     Case: 16-60818      Document: 00514138233         Page: 1    Date Filed: 08/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit
                                      No. 16-60818                                 FILED
                                                                             August 31, 2017
                                                                              Lyle W. Cayce
TRACY YOUNG,                                                                       Clerk

              Plaintiff - Appellant

v.

ISOLA, MISSISSIPPI, By and Through its Mayor, Bobbie Miller; OFFICER
MICHAEL KINGDOM, Individually; JOHN DOES 1-5; ISOLA POLICE
DEPARTMENT, By and Through its Chief of Police, Charles Sharkey,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:15-CV-108


Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       While Michael Kingdom served as a police officer for the City of Isola,
Mississippi, he allegedly made sexually suggestive and offensive comments to
Tracy Young on three occasions and grabbed her arm on one of those occasions.
Young brought suit against Kingdom and Isola, as well as against Mayor
Bobbie Miller and Police Chief Charles Sharkey in their official capacities only,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60818
asserting a variety of federal and state law claims. The district court granted
summary judgment to Isola, Miller, and Sharkey (collectively, “Municipal
Defendant”) on all of Young’s claims. It also dismissed all of Young’s claims
against Kingdom. We VACATE and REMAND the district court’s dismissal of
Young’s assault claim against Kingdom. We otherwise AFFIRM the judgment
of the district court.
                                        I
      Young worked as a clerk at a Double Quick convenience store (“Double
Quick”) located on Highway 49 in Humphreys County, Mississippi. Although
Double Quick was “outside the corporate limits” of Isola, Isola police officers
routinely refueled their police vehicles there and Double Quick offered on-duty
officers one free drink per day.
      Kingdom repeatedly went to Double Quick in uniform. In February 2014,
he allegedly entered Double Quick and made sexually explicit and offensive
comments to Young. Young reported the incident to her manager and filled out
a report. Young and Kingdom allegedly had two additional encounters in
October 2014. According to Young, Kingdom grabbed Young’s arm and made
sexually suggestive and offensive comments on October 14 or 15, 2014. On
October 17, 2014, Kingdom walked into Double Quick and made comments
about Young speaking with other men. Young laughed at him.
      Young told her cousin, Alderman Lawrence Anderson, about her
encounters with Kingdom, and he told her to report the incidents to the police.
Young went to the Humphreys County Sheriff’s Department on October 20,
2014 and filed a complaint against Kingdom. She later returned to the Sheriff’s
Department and spoke with Bubba Lloyd about her allegations. He called
Young’s manager and a coworker to discuss the allegations and obtained
security camera footage of the October 17, 2014 incident from Double Quick.
Sharkey also reviewed the footage, which did not have audio. He testified that
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                                  No. 16-60818
the footage showed Kingdom walking around Double Quick and Young
laughing.
      Young brought suit against Kingdom and Municipal Defendant,
asserting a variety of federal and state law claims relating to her encounters
with Kingdom. Municipal Defendant timely filed an answer, but Kingdom did
not file any responsive pleading. The clerk later entered an entry of default
against Kingdom.
      Municipal Defendant moved for summary judgment, which Young
opposed. Young and Municipal Defendant then submitted a pretrial order,
approved by the district court, which provided that “[t]he pleadings are
amended to conform to this pretrial order.” Young asserted nine claims in the
pretrial order. She asserted the following claims under § 1983: (1) violation of
the right to procedural and substantive due process under the Fifth
Amendment; (2) violation of the right to procedural and substantive due
process under the Fourteenth Amendment; (3) violation of the right to equal
protection under the Fourteenth Amendment; and (4) violation of the right
against unreasonable seizure under the Fourteenth Amendment. Young also
asserted a claim for conspiracy to interfere with civil rights under 42 U.S.C.
§ 1985, as well as four state law claims: (1) assault; (2) violation of the right to
equal protection under the Mississippi Constitution; (3) violation of the right
to procedural and substantive due process under the Mississippi Constitution;
and (4) breach of the duty to exercise reasonable care in the hiring, training,
and supervision of a sworn police officer.
      The district court granted summary judgment to Municipal Defendant
on all of Young’s claims. It also dismissed Young’s claims against Kingdom.
Young timely appealed.




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                                        II
      This court reviews an order granting summary judgment de novo,
“applying the same standard as the district court.” Vela v. City of Hous., 276
F.3d 659, 666 (5th Cir. 2001). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
                                       III
      Young appeals the district court’s grant of summary judgment. She
argues that the district court erred by dismissing Young’s claims: (1) against
Kingdom; (2) under § 1983; (3) under § 1985; and (4) under Mississippi state
law. We will address each of her arguments in turn.
                                        A
      Young argues that the district court erred in dismissing her claims
against Kingdom because: (1) Kingdom defaulted and did not move for
summary judgment; and (2) there is a genuine dispute of material fact
regarding her assault claim against Kingdom. But contrary to Young’s
assertions, the district court “did not err in allowing [Kingdom] to benefit from
the [Municipal Defendant’s] favorable summary judgment motion.” Lewis v.
Lynn, 236 F.3d 766, 768 (5th Cir. 2001). A “party is not entitled to a default
judgment as a matter of right, even where the defendant is technically in
default.” Id. at 767 (quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996)).
“[W]here a defending party establishes that plaintiff has no cause of
action . . . this defense generally inures also to the benefit of a defaulting
defendant.” Id. at 768 (internal quotation marks omitted). As such, the district
court had the authority to dismiss Young’s claims against Kingdom, despite
his default.
      Young argues in the alternative that the district court erred by
dismissing her assault claim against Kingdom because there are genuine
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disputes of material fact regarding that claim. We agree. Under Mississippi
law, “[a]n assault occurs where a person (1) acts intending to cause a harmful
or offensive contact with the person of the other or a third person, or an
imminent apprehension of such contact, and (2) the other is thereby put in such
imminent apprehension.” Morgan v. Greenwaldt, 786 So. 2d 1037, 1043 (Miss.
2001). Young testified at her deposition that Kingdom “grabbed [her] arm” and
made offensive comments about her and her relationship with her husband in
October 2014.
      Sharkey watched footage of the October 17, 2014 incident. He testified
at his deposition that the video did not have audio, but that Young appeared
to laugh. Young argues on appeal that the district court erred by considering
Sharkey’s testimony regarding the contents of the footage because it is
inadmissible under Mississippi’s best evidence rule. We need not resolve
Young’s evidentiary challenge because, even considering Sharkey’s testimony,
there is a genuine dispute of material fact regarding Young’s assault claim
against Kingdom. Viewing the evidence in the light most favorable to Young,
Kingdom grabbed her arm during an incident on October 14 or 15, 2014, and
Sharkey watched footage of a separate incident between Kingdom and Young
on October 17, 2014. As such, we VACATE the district court’s dismissal of
Young’s assault claim against Kingdom and REMAND to the district court for
further proceedings.
                                       B
      Young argues that the district court erred in granting summary
judgment to Municipal Defendant on her § 1983 claims. To establish a claim
under § 1983, “a plaintiff must (1) allege a violation of a right secured by the
Constitution or laws of the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state law.” Whitley
v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting James v. Tex. Collin Cty.,
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535 F.3d 365, 373 (5th Cir. 2008)). A governmental entity cannot be held
vicariously liable under § 1983. Hicks-Fields v. Harris Cty., 860 F.3d 803, 808
(5th Cir. 2017) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)).
As such, a plaintiff bringing a § 1983 claim against a governmental entity must
also establish that “the action that is alleged to be unconstitutional” was
caused by a custom or policy of that governmental entity. Id. (quoting Monell,
436 U.S. at 690). The district court held that Young failed to establish any
underlying constitutional violation and that, even if she had, she failed to
establish municipal liability under Monell. It did not decide whether Kingdom
acted under color of state law.
      In her initial brief, Young addresses only her underlying claim for
violation of the right to substantive due process under the Fourteenth
Amendment. But Young failed to make her arguments regarding substantive
due process before the district court. As such, these arguments are waived on
appeal. See Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir.
2009).
      Young fails to address her underlying constitutional claims for violation
of the right to substantive due process under the Fifth Amendment, violation
of the right to equal protection under the Fourteenth Amendment, and
violation of the right against unreasonable seizure under the Fourteenth
Amendment in her initial appellate brief. This failure “constitutes a waiver of
the right to have us review” these claims. Health Care Serv. Corp. v. Methodist
Hosps. of Dall., 814 F.3d 242, 252 (5th Cir. 2016) (failure to challenge district
court’s determination of a certain issue in initial appellate brief waives review
of that determination). That Young addresses her claim for violation of the
right to equal protection under the Fourteenth Amendment in her reply brief
does not change the waiver analysis. See id.


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      Because we hold that Young waived review of her arguments regarding
her underlying constitutional claims against Municipal Defendant, we do not
address whether Kingdom acted under color of state law or whether Young
established municipal liability under Monell.
                                       C
      Young summarily argues that the district court erred in granting
summary judgment to Municipal Defendant on her § 1985 conspiracy claim,
asserting without record citation that Municipal Defendant conspired against
her. To establish a claim under § 1985(3), a plaintiff must show that “(1) a
racial or class-based discriminatory animus lay behind the conspiracy and
(2) the conspiracy aimed to violate rights protected against private
infringement.” Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 270 (5th
Cir. 2001). The district court concluded, among other things, that Young “failed
to present any proof that, even if the Municipal Defendant conspired to
dissuade her from asserting her sexual harassment claim, it did so based on
any gender-based discriminatory animus.” Young fails to argue in her initial
appellate brief that Municipal Defendant conspired against her based on any
discriminatory animus. Young has thus waived review of this issue. See Health
Care Serv. Corp., 814 F.3d at 252.
                                       D
      Young argues that the district court erred in granting summary
judgment to Municipal Defendant on her state law claims. Young asserted four
claims under Mississippi state law: (1) assault; (2) violation of the right to
equal protection under the Mississippi Constitution; (3) violation of procedural
and substantive due process under the Mississippi Constitution; and (4) breach
of the duty to exercise reasonable care in the hiring, training, and supervision
of a sworn police officer. But Young fails to address the first three claims


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against Municipal Defendant in her initial appellate brief. As such, she waived
review of these issues. See id.
      We reject Young’s challenge of the district court’s grant of summary
judgment regarding her claims for breach of duty to exercise reasonable care
in the hiring, training, and supervision of Kingdom. The district court held that
Municipal Defendant was immune from suit on these claims under the
Mississippi Tort Claims Act (“MTCA”). The MTCA “is the exclusive civil
remedy against a governmental entity or its employee for tortious acts or
omissions which give rise to a suit.” Elkins v. McKenzie, 865 So. 2d 1065, 1073
(Miss. 2003) (citing Miss. Code Ann. § 11-46-7(1)). A governmental entity is not
liable under the MTCA for any claim “[b]ased upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty on the part
of a governmental entity or employee thereof, whether or not the discretion be
abused” or “[a]rising out of the exercise of discretion in determining . . . the
hiring of personnel.” Miss. Code Ann. § 11-46-9(1)(d), (g). The Mississippi
Supreme Court held that “[t]he manner in which a police department
supervises, disciplines and regulates its police officers is a discretionary
function of the government” for which the governmental entity is immune to
suit. City of Jackson v. Sandifer, 107 So. 3d 978, 987 (Miss. 2013) (quoting City
of Jackson v. Powell, 917 So. 2d 59, 74 (Miss. 2005)). Municipal Defendant is
thus not liable under the MTCA for Young’s claims that it breached its duty to
exercise reasonable care in the hiring, training, and supervision of Kingdom.
                                       IV
      We VACATE and REMAND the district court’s dismissal of Young’s
assault claim against Kingdom. We otherwise AFFIRM the judgment of the
district court.




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