     Case: 14-40691      Document: 00513213932         Page: 1    Date Filed: 09/30/2015




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

                                                                                  FILED
                                      No. 14-40691                        September 30, 2015
                                                                             Lyle W. Cayce
CEDRIC CLEVELAND; LEOLA CLEVELAND,                                                Clerk


                                                 Plaintiffs – Appellants

v.

LIBERTY COUNTY SHERIFF’S DEPARTMENT; LIBERTY COUNTY
SHERIFF, In his Official Capacity; LIBERTY COUNTY, TEXAS; MICHELLE
WATSON, Individually and in her Official Capacity as a Sergeant; TRAVIS
PIERCE, Individually and in his Official Capacity as an Officer of the Liberty
County Sheriff’s Department; CHAD PAFFORD, Individually and in his
Official Capacity as Constable; BRETT AUDILET, Individually and in his
Official Capacity as a Deputy; TEXAS DEPARTMENT OF PUBLIC SAFETY;
D. BRIAN NICHOLS, also known as Brian Nichols; UNKNOWN OFFICERS,
Whose names are presently unknown to Plaintiffs,

                                                 Defendants – Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 1:13-CV-20


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40691

      Husband and wife Cedric and Leola Cleveland brought an action under
42 U.S.C. § 1983 alleging that various state and county governmental entities
and officials violated the Clevelands’ constitutional rights and ran afoul of
state law when the officials entered and searched the Clevelands’ home
without a warrant. This search resulted in the discovery of marijuana plants
and guns and eventually in Mr. Cleveland’s arrest for being a felon in
possession of a firearm, as well as the revocation of his parole. The magistrate
judge, presiding with the consent of the parties, dismissed some claims as to
some defendants and granted summary judgment in favor of the defendants
on the remaining claims. The Clevelands appealed.
                                       I.
      The Clevelands, who are proceeding pro se on appeal, contend that the
magistrate judge erred in determining that some of the defendants were
immune from suit under the Eleventh Amendment. The magistrate judge,
however, dismissed only the claims against the Texas Department of Public
Safety on the basis of sovereign immunity. We review de novo the grant of a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), viewing as
true the well-pleaded factual allegations in the complaint and construing them
in the Clevelands’ favor. See Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir.
2008). The Texas Department of Public Safety is an agency or department of
Texas, and Texas has not waived its sovereign immunity. Thus, the Eleventh
Amendment shields the department from suit in federal court. See Raj v. La.
State Univ., 714 F.3d 322, 328 (5th Cir. 2013); see also Reimer v. Smith, 663
F.2d 1316, 1322–23 (5th Cir. Dec. 1981) (holding the Texas Department of
Public Safety immune from suit under the Eleventh Amendment). Moreover,
the exception to the sovereign immunity doctrine for ongoing violations of
federal law does not help the Clevelands because it applies only to suits against



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state officials in their official capacities and not to suits against state entities.
See Raj, 714 F.3d at 328. The Clevelands have not identified an ongoing
violation of federal law, and they have sought only monetary damages. See Ex
parte Young, 209 U.S. 123, 148–49, 159–60 (1908); Fontenot v. McCraw, 777
F.3d 741, 751–52 (5th Cir. 2015). The district court did not err in dimissing
the Texas Department of Public Safety.
                                            II.
       The Clevelands also object to the actions of various individual law
enforcement officers that led to the search of the Clevelands’ mobile home and
seizure of incriminating evidence. The relevant events occurred when several
law enforcement officers went to the Clevelands’ home to investigate the
Clevelands, either for dogfighting or illegal possession of firearms. 1
       No one answered when the officers knocked, though Leola Cleveland was
home. While some officers knocked on the front door, others, including Officer
Brett Audilet, circled around the back of the trailer. Doing so, Officer Audilet
noticed there was a large marijuana plant clearly visible through the mobile
home’s windows. After this discovery, Sergeant Michelle Watson contacted
Officer Brian Nichols, who came to view the marijuana plant so that he could
procure a search warrant, which he estimated could take up to two hours.
       Cedric Cleveland encountered Officers Travis Pierce and Chad Pafford
on the road leading to his home and approached the officers. He asked them
why police were at his home and notified them that his wife was afraid to open
the door.    The officers escorted him to his house.              Upon arrival, Cedric
Cleveland told Officer Nichols that he would let the officers inside the house,
but he did not want them to kick down the door and scare his wife. Cedric



       1 The district court considered this issue an immaterial disputed fact. We agree that
resolution of this factual dispute is not material to the analysis.


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Cleveland called out to his wife and told her that he was with the officers and
that she could come out. Sergeant Watson exclaimed aloud that she saw
movement at the same time as Officer Nichols saw a human shape cross in
front of the window adjacent to the front door. Officer Nichols and Cedric
Cleveland testified that they could hear the sound of a person running through
the house after Cedric Cleveland called out to his wife.        Officer Nichols
immediately tried to kick down the door but failed, so another officer did so.
      Shortly after officers entered the Clevelands’ home, they performed a
protective sweep of the residence. Then Officer Nichols and Sergeant Watson
requested permission to search the house. The parties do not dispute that, at
some point, Officer Nichols and Sergeant Watson had all of the officers leave
the residence so they could discuss a consent search with the Clevelands.
Officer Nichols had Cedric Cleveland’s handcuffs taken off, and the Clevelands
sat at the kitchen table. Thereafter, the officers recorded a conversation with
the Clevelands in which the Clevelands consented to the search of their
residence and signed a consent form. During that conversation, the officers
stood at the kitchen table and the Clevelands sat. On the recording the tone
of the conversation was calm and professional, and the officers never physically
or verbally threatened the Clevelands.
      However, the Clevelands claim that before the recorder was activated,
Officer Nichols threatened to “flip” the Clevelands’ home if they did not consent
to a search. Cedric Cleveland said that he refused to grant consent at first, but
ultimately consented because his wife had antiques and other valuables that
he wished to protect from destruction or harm. Following consent, the officers
searched the whole home and found multiple marijuana plants, guns, and
ammunition. Cedric Cleveland was arrested for being a felon in possession of




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a firearm, but the evidence from the search was suppressed in state court. This
suit under § 1983 followed.
      From this sequence of events, the Clevelands first assert in their
appellate briefing that Officer Pierce violated their constitutional rights by
allegedly reporting to the police dispatcher that Cedric Cleveland was under
investigation for possessing a firearm as a felon. The Clevelands maintain this
supports their theory that officers fabricated their stated reason for being at
their home—to investigate complaints of dogfighting. The Clevelands also
contend that Officer Pafford unconstitutionally handcuffed Cedric Cleveland.
However, in the district court, the Clevelands did not allege any specific actions
undertaken by either Officer Pierce or Officer Pafford, much less present
summary judgment evidence to support the assertions they make now. We
decline to address these new claims raised for the first time on appeal. See
Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006).
      The Clevelands also continue to press their claims that Officers Audilet
and Nichols and Sergeant Watson violated their Fourth Amendment right to
be free from unlawful searches and their rights to due process, equal
protection, and freedom of association.            The magistrate judge granted
summary judgment in favor of the officials on the basis that they were entitled
to qualified immunity. 2
      We review a grant of summary judgment de novo. Nickell v. Beau View
of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is
appropriate if the evidence shows that there is no genuine dispute as to any


      2  Sergeant Watson did not appear in the district court, apparently because she was
not properly served with process. However, as the district court determined, a defendant
who has not appeared can nonetheless benefit from the defenses raised by other defendants
who have appeared. Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001). Accordingly, we
attribute to Sergeant Watson the arguments made and evidence presented by the other
defendants in their summary judgment submissions.


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                                  No. 14-40691

material fact. Id.; FED. R. CIV. P. 56(a). “An issue is ‘genuine’ if the evidence
is sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (quoting
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)). “A fact
issue is ‘material’ if its resolution in favor of one party might affect the outcome
of the lawsuit under governing law.” Id. We view all facts and draw all
inferences in the light most favorable to the party opposing summary
judgment. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010).
      A government official performing a discretionary function is entitled to
qualified immunity unless his actions violate a clearly established right of
which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Where, as here, a defendant invokes qualified immunity in a
motion for summary judgment, it is the plaintiff’s burden to show that the
defendant is not entitled to qualified immunity. See Brown v. Callahan, 623
F.3d 249, 253 (5th Cir. 2010). That is, the plaintiff must put forward evidence
that (1) the official’s conduct violated a constitutional right and (2) the
constitutional right was clearly established so that a reasonable official in the
defendant’s situation would have understood that his conduct violated that
right. See id.; Pearson v. Callahan, 555 U.S. 223, 232 (2009).
      The Clevelands argue that Officers Audilet and Nichols conducted an
illegal search when they looked through a window of the Clevelands’ house and
saw marijuana plants, and when the officials traversed the Clevelands’
property, allegedly solely to obtain information. The Clevelands also contend
that Officer Nichols illegally initiated the warrantless entry into their home by
attempting to kick down their door. The Clevelands contend that Sergeant
Watson’s behavior in calling out to the other officers that she saw movement
in the house created the exigent circumstances that led to the warrantless



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                                  No. 14-40691

entry into their home. The Clevelands note that the evidence produced from
the search was suppressed in state court, but they did not provide the district
court or this court with the transcript of the suppression hearing or any
information about why the evidence was suppressed.
      Construing all facts and inferences in favor of the Clevelands, we hold
that they have not raised a genuine dispute of material fact regarding whether
peering through the Clevelands’ window and forcibly entering their home
violated clearly established law, given the officers’ knowledge that someone
was home who was not answering the door. First, the Clevelands have not
shown it violated clearly established law for the officers to view the marijuana
plant: the mobile home was visible from the road and was not surrounded by a
privacy fence or bushes, and the backyard and back of the house were freely
accessible without a gate or posted signage, except for a “Do Not Enter” traffic
sign in the back of the yard that could not be seen from the front or sides of the
house. See generally Hardesty v. Hamburg Twp., 461 F.3d 646, 654 (6th Cir.
2006) (collecting cases for the proposition that it does not violate the Fourth
Amendment to proceed through curtilage to a back door after knocking on a
front door proves unsuccessful); see also United States v. Thomas, 120 F.3d 564,
568, 571–72 (5th Cir. 1997).
      The Fourth Amendment presumes that a warrantless search of a home
“is presumptively unreasonable” unless police officers have probable cause to
suspect criminal activity and exigent circumstances justify an immediate
entry. See United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011); see also
Horton v. California, 496 U.S. 128, 137 n.7 (1990).        “Police officers have
probable cause to search a residence if under the totality of the
circumstances . . . there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Aguirre, 664 F.3d at 610 (quoting



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United States v. Newman, 472 F.3d 233, 237 (5th Cir. 2006)). “[W]here the
complained of conduct is a law enforcement warrantless search of a residence,
qualified immunity turns not only on whether it was then clearly established
that such a search required probable cause and exigent circumstances, but also
on whether it was then clearly established that the circumstances with which
the officer was confronted did not constitute probable cause and exigent
circumstances.” Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997) (quoting
Anderson v. Creighton, 483 U.S. 635, 635 (1987)). Considering that the officers
saw a marijuana plant through the window of the mobile home, we conclude
that the Clevelands have not shown it was clearly established that the officers
lacked probable cause to enter the residence. See Aguirre, 664 F.3d at 611.
      “[T]here is no set formula for determining when exigent circumstances
may justify a warrantless entry,” but “the possibility that evidence will be
removed or destroyed . . . and immediate safety risks to officers and others are
exigent circumstances that may excuse an otherwise unconstitutional
intrusion into a residence.” Newman, 472 F.3d at 237 (citations omitted).
Here, Officer Nichols claimed that he entered the residence because he knew
someone was inside, he knew at least one marijuana plant was in the house,
his experience told him that people will often attempt to destroy evidence in
these situations, he thought the marijuana plant could be torn up and flushed
down the toilet, he knew it would take between one and two hours to obtain a
warrant, and after he and Cedric Cleveland announced their presence, they
both heard the sound of someone running through the house. Another officer,
allegedly Sergeant Watson, saw movement within the house. Construing these
facts in the light most favorable to the Clevelands, they have not shown that it
violated clearly established law to forcibly enter their mobile home in light of




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these facts. 3 See Aguirre, 664 F.3d at 610–12 (concluding officers’ entry into a
mobile home was justified by probable cause of drug activity, the general high
probability that persons with drugs will attempt to destroy them when
discovered by the police, and the fact that police saw an occupant looking out
the window before hearing shuffling sounds inside the trailer); see also
Waganfeald v. Gusman, 674 F.3d 475, 485 (5th Cir. 2012) (finding no clearly
established law showing a defendant violated the plaintiffs’ rights, noting the
plaintiffs “pointed us to no such authority, and we . . . found none”).
       Additionally, the mere fact that the evidence was suppressed in state
court does not, by itself, raise a factual issue about whether the officers violated
the Clevelands’ clearly established rights. See, e.g., Vickers v. Georgia, 567
F. App’x 744, 746–47 (11th Cir. 2014) (acknowledging state court’s suppression
of evidence but finding officials did not violate clearly established law after an
independent review of the facts); Buchanan v. Kelly, 592 F. App’x 503, 504–07
(7th Cir. 2014) (same); Murphy v. Bendig, 232 F. App’x 150, 152–53 (3rd Cir.
2007) (similar); Richmond v. City of Brooklyn Ctr., 490 F.3d 1002, 1005–09 (8th
Cir. 2007) (similar); Hardesty, 461 F.3d at 651 (holding a state court’s



       3   We note that the Clevelands do not argue their rights were violated because the
officers entered the residence without knocking and announcing their presence. Leola
Cleveland does not dispute that the officers initially knocked on her door, nor that she knew
the police were outside by the time the officers knocked on her door a second time later that
night. From the officers’ perspective, Cedric Cleveland testified that before the officers
entered the residence, he called out to Leola Cleveland to come to the door and that he was
“with the police.” Officer Nichols testified that before law enforcement officers heard Leola
Cleveland running inside the house and broke down the door, he knocked and announced his
presence and status as a law enforcement officer. Therefore, this case does not implicate
whether the Clevelands’ rights were violated by a failure to knock and announce the presence
of law enforcement before entry into the residence. Cf. Trent v. Wade, 776 F.3d 368, 377 (5th
Cir.) (affirming the denial of qualified immunity where there was “no dispute that [an officer]
neither knocked nor announced his presence prior to entering” a home and where there were
disputed factual issues regarding whether the officer had reasonable suspicion to conclude
occupants of the home were aware of his presence, authority, and purpose), reh’g en banc
denied, ___ F.3d ___, 2015 WL 5432089, at *1 (Sept. 14, 2015).


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suppression did not have preclusive effect in the plaintiff’s § 1983 suit
regarding the legality of a search). Because the Clevelands did not proffer the
state court’s findings as part of the record in the district court, we need not
decide the degree of deference, if any, to be given those findings.
       Finally, the Clevelands assert that Officer Nichols coerced them to
consent to a search by threatening that he would “flip” the house if he was
required to secure a warrant. When consent is challenged, we normally inquire
whether the government has shown that it obtained voluntary consent through
a totality-of-the-circumstances, six-factor analysis. See United States v. Arias-
Robles, 477 F.3d 245, 248 (5th Cir. 2007). However, the Clevelands have failed
to adequately brief this claim, even construing their briefs liberally.                    See
Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting pro se filings receive liberal
construction); McCreary v. Richardson, 738 F.3d 651, 656 (5th Cir. 2013)
(observing that to overcome a qualified immunity defense, “we must be able to
point to controlling authority—or a robust consensus of persuasive authority—
that defines the contours of the right in question”); Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) (“Fed.R.App.P. 28[] requires that the appellant’s
argument contain the reasons he deserves the requested relief with citation to
the authorities, statutes and parts of the record relied on.”). The Clevelands’
initial briefs only fleetingly mention consent, without citation to any relevant
authority that would suggest the officers violated clearly established law in
obtaining and relying on the Clevelands’ consent. Although their reply brief
addresses consent and other issues in somewhat more detail, 4 it raises several

       4   In their reply brief, liberally construed, the Clevelands contend for the first time
that (1) Sergeant Watson fabricated statements that officers received tips regarding
dogfighting at the Clevelands’ home and (2) the amount of time that elapsed between the
officers’ entry into the home and the Clevelands’ consent to the search rendered the search
illegal. The Clevelands did not raise these contentions in the district court, much less provide
evidence to support them. Accordingly, we do not address them. See Carmona v. Sw. Airlines
Co., 536 F.3d 344, 347 n.5 (5th Cir. 2008); Williams, 466 F.3d at 335.


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points for the first time and fails to cite relevant authority showing Officer
Nichols’s actions in obtaining consent violated clearly established law.
Generally, arguments raised for the first time on appeal are waived, and issues
raised for the first time in a reply brief are abandoned. See Martco Ltd. P’ship
v. Wellons, Inc., 588 F.3d 864, 877 n.10 (5th Cir. 2009); Webb v. Investacorp,
Inc., 89 F.3d 252, 257 n.2 (5th Cir. 1996).
      The Clevelands failed to meet their burden to show that Officers Audilet
and Nichols and Sergeant Watson were not entitled to qualified immunity on
the Fourth Amendment claims. See Brown, 623 F.3d at 253. Moreover, the
Clevelands’ due process, equal protection, and freedom of association claims
are simply restatements of their Fourth Amendment claims and rely on the
same factual allegations; therefore, the Clevelands have not shown that the
district court erred in dismissing these claims as well. The Clevelands have
abandoned their remaining claims by failing to raise them in this court. See
Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Accordingly, we decline
to address them. See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
      The district court’s judgment is AFFIRMED.




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