           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                                                                  October 1, 2007
                                       No. 06-31004
                                                                              Charles R. Fulbruge III
                                                                                      Clerk
TINA ETEIR O’NEAL, Individually and on behalf of the Estate of Tres’
O’Neal; CHAD O’NEAL, Individually and on behalf of the Estate of Tres’
O’Neal,

                                                  Plaintiffs - Appellants,
v.

MICHAEL CAZES, as Sheriff of West Baton Rouge Parish; CHRISTOPHER
BOUQUET; CHAD JESTER,

                                                  Defendants - Appellees.



                   Appeal from the United States District Court
                 for the Middle District of Louisiana, Baton Rouge
                                   3:04-CV-207


Before KING, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Tina and Chad O’Neal (“the O’Neals” or “Appellants”), plaintiffs
individually and on behalf of the Estate of Tres O’Neal, appeal from the district
court’s grant of summary judgment in favor of West Baton Rouge Parish Sheriff
Michael Cazes (“Cazes”) and Deputies Christopher Bouquet (“Bouquet”) and
Chad Jester (“Jester”) on the O’Neals’ claims under 42 U.S.C. § 1983 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                      No. 06-31004

Louisiana state law for the alleged wrongful death of their sixteen year-old son,
Tres O’Neal (“Tres”). For the following reasons, we affirm.
I. BACKGROUND
       The events that led to the death of Tres O’Neal began at approximately
10:30 p.m. on April 7, 2003. At that time, Deputy Christopher Bouquet was on
routine patrol when he stopped Tres O’Neal and Rochelle Adams (“Rochelle”),
who were walking along Section Road in the rain. When Bouquet recognized
that the girl was the step-daughter of Deputy Chad Jester, he called Jester, who
requested that he return Rochelle to the home of her father, Rodney Adams.
Bouquet instructed Tres to go to his grandparents’ house (which is where Tres
and Rochelle were walking to) and then drove Rochelle to the home of Rodney
Adams, where they arrived at approximately 10:44 p.m. After dropping off
Rochelle, Bouquet resumed his patrol.
       At some point thereafter, Rodney Adams noticed a new model sedan car,
white or silver in color, driving up and down his street, Elm Grove Road. The
car came up and down the street four or five times and would stop about 100
yards away from the Adams’ home. Rodney Adams stated that it looked like the
car was waiting for Rochelle. He wanted to report the suspicious vehicle to the
police and called Shannon Adams–his ex-wife, Rochelle’s mother, and wife of
Deputy Jester–who in turn called Deputy Jester. Jester then called Bouquet on
his cellular phone and told him that there was a suspicious silver Ford Taurus
driving up and down Elm Grove Road.1 Jester asked Bouquet to increase the
frequency of his patrols down the street to see if he could spot the suspicious
vehicle.




       1
        Jester further stated that the vehicle would pull up in front of the Adams’ residence
and turn off its lights, and when Rodney Adams would turn on his porch lights or the
headlights of his car, the vehicle would leave and then return later.

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      On one such patrol, as Bouquet was traveling down Elm Grove Road, he
encountered a “mystery vehicle” coming from the opposite direction. After
passing the vehicle, Bouquet decided to turn around and check to see whether
the vehicle matched the description of the suspicious vehicle reported by Rodney
Adams. After turning around, he saw the mystery vehicle at the intersection of
Elm Grove Road and Section Road. The mystery vehicle stopped at the stop sign
at the intersection and, with its right blinker on, turned left on Section Road.
      What happened next is hotly disputed.           According to Bouquet, he
attempted to catch up to the mystery vehicle in order to identify it. When
Bouquet arrived at the intersection of Elm Grove Road and Section Road, all he
could see were the brake lights of the mystery vehicle off in the distance.
Bouquet turned onto Section Road and tried to catch up to the vehicle but was
unable to do so despite traveling at speeds of up to ninety (90) miles per hour.
Bouquet did not activate his siren or overhead lights, except briefly through an
intersection. He did not notify the dispatcher or his supervisor that he was
following a vehicle at high speeds, nor did he request any assistance.
      Eventually, Bouquet saw the vehicle turn left onto River Road. At this
point, he stopped pursuing the vehicle because he did not think he could catch
up to it. Instead, he turned around and decided to attempt to intercept the
vehicle at another location on River Road. Bouquet waited for the vehicle at the
intercept point for approximately five to ten minutes but never encountered the
vehicle. He then turned south onto River Road to try and locate the vehicle but
could not find it. According to Bouquet, he suspected that the driver of the car
was Tres O’Neal, but he never got close enough to the vehicle to identify it or its
driver.
      At approximately 4:44 a.m., Bouquet was dispatched to the Patin
residence–the home of Tres O’Neal’s grandparents. The Patins had reported
that Tres and their blue Mercury Sable were missing. Deputy Bouquet was later


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joined by Deputy Jester and Deputy Freddie Christopher. Shortly thereafter,
there was a radio call about a car accident on Smithfield Road, and the three
deputies responded to the call and went to the accident scene. Upon arrival,
they learned that the driver of the vehicle was Tres O’Neal in the Patin’s missing
blue Mercury Sable. The car had collided with a utility pole, and Tres had been
partially ejected from the vehicle. He was pronounced dead upon the scene.
There were no witnesses to the accident. Deputy Kenneth Alvarez, the officer
who investigated the accident and prepared the accident report, concluded that
the accident occurred at approximately 1:58 a.m. (the time a nearby neighbor
reported a power outage) and estimated that Tres had been driving in excess of
100 miles per hour at the time of the collision.
      Appellants argue that Bouquet’s version of the vehicle pursuit is untrue.
Appellants contend that Bouquet knew or should have known Tres was driving
the mystery vehicle, Bouquet initiated the pursuit, Tres fled because he did not
know he was being pursued by the police, and Bouquet did not terminate the
pursuit but rather continued the pursuit until Tres crashed the vehicle.
      The O’Neals brought this suit individually and on behalf of Tres O’Neal’s
estate against West Baton Rouge Parish Sheriff Michael Cazes and Deputies
Bouquet and Jester. They asserted two causes of action: (1) a claim under 42
U.S.C. § 1983 for violation of Tres’ Fourteenth Amendment substantive due
process rights and (2) a state-law claim for negligence. The district court
granted summary judgment in favor of the Defendants. The O’Neals now
appeal.
II. STANDARD OF REVIEW
      We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court. Atkins v. Hibernia Corp., 182
F.3d 320, 323 (5th Cir. 1999). Summary judgment is appropriate when the
record establishes “that there is no genuine issue as to any material fact and

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that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). Where the non-movant bears the burden of proof at trial, as is the case
here, the movant need only demonstrate that the non-movant has insufficient
evidence of an essential element of its case. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Although courts must consider the evidence in the light most
favorable to the non-movant, the non-movant must produce more than
“conclusory allegations,” “unsubstantiated assertions,” and “a scintilla of
evidence.”   Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). Rather, the non-movant must produce “sufficient evidence
. . . for a jury to return a verdict [in its favor].” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).
III. DISCUSSION
      A. Section 1983 Claim
      The O’Neals brought their federal claims under 42 U.S.C. § 1983, seeking
damages for an alleged violation of Tres O’Neal’s due process rights. Section
1983 provides for the recovery of damages when individuals are deprived of their
constitutional rights by a person acting under color of state law. Public officials,
however, are afforded immunity from civil damages for their discretionary acts
so long as their “conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding whether a public official is
entitled to qualified immunity, a court “must first determine whether the
officer’s alleged conduct violated a constitutional right.” Chavez v. Martinez, 538
U.S. 760, 766 (2003).
      In County of Sacramento v. Lewis, the Supreme Court laid out the
standards to be applied in determining whether a police pursuit resulting in
harm violates the injured party’s substantive due process rights. 523 U.S. 833
(1998). The Court stated that the “touchstone of the due process clause is

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protection of the individual against arbitrary action of government,” id. at 845,
and that with respect to abusive executive action, only “conscience shocking” or
“the most egregious official conduct” is so arbitrary as to violate due process. Id.
at 846-47 & n.8 (“[I]n a due process challenge to executive action, the threshold
question is whether the behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.”).
        The Court makes clear that due process does not “impos[e] liability
whenever someone cloaked with state authority causes harm” and that
“negligently inflicted harm is categorically beneath the threshold of
constitutional due process.” Id. at 848-49. In addition, the Court held that in
the context of high-speed police chases, even deliberate indifference or
recklessness would be insufficient to state a claim under the due process clause.
Id. at 852-53. Accordingly, the Court held that “high-speed chases with no
intent to harm suspects physically or to worsen their legal plight do not give rise
to liability under the Fourteenth Amendment, redressible by an action under §
1983.” Id. at 854.
            The O’Neals concede that there is no proof that Bouquet intended to
harm Tres but argue that the district court erred in granting summary judgment
on this claim without considering their theory, cognizable under Lewis, that
Deputy Bouquet’s high-speed pursuit of Tres “worsen[ed Tres’] legal plight” or
constituted an intentional misuse of his police vehicle. 523 U.S. at 854 & n.13.2
However, whatever the Supreme Court meant by “worsen their legal plight,” it
is clear that Bouquet was far from crossing the “constitutional line,” Checki v.
Webb, 785 F.2d 534, 538 (1986), as he was engaged in legitimate law


        2
         The Lewis Court cites the Fifth Circuit’s opinion in Checki v. Webb to stand for the
proposition that although a plaintiff cannot maintain a § 1983 claim “[w]here a citizen suffers
physical injury due to a police officer’s negligent use of his vehicle, . . . . [i]t is a different story
when a citizen suffers or is seriously threatened with physical injury due to a police officer’s
intentional misuse of his vehicle.” 785 F.2d 534, 538 (1986) (emphasis in original).

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                                       No. 06-31004

enforcement activity regarding the events concerning the mystery vehicle.3
Bouquet received a report of a suspicious vehicle repeatedly driving up and down
a street and waiting in front of a residence, and he sought to identify whether
the vehicle he saw on Elm Grove Road matched the description of the suspicious
vehicle. This is certainly legitimate law enforcement activity.4
       Appellants assert that Deputy Bouquet’s version of events is untrue.
First, Appellants contend that Bouquet knew or should have known that Tres
was the driver of the mystery vehicle, and, therefore, Bouquet’s purpose in his
pursuit was not to identify the mystery vehicle. There is simply no evidence that
Bouquet knew the driver was Tres. Bouquet readily admits that he suspected
that the driver was Tres; however, Bouquet’s attempt to confirm this suspicion
still constitutes legitimate law enforcement activity.
       Second, Appellants contend that, contrary to Bouquet’s direct testimony,
Bouquet actually initiated the pursuit. However, even if Bouquet did initiate the
pursuit and even if such pursuit was careless and ill-advised, these facts do not
transform Bouquet’s purpose into an illegitimate or arbitrary one–he still sought
to confirm the identity of a suspicious vehicle, an act well within the realm of
legitimate law enforcement.5
       Finally, Appellants exert substantial effort in an attempt to show that
Deputy Bouquet and his version of events are not credible and that this lack of

       3
         Both Lewis and Checki distinguish between legitimate exercises of authority that
clearly do not cross the “constitutional line” and conduct that is “malicious[] and sadistic[],”
Lewis, 523 U.S. at 853, or a “malicious abuse of official power.” Checki, 785 F.2d at 538.
       4
         Appellants contend that Bouquet’s actions were outside the scope of his law
enforcement duties because Bouquet was simply trying to satisfy the personal requests of a
fellow deputy, Chad Jester, to increase his patrols in the area. However, the fact that the
person who called in the report, Rodney Adams, had some relation to the deputy who asked
Bouquet to patrol the area does not somehow remove Bouquet’s activity from the realm of
legitimate law enforcement.
       5
        Additionally, as discussed in Section III.B infra, Appellants produced insufficient
evidence to show that Deputy Bouquet did anything to cause the mystery vehicle to flee.

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credibility should have precluded a ruling in favor of Appellees on summary
judgment.   Appellants are correct in asserting that summary judgment is
inappropriate “when questions about the credibility of key witnesses loom . . .
large.” Thomas v. Great Atlantic & Pacific Tea Co., 233 F.3d 326, 331 (5th Cir.
2000); see also Aujla v. Hinds County, Miss., No. 01-60699, 2003 WL 1098839,
at *3-4 (5th Cir. Feb. 11, 2003) (unpublished).
      In the case at hand, however, Appellants’ evidence challenging Bouquet’s
credibility does not cast sufficient doubt on the veracity of Bouquet’s version of
events. Appellants point to minor inconsistencies in Bouquet’s testimony;
Bouquet’s inability to remember precise distances and times almost two years
after the events in question; the fact that Bouquet’s attempt to intercept the
mystery vehicle at the cut-off point would have been ill-advised; and the
testimony of Rodney Adams about the time he received an alleged telephone call,
where Adams admits that his memory is poor. Given that Appellants have
offered no evidence contradicting Bouquet’s version of events, Appellants’
showing does not cause the credibility of Bouquet to “loom large.”
      Quite simply, Appellants’ version of events–that Bouquet knew Tres was
the driver of the mystery vehicle and chased Tres until he crashed–is mere
speculation and conjecture, unsupported by the summary judgment evidence;
therefore, Appellants cannot survive summary judgment on their Section 1983
claim. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (stating
that where the non-movant has the burden of proof at trial, it must produce
more than “conclusory allegations,” “unsubstantiated assertions,” and “a scintilla
of evidence” in order to survive a motion for summary judgment).
      B. State Law Negligence Claim
      The O’Neals allege that the district court erred in concluding that no
evidence supported their negligence claim.        Under Louisiana law, for a



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defendant to be held liable under a theory of negligence, a plaintiff must prove
five separate elements:
       (1) the defendant had a duty to conform his or her conduct to a
       specific standard of care . . . ; (2) the defendant failed to conform his
       or her conduct to the appropriate standard . . . ; (3) the defendant’s
       substandard conduct was a cause-in-fact of the plaintiff’s injuries .
       . . ; (4) the defendant’s substandard conduct was a legal cause of the
       plaintiff’s injuries . . . ; and (5) actual damages . . . .

Mathieu v. Imperial Toy Corp., 646 So. 2d 318, 322 (La. 1994).
       In the case at hand, the district court was correct in finding that
Appellants failed to produce sufficient evidence regarding causation. Bouquet
testified that after he passed the mystery vehicle, turned around, and made it
to the intersection of Elm Grove Road and Section Road, the mystery vehicle was
gone, and all he could see were break lights. Bouquet then attempted to catch
up to the vehicle to identify it, but he never got anywhere close to the vehicle.
There is simply no evidence to suggest that Bouquet took any action that could
have possibly caused the mystery vehicle to flee in such a manner.6
       Because Appellants’ negligence claim against Deputy Bouquet fails,
Sheriff Cazes is not liable under the theory of respondeat superior. See Franklin
v. Haughton Timber Co., 377 So. 2d 400, 405-06 (La. Ct. App. 1979). Similarly,
Appellants cannot maintain their claim against Sheriff Cazes for the negligent
hiring and training of Deputy Bouquet.
       C. The O’Neals’ Motion To Extend The Deadline For Expert Reports

       6
         Appellants posit that “something” had to cause a law-abiding motorist (the vehicle
stopped at the stop sign and turned on its blinker at the intersection of Elm Grove and Section
Road) to become a fleeing motorist. It is mere speculation, however, that Bouquet caused the
vehicle to flee. It is entirely consistent with this evidence that the driver of the mystery vehicle
saw the police car when they passed each other on Elm Grove Road, saw the police car turn
around, stopped at the stop sign, and then fled at a high rate of speed once he was out of sight.

       Appellants also attack Bouquet’s credibility, and, if such attacks were successful, then
Appellants would survive summary judgment on their negligence claim as well. As explained
in Section III.A supra, however, Bouquet’s credibility remains intact.

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      Appellants assert that the district court erred by refusing to consider their
expert reports on summary judgment due to Appellants’ failure to meet allegedly
unreasonable scheduling deadlines.
      On May 10, 2005, the magistrate judge issued a scheduling order
establishing the following deadlines: Appellants’ witness list (including experts)
due on July 29, 2005; discovery to be completed by August 31, 2005; Appellants’
expert reports due on September 30, 2005; and Appellees’ witness list and expert
reports due on October 31, 2005. Appellants timely provided a witness list in the
form of preliminary disclosures, listing only one proposed expert witness–A.J.
McPhate, an expert in accident reconstruction. Hurricane Katrina struck on
August 29, 2005. Because of the hurricane, on November 2, 2005, the magistrate
judge extended the deadline for discovery to November 30, 2005, the deadline for
Appellees’ witness list and Appellants’ expert reports to December 30, 2005, and
the deadline for Appellees’ expert reports to January 31, 2006. Appellants
thereafter sought a further extension of the deadlines in the scheduling order,
and, on November 30, 2005, the magistrate judge extended the deadline for
discovery to December 30, 2005. The magistrate judge warned in bold type:
“These deadlines will not be extended again.” The deadline for Appellants’
expert reports remained December 30, 2005.
      Despite these deadlines, the O’Neals filed an “expert witness list” on
January 3, 2006, naming W. Lloyd Grafton as their law enforcement expert,
along with other previously unidentified experts. Furthermore, on the same
date, the O’Neals requested another extension for their expert reports, arguing
that they had just completed discovery and had not had sufficient time to
provide the discovery materials to their experts for them to generate their
required reports. The magistrate judge denied this motion. On January 6, 2006,
Appellants filed what they termed “Rule 72 Objections to Magistrate’s Denial to
Extend Discovery Deadlines and Motion for Reconsideration.” Treating this as


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a motion for reconsideration, the magistrate judge denied it.           Appellants
nonetheless submitted the expert reports of McPhate and Grafton with their
“Memorandum in Opposition to Motion for Summary Judgment.” The district
court refused to consider this evidence in its summary judgment ruling.
        The district court’s decision to “exclude evidence as a means of enforcing
a pretrial order ‘must not be disturbed’ absent a clear abuse of discretion.”
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (citation omitted).
In determining whether the district court abused its discretion, we consider four
factors: “(1) the explanation for the failure to [comply with the scheduling order];
(2) the importance of the testimony; (3) potential prejudice in allowing the
testimony; and (4) the availability of a continuance to cure such prejudice.” Id.
at 791.
        The O’Neals’ explanation for their failure to comply with the scheduling
order is weak. First, with respect to their failure to timely identify Grafton as
an expert witness, Appellants assert that they thought the July 29 deadline to
submit their witness list was a mistake. Appellants, however, never objected to
or sought clarification of the order; they simply ignored it until it was too late.
Second, with respect to their failure to timely produce McPhate’s expert report,
Appellants assert that McPhate could not render his opinion until they deposed
Deputy Kenny Albarez–the officer in charge of investigating the accident.
McPhate indicates in his report, however, that he did not rely on this deposition,
instead relying on depositions and evidence available to Appellants prior to May
2005.
        Further, the proposed expert testimony is not important enough to
warrant its allowance. Neither report furnishes sufficient evidence contradicting




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Bouquet’s version of events, especially with respect to his testimony that he did
nothing to initiate the high-speed pursuit.7
       Therefore, even if the admission of the expert reports would not have
caused Appellees any prejudice, we cannot say that the district court abused its
discretion in excluding them.
       D. The O’Neals’ Rule 72 Objections And Motion For Reconsideration
       Appellants additionally contend that reversible error occurred when the
magistrate judge, rather than the district court, ruled on their Rule 72
objections. Although Appellants are likely correct that the district court should
have decided the Rule 72 objection,8 Appellants have not established that the
magistrate judge’s order to which they were objecting was “clearly erroneous or
contrary to law.” Fed. R. Civ. P. 72(a). Accordingly, any error is not reversible.
IV. CONCLUSION
       For the foregoing reasons, the order of the district court is AFFIRMED.




       7
         McPhate’s report states that Bouquet’s claim that the Sable outran his police car
seems “improbable.” While this provides some circumstantial evidence that Bouquet’s version
of events is suspect, this evidence is too weak to conclude that the district court abused its
discretion by disallowing admission of McPhate’s report.
       8
         Rule 72(a) provides: “Within 10 days after being served with a copy of the magistrate
judge’s order, a party may serve and file objections to the order . . . . The district judge to
whom the case is assigned shall consider such objections and shall modify or set aside any
portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” Fed.
R. Civ. P. 72(a) (emphasis added).

                                              12
