     Case: 13-10733      Document: 00512709533         Page: 1    Date Filed: 07/23/2014




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

                                                                                FILED
                                    No. 13-10733                            July 23, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
SARAH BAYS LEGRAND,

                                                 Plaintiff-Appellant
v.

JIM GILLMAN,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-505


Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Sarah Bays Legrand appeals, pro se, from the district
court’s order granting summary judgment dismissal of her 42 U.S.C. § 1983
claim against defendant Jim Gillman.             Before the district court, Legrand
contended that Gillman violated her Fourth and Fourteenth Amendment
rights by using excessive force while facilitating her arrest and by entering her
home without cause, warrant, or invitation.             The district court held that,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10733
because Legrand failed to present evidence of a constitutional violation,
Gillman was entitled to qualified immunity and summary judgment. For the
reasons that follow, we affirm.
                                               I.
       On September 28, 2010, while working an evening shift as a courtesy
officer at Legrand’s condominium complex, Gillman observed an altercation
between Legrand and another resident of the complex. 1 Specifically, Gillman
claims he saw Legrand throw a chunk of ice at the resident’s moving vehicle
while yelling “slow down.” Legrand disputes throwing the ice, claiming instead
that the ice inadvertently flew from her bucket as she turned to observe the
passing car. Legrand claims that Gillman, upon witnessing the flying ice,
grabbed her upper left arm and placed his right fist against her back, and she
asserts that this act constitutes excessive force in violation of her Fourth
Amendment rights. Gillman maintains that he made contact with Legrand,
but at no time did he take Mrs. Legrand into custody or assault her.
       Legrand and Gillman next proceeded on foot to Legrand’s nearby home
so that Legrand could retrieve her identification.                 According to Legrand,



       1  Defendant-Appellee Jim Gillman was, at all relevant times, a law enforcement officer
employed by the Texas Department of Public Safety (“TDPS”). In addition to his employment
with the TDPS, Gillman was privately employed by the Cloisters Condominium Association
as a courtesy officer.
         Although Gillman was off-duty at the time of the altercation, he is nonetheless
entitled to qualified immunity as a public official. See Moore v. Wal-Mart Stores, Inc., 62 F.3d
394, *2 (5th Cir. 1995) (holding that when an off-duty police officer, working as a security
guard, saw a crime being committed, he “ceased being an employee or independent contractor
. . . and became an on-duty police officer”). Furthermore, neither party nor the district court
has questioned Gillman’s entitlement to qualified immunity based on his being off-duty at
the time of the incident.



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                                No. 13-10733
Gillman ordered her to her home; Gillman remembers asking Legrand to
return to her residence. Legrand claims that, when she returned from her
bedroom with her identification, Gillman was standing in her living room, in
violation of her Fourth Amendment protection against illegal searches and
seizures and her Fourteenth Amendment right to equal protection. Legrand’s
son, Edward Stobart, filed an affidavit to this effect as well. Gillman claims
that he did not enter Legrand’s home, but waited at her threshold while he
telephoned the Arlington Police Department and requested that an officer be
dispatched to his location to report on the ice incident. After ascertaining
Legrand’s identity, Gillman left Legrand and returned to his shift; soon
thereafter, Arlington Police arrived on the scene and arrested Legrand for
criminal mischief. The charge was dismissed after Legrand completed an
anger-management course, pursuant to a pre-trial diversion agreement
between Legrand and the Tarrant County District Attorney’s Office.
                                      II.
      Legrand brought this suit against Gillman in October of 2012. Gillman
filed a motion for summary judgment based on qualified immunity. The court
ordered that the motion be unfiled because Gillman had not mailed a copy of
the motion to chambers, as required by local rules. The error was corrected the
same day, and Gillman refiled the motion in accordance with the court’s
procedural requirements.    This time, however, Gillman failed to re-serve
Legrand with the motion, and, as a result, Legrand did not file a response to
the motion for summary judgment. Legrand did receive the original motion,
however, which was identical to the one Gillman refiled.
      The district court entered an order granting Gillman’s motion for
summary judgment and dismissing all of Legrand’s claims with prejudice.


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                                         No. 13-10733
Although Legrand had not filed a response, she had previously filed numerous
documents and pleadings (most prominently, her verified amended complaint
and her verified response to Gillman’s assertion of qualified immunity) in
which she submitted her account of the events underlying the suit and opposed
Gillman’s request for qualified immunity.                  Adopting Legrand’s version of
events as presented in those documents, the district court held that Gillman
was entitled to qualified immunity because Legrand had failed to raise an issue
of material fact as to whether Gillman had committed any constitutional
violations.
       Once Gillman’s counsel learned that he had failed to re-serve Legrand
with the motion for summary judgment, he advised the court accordingly and
suggested that the issue would best be addressed by allowing Legrand to file a
post-judgment motion under Federal Rule of Civil Procedure 59 or 60 to permit
her to file an opposition. 2 Legrand filed a response to this advisory, in which
she explicitly refused to file a post-judgment motion.
                                                III.
       Legrand argues on appeal that the district court erred by granting
Gillman’s motion for summary judgment without allowing her an opportunity
to respond. We cannot agree. In her response to the defendant’s advisory to
the court, Legrand emphatically indicated that there was no need for such a
motion because she had already provided the court with all of her legal


       2  Under Federal Rule of Civil Procedure 59(a)(2), the court may, on motion for a new
trial, “open the judgment if one has been entered, take additional testimony, amend findings
of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”
FED. R. CIV. P. 59. Under Federal Rule of Civil Procedure 60(b), the court may, on motion
and just terms, “relieve a party . . . from a final judgment, order, or proceeding for . . . mistake,
inadvertence . . . or . . . any other reason that justifies relief.” FED. R. CIV. P. 60.


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                                  No. 13-10733
arguments concerning Gillman’s entitlement to qualified immunity in previous
filings. The district court considered these arguments in its ruling on the
summary judgment motion. Thus, any assertion that summary judgment was
granted without Legrand having an opportunity to make an argument in
opposition is without merit.
      Legrand also argues on appeal that the district court erred in concluding
that the summary-judgment evidence raised no issue of material fact as to
whether Gillman violated her constitutional rights by (1) allegedly grasping
her upper left arm and placing his right fist on her back and (2) allegedly
entering her home without warrant, cause, or invitation. The district court
held, even in the light most favorable to Legrand, that no constitutional
violation had occurred because Legrand failed to allege even a de minimis
injury with respect to Gillman’s alleged use of excessive force, and because
Gillman’s entry into Legrand’s home was at most a trespass.               Legrand,
however, has failed to preserve any claim of error concerning the district
court’s resolution of her constitutional claims.
      Although this court liberally construes the briefs of pro se appellants,
“we also require that arguments must be briefed to be preserved.” Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price v. Digital Equip. Corp.,
846 F.2d 1026, 1028 (5th Cir. 1988). An appellant’s brief must contain the
“appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.” FED. R. APP.
P. 28. “Conclusory briefing” that “fails to address the . . . substantive reasons
articulated by the [lower court]” is inadequate. Stevens v. Hayes, 535 F. App’x
358, *359 (5th Cir. 2013) (per curiam).



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                                 No. 13-10733
      Legrand’s opening brief does not address the substantive reasons
articulated by the district court for granting Gillman’s motion for summary
judgment, nor does it contain any meaningful citation to legal authority. See
FED. R. APP. P. 28; Stevens, 535 F. App’x at *359. Legrand’s brief merely
restates the facts as alleged in her lower pleadings and conclusorily asserts
that such facts entitle her to relief under § 1983. Much of her brief is devoted
to the introduction of new facts concerning events that are irrelevant to her
constitutional claims, such as her history of clean background checks, or her
past disputes with the Cloisters Homeowners Association. Even if these facts
were relevant, this court, as a general rule, “will not enlarge the record on
appeal with evidence not before the district court.” McIntosh v. Partridge, 540
F.3d 315, 327 (5th Cir. 2008). Even liberally construed, Legrand’s brief does
not adequately set forth an argument on appeal. See FED. R. APP. P. 28;
Stevens, 535 F. App’x at *359; see also Jacobson v. Clay, 72 F. App’x 999 (5th
Cir. 2003) (finding inadequate appellants’ briefs that “do not cite authority and
consist of conclusory assertions”). Although Legrand attempts to articulate
claims of error in her reply brief, this court does not normally entertain
arguments raised for the first time in a reply brief. See, e.g., In re Katrina
Canal Breaches Litig., 620 F.3d 455, 459 n.3 (5th Cir. 2010) (holding an
argument made in plaintiffs’ reply brief but not in their opening brief waived);
United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). Thus, Legrand
has failed to preserve any arguments on appeal concerning the district court’s
disposition of her claims under § 1983.
      In any event, we find no plain error or manifest miscarriage of justice in
the district court’s disposition of the case. See United States v. Whitfield, 590
F.3d 325, 346-47 (5th Cir. 2009) (explaining that we may consider a point of


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                                No. 13-10733
error not raised on appeal “to prevent a miscarriage of justice” or when plain
error is evident from the record) (internal quotation marks omitted).
      AFFIRMED.




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