     Case: 16-60432      Document: 00513944275         Page: 1    Date Filed: 04/07/2017




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

                                      No. 16-60432                              FILED
                                                                             April 7, 2017
                                                                           Lyle W. Cayce
HENRY HARRIS,                                                                   Clerk

              Plaintiff–Appellant,

v.

JACKSON COUNTY, MISSISSIPPI; JACKSON COUNTY BOARD OF
SUPERVISORS, individually and collectively; MIKE BYRD, Sheriff, in his
official capacity; KEN MCCLENIC, Officer, in his official capacity; OTHER
UNKNOWN JOHN AND JANE DOES, A-Z, also in their official and
individual capacities,

              Defendants–Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:14-CV-435


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Henry Harris appeals the district court’s separate
orders granting summary judgment in favor of Jackson County, Mississippi,
and Officer Ken McClenic, in his official and individual capacity (collectively,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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“Appellees”). Harris argues that he raised sufficient questions of fact to survive
summary judgment as to his constitutional excessive force claim against both
Appellees. We AFFIRM.
                                      I. BACKGROUND
A.    Underlying Facts
      Over several months prior to the events of this case, Officer McClenic
received intelligence that a known drug dealer and others were running a
“gambling house” out of a building in Moss Point, Mississippi. On July 10,
2013, a confidential informant told Officer McClenic that he had played a game
of poker in the gambling house, had purchased poker chips from Harris, and
had witnessed a sale of marijuana from inside the building. Several agents
surveilling the property had also observed another known drug dealer entering
and exiting the building several times and on one occasion saw this drug dealer
place a bag inside the fuse panel of a car. Based on this information, Officer
McClenic obtained a search warrant for the building.
      The warrant was executed on July 10, 2013. A distraction device was
deployed in the building to gain access through the rear door and Officer
McClenic prepared to enter the building through the front. Before Officer
McClenic was able to enter, several individuals ran out of the house through
the front door. Harris was one of these individuals. Officer McClenic claims
that he then struck with his ASP 1 three to four individuals who “were refusing
to get on the ground and show their hands.” Harris was one of those on whom
Officer McClenic used his ASP, purportedly to ensure compliance with law
enforcement instructions. Harris alleges that his elbow was injured by the blow
from the ASP and his fall to the ground. Thereafter, Harris was transported to
a hospital for treatment.


      1   An ASP is a police baton.
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B.     Procedural Background
       On July 24, 2014, Harris filed suit in Mississippi state court against
Jackson County (“the County”); the Jackson County Board of Supervisors,
individually and collectively; the Jackson County Sheriff’s Office; the Jackson
County Narcotics Task Force; Sheriff Mike Byrd, in his official and individual
capacity; and Officer Ken McClenic, in his official and individual capacity. In
his complaint, Harris alleged claims for wrongful arrest and excessive force
under 42 U.S.C. § 1983, claims of conspiracy pursuant to 42 U.S.C. §§ 1985(3)
and 1986, and assorted state law claims.
       On December 2, 2014, the defendants removed the case to federal court.
On March 27, 2015, the district court granted separate motions to dismiss in
favor of the Sheriff’s Department, the Task Force, and Byrd and McClenic in
their official capacities. On August 10, 2015, Byrd and McClenic filed a motion
for summary judgment based on qualified immunity regarding the claims
against them in their individual capacities. The district court granted the
motion and dismissed all claims against Byrd and McClenic on October 9, 2015.
Thereafter, Jackson County filed a motion for summary judgment. The district
court granted the motion on May 23, 2016, and entered final judgment. Harris
timely appealed. 2 In his brief before this Court, Harris only contends that the
district court erred in dismissing his excessive force claims against McClenic
and the County.



       2 The Appellees contend that this Court lacks jurisdiction over any claims against the
Task Force and McClenic, individually, because his Notice of Appeal identifies only “the
District Court’s March 23, 2016 Memorandum Opinion and Order granting Jackson County
summary [judgment] as to all remaining claims . . . and Final Judgment.” See Lockett v.
Anderson, 230 F.3d 695, 699 (5th Cir. 2000). We disagree. Because “[a]n appeal from a final
judgment preserves all prior orders intertwined with the final judgment,” we find Harris’s
notice adequate to confer our Court with jurisdiction over any prior district court orders. N.Y.
Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir. 1998) (alteration omitted) (quoting Trust
Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1485 (5th Cir. 1997)).
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                                    II. DISCUSSION
A.     Standard of Review
       We review a grant of summary judgment de novo, viewing the facts in
the light most favorable to the nonmoving party. Ballard v. Burton, 444 F.3d
391, 396 (5th Cir. 2006). Summary judgment is appropriate when “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). This Court may “affirm a grant of
summary judgment on any grounds supported by the record and presented to
the [district] court.” Cuandra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812 (5th
Cir. 2010) (quoting Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008)).
B.     Claim Against Officer McClenic
       Harris argues that Officer McClenic’s use of an ASP to strike Harris
during the raid constituted excessive force. 3 The district court granted
summary judgment on this claim on the basis of qualified immunity.
       “‘A good-faith assertion of qualified immunity alters the usual summary
judgment burden of proof,’ shifting it to the plaintiff to show that the defense
is not available.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (quoting
Cass v. City of Abilene, 814 F.3d 721,728 (5th Cir. 2016)). A plaintiff seeking to
overcome qualified immunity must show: “(1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’
at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011). “To negate a defense of qualified immunity and avoid summary
judgment, the plaintiff need not present ‘absolute proof,’ but must offer more




       3  Harris raises this claim against Officer McClenic both in his individual and his
official capacity. Because “an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity,” we only address Harris’s claims against McClenic in his
individual capacity in this section. See Kentucky v. Graham, 473 U.S. 159, 166 (1985).
Harris’s claim against the County is analyzed in the section that follows.
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than ‘mere allegations.’” King, 821 F.3d at 654 (quoting Manis v. Lawson, 585
F.3d 839, 843 (5th Cir. 2009)).
       To succeed on an excessive force claim, a plaintiff must show: “(1) an
injury that (2) resulted directly and only from the use of force that was
excessive to the need, and (3) the use of force that was objectively
unreasonable.” Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008). The
reasonableness inquiry “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Graham v. Conner, 490 U.S. 386, 396 (1989). “The
reasonableness of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Ballard, 444 F.3d at 402 (internal quotation marks omitted)
(quoting Graham, 490 U.S. at 396).
       Taking the facts in the light most favorable to Harris as we must, Id. at
396, the raid occurred in the following manner: First, Officers deployed a flash
grenade in the building. Officers could then be heard shouting at the
individuals in the building to “get on the ground.” 4 Some of the individuals in
the building, including Harris, ran toward the front door, where Officer
McClenic was stationed. Upon exiting the building, Harris states he was
instructed to get on the ground and was in the process of complying with these




       4Officer McClenic also claims that he could hear someone shout “gun” and “where is
the gun” from inside the building, but Harris says he never heard such an exclamation.
Harris does, however, acknowledge that Officer McClenic came to see him sometime after the
raid and explained that the reason “he hit [Harris was] because he heard somebody say ‘gun’
and he wanted [Harris] to immediately jump down.”
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                                         No. 16-60432
orders when McClenic struck him in the back and elbow, knocking him to the
ground. 5
       As an initial matter, we note that the district court appears to have
improperly made factual inferences in favor of Officer McClenic rather than
Harris. Applying the correct standard, Harris may have alleged enough to raise
a material question of fact regarding whether a constitutional violation
occurred. Regardless of the outcome on the first prong of the qualified
immunity inquiry, however, we do not find that the right alleged was clearly
established at the time of the raid. 6
       While it is clear that using force on a suspect that is handcuffed,
subdued, and not resisting is excessive, see Carroll v. Ellington, 800 F.3d 154,
177 (5th Cir. 2015), cert. denied, 137 S. Ct. 492 (2016), that was not the case
here. Harris has not identified any cases clearly establishing a constitutional
violation on facts similar to this case, and we have found none. Because Harris
has not met his burden to prove otherwise, we hold that the district court
properly concluded that Officer McClenic was entitled to qualified immunity.
See Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (stating that a
plaintiff must show that the alleged conduct is “objectively unreasonable in
light of clearly established law” to warrant denial of qualified immunity).
C.     Claim Against Jackson County
       Harris also claims that Jackson County should be held liable for Officer
McClenic’s alleged use of excessive force. Municipal liability under § 1983



       5   Harris’s explanation of this event has been somewhat inconsistent throughout the
life of this case. In both his appellate brief and an initial set of interrogatories, Harris claims
that he was telling Officer McClenic that it was taking him longer to get on the ground
because of a previous back surgery when he was struck with the ASP. This assertion,
however, is unsupported by Harris’s deposition testimony.
         6 Importantly, Harris fails to cite a single case in his appellate brief illustrating that

the law is clearly established in this case and did not file a response to Officer McClenic’s
motion for summary judgment before the district court.
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requires a plaintiff to prove: “(1) an official policy (or custom), of which (2) a
policymaker can be charged with actual or constructive knowledge, and (3) a
constitutional violation whose ‘moving force’ is that policy or custom.” Valle v.
City of Hous., 613 F.3d 536, 541–42 (5th Cir. 2010) (quoting Pineda v. City of
Hous., 291 F.3d 325, 328 (5th Cir. 2002)). Because courts have roundly rejected
municipal liability based on a theory of respondeat superior, “isolated
unconstitutional actions by municipal employees will almost never trigger
liability.” Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001). Rather,
“the unconstitutional conduct must be directly attributable to the municipality
through some sort of official action or imprimatur.” Id.
      Existence of a policy can be shown in two primary ways: (1) the existence
of an officially adopted policy, regulation, or decision promulgated by
individuals with policymaking authority; or (2) “a persistent, widespread
practice of City officials or employees, which, although not authorized by
officially adopted and promulgated policy, is so common and well-settled as to
constitute a custom that fairly represents municipal policy.” Id. at 579. “[A]
single decision by a policy maker may [also], under certain circumstances,
constitute a policy for which a [municipality] may be liable.” Valle, 613 F.3d at
542 (first and third alterations in original) (quoting Brown v. Bryan Cty., 219
F.3d 450, 462 (5th Cir. 2000)). “However, this ‘single incident exception’ is
extremely narrow and gives rise to municipal liability only if the municipal
actor is a final policymaker.” Id.; accord Piotrowski, 237 F.3d at 579.
      With regard to municipal liability, Harris argues that McClenic’s
conduct is attributable to the County for two reasons. 7 First, Harris claims that



      7 Harris previously also argued that the County is liable because of its failure to
adequately train and supervise its officers. On appeal, however, he devoted merely one
sentence to this argument and does not point to any facts in support of his contention.
Accordingly, we find this argument waived. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th
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                                    No. 16-60432
McClenic is the sort of “final decider” whose actions are automatically
attributable to the County. But other than his bare assertion that McClenic,
as the head of the Narcotic Task Force, has the power to make policy for that
agency, Harris provides no support for this argument. Moreover, because this
argument was never raised before the district court, we find it waived. See
Capps v. Humble Oil & Ref. Co., 536 F.2d 80, 82 (5th Cir. 1976) (per curiam).
      Second, Harris argues that there was a “persistent, widespread practice”
under which McClenic and his officers were acting, and that practice allegedly
violated his constitutional rights. 8 As the district court correctly concluded,
however, Harris has not raised any evidence to show the sort of pattern of
abuses necessary to find liability under this theory of municipal liability. See
Peterson v. City of Fort Worth, 588 F.3d 838, 850–51 (5th Cir. 2009) (stating
that it is “clear that a plaintiff must demonstrate a pattern of abuses that
transcends the error made in a single case” and that such prior instances of
conduct must be “sufficiently numerous” and not “isolated” (internal quotation
marks and citations omitted)).
                                III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Officer McClenic and Jackson County.




Cir. 1994) (“A party who inadequately briefs an issue is considered to have abandoned the
claim.”).
       8 Harris does not elaborate on the type of practice under which the officers were

purportedly acting.
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