     Case: 14-20564        Document: 00513188360        Page: 1   Date Filed: 09/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20564
                                    Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 10, 2015
SIMEON DESHON STATEN,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                  Plaintiff-Appellant

v.

OFFICER TED ADAMS, #106508; OFFICER ANTHONY HAWKINS, #95450;
OFFICER JEFFREY OLIVER, #12150 of the Houston Police Department,
individually, and in their official capacity; CITY OF HOUSTON; CITY OF
HOUSTON POLICE DEPARTMENT,

                                                  Defendants-Appellees


                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 4:09-CV-1838


Before DAVIS, JONES, and GRAVES, Circuit Judge
PER CURIAM: * 1
       Simeon Deshon Staten, Texas prisoner # 1535980, filed an amended civil
rights complaint against three Houston police officers and the City of Houston.
He alleged that the officers injured him by using excessive force when arresting
him during a traffic stop that led to a drug conviction.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

       1   Judge Graves is concurring in the judgement only.
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                                 No. 14-20564

      The district court granted summary judgment in favor of all defendants.
The court noted that Staten had failed to present any evidence that would
render the City of Houston liable based on unconstitutional policies or a failure
to train the policemen. The court concluded that the officers were entitled to
qualified immunity because the undisputed evidence indicated that any
application of force was not unreasonable under the circumstances and that no
summary judgment evidence supported Staten’s claims of force sufficient to
cause the severe injuries he alleged.
      “Summary judgment is proper if the pleadings and evidence show there
is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644,
650 (5th Cir. 2012); FED. R. CIV. P. 56(a). To defeat summary judgment, the
nonmovant must set forth specific facts showing the existence of a genuine
issue for trial. FED. R. CIV. P. 56(c)(1). All facts and reasonable inferences
must be construed in favor of the nonmovant, and the court must not weigh
evidence or make credibility calls. Deville v. Marcantel, 567 F.3d 156, 163-64
(5th Cir. 2009). However, the nonmovant may not rest on mere allegations but
must point to specific facts and explain how they support his position. Duffie
v. United States, 600 F.3d 362, 371 (5th Cir. 2010). Neither can the nonmovant
defeat summary judgment with “unsubstantiated assertions, or only a scintilla
of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal
quotation marks and citations omitted).
      Further, when a defendant invokes qualified immunity “the usual
summary judgment burden of proof is altered” so that the plaintiff must negate
the defense by demonstrating “genuine issues of material fact regarding the
reasonableness of the [defendant’s] conduct.” Michalik v. Hermann, 422 F.3d
252, 262 (5th Cir. 2005). A plaintiff must plead facts to show a violation of a



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right that was clearly established at the time of the incident and that, in light
of that clearly established law, the defendant’s conduct was objectively
unreasonable. See Short v. West, 662 F.3d 320, 325 (5th Cir. 2011). We review
de novo the issue of qualified immunity. Id.
      The reasonableness of the force applied must be assessed from the
perspective of a reasonable officer on the scene rather than with “the 20/20
vision of hindsight.” Saucier v. Katz, 533 U.S. 194, 205 (2001). “While the
right to be free from excessive force is clearly established in a general sense,
the right to be free from the degree of force used in a given situation may not
have been clear to a reasonable officer at the scene.” Hogan v. Cunningham,
722 F.3d 725, 735 (5th Cir. 2013). Because the excessive force analysis is
highly fact-specific, officers get the benefit of qualified immunity unless there
are “cases squarely on point.” Ontiveros v. City of Rosenberg, Tex., 564 F.3d
379, 383 n.1 (5th Cir 2009).
      On appeal, Staten asserts in a conclusional manner that the City is liable
because it approves of the use of excessive force against citizens and has failed
to properly train its policemen. His bare assertion of an unconstitutional policy
or a failure to train must fail for lack of evidentiary or factual support. See
Kohler v. Englade, 470 F.3d 1104, 1114-15 (5th Cir. 2006); see also Duffie,
600 F.3d at 371.
      As for the individual defendants, Staten merely reiterates his narrative
of the incident, and he alleges injuries for which there is no evidence. He also
does not contest the defendants’ summary judgment evidence showing no
injuries consistent with the use of excessive force. He broadly asserts the
general right to be free from excessive force without identifying clearly
established law with the requisite high degree of particularity. See Hogan,
722 F.3d at 735. Specifically, he does not point to any authority to establish



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that his being put roughly on the ground constituted a degree of force that
clearly would have been excessive to a reasonable officer under the
circumstances. See id. Given the implausibility of his claims of serious injury,
the formidable qualified immunity defense, and the conclusory nature of his
opposition to summary judgment, Staten has not identified a genuine factual
issue on which a reasonable jury could find in his favor. See Cuadra, 626 F.3d
at 812.
      The judgment is AFFIRMED.            Staten’s motion for appointment of
counsel is DENIED.




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