     Case: 12-60759       Document: 00512385169         Page: 1     Date Filed: 09/25/2013




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

                                                                            FILED
                                                                        September 25, 2013

                                       No. 12-60759                        Lyle W. Cayce
                                                                                Clerk

DEXTRIC WILLIAMS, individually and on behalf of the heirs-at-
law/wrongful death beneficiaries of Jermaine Williams, deceased,

                                                  Plaintiff - Appellant
v.

CITY OF CLEVELAND, Mississippi; TASER INTERNATIONAL,
INCORPORATED; STANLEY PERRY, individually and in his official
capacity; BRYAN GOZA, individually and in his official capacity,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:10-CV-215


Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Dextric Williams appeals the district court’s grant of summary judgment
on behalf of the defendants on all claims. We find that summary judgment was
warranted and affirm.
       The district court ably details the facts in its opinion below. Most relevant
is that on July 23, 2010, Jermaine Williams fled from Officers Stanley Perry and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60759

Bryan Goza of the Cleveland Police Department (“CPD”).                    After repeated
warnings that he would be tased if he continued resisting arrest, Williams
continued resisting and was tased three and possibly four times.1 At one point
Williams reached for Goza’s Taser and gun. Williams, who had used cocaine
earlier in the evening, was unaffected by the Tasers, as he continued to resist.
He was subdued only when two additional officers arrived.                     After being
handcuffed, Williams lapsed into unconsciousness and was pronounced dead
after being taken to a nearby hospital. The evaluating physician listed the cause
of death as “[t]oxic effects of cocaine in association with shocks with Taser during
police chase.”
       On December 3, 2010, Dextric Williams, plaintiff and brother of the
deceased, filed this suit in district court alleging (1) products liability claims
against Taser, International Inc. (“Taser”), (2) 42 U.S.C. § 1983 claims against
the City of Cleveland under a failure to train theory, (3) § 1983 claims against
Officers Perry and Goza, individually and in their official capacities, for
excessive force, and (4) assorted state law claims. Williams has waived the
official capacity claims against Perry and Goza and the state law claims by
failing to brief them. See Matter of Texas Mortg. Servs. Corp., 761 F.2d 1068,
1073 (5th Cir. 1985); FED. R. APP. P. 28(a)(9)(A). The district court granted
summary judgment to the defendants on all claims. Williams now appeals.
       We review the district court’s grant of summary judgment de novo. Young
v. Equifax Credit Information Servs., Inc., 294 F.3d 631, 635 (5th Cir. 2002).
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the



       1
         The model used was the TASER X26. The facts outlined above are not substantially
disputed but there is some disagreement on the margins. Williams states that four (instead
of three) Taser charges were fired and that three (instead of two) Tasers were deployed. But
these facts are not material to this appeal.

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                                       No. 12-60759

moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
       First, the plaintiff asserted a failure to warn claim against Taser. In
Mississippi, such a claim requires proving that: (1) the product in question was
defective because it failed to contain adequate warnings or instructions, (2) the
inadequate warnings rendered the product unreasonably dangerous to the user
or consumer, and (3) the inadequate warning proximately caused the damages
for which recovery is sought. MISS. CODE ANN. § 11-1-63(a). We agree with the
district court that, first, Taser’s product warnings explicitly and repeatedly
warned of the risks of serious injury and death, and Williams produced no
evidence demonstrating that the warnings Taser provided were inadequate.
Additionally, there is no evidence that the alleged failure to warn was a
proximate cause of the injuries suffered. Williams has never explained how
additional or different warnings would have altered the officers’ use of their
Tasers under this case’s factual circumstances.2 We also agree with the district
court that, regarding his manufacturing defect claim, Williams produced nothing
but speculation that a defect existed.
       Williams’s § 1983 claim against the municipality, which he bases upon a
failure to train theory, is also without record support. For Williams to succeed
on his failure to train claim against the City of Cleveland, he must demonstrate
that: (1) the City’s training policy procedures were inadequate, (2) the City was
deliberately indifferent in adopting its training policy, and (3) the inadequate
training policy caused Williams’s death. See Pineda v. City of Houston, 291 F.3d
325, 332 (5th Cir. 2002). Williams cites as examples of deficient training: that



       2
        Williams’s argument that Taser failed adequately to warn about the dangers of tasing
the chest is unconvincing. Taser’s warnings consistently made clear that although Tasers can
be used on a subject’s chest, users should try not to do so and are better off targeting other
areas of the body when at all possible.

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                                   No. 12-60759

Goza put the decedent in a chokehold and that the officers supposedly cycled the
Tasers simultaneously. But for the isolated incidents that Williams notes, he
fails to specify how the City of Cleveland’s training program treated these issues
or specifically how the training program regarding these issues is defective. See
Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (“[F]or liability
to attach based on an ‘inadequate training’ claim, a plaintiff must allege with
specificity how a particular training program is defective”).
      Williams also alleges municipal liability based on an argument that the
CPD targeted black males with Tasers systematically. But again he fails to
introduce any evidence apart from conclusory allegations. The fact that only
black males were tased by the CPD during the summer of 2010, for example,
means little without further information such as black males’ prevalence in the
overall population or whether these tasings were unwarranted.
      Next, Williams’s § 1983 allegations that Goza and Perry violated the
Fourth Amendment fail because the qualified immunity defense shields them
from liability. Overcoming qualified immunity requires showing that (1) an
official’s conduct violated a constitutional right of the plaintiff and (2) that right
was clearly established at the time of the violation. Saucier v. Katz, 533 U.S.
194, 201 (2001). Courts may address these prongs in either order. Pearson v.
Callahan, 555 U.S. 223, 225 (2009). At issue is an alleged violation of the Fourth
Amendment right to be free from excessive force, which requires showing “(1) an
injury (2) which resulted from the use of force that was clearly excessive to the
need and (3) the excessiveness of which was objectively unreasonable.” Rockwell
v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (internal quotation marks omitted).
      Addressing Saucier’s second prong, we find that the officers did not violate
a right that was clearly established at the time of the alleged violation. We note
that in previous Taser cases in which we have rejected qualified immunity for
officers, the person tased was not attempting to flee. See Ramirez v. Martinez,

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                                  No. 12-60759

716 F.3d 369, 380 (5th Cir. 2013); Newman v. Guedry, 703 F.3d 757, 764 (5th
Cir. 2012); Massey v. Wharton, 477 F. App'x 256, 263 (5th Cir. 2012). With this
precedent in mind, we agree with the district court that:
      Given the circumstances in this case, where Williams fled the scene
      with drugs in hand, was non-compliant, was warned about being
      tased and ignored the warning, remained unfazed after being tased,
      and physicially strugged with both individual Defendant officers,
      the Court is unable to say the force used was excessive.
Williams v. City of Cleveland, 2012 WL 3614418, at *9 (N.D. Miss. Aug. 21,
2012).
      Although the parties’ experts witnesses disagreed on whether the Taser
use and chokehold was excessive force, the undisputed facts lead us to the legal
conclusion that the force exercised against Williams was, under the
circumstances reflected in the record, reasonable.         Our rule on qualified
immunity is that “[u]se 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.” Mace v. City of Palestine, 333 F. 3d 621, 624 (5th Cir. 2003).
The deceased performed a push-up with both Goza and Perry on his back after
being tased three or four times and after reaching for the officers’ Tasers and
Officer Goza’s gun. He continued to pose a threat of serious harm throughout
the struggle.
      For the reasons above, the district court’s grant of summary judgment on
all claims is
                                                                     AFFIRMED.




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