Dextric Williams v. City of Cleveland, Mississippi

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 25, 2013

No. 12-60759 Lyle W. Cayce

Clerk

DEXTRIC WILLIAMS, individually and on behalf of the heirs-at-

law/wrongful death beneficiaries of Jermaine Williams, deceased,

Plaintiff - Appellant

v.

CITY OF CLEVELAND, Mississippi; TASER INTERNATIONAL,

INCORPORATED; STANLEY PERRY, individually and in his official

capacity; BRYAN GOZA, individually and in his official capacity,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.

PER CURIAM:

Dextric Williams appeals the district court’s grant of summary judgment

on behalf of the defendants on all claims. We find that summary judgment was

warranted and affirm.

The district court ably details the facts in its opinion below. Most relevant

is that on July 23, 2010, Jermaine Williams fled from Officers Stanley Perry and

Bryan Goza of the Cleveland Police Department (“CPD”). After repeated

warnings that he would be tased if he continued resisting arrest, Williams

No. 12-60759

continued resisting and was tased three and possibly four times.1 At one point

Williams reached for Goza’s Taser and gun. Williams, who had used cocaine

earlier in the evening, was unaffected by the Tasers, as he continued to resist.

He was subdued only when two additional officers arrived. After being

handcuffed, Williams lapsed into unconsciousness and was pronounced dead

after being taken to a nearby hospital. The evaluating physician listed the cause

of death as “[t]oxic effects of cocaine in association with shocks with Taser during

police chase.”

On December 3, 2010, Dextric Williams, plaintiff and brother of the

deceased, filed this suit in district court alleging (1) products liability claims

against Taser, International Inc. (“Taser”), (2) 42 U.S.C. § 1983 claims against

the City of Cleveland under a failure to train theory, (3) § 1983 claims against

Officers Perry and Goza, individually and in their official capacities, for

excessive force, and (4) assorted state law claims. Williams has waived the

official capacity claims against Perry and Goza and the state law claims by

failing to brief them. See Matter of Texas Mortg. Servs. Corp., 761 F.2d 1068,

1073 (5th Cir. 1985); FED. R. APP. P. 28(a)(9)(A). The district court granted

summary judgment to the defendants on all claims. Williams now appeals.

We review the district court’s grant of summary judgment de novo. Young

v. Equifax Credit Information Servs., Inc., 294 F.3d 631, 635 (5th Cir. 2002).

Summary judgment is proper if, drawing all reasonable inferences in favor of the

nonmoving party, there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

1

The model used was the TASER X26. The facts outlined above are not substantially

disputed but there is some disagreement on the margins. Williams states that four (instead

of three) Taser charges were fired and that three (instead of two) Tasers were deployed. But

these facts are not material to this appeal.

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No. 12-60759

First, the plaintiff asserted a failure to warn claim against Taser. In

Mississippi, such a claim requires proving that: (1) the product in question was

defective because it failed to contain adequate warnings or instructions, (2) the

inadequate warnings rendered the product unreasonably dangerous to the user

or consumer, and (3) the inadequate warning proximately caused the damages

for which recovery is sought. MISS. CODE ANN. § 11-1-63(a). We agree with the

district court that, first, Taser’s product warnings explicitly and repeatedly

warned of the risks of serious injury and death, and Williams produced no

evidence demonstrating that the warnings Taser provided were inadequate.

Additionally, there is no evidence that the alleged failure to warn was a

proximate cause of the injuries suffered. Williams has never explained how

additional or different warnings would have altered the officers’ use of their

Tasers under this case’s factual circumstances.2 We also agree with the district

court that, regarding his manufacturing defect claim, Williams produced nothing

but speculation that a defect existed.

Williams’s § 1983 claim against the municipality, which he bases upon a

failure to train theory, is also without record support. For Williams to succeed

on his failure to train claim against the City of Cleveland, he must demonstrate

that: (1) the City’s training policy procedures were inadequate, (2) the City was

deliberately indifferent in adopting its training policy, and (3) the inadequate

training policy caused Williams’s death. See Pineda v. City of Houston, 291 F.3d

325, 332 (5th Cir. 2002). Williams cites as examples of deficient training: that

Goza put the decedent in a chokehold and that the officers supposedly cycled the

Tasers simultaneously. But for the isolated incidents that Williams notes, he

2

Williams’s argument that Taser failed adequately to warn about the dangers of tasing

the chest is unconvincing. Taser’s warnings consistently made clear that although Tasers can

be used on a subject’s chest, users should try not to do so and are better off targeting other

areas of the body when at all possible.

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No. 12-60759

fails to specify how the City of Cleveland’s training program treated these issues

or specifically how the training program regarding these issues is defective. See

Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (“[F]or liability

to attach based on an ‘inadequate training’ claim, a plaintiff must allege with

specificity how a particular training program is defective”).

Williams also alleges municipal liability based on an argument that the

CPD targeted black males with Tasers systematically. But again he fails to

introduce any evidence apart from conclusory allegations. The fact that only

black males were tased by the CPD during the summer of 2010, for example,

means little without further information such as black males’ prevalence in the

overall population or whether these tasings were unwarranted.

Next, Williams’s § 1983 allegations that Goza and Perry violated the

Fourth Amendment fail because the qualified immunity defense shields them

from liability. Overcoming qualified immunity requires showing that (1) an

official’s conduct violated a constitutional right of the plaintiff and (2) that right

was clearly established at the time of the violation. Saucier v. Katz, 533 U.S.

194, 201 (2001). Courts may address these prongs in either order. Pearson v.

Callahan, 555 U.S. 223, 225 (2009). At issue is an alleged violation of the Fourth

Amendment right to be free from excessive force, which requires showing “(1) an

injury (2) which resulted from the use of force that was clearly excessive to the

need and (3) the excessiveness of which was objectively unreasonable.” Rockwell

v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (internal quotation marks omitted).

Addressing Saucier’s second prong, we find that the officers did not violate

a right that was clearly established at the time of the alleged violation. We note

that in previous Taser cases in which we have rejected qualified immunity for

officers, the person tased was not attempting to flee. See Ramirez v. Martinez,

716 F.3d 369, 380 (5th Cir. 2013); Newman v. Guedry, 703 F.3d 757, 764 (5th

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No. 12-60759

Cir. 2012); Massey v. Wharton, 477 F. App'x 256, 263 (5th Cir. 2012). With this

precedent in mind, we agree with the district court that:

Given the circumstances in this case, where Williams fled the scene

with drugs in hand, was non-compliant, was warned about being

tased and ignored the warning, remained unfazed after being tased,

and physicially strugged with both individual Defendant officers,

the Court is unable to say the force used was excessive.

Williams v. City of Cleveland, 2012 WL 3614418, at *9 (N.D. Miss. Aug. 21,

2012).

Although the parties’ experts witnesses disagreed on whether the Taser

use and chokehold was excessive force, the undisputed facts lead us to the legal

conclusion that the force exercised against Williams was, under the

circumstances reflected in the record, reasonable. Our rule on qualified

immunity is that “[u]se of deadly force is not unreasonable when an officer would

have reason to believe that the suspect poses a threat of serious harm to the

officer or others.” Mace v. City of Palestine, 333 F. 3d 621, 624 (5th Cir. 2003).

The deceased performed a push-up with both Goza and Perry on his back after

being tased three or four times and after reaching for the officers’ Tasers and

Officer Goza’s gun. He continued to pose a threat of serious harm throughout

the struggle.

For the reasons above, the district court’s grant of summary judgment on

all claims is

AFFIRMED.

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