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

                                                 FILED
                                                                                May 1, 2009
                                      No. 08-40381
                                    Summary Calendar                      Charles R. Fulbruge III
                                                                                  Clerk

JERMAINE WATTS

                                                     Plaintiff-Appellant

v.

S SMART, Sergeant Collin County Book-In; E MYERS, Deputy, Collin County;
COLLIN COUNTY SHERIFF'S DEPARTMENT; COLLIN COUNTY; COLLIN
COUNTY DETENTION FACILITY; UNIDENTIFIED OFFICERS, McKinney
Police Department; SHERIFF TERRY BOX, Sheriff Collin County Texas;
MCKINNEY POLICE DEPARTMENT; BEST, McKinney Police Officer;
BLESSING, McKinney Police Officer; LEMONDS, McKinney Police Department;
C WINDSOR, Officer, McKinney Police Department

                                                     Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:07-CV-433


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jermaine Watts, Texas prisoner # 173046, appeals the district court’s
grant of summary judgment for Defendants Smart and Meyer and Sheriff Box
and Collin County and the dismissal of his 42 U.S.C. § 1983 complaint. As an

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 08-40381

initial matter, Watts’s motion to supplement the record is denied as unnecessary
because the documents are already in the district court record.
      Watts alleged that the defendants used excessive force on him at the Collin
County Detention Facility (CCDF) while he was in restraints. Watts does not
brief the district court’s dismissal of the CCDF, the Collin County Sheriff’s
Department, and the McKinney Police Department pursuant to F ED. R. C IV. P.
12(b)(6). Nor does he address the district court’s grant of summary judgment for
the unserved defendants. He has therefore abandoned appellate review of the
district court’s dismissal of those defendants. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Similarly, Watts failed to brief his failure to train
allegation against Sheriff Box and Collin County.             Accordingly, he has
abandoned appellate review of the adverse judgment on that claim. Id.
      We review the grant of a motion for summary judgment de novo. Hinojosa
v. Butler, 547 F.3d 285, 295 (5th Cir. 2008). We will affirm a summary judgment
if “‘there is no genuine issue as to any material fact’ and the moving party is
‘entitled to judgment as a matter of law.’” Id. (quoting F ED. R. C IV. P. 56(c)). We
view the evidence and the inferences from the record in the light most favorable
to the nonmovant.      Id. (citation and internal quotation marks omitted).
      The district court determined that Defendants Smart, Meyer, and Box
were entitled to qualified immunity. “Qualified immunity protects government
officials ‘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.’” Lytle v. Bexar County, Tex., ___ F.3d ___, 2009 WL
428452, * 3 (5th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Whether a government official is entitled to qualified immunity for an
alleged constitutional violation is determined by the two-step analysis of Saucier
v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 129 S. Ct.
808 (2009). Lytle, 2009 WL 428452 at *3.
      The threshold constitutional violation question is “whether, taking the

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facts in the light most favorable to the plaintiff, the officer’s alleged conduct
violated a constitutional right.” Id. (citing Saucier, 533 U.S. at 201). If the court
determines that there was a constitutional violation, the court moves to the
second step, which involves “determining whether the law was sufficiently clear
that a reasonable officer would have known that his conduct violated the
constitution.” Id. Stated another way, the court asks “whether the law lacked
such clarity that it would be reasonable for an officer to erroneously believe that
his conduct was reasonable.” Id. at *4.
      Whether Defendants Smart and Meyer violated the constitutional rights
of Watts as a pretrial detainee is governed by the Due Process Clause of the
Fourteenth Amendment. See Brothers v. Klevenhagen, 28 F.3d 452, 455-56 (5th
Cir. 1994) (citing Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir. 1993)).
The question under this analysis is whether the force applied was “in a good
faith effort to maintain or restore discipline, or maliciously and sadistically for
the very purpose of causing harm.” Valencia, 981 F.2d at 1446 (citing Hudson
v. McMillian, 503 U.S. 1, 5 (1992)). Whether Sheriff Box, and concomitantly
Collin County, may be held liable under § 1983 depends on whether the Sheriff
(1) affirmatively participated in acts that caused the constitutional deprivation,
or (2) implemented unconstitutional policies that causally resulted in Watts’s
constitutional injury. See Bd. of the County Comm’rs v. Brown, 520 U.S. 397,
403 (1997); Gates v. Tex. Dep’t of Protective and Regulatory Servs., 537 F.3d 404,
435 (5th Cir. 2008); Williams v. Kaufman County, 352 F.3d 994, 1013-14 (5th
Cir. 2003).
      The defendants’ attestations that Officer Meyer employed “distraction
strikes” conflict with Watts’s assertion that the strike came from a punch and
the medical records stating the that he received a direct blow from a fist. The
videotape the defendants have submitted does not resolve this factual dispute.
The defendants’ attestations that Watts attempted to bite Officer Meyer is also
contradicted by Watts’s affidavit. The videotape does not resolve that factual

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dispute. In fact, the videotape shows that Watts was struck numerous times and
kneed several times as he lay face down on the floor of the booking area. Watts
has therefore identified record evidence that gives rise to genuine fact issues as
to whether the force Sergeant Smith and Officer Meyer applied was excessive
and whether their conduct was objectively reasonable. Therefore, the district
court erred when it granted Sergeant Smith and Officer Meyer summary
judgment. See Hinojosa, 547 F.3d at 295; Valencia, 981 F.2d at 1446.
      Sheriff Box’s affidavit establishes, and Watts does not contest, that Sheriff
Box had no personal involvement with the force used on him. Watts concedes
that the Sheriff’s Use of Force policy is not unconstitutional. An official policy,
however, can also be “a persistent, widespread practice of city officials or
employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute a custom that
fairly represents municipal policy.” Brown v. Bryan County, OK, 219 F.3d 450,
457 (5th Cir. 2000) (internal quotation marks and citation omitted). Watts
argues that Sheriff Box condoned a patten of the use of excessive force on CCDF
inmates.
      Watts’s affidavit states that six inmates at the CCDF were assaulted while
they were in restraints. He also submitted the affidavits of two of the inmates.
These affidavits create a genuine issue of material fact regarding whether
Sheriff Box implemented an unconstitutional policy on the use of force. See
Brown, 219 F.3d at 457; Valencia, 981 F.2d at 1443-45. Thus, the district court
erred when it determined that, as a matter of law, Sheriff Box enjoyed qualified
immunity and was entitled to summary judgment. Concomitantly, the district
court erred when it granted summary judgment for Collin County because a
municipality is liable under § 1983 if a plaintiff identifies a municipal policy or
custom that caused the plaintiff's injury. See Brown, 520 U.S. at 403; Williams,
352 F.3d at 1013-14.
      Accordingly, the district court’s summary judgment for Defendants Smart,

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Meyer, Box, and Collin County is VACATED, and the case is REMANDED to the
district court for further proceedings as to these defendants. The district court’s
grant of summary judgment for the unserved defendants is AFFIRMED. The
district court’s Rule 12(b)(6) dismissal of the CCDF, the Collin County Sheriff’s
Department, and the McKinney Police Department is AFFIRMED. Motion to
supplement the record DENIED as unnecessary.




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