     Case: 14-31286   Document: 00513090446     Page: 1   Date Filed: 06/23/2015




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

                                                                        FILED
                                                                      June 23, 2015
                                 No. 14-31286
                                                                      Lyle W. Cayce
                                                                           Clerk
DENISE BAILEY, individually and on behalf of their deceased mother, Willie
Nell Bullock; DANIEL JACKSON, individually and on behalf of their
deceased mother, Willie Nell Bullock; RALPH JACKSON, individually and
on behalf of their deceased mother, Willie Nell Bullock; DORIS J. USSIN,
individually and on behalf of their deceased mother, Willie Nell Bullock;S
LYNETTE BULLOCK, individually and on behalf of their deceased mother,
Willie Nell Bullock; RICKY BULLOCK, individually and on behalf of their
deceased mother, Willie Nell Bullock; THERESA BULLOCK JOHNSON,
individually and on behalf of their deceased mother, Willie Nell Bullock,

             Plaintiffs - Appellants

v.

ARTHUR S. LAWSON, JR.; DEPUTY SCOTT VINSON; DEPUTY JAMES
PRICE; DEPUTY RUSSELL LLOYD,

             Defendants - Appellees




                Appeal from the United States District Court
                   for the Eastern District of Louisiana
                          USDC No. 2:12-CV-2795


Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.
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                                       No. 14-31286
PER CURIAM:*
       In this civil rights action, the district court granted a motion for
summary judgment filed by defendants Gretna, Louisiana Police Chief Arthur
Lawson, Jr., and Officers Scott Vinson, James Price, and Russell Lloyd,
(collectively, “Appellees”), on the basis of qualified immunity.                  Plaintiffs-
Appellants Denise Bailey, Daniel Jackson, Ralph Jackson, Doris J. Ussin,
Lynette Bullock, Ricky Bullock, and Theresa Bullock Johnson, individually
and on behalf of their now-deceased mother, Willie Nell Bullock (collectively,
“Appellants”), appeal the judgment of the district court. We affirm.
                                I. Facts & Proceedings
       At approximately 4:00 p.m., on November 16, 2011, several officers
constituting the Special Response Team (“SRT”) of the Gretna Police
Department (“GPD”), entered Ms. Willie Nell Bullock’s residence and executed
a search and seizure warrant for narcotics. Ms. Bullock, who was sixty-six
years old at the time, was sleeping.                She had recently undergone an
ileostomy/stoma procedure, and suffered from advanced cancer, high blood
pressure, and diabetes. Although the parties dispute exactly what occurred
during the execution of the warrant, surveillance video footage confirms that
about two minutes after the SRT entered Ms. Bullock’s residence, an officer
escorted her outside and unfolded a chair on which she could sit. 1


       * 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  Appellants alleged in their complaint that unknown SRT officers pulled Ms. Bullock
from her bed and threw her to the floor, which caused her face to strike the concrete, knocking
out several teeth; that Officer Vinson kicked Ms. Bullock in her stomach; and that Ms.
Bullock was required to lie face-down on the floor for over thirty minutes while SRT officers
ignored her requests for medical treatment. The undisputed evidence presented to the
district court on Appellees’ motions for summary judgment contradicts Appellants’
allegations concerning the search’s duration, the officers’ identities, and Ms. Bullock’s
injuries.
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                                       No. 14-31286
       Approximately a year after the SRT executed the warrant at Ms.
Bullock’s residence, Appellants filed a § 1983 action in federal court. They
claimed that the conduct of Officers Vinson, Lloyd, and Price during the
execution of the warrant violated Ms. Bullock’s Fourth Amendment right to be
free from excessive force; and that Chief Lawson and Officer Vinson were liable
in their supervisory capacities. 2
       In September 2014, Appellees filed two motions for summary judgment.
In one motion, Appellees contested the veracity of Appellants’ complaint. In
the other motion, Appellees asserted that they were shielded by qualified
immunity. 3      The district court granted Appellees’ motion for summary
judgment on the basis of qualified immunity and denied as moot all other
pending motions. Appellants timely appealed.
                                   II. Standard of Review
       We review de novo a district court’s grant of summary judgment on the
issue of qualified immunity, applying the same standards as the district court. 4
“Summary judgment is proper when the pleadings and evidence demonstrate
that no genuine issue of material fact exists and the movant is entitled to
judgment as a matter of law.” 5 When reviewing the district court’s grant of
summary judgment, we construe all facts and inferences drawn from them in


       2   Appellants’ complaint also contained state law claims for negligence, assault,
battery, negligent and intentional infliction of emotional distress, defamation, and slander,
as well as §§ 1985 and 1986 claims, but the only claim that Appellants pursue on appeal is
their § 1983 excessive force claim against Officers Vinson, Lloyd, and Price, as well as Chief
Lawson.
        3 Two days after Appellees filed their motions for summary judgment, Appellants filed

a motion for leave to file a supplemental and amended complaint adding Officers Scott Zemlik
and Ryan Mekdessie as defendants, claiming that they had only recently learned that
Officers Zemlik and Mekdessie had entered Ms. Bullock’s residence during the execution of
the warrant. The magistrate judge denied their motion, and Appellants do not appeal that
ruling.
        4 Curtis v. Anthony, 710 F.3d 587, 593 (5th Cir. 2013) (per curiam) (citation omitted).
        5 Id. at 594 (quoting Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004)) (internal

quotation marks omitted).
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                                      No. 14-31286
the light most favorable to the non-moving party. 6 “Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails . . . to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of
proof at trial.” 7
                                     III. Analysis
         Section 1983 provides for a claim against one who, “under color of any
statute, ordinance, regulation, custom, or usage, of any State” violates
another’s constitutional rights. 8 To state 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 violation alleged was committed by a
person acting under color of state law. 9 We focus first on Appellants’ claim
that Officer Vinson’s decision to order the use of the SRT to execute the
warrant for Ms. Bullock’s residence violated her right to be free from excessive
force.
         At the same time we consider Appellants’ claim that Officer Vinson thus
violated Ms. Bullock’s right to be free from excessive force, we also consider
Appellees’ contention that they are immune from suit on the basis of qualified
immunity.      “[Q]ualified immunity protects government officials from civil
damages liability when their actions could reasonably have been believed to be
legal.” 10 “When properly applied, [qualified immunity] protects all but the
plainly incompetent or those who knowingly violate the law.” 11 A plaintiff



        Id. (citation omitted).
         6

        Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)) (internal quotation
         7

marks omitted).
      8 42 U.S.C. § 1983.
      9 Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (citation omitted).
      10 Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc) (citation omitted).
      11 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (citation and internal quotation

marks omitted).
                                             4
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                                    No. 14-31286
seeking to overcome qualified immunity must show that (1) the official violated
a statutory or constitutional right and (2) the right violated was “clearly
established” at the time of the challenged conduct. 12 A court has discretion to
decide which prong to consider first. 13
A.    Officer Vinson
      Appellants contend that the district court erred in dismissing their
excessive force claim against Officer Vinson on the basis of qualified immunity,
asserting that his decision to use the SRT to execute the warrant violated Ms.
Bullock’s Fourth Amendment right to be free from excessive force and that this
right was clearly established. Satisfied that resolution of this issue turns
principally on whether Officer Vinson’s decision to use the SRT violated Ms.
Bullock’s right to be free from excessive force, we address that factor first. 14
      To maintain an excessive force claim against Officer Vinson, Appellants
must adduce evidence of (1) an injury (2) which resulted from the use of force
that was clearly excessive to the need, and (3) such excessive force was
objectively unreasonable. 15 When deciding this question, we look to whether
“the totality of the circumstances justified the particular use of force.” 16 We do
so by determining whether the force used is reasonable under the Fourth
Amendment from the perspective of a reasonable officer on the scene at the
time of the occurrence rather than with the clarity afforded by hindsight. 17 At




      12  Id. at 2080 (citation omitted).
      13  Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
       14 See Pearson, 555 U.S. at 242.
       15 Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir. 2013) (citation and internal

quotation marks omitted).
       16 Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (citation and internal

quotation marks omitted).
       17 Ramirez, 716 F.3d at 377 (citation and internal quotation marks omitted).

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                                       No. 14-31286
core, we ask whether the officer’s action was objectively reasonable in light of
the facts and circumstances confronting them. 18
       We first assess injury. Appellants alleged that unknown officers threw
Ms. Bullock to the floor, knocking out several teeth; that Officer Vinson kicked
her in the stomach, the site of her recent colostomy procedure; and that the
officers required her to lie face-down on the floor for more than thirty minutes
during which period they ignored her requests for medical treatment. The
undisputed evidence contradicts these claims of injury. 19
       Putting aside Appellants’ failure to adduce evidence that Ms. Bullock
suffered injury during the execution of the warrant, we turn to the next two
prongs. Our inquiry is complicated by Appellants’ theory that Officer Vinson’s
decision to order the use of the SRT, in and of itself, constituted excessive force.
By pursuing this theory of liability, it is unclear whether Appellants maintain
that Ms. Bullock suffered injuries as a result of Officer Vinson’s decision to
dispatch the SRT or that the decision itself violated her right to be free from
excessive force. In any event, our review of the record evidence compels the
conclusion that Appellants failed to adduce evidence that Officer Vinson’s
decision to order the use of the SRT was either clearly excessive to the threat
posed by executing the search warrant or was objectively unreasonable.
       Officer Vinson testified that he decided to use the SRT to execute the
warrant for Ms. Bullock’s residence based on his assessment of several factors,
including (1) the criminal history of Appellant Ralph Jackson, an individual




       18 Ramirez, 542 F.3d at 128-29.
       19 Ms. Bullock’s medical records indicate that she reported to the West Jefferson
Medical Center emergency room a few hours after the SRT executed the warrant for her
residence complaining that the SRT had injured her. The records indicate that her colostomy
site was clean and dry with no signs of trauma and the reported injury to her mouth consisted
of a 0.5 cm laceration to her inner upper lip. Video surveillance confirms that Officer Vinson
did not enter her residence.
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                                       No. 14-31286
named in the warrant; (2) the difficulty of predicting the number of individuals
who would be present in Ms. Bullock’s residence; (3) discrete facts provided by
a confidential informant; and, (4) the Bullock family’s prior threats against the
GPD.
       Appellants challenge the veracity of the factors relied on by Officer
Vinson in deciding to deploy the SRT. 20 First, they claim that Appellant Ralph
Jackson had no criminal history of violence involving weapons – only battery
and domestic violence charges. Because Appellants do not substantiate this
claim with evidence, we cannot evaluate it. Second, Appellants challenge
Officer Vinson’s contention that it was difficult to predict the number of
persons in Ms. Bullock’s home, claiming that her residence was under video
surveillance. Although Appellants are correct that the house was under video
surveillance, it occurred at some distance from the house and surveilled only
the front of the house. Third, Appellants urge us to discount Officer Vinson’s
reliance on a confidential informant, claiming that he did so to avoid having to
divulge facts that might have made his reliance on the threat assessment less
reasonable. As this contention is purely speculative, we must disregard it.
       Finally, Appellants contend that Officer Vinson mischaracterizes the
nature of the alleged “threats,” claiming that they consisted only of the Bullock
family reporting to the media that they would seek legal action were the GPD
and Officer Vinson to harass them further. This presents a closer question.



       20 Appellants also contend that the unreasonableness of his decision can be inferred
from the SRT activation policy, which indicates that Officer Vinson’s choice fell within the
“selective enforcement operations” category rather than any specifically delineated situation.
The SRT activation policy lists situations that are “representative of those which would
require SRT activation” but notes these situations are “not inclusive of all situations where
use of team is authorized.” Officer Vinson’s decision did not fall outside the parameters of
the SRT activation policy, as Appellants claim, but is properly categorized under the
“selective enforcement operations” category. Accordingly, the policy does not show that his
decision to use the SRT was objectively unreasonable.
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                                       No. 14-31286
Officer Vinson did not provide much detail concerning the alleged “threats,”
nor could he provide the names of the individuals that he claims threatened
GPD officers. But, based on Appellants’ failure to adduce any other contrary
evidence that would establish a dispute of material fact as to the underlying
reasonableness of Officer Vinson’s decision, we conclude that this dispute is
not material.
       Based on the totality of the circumstances, Officer Vinson’s decision to
deploy the SRT to execute the search warrant for Ms. Bullock’s residence did
not constitute force excessive to the need, nor was it objectively unreasonable. 21
Because Appellants failed to adduce any credible evidence that Ms. Bullock
was subjected to excessive force, the district court correctly held that Officer
Vinson did not violated Ms. Bullock’s constitutional right, entitling him to
qualified immunity. 22
B.     Remaining claims
       Appellants’ remaining contentions on appeal are also without merit.
Appellants themselves concede that they failed to adduce any evidence that
Officers Price or Lloyd ever entered Ms. Bullock’s residence or interacted with
her, making the district court’s grant of summary judgment in their favor
proper. And, because we conclude that Officer Vinson is entitled to qualified
immunity from Appellants’ claim that he violated Ms. Bullock’s right to be free


       21  We look only to the objective reasonableness of the use of force, without regard to
the officer’s underlying intent or motivation. See Poole v. City of Shreveport, 691 F.3d 624,
638 (5th Cir. 2012) (citation and internal quotation marks omitted).
        22 The district court held that Officer Vinson was entitled to qualified immunity on

the basis that Appellants adduced no evidence that he entered Ms. Bullock’s residence or
interacted with her. Because Appellants contend that he violated Ms. Bullock’s right to be
free from excessive force by virtue of ordering the use of the SRT to execute the search
warrant, not by his entering her residence, we affirm the district court’s holding that he is
entitled to qualified immunity but on a different ground than that expressed by the district
court. See QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 443 (5th Cir. 2009)
(citation omitted) (“We may affirm summary judgment on any basis raised below and
supported by the record.”).
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                                         No. 14-31286
from excessive force, his conduct cannot serve as the predicate for Chief
Lawson’s or his own supervisory liability for failure to train or supervise. 23 The
district court did not err in entering summary judgment on their behalf
regarding Appellants’ supervisory liability claims.
                                       IV. Conclusion
       The judgment of the district court is, in all respects, AFFIRMED.




       23 Supervisory liability requires that the defendant (1) fails to train or supervise the
officers involved, (2) a causal connection exists between the alleged failure to supervise or
train and the alleged violation of the plaintiff’s rights, and (3) the failure to train or supervise
constitutes deliberate indifference to the plaintiff’s rights. Thompson v. Upshur Cty., 245
F.3d 447, 459 (5th Cir. 2001) (citations omitted). Because Appellants have not adduced
evidence that Officer Vinson violated Ms. Bullock’s constitutional rights, there is not an
underlying constitutional violation and therefore supervisory liability cannot exist. See
Whitley, 726 F.3d at 648 (citing Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th Cir.
2010)); see also Estate of Henson v. Callahan, 440 F. App’x 352, 357-58 (5th Cir. 2011).
Moreover, Appellants themselves concede that they were unable to adduce any evidence that
would establish a pattern of prior conduct indicating that either Officer Vinson or Chief
Lawson were deliberately indifferent to the risk of constitutional injury posed by using the
SRT to execute the warrant for Ms. Bullock’s residence. See Rios v. City of Del Rio, 444 F.3d
417, 427 (5th Cir. 2006) (showing deliberate indifference “generally requires that a plaintiff
demonstrate at least a pattern of similar violations” (citation and internal quotation marks
omitted)).
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