Leroyce McDonald v. City of Houston Police Dept.

Case: 17-20620 Document: 00515029995 Page: 1 Date Filed: 07/11/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-20620 July 11, 2019

Lyle W. Cayce

LEROYCE EUGENE MCDONALD, Clerk

Plaintiff-Appellee,

v.

CHIEF OF POLICE CHARLES A. MCCLELLAND, JR.; POLICE OFFICER

GREGG GREEN; SERGEANT OF POLICE M.D. NEWCOMB; POLICE

OFFICER R. MASSEY,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-68

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellee Leroyce Eugene McDonald alleges Houston police

officers used excessive force while executing a no-knock search warrant at his

apartment. He sued numerous police officers and the chief of police under 42

U.S.C. § 1983 claiming, inter alia, that the officers violated his Fourth

Amendment rights. Defendants-Appellants asserted qualified immunity and

* 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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moved for summary judgment. The district court denied their motion as to

McDonald’s Fourth Amendment excessive-force claim. We reverse in part,

vacate in part, and remand for further proceedings.

I.

A.

This case arises from a narcotics raid on McDonald’s apartment on

January 8, 2014. Houston police were investigating McDonald for trafficking

cocaine. McDonald had previously been convicted of aggravated assault with

a deadly weapon, and police had reason to believe he possessed a firearm at

his apartment. The police obtained a no-knock warrant.

As authorized by the warrant, police breached the apartment door by

force and used “flash bang” diversionary devices. Officer R.D. Massey was the

first officer to enter the apartment. He encountered McDonald standing just

inside the apartment door. Officer Massey ordered McDonald to get on the

ground. McDonald lay “down on the floor” with his “arms stretched out.” The

other officers entered behind Officer Massey and proceeded to secure the

apartment. That included pursuing and arresting another suspect, who tried

to flee out a window. Their search revealed 13.3 grams of cocaine, 26.6 grams

of marijuana, and two firearms—one of which they found lying in plain view

in the living room.

McDonald’s Fourth Amendment excessive-force claim arises from what

happened immediately after the officers entered the apartment. McDonald

says that while he was lying compliant on the floor, one of the officers kicked

him in the face, breaking his glasses and injuring his right eye. Upon arrest

he had a small cut under his eye and his right eyelids were swollen.

In his original complaint, McDonald named Officer Massey as the kicker.

But in his amended complaint, McDonald expressly withdrew that allegation,

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stating “[t]he Plaintiff will also remove the allegation . . . regarding . . .

Defendant R. Massey kicking him in the eye.” Instead, the amended complaint

alleged “the first officer to enter the apartment, kicked the plaintiff in the eye.”

And at his deposition, McDonald testified he does not “know who it was

exactly”—it “could have been any one of [them].”

The officers attest Officer Massey was the first to enter the apartment.

Officer Massey swears he “did not kick, mistreat, or insult Mr. McDonald

during or after the execution of the narcotics search warrant,” and he “did [not]

observe any [other] police officer” do so. The other officers say the same.

After the raid, the officers reported they saw a “metal rod” sticking out

from under a sofa near where McDonald dropped to the floor. They believed

he hit his head on the protruding metal. McDonald was given first aid and

transported to jail, where medical staff treated his eye with ibuprofen and an

ice pack. He was eventually convicted of trafficking cocaine.

B.

McDonald sued three of the officers who raided his apartment—Officer

Massey, Officer Gregg Green, and Sergeant M.D. Newcomb—under 42 U.S.C.

§ 1983. He also sued Houston Chief of Police Charles A. McClelland, Jr., who

was not present at the raid. McDonald says one of the officers kicked him in

violation of his Fourth Amendment rights and the other officers failed to

intervene. He also claims the subordinate officers were inadequately trained

and supervised.

Defendants asserted qualified immunity and moved for summary

judgment. McDonald did not file a response to the summary judgment motion.

The district court denied summary judgment on McDonald’s Fourth

Amendment excessive-force claim. Pointing to McDonald’s original verified

complaint, the district court said “McDonald raises specific facts which show

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excessive force by Massey and possibly other police officers.” The district court

did not acknowledge the existence of McDonald’s amended complaint, did not

explain whether it superseded the original complaint, and did not decide

whether the amended complaint was sufficient to defeat qualified immunity.

Defendants appealed.

II.

Though the denial of a motion for summary judgment is not a final

judgment, it can be appealed immediately under the collateral order doctrine.

See Mitchell v. Forsyth, 472 U.S. 511, 528–30 (1985). We have described our

interlocutory appellate jurisdiction as limited to “the purely legal question

whether the defendants are entitled to qualified immunity on the facts that

the district court found sufficiently supported in the summary judgment

record.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc); see

Johnson v. Jones, 515 U.S. 304, 313 (1995). So “[w]here the district court has

identified a factual dispute, we ask whether the officer is entitled to summary

judgment even assuming the accuracy of the plaintiff ’s version of the facts.”

Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc). Once we have

identified “the relevant set of facts and drawn all inferences in favor of the

nonmoving party to the extent supportable by the record,” the reasonableness

of the officer’s conduct is a question of law, Scott v. Harris, 550 U.S. 372, 381

n.8 (2007) (emphasis omitted), and we review it de novo, see Melton, 875 F.3d

at 261.

A.

McDonald says we lack jurisdiction over the excessive-force claim

because the district court denied summary judgment based on questions of

fact. But we have jurisdiction to determine whether “the district court erred

in assessing the legal significance of the conduct that the court deemed

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sufficiently supported.” Collins v. Ainsworth, 382 F.3d 529, 541 (5th Cir. 2004);

accord Melton, 875 F.3d at 261. That includes whether the alleged wrongdoing

would violate clearly established law—a question the district court failed to

answer.

With regard to the facts, it is impossible to identify what the district

court determined. The entirety of its explanation consists of one sentence:

“McDonald raises specific facts which show excessive force by Massey and

possibly other police officers.” This sentence says nothing about clearly

established law. It does not specify which facts the district court found

“sufficiently supported for purposes of denying summary judgment.” Collins,

382 F.3d at 541. And it cites only McDonald’s original complaint, with no

acknowledgment or analysis of his amended complaint. That is an important

omission because a superseded complaint, even if verified, “does not constitute

competent summary judgment evidence.” King v. Dogan, 31 F.3d 344, 346 (5th

Cir. 1994) (per curiam). And “an amended complaint supersedes and replaces

an original complaint, unless the amendment specifically refers to or adopts

the earlier pleading.” Eubanks v. Parker Cty. Comm’rs Court, 44 F.3d 1004, at

*2 (5th Cir. 1995) (per curiam) (quotation omitted); see also King, 31 F.3d at

346. In situations like this, we must “undertake a cumbersome review of the

record to determine what facts the district court, in the light most favorable to

the nonmoving party, likely assumed.” Johnson, 515 U.S. at 319; see also

Behrens v. Pelletier, 516 U.S. 299, 313 (1996).

We have carefully reviewed the record and construed the facts in

McDonald’s favor. In doing so, we have remained cognizant that McDonald

appeared pro se. McDonald’s original complaint alleged Officer Massey

“purposely kick[ed] the plaintiff in his face” and contained specific factual

allegations describing the incident. (Emphasis added.) But McDonald omitted

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most of those factual allegations from his amended complaint. And the record

is mixed on whether McDonald intended his amended complaint to supersede

or supplement his original complaint. Therefore, as the record appeared before

the district court, there may have been insufficient evidence surrounding the

circumstances of the alleged kick for McDonald’s claims to survive summary

judgment.

The Defendants’ principal argument on appeal is, in effect, “no one

kicked anyone.” That of course is an argument we have no jurisdiction to

consider. See Johnson, 515 U.S. at 316 (holding there is no appellate

jurisdiction on interlocutory appeal of a qualified-immunity denial to consider

the argument “we didn’t do it”). The Defendants acknowledge McDonald’s

amended complaint, but they do not address McDonald’s suggestion that he

intended to supplement rather than replace his original complaint. And the

Defendants have not helped us identify whether and to what extent the record

might include other evidence the kick—the existence of which we’re bound to

assume on appeal—was intentional and unreasonable.

In these circumstances—where the Defendants’ briefing is not

comprehensive, where the district court’s entire analysis consists of a single

sentence citing an arguably inoperative pleading, and where the district court

failed to address half of the qualified-immunity inquiry—we exercise our

discretion to send the excessive-force question back for further consideration.

B.

To deny qualified immunity at the summary judgment stage, the district

court must answer “yes” to two questions. See Pearson v. Callahan, 555 U.S.

223, 236 (2009). “The first question is whether the officer violated a

constitutional right.” Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).

Accidental contact between an officer and a civilian is not a Fourth

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Amendment seizure—even if it injures the civilian—so a § 1983 plaintiff

claiming excessive force must show that force was applied intentionally. See

Brower v. Cty. of Inyo, 489 U.S. 593, 596–97 (1989) (explaining that a seizure

occurs only when a suspect’s “freedom of movement” is terminated “through

means intentionally applied” by the governmental actor); Gorman v. Sharp,

892 F.3d 172, 175 (5th Cir. 2018) (holding there can be no § 1983 liability for

excessive force “in the absence of intentional conduct”). And even if the seizure

involves intentional conduct, the district court must consider whether it was

unreasonable under the specific circumstances of the seizure. See, e.g., City of

Escondido v. Emmons, 139 S. Ct. 500, 503–04 (2019) (per curiam) (reversing

the denial of qualified immunity where officers threw a man to the ground

during an arrest). “Such specificity is especially important in the Fourth

Amendment context, where the Court has recognized that it is sometimes

difficult for an officer to determine how the relevant legal doctrine, here

excessive force, will apply to the factual situation the officer confronts.”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation

marks and alterations omitted).

“The second question is whether the ‘right at issue was “clearly

established” at the time of [the] alleged misconduct.’ ” Morrow, 917 F.3d at 874

(alteration in original) (quoting Pearson, 555 U.S. at 232). If the right was not

clearly established, the officer is entitled to qualified immunity even if his

conduct violated the plaintiff ’s constitutional rights. See Vann v. City of

Southaven, 884 F.3d 307, 310 (5th Cir. 2018) (per curiam). To be clearly

established, “existing precedent” must “ ‘squarely govern[ ]’ the specific facts at

issue.” Morrow, 917 F.3d at 876 (quoting Kisela v. Hughes, 138 S. Ct. 1148,

1153 (2018) (per curiam)); see also Whitley v. Hanna, 726 F.3d 631, 647 n.13

(5th Cir. 2013).

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Both parties and the district court failed to address qualified immunity’s

second question. The district court did not consider whether Defendants’

conduct—even assuming it violated the Fourth Amendment—violated clearly

established law. See Morrow, 917 F.3d at 874. McDonald points to no such law

on appeal. On remand, the parties and the district court must focus on whether

clearly established law at the time of this police raid prohibited the force used

under the circumstances. See Escondido, 139 S. Ct. at 503–04.

III.

McDonald’s original complaint invoked the bystander liability doctrine

and sought recovery for failure to train and supervise. It is not clear whether

these theories remain in the case. But Defendants think they do, and

McDonald does not disagree. So we address them briefly.

A.

Under our bystander liability doctrine, “an officer who is present at the

scene and does not take reasonable measures to protect a suspect from another

officer’s use of excessive force may be liable under section 1983.” Hale v.

Townley, 45 F.3d 914, 919 (5th Cir. 1995). To prove bystander liability, the

plaintiff must show “the officer ‘(1) knows that a fellow officer is violating an

individual’s constitutional rights; (2) has a reasonable opportunity to prevent

the harm; and (3) chooses not to act.’ ” Whitley, 726 F.3d at 647 (quoting

Randall v. Prince George’s Cty., 302 F.3d 188, 204 (4th Cir. 2002)). As always

when qualified immunity is asserted, the plaintiff must point to clearly

established law that would require intervention under the circumstances. See

id. at 647 n.13.

Chief McClelland was not present, so he cannot be liable as a bystander.

See id. at 646. And the uncontroverted evidence is that none of the defendant

officers saw any other officer kick McDonald. Bystander liability cannot attach

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if the officer did not know about and acquiesce in the constitutional violation.

See id. at 647. McDonald’s bystander liability theory fails as a matter of law.

B.

Supervisors cannot be held vicariously liable under § 1983 for the

conduct of others. Estate of Davis ex rel. v. City of N. Richland Hills, 406 F.3d

375, 381 (5th Cir. 2005). To hold a supervisor liable, a § 1983 plaintiff must

show the supervisor’s own conduct violated his constitutional rights. Id.

McDonald seeks to do so on the theory that Chief McClelland and Sergeant

Newcomb failed to train and supervise the officers who executed the warrant

regarding the proper use of force.

To establish liability based on a failure to train or supervise, a § 1983

plaintiff must show not only a failure to supervise or train the officer in

question, but also that the failure was causally related to the plaintiff’s injury

and amounts to deliberate indifference. Davis, 406 F.3d at 381. “ ‘[D]eliberate

indifference’ is a stringent standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.” Id.

(alteration in original) (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown,

520 U.S. 397, 410 (1997)). It usually requires a plaintiff to “demonstrate a

pattern of violations and that the inadequacy of the training is ‘obvious and

obviously likely to result in a constitutional violation.’” Cousin v. Small, 325

F.3d 627, 637 (5th Cir. 2003) (per curiam) (quoting Thompson v. Upshur Cty.,

245 F.3d 447, 459 (5th Cir. 2001)).

There is no dispute of material fact regarding deliberate indifference

here. McDonald points to no evidence of prior Fourth Amendment violations—

by any Houston police officer—that could have put supervisors on notice of a

need to further train or supervise. More importantly, there’s no evidence Chief

McClelland or Sergeant Newcomb were aware of any prior violations. See

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Davis, 406 F.3d at 381. McDonald’s failure to train and supervise theory fails

as a matter of law.

* * *

We REVERSE as to bystander liability and supervisory liability,

VACATE as to excessive force, and REMAND for further proceedings

consistent with this opinion.

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