                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT

                          __________________________

                                 No. 01-20258
                          __________________________

TERRY W. LYNCH,
                                                     Plaintiff-Appellant,

versus

HARRIS COUNTY TEXAS; DICK MOORE, Constable
Precinct 4 Harris County Texas in his official
capacity; and CORPORAL J. H. WRIGHT, Deputy
Constable, Precinct 4 Harris County Texas,
Individually, and in his official capacity,

                                                     Defendants-Appellees.

         ___________________________________________________

             Appeal from the United States District Court
                  For the Southern District of Texas
                            (No. 00-CV-402)
         ___________________________________________________

                                 May 22, 2002

Before DUHÉ, DEMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Terry W. Lynch appeals an adverse summary judgment on his §

1983 claims for unreasonable search and seizure, excessive force,

false    arrest,    and   malicious   prosecution.     For   the   following

reasons, we reverse the district court’s grant of summary judgment

on the unreasonable search and seizure claim, affirm the district




     *
     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this opinion should not be published and is not precedent except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.
court’s judgment in all other respects, and remand for further

proceedings consistent with this opinion.

                                 I.

     When Terry W. Lynch arrived at work at Compaq Computers in

Houston, Texas on April 30, 1998, Harris County Deputy Constable J.

H. Wright was blocking the entrance to the parking lot with his

police vehicle while he was talking to a Compaq security officer.

Lynch waited about a minute, then honked his horn and yelled, “Hey,

man, I got to go to work.”   Wright drove away, and Lynch entered

the parking lot.

     According to Lynch, Wright then activated the flashing red

lights on his police car, blocked Lynch’s vehicle, and began to

repeatedly ask Lynch what his “problem” was. The two men exchanged

insults, and Wright got out of his car and asked Lynch for his

driver’s   license.      While   Wright     was   checking   Lynch’s

identification, Lynch drove away and tried to park. Wright pursued

him, ordered Lynch out of the vehicle, frisked him, and searched

the car for weapons.

     After searching the car, Wright ordered Lynch to step back and

attempted to pat him down again.      Lynch testified that his foot

“may have brushed [Wright’s] foot or leg or whatever” when he moved

back and that Wright grabbed him, lifted him up as if to body slam

him, and put him back down.      After talking to Compaq Security

Manager Walter Birmingham, Wright returned Lynch’s driver’s license



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and allowed him to leave.       Wright later filed a complaint against

Lynch for resisting arrest, but the charge was dismissed.

     Lynch filed the instant suit asserting claims of unreasonable

search and seizure, excessive force, false arrest, and malicious

prosecution against Wright, Constable Dick Moore and Harris County,

Texas.   The district court dismissed Lynch’s claims against Harris

County and adopted the magistrate judge’s report and recommendation

granting summary judgment on the claims against Wright and Moore.

Lynch now appeals the summary judgment.

                                    II.

     Lynch first contends that the district court erroneously

admitted several affidavits offered on behalf of the defendants.

We review claims of improperly admitted evidence for harmless

error, affirming the district court’s judgment unless the ruling

affected the substantial rights of the complaining party.                See

Tanner v. Westbrook, 174 F.3d 542, 546 (5th Cir. 1999).           Since the

magistrate judge performed her own analysis and did not rely on any

of the challenged portions of the affidavits, we find that Lynch’s

first claim of error lacks merit.

     Lynch focuses his appeal on the district court’s decision to

grant summary judgment, which we review de novo.              See Peavy v.

WFAA-TV, Inc., 221 F.3d 158, 167 (5th Cir. 2000). Summary judgment

is   appropriate   if    "the   pleadings,     depositions,    answers   to

interrogatories,   and    admissions      on   file,   together   with   the


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affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law."     FED. R. CIV. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).           On a motion for summary

judgment, a court must review the facts in the light most favorable

to the non-movant.     See Peavy, 221 F.3d at 167.

     Lynch first contends that the district court erred in granting

summary judgment on his unreasonable search and seizure claim.

Under Terry v. Ohio, 392 U.S. 1, 30 (1968), police officers may

conduct a brief investigatory stop of an individual if they have a

reasonable suspicion that criminal activity is afoot or that the

person has been involved in a crime.           Lynch submits that he was

seized when Wright asked “What’s your problem?” and that Wright

lacked   reasonable    suspicion   for   the    seizure.    Viewing   the

allegations in the light most favorable to Lynch, we agree.

     The first issue is whether Wright’s asking Lynch if he had a

problem rises to the level of a Terry stop.         As the Supreme Court

noted in Terry, “[o]bviously, not all personal intercourse between

policemen and citizens involves ‘seizures’ of persons.         Only when

the officer, by means of physical force or show of authority, has

in some way restrained the liberty of a citizen may we conclude

that a ‘seizure’ has occurred.”     392 U.S. at 19 n.16.     In Michigan

v. Chesternut, 486 U.S. 567 (1988), the Supreme Court elaborated




                                    4
that there    is   a    show    of   authority   by   an   officer     only   if a

reasonable person believes she is not free to leave.

       Wright characterizes his initial conversation with Lynch as

completely voluntary.      However, according to Lynch’s recitation of

the facts, Wright turned on his flashing red lights, blocked

Lynch’s vehicle, and repeatedly asked him if he had a problem.

Accepting this allegation as true, we find that Wright made a

sufficient show of authority to cause Lynch to believe he was not

free to leave.     See Malina v. Gonzales, 994 F.2d 1121, 1126 (5th

Cir. 1993) (finding that defendant's use of flashing red lights to

stop   plaintiff   on    interstate     was   seizure      by   use   of   show   of

authority).

       Assuming that a Terry stop occurred, we must turn to the

question of whether Wright had reasonable suspicion to conduct one.

In Malina, 994 F.2d at 1126, we held that the defendant lacked

reasonable suspicion to stop a vehicle after the driver did nothing

more than honk his horn and motion the defendant to change lanes.

Similarly, Lynch contends that Wright had no reasonable suspicion

to stop him because all he had done was blow his horn and say “Hey,

man, I got to get to work.”          Contrary to Wright’s allegations that

Lynch appeared emotionally distressed and therefore posed a threat

of workplace violence, Lynch insists that he was not agitated or

upset at this point.           As the non-movant, Lynch’s version of the

facts must be credited for purposes of summary judgment. Accepting



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Lynch’s   tale   of   the    encounter       as   true,    Wright   did   not   have

reasonable suspicion to initiate a Terry stop.                Accordingly, since

Lynch has raised sufficient issues of fact to merit a trial on his

cause of action for unreasonable search and seizure, we must

reverse the district court’s summary judgment on that claim.

     Lynch further contends that the district court erroneously

granted summary judgment on his claims for excessive use of force,

false arrest, and malicious prosecution. We find that these claims

are without merit and affirm the district court’s judgment. First,

Lynch fails to state an excessive force claim because he has not

alleged more than a de minimis injury.             See Williams v. Bramer, 180

F.3d 699, 703 (5th Cir. 1999).

     Second, Lynch’s false arrest claim is invalid because he was

not placed under arrest until he voluntarily turned himself in on

an   outstanding      warrant    that    was      issued    by   an   independent

magistrate.      Furthermore, by failing to provide any legal or

factual support for this issue in his brief, Lynch has waived the

challenge to the district court’s disposition of the false arrest

claim.    See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d

256, 260 n.9 (5th Cir. 1995); United States v. Maldonado, 42 F.3d

906, 910 n.7 (5th Cir. 1995).

     Finally, we affirm the summary judgment on Lynch’s malicious

prosecution claim.          As the magistrate judge explained, Lynch’s

prosecution for resisting arrest is justified by § 38.03 of the


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Texas Penal Code, which penalizes anyone who prevents or obstructs

a peace officer from effecting any arrest or search and provides

that it is no defense to prosecution that the arrest or search was

unlawful.   TEX. PENAL CODE ANN. § 38.02.   In the instant case, Lynch

admits that he drove away from the scene while Wright was checking

his identification, that he “brushed” against Wright during the pat

down search, and that he verbally sparred with Wright throughout

the encounter.     Even   though   the    Terry   stop   was   unjustified,

probable cause existed for a resisting arrest charge because Lynch

admittedly defied Wright throughout the encounter.         Since probable

cause existed, Lynch’s malicious prosecution claim fails.              See

Evans v. Ball, 168 F.3d 856, 859 n.4 (5th Cir. 1999)(holding that

the absence of probable cause for the proceedings is a prerequisite

for a malicious prosecution claim).

                                   III.

     For the reasons stated above, we reverse the district court’s

grant of summary judgment on Lynch’s unreasonable search and

seizure claims, affirm all other aspects of the judgment, and

remand for proceedings consistent with this opinion.

     REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.




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