Richard Douglas v. Matthew DePhillips, et a

Case: 17-30902 Document: 00514539083 Page: 1 Date Filed: 07/03/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

No. 17-30902 July 3, 2018

Summary Calendar Lyle W. Cayce

Clerk

RICHARD DOUGLAS, individually and on behalf of his son, Joshua Dale Powe

Douglas; L.C., individually and on behalf of the minor child, G.D.; JESSICA

SHEPPARD, individually and on behalf of the minor child, M.S.,

Plaintiffs - Appellants

v.

MATTHEW DEPHILLIPS, individually and in his official capacity as Deputy,

St. Tammany Parish Sheriff’s Office; JAMES KELLY, individually and in his

official capacity as Deputy, St. Tammany Parish Sheriff’s Office; JACOB

JENKINS, individually and in his official capacity as Deputy, St. Tammany

Parish Sheriff’s Office; CRISTEN GRAHAM, individually and in her official

capacity as Deputy First Class, St. Tammany Parish Sheriff’s Office; ALEX

DANTAGHAN, individually and in his official capacity as Sergeant, St.

Tammany Parish Sheriff’s Office; RANDY SMITH, as successor to Rodney

“Jack” Strain, and as Sheriff, St. Tammany Parish, in his individual and

official capacities; RODNEY JACK STRAIN, JR., former Sheriff, St. Tammany

Parish, individually and in his official capacity as the Sheriff, St. Tammany

Parish, during times relevant to the shooting; JOSH WILLIAMS, individually

and in his official capacity as Corporal, St. Tammany Parish Sheriff’s Office;

GREY THURMAN, individually and in his official capacity as Deputy First

Class, St. Tammany Parish Sheriff’s Office; FRED OSWALD, individually and

in his official capacity as Chief Deputy, St. Tammany Parish Sheriff’s Office;

BRIAN TRAINOR, individually and in his official capacity as Deputy Chief,

Legal, St. Tammany Parish Sheriff’s Office; UNIDENTIFIED PARTIES,

Defendants - Appellees

Case: 17-30902 Document: 00514539083 Page: 2 Date Filed: 07/03/2018

No. 17-30902

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:17-CV-2305

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Richard Douglas (“Richard”), individually and on behalf of his son,

Joshua Dale Powe Douglas (“Douglas”); L.C., individually and on behalf of the

minor child, G.D.; and Jessica Sheppard, individually and on behalf of the

minor child, M.S., (collectively, “Appellants”) challenge the district court’s

dismissal of their civil rights complaint against the St. Tammany Parish

Sheriff’s Office and several of its police officers. For the reasons explained

below, we AFFIRM. 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 also contend that they are appealing the district court’s denial of their

motion for relief from judgment under Federal Rule of Civil Procedure 60(b) and,

alternatively, to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).

The notice of appeal was filed prior to the order denying Appellants’ Rule 60(b) and 59(e)

motion, and Appellants never amended the notice of appeal to challenge the order denying

their post-judgment motion as required by Federal Rule of Appellate Procedure 4(a)(4)(B)(ii).

Under our precedent, “a brief may serve as the ‘functional equivalent’ of an appeal if it is filed

within the time specified by [Federal Rule of Appellate Procedure] 4 and gives the notice

required by [Federal Rule of Appellate Procedure] 3.” Taylor v. Johnson, 257 F.3d 470, 475

(5th Cir. 2001) (per curiam) (quoting Smith v. Barry, 502 U.S. 244, 247–49 (1992)). Here,

because Appellants’ brief was not filed within the time specified by Rule 4, we lack

jurisdiction to review the district court’s order denying the Rule 60(b) and 59(e) motion. See

id. Even if we did have jurisdiction to review this order, Appellants waived the issue due to

inadequate briefing. See Douglas W. ex rel. Jason D. W. v. Hous. Indep. Sch. Dist., 158 F.3d

205, 210 n.4 (5th Cir. 1998) (per curiam) (“[F]ailure to provide any legal or factual analysis

of an issue on appeal waives that issue.”).

2

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I. Background

Douglas was shot and killed by Deputy Matthew DePhillips following a

car chase in St. Tammany Parish, Louisiana. According to the First Amended

Complaint, Douglas attempted to evade police officers pursuing him for driving

with a stolen license plate. Douglas’s girlfriend, Jessica Sheppard, sat in the

passenger seat and was about five months pregnant. Deputies DePhillips,

James Kelly, and Jacob Jenkins pursued Douglas into a dead-end square.

After Douglas backed into a ditch, Deputies DePhillips, Kelly, and Jenkins

allegedly rushed to Douglas’s immobilized vehicle with their weapons drawn.

Sheppard held her hands in the air, screaming she was pregnant. Douglas

held his hands near the top of Sheppard’s arms, and his head was within inches

of Sheppard’s and turned slightly towards Deputy DePhillips. Deputy

DePhillips fatally shot Douglas near his right eye. According to Appellants,

Deputy DePhillips later stated that he believed Douglas had a gun in his hand

and was hiding it underneath Sheppard’s hair behind the headrest. No gun

was ever found in Douglas’s vehicle.

Deputy Jenkins purportedly came around to the passenger side door,

removed Sheppard from the vehicle, and threw her to the ground on her

stomach despite Sheppard being visibly pregnant and screaming that she was

pregnant. Appellants allege that this incident caused temporary and

permanent injury to Sheppard’s then-unborn child, M.S. After the scene was

declared safe, EMS arrived, checked Douglas’s pulse, and declared him dead.

Appellants allege that Douglas survived for some time after being shot, and

they suggest that he may have survived had EMS been called sooner.

Appellants sued the St. Tammany Parish Sheriff’s Office and several of

its police officers involved in Douglas’s death and Sheppard’s apprehension.

On appeal, Appellants challenge the dismissal of their federal civil rights

claims under 28 U.S.C. § 1983 for excessive force against Douglas, Sheppard,

3

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and M.S. under the Fourth Amendment, failure to render medical care to

Douglas under the Fourteenth Amendment, Richard’s claim for deprivation of

familial association under the Fourteenth Amendment, and Monell 2 liability

against the Sheriff of St. Tammany Parish. 3 Appellants also challenge the

district court’s denial of their request to replead and the dismissal of their

intentional spoliation claim. 4

II. Discussion

As an initial matter, the appellate briefing regarding Monell liability and

excessive force against Douglas and Sheppard merely refers us to the district

court briefing without citing any supporting authority. Accordingly, these

issues are waived due to inadequate briefing. Summers v. Dretke, 431 F.3d

861, 870 (5th Cir. 2005); see also Rigas v. United States, 486 F. App’x 491, 497

(5th Cir. 2012) (per curiam) (“[W]e consider these arguments to be waived due

to inadequate briefing because the [appellants] attempt to incorporate their

arguments before the district court by reference without citing any supporting

authorities in their appellate brief.”). 5 This determination also defeats

Richard’s familial association claim and M.S.’s excessive force claim, which

were based on excessive force against Douglas and Sheppard. 6 We similarly

2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

3Appellants do not challenge the dismissal of their unwarranted seizure claim under

the Fourth Amendment.

4 We review de novo the dismissal of a complaint under Federal Rule of Civil Procedure

12(b)(6), and we review for abuse of discretion the denial of leave to amend a complaint. See

Carroll v. Fort James Corp., 470 F.3d 1171, 1173–74 (5th Cir. 2006).

5 Although Rigas is not “controlling precedent,” it “may be [cited as] persuasive

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

6 It was Appellants’ burden to show that the defense of qualified immunity is

unavailable because the officers’ conduct violated clearly established statutory or

constitutional rights. See Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (per

curiam). They failed to do so. This is not a case involving an obvious constitutional violation,

and the briefing only discusses these claims at “a high level of generality” and failed to show

clearly established law “particularized” to the facts of this case. See White v. Pauly, 137 S.

4

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affirm dismissal of the claim brought on behalf of Douglas against several

police officers for failure to render medical care because the briefing does not

challenge the district court’s determination that the officers were entitled to

qualified immunity. 7 Askanase v. Fatjo, 130 F.3d 657, 668 (5th Cir. 1997) (“All

issues not briefed are waived.”).

Appellants argue that the district court should have allowed them to

amend their First Amended Complaint based on their request to amend in

their opposition to the motion to dismiss. 8 Federal Rule of Civil Procedure

15(a) provides that leave to amend should be freely given when justice so

requires. To take advantage of this rule, “the party requesting amendment,

even absent a formal motion, need only ‘set forth with particularity the

grounds for the amendment and the relief sought.’” United States ex rel. Doe

v. Dow Chem. Co., 343 F.3d 325, 330–31 (5th Cir. 2003) (quoting United States

ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 386–87 (5th

Cir. 2003)).

Here, Appellants failed to set forth with sufficient particularity the

grounds for the amendment. At the end of their opposition to the motion to

dismiss, Appellants stated that they “should be given an opportunity to amend

. . . to further state any claims considered deficient” and “to plead further”

Ct. 548, 552 (2017). Therefore, we affirm the district court’s dismissal of their claims based

on qualified immunity. See id.

7 The briefing merely argues that the First Amended Complaint stated a claim for

failure to render medical care. But Appellants are required to point to case law showing that

the officers are not entitled to qualified immunity. See Cass, 814 F.3d at 728. They failed to

do so, and this is not a case where a constitutional violation is obvious. See White, 137 S. Ct.

at 552. Thus, even if this issue were not waived, we would still affirm the district court’s

dismissal of the claim based on qualified immunity. See id.

8 Appellants also argue that the district court erred by failing to expressly rule on

their request to amend. However, because the district court dismissed all of the federal

claims with prejudice and declined to exercise supplemental jurisdiction over the state law

claims, the request to amend was impliedly denied. See Davis v. United States, 961 F.2d 53,

57 n.6 (5th Cir. 1991).

5

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Richard’s claims. These statements are insufficient to constitute a request for

leave to amend under Rule 15(a). See Goldstein v. MCI WorldCom, 340 F.3d

238, 254–55 (5th Cir. 2003) (perceiving no abuse of discretion in denying leave

to amend where the plaintiffs “tacked on a general curative amendment

request to the end of their response in opposition to the defendants’ motion to

dismiss,” which stated, “Should this Court find that the Complaint is

insufficient in any way, however, plaintiffs respectfully request leave to

amend”); Willard, 336 F.3d at 387 (“[A] bare request in an opposition to a

motion to dismiss—without any indication of the particular grounds on which

the amendment is sought—does not constitute a motion within the

contemplation of Rule 15(a).” (alteration in original) (internal citation omitted)

(quoting Confederate Mem’l Ass’n v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993))).

AFFIRMED. 9

9 Appellants also contend that they stated a claim for intentional spoliation and that

the district court failed to address that claim in its order dismissing the First Amended

Complaint. Appellants’ intentional spoliation claim was clearly based on Louisiana law, and

the district court dismissed all of the state law claims without prejudice after declining to

exercise supplemental jurisdiction. Appellants do not challenge the district court’s decision

not to exercise supplemental jurisdiction.

6