The opinion
Case: 23-30236 Document: 00516982174 Page: 1 Date Filed: 11/28/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-30236
Summary Calendar FILED
____________ November 28, 2023
Lyle W. Cayce
Willie Levens, II, Clerk
Plaintiff—Appellant,
versus
Louisiana Insurance Guaranty Association,
Intervenor Plaintiff—Appellee,
Dexter Gaspard; Tim Soignet; Atlantic Specialty
Insurance Company,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-35
______________________________
Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam: *
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30236 Document: 00516982174 Page: 2 Date Filed: 11/28/2023
No. 23-30236
Plaintiff-Appellant, Willie Levens, II, proceeding pro se and in forma
pauperis, appeals the district court’s summary judgment in favor of
Defendant-Appellee, Dexter Gaspard, dismissing Plaintiff’s 42 U.S.C.
§ 1983 claim. Because Gaspard is entitled to qualified immunity, we
AFFIRM.
I. BACKGROUND
On February 22, 2020, Gaspard, who is a sheriff’s deputy with the
Terrebonne Sheriff’s Office, was eating at Honest Abe’s BBQ in Houma,
Louisiana. At that time, Gaspard was not on duty and wearing plain clothes.
Plaintiff, who worked part time at the restaurant, previously met Gaspard
when he was in uniform. While Gaspard was eating, a Mardi Gras party bus
with parade partygoers pulled up to the restaurant. Plaintiff departed the bus
with some partygoers and entered the restaurant.
In his complaint, Plaintiff alleged that Gaspard was “grossly
intoxicated” and mistook him for another individual. Plaintiff asserted that
Gaspard pushed him out the door to the restaurant, causing him to fall and
“sustain severe injuries.” Plaintiff further alleged that Gaspard followed him
outside and “forcibly restrained him against a vehicle by holding his elbow
against his neck.” Gaspard informed him that he was a police officer and that
he had called additional police officers to the scene. Plaintiff further alleged
that once the additional deputies arrived, they determined he was not
suspected of any wrongdoing and allowed him to leave the premises.
In Gaspard’s deposition, however, he testified that it was not he who
was intoxicated, but Plaintiff. Specifically, Gaspard testified that after
Plaintiff entered the restaurant, he observed Plaintiff being “belligerent,”
“hollering,” and “spill[ing] some beer on the floor.” An owner of the
restaurant (Tyler Verdin) then asked Plaintiff to stop and leave. Gaspard saw
Verdin grab Plaintiff and try to escort Plaintiff out the door, but Plaintiff
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pulled away causing Verdin to fall over a child’s highchair. Gaspard testified
that at that point, the customers in the restaurant became frightened.
Gaspard stood up and grabbed Plaintiff, but Plaintiff pushed him backwards.
Gaspard then stepped forward with Plaintiff, and they exited the door, at
which point Gaspard “let him go.” Plaintiff then ran into a wheel stop in the
parking lot, falling backwards on his bottom.
The security footage is consistent with Gaspard’s testimony. It shows
Gaspard pushing Plaintiff out the door to the restaurant, and Plaintiff falling
backwards. Gaspard and others followed Plaintiff outside. They are visibly
agitated with Plaintiff, motion for him to stay out of the restaurant, and
someone even locks the door to prevent Plaintiff from reentering. Plaintiff
shows obvious signs of intoxication—he can barely standup and walk.
Plaintiff’s fellow paradegoers surround him after he stands up, try to keep
him upright, and restrain him from walking back towards the restaurant.
After Plaintiff goes back into the party bus, and then comes back out with
another man, he approaches Gaspard. Gaspard holds his arm up to prevent
Plaintiff from reentering the restaurant. Finally, Plaintiff, Gaspard, and the
other man walk to the other side of the restaurant, out of the view of the
security cameras.
Plaintiff alleges that Gaspard then forcibly restrained him by holding
his elbow against his neck. Gaspard testified that he actually pulled Plaintiff
out of oncoming traffic in the street and that he held Plaintiff’s arm while
Plaintiff leaned against a vehicle until other sheriff deputies arrived on the
scene. In his complaint, Plaintiff seeks damages under 42 U.S.C. § 1983 for
excessive use of force and unlawful detention in violation of his constitutional
rights, as well as damages under state law.
Gaspard moved for summary judgment seeking dismissal of Plaintiff’s
complaint based on qualified immunity because his actions constituted a
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reasonable use of force. The district court granted the motion, determining
that based on the video surveillance and deposition testimony, Gaspard’s use
of force was reasonable. The district court further declined to exercise
supplemental jurisdiction over Plaintiff’s state law claims.
Plaintiff filed a motion for new trial. He attached an unsworn
statement, purportedly signed by Verdin, stating that Plaintiff never posed a
threat to anyone inside the restaurant; that Gaspard aggressively pushed
Plaintiff out the restaurant, put Plaintiff in a “choke hold,” and used a racial
epithet; and that the officers who arrived at the scene tried to get Verdin to
make a false statement so they could arrest Plaintiff. The district court
construed Plaintiff’s motion as a motion to alter or amend the judgment
under Rule 59(e) and denied the motion. Plaintiff filed a timely notice of
appeal.
II. DISCUSSION
“This court reviews a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.” 1 Summary
judgment is warranted when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” 2 We view
the facts in the light most favorable to the non-moving party and draw all
reasonable inferences in his favor. 3 However, when video evidence is
available, we are not bound to adopt the non-movant’s version of the facts if
his version is contradicted by that evidence. 4 To prevail on his excessive
force claim, Plaintiff must show “(1) injury, (2) which resulted directly and
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1
Scott v. City of Mandeville, 69 F.4th 249, 254 (5th Cir. 2023) (citation omitted).
2
Fed. R. Civ. P. 56(a).
3
Scott, 69 F.4th at 254.
4
Id.
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only from a use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable.” 5
Plaintiff asserts that Gaspard used “unreasonable and unnecessary
force when he grabbed [him] and threw [him] out of Honest Abe’s
Restaurant.” He asserts that the “video footage shows . . . Gaspard using
excessive and unnecessary force.” We disagree. The video footage shows
that Gaspard’s use of force was not clearly unreasonable. “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.” 6 “[R]elevant factors include ‘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.’” 7
Here, the video footage shows that Plaintiff was severely
intoxicated—he could barely standup and walk. Although there is no video
footage of what occurred while Plaintiff was inside the restaurant, it is clear
from the agitated looks of Gaspard and others who followed Plaintiff outside
that Plaintiff had been disruptive and uncooperative and was not welcome in
the restaurant. Moreover, it is apparent that Plaintiff’s behavior was a threat
to the safety of those inside the restaurant, as someone locked the doors to
the restaurant immediately after Plaintiff exited so that he could not gain
reentry. While the video shows that Gaspard pushed Plaintiff out the door,
Gaspard’s use of force was not clearly excessive or clearly unreasonable in
light of Plaintiff’s severe intoxication and threatening behavior.
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5
Id. at 256 (citation omitted).
6
Id. (citing Graham v. Conner, 490 U.S. 386, 396 (1989)).
7
Id. (citation omitted).
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Plaintiff argues that the affidavit of Tyler Verdin supports his
excessive force claim. Plaintiff submitted, for the first time, the unsworn
statement of Verdin with his motion to alter and amend the judgment. The
district court properly rejected the statement under Rule 56(c) because it was
not an affidavit and under 28 U.S.C. § 1746 because it was not in the proper
form to be considered a valid unsworn declaration. On appeal, Plaintiff has
attempted to file the same statement of Verdin, but this time with his
notarized signature. But, as the Clerk of this Court advised Plaintiff in a letter
dated June 21, 2023, this Court does not consider evidence furnished for the
first time on appeal. 8
Finally, Plaintiff argues in his reply brief that his claim that Gaspard
choked him should not have been dismissed. We generally do not consider
arguments raised for the first time in a reply brief and deem those arguments
waived. 9 Even if we were to consider it, Plaintiff’s claim fails on the merits
as he alleged no injury associated with the alleged choking. 10
AFFIRMED.
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8
Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
9
Flex Frac Logistics, LLC v. N.L.R.B., 746 F.3d 205, 208 (5th Cir. 2014).
10
See Scott, 69 F.4th at 256.
6