                                        No. 17-60774
precision.” 70 This court has previously held that sanctions of even $50,000 are
not “on the high end of the scale.” 71
                2. Sanctions against Plaintiffs’ counsel
       Plaintiffs contend that the district court was not required to impose
sanctions. Plaintiffs’ counsel’s only justification for his failure to respond to the
discovery request was that he was busy with professional and personal
obligations. These circumstances do not “substantially justif[y]” Plaintiffs’
failure to comply with the discovery deadlines or respond to Defendants. 72 The
district court did not abuse its discretion in granting Defendants’ motion for
sanctions. 73
       Plaintiffs also contend that the amount of the sanctions was
unreasonable. The total sanctions award in this case was $3,086.00, which the
district court found represented reasonable costs for filing two motions to
compel. The court noted that this case involved “heightened media scrutiny,”
which necessarily demanded careful research and attention to factual details
when drafting the discovery motions. There is no evidence that the district
court abused its discretion in awarding $3,086.00 in sanctions. 74


       70 Topalian v. Ehrman, 3 F.3d 931, 936 (5th Cir. 1993) (emphasis added) (quoting
Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 883 (5th Cir. 1988)).
       71 City of Jackson, 359 F.3d at 732–33.
       72 FED. R. CIV. PROC. 37(a)(5).
       73 See FED. R. CIV. PROC. 37(a); Smith & Fuller, 685 F.3d at 488; City of Jackson, 359

F.3d at 732. Plaintiffs argue the district court abused its discretion in awarding fees and costs
related to Defendants’ second motion to compel, as that court did not grant that motion in its
entirety. This argument is without merit. Under Rule 37, when a motion to compel is granted
in part and denied in part, the district court has discretion to “apportion the reasonable
expenses for the motion.” The magistrate judge explained that “it would be unconscionable
to apportion expenses” because “[o]f the five interrogatories placed in issue, the court denied
only a fraction of one interrogatory, rendering the apportionable expenses, if any, too trivial
to qualify.” This explanation demonstrates that the court did not abuse its discretion in
awarding costs and fees in relation to the second motion to compel.
       74 See Positive Software Sols., Inc., 619 F.3d at 460. Furthermore, the low amount of

the sanction award in this case does not require particularly rigorous review. See Topalian,
3 F.3d at 936.
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                                       No. 17-60774
              3. Plaintiffs’ motion for sanctions against Defendants
       Plaintiffs also contend that the district court abused its discretion in
failing to sanction Defendants for violating the case management order. That
order states that if a discovery dispute arises, the parties must first
communicate       among      themselves       to   resolve     the    dispute.    If   those
communications fail, the parties must conduct a telephone conference with the
magistrate judge. “Only if the telephonic conference with the judge is
unsuccessful in resolving the issue may the party file a discovery motion.”
       It is undisputed that Defendants did not conduct a telephone conference
with the magistrate judge before filing the motions to compel. But Defendants
contend that it was impossible to arrange a telephone conference because
Plaintiffs’ counsel would not even respond to their written communications. In
their view, Plaintiffs’ refusal to communicate exempted Defendants from the
telephone conference requirement.
       In denying Plaintiffs’ motion for sanctions, the magistrate judge
explained that Federal Rule of Civil Procedure 16(f)(2) states that a party
should not be sanctioned for violating a case management order if the
noncompliance “was substantially justified or other circumstances make an
award of expenses unjust.” 75 Because Defendants had twice attempted to
communicate with Plaintiffs’ counsel but received no response, the magistrate
judge determined that “an award of sanctions [against Defendants] would be
wholly unjust.” 76 These facts do not amount to “unusual circumstances
showing a clear abuse.” 77 The district court did not abuse its discretion in
declining to sanction Defendants.



       75  FED. R. CIV. PROC. 16.
       76  The district court also noted that Defendants had previously agreed to an extension
of discovery deadlines, at Plaintiffs’ request.
        77 See Moore, 735 F.3d at 315 (quoting Kelly, 213 F.3d at 855).

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                                 No. 17-60774
                               III. CONCLUSION
      We affirm the district court’s summary judgment decisions in favor of
the City and Officer Cook. We also affirm the district court’s decisions to grant
Defendants’ motion for sanctions and deny Plaintiffs’ motion for sanctions.




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