United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 4, 2003
Charles R. Fulbruge III
Clerk
No. 02-41648
Summary Calendar
GREGORY JEROME DAY,
Plaintiff-Appellant,
versus
ROGERS, Chief; EVELYN WELLS ROBINSON; RICK BOYLE,
Captain; TWO UNKNOWN NAMED, Two Unknown Named Galveston
Police Officers; FERNANDO BERTRAND; MCLANE, Officer;
K. TRUSSELL, Officer; CITY OF GALVESTON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-96-CV-487
USDC No. G-96-CV-619
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Gregory Jerome Day, currently Texas inmate # 635963,
proceeding pro se and in forma pauperis (“IFP”), appeals the
district court’s dismissal as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2) of his civil rights complaint. Day contends that
Officer Bertrand’s conduct constituted the use of excessive force
in violation of his rights under the Fourth Amendment. He
*
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that this opinion should not be published and is not precedent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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contends that the constitutional right at issue was clearly
established and that Bertrand acted unreasonably. He argues that
the City of Galveston is liable for Bertrand’s conduct and for
the inadequate training of its officers.
Day has abandoned his claims against Police Chief Rogers by
failing to assert them sufficiently in his initial brief. Price
v. Roark, 256 F.3d 364, 369 n.2 (5th Cir. 2001); Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Accordingly, we AFFIRM the dismissal of Day’s claims against
Chief Rogers. See Bickford v. International Speedway Corp., 654
F.2d 1028, 1031 (5th Cir. 1981).
Qualified immunity shields police officers from suit “unless
their conduct violates a clearly established constitutional
right.” Mace v. City of Palestine, F.3d , 2003 WL
21313717, *2 (5th Cir. Jun. 24, 2003). “Claims of qualified
immunity require us to decide (1) whether the alleged facts taken
in the light most favorable to the party asserting the injury
“show that the officer’s conduct violated a constitutional
right”; and (2) if so, “‘whether the right was clearly
established--that is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.’” Id.
Claims that police officers used excessive force are
analyzed under the Fourth Amendment’s objective reasonableness
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standard. Id. This reasonableness determination requires a
balancing of “the nature and intrusion on the individual’s Fourth
Amendment interests’ against the countervailing governmental
interests at stake.” Gutierrez v. City of San Antonio, 139 F.3d
441, 447 (5th Cir. 1998). We consider “the severity of the crime
at issue, whether the suspect pose[d] an immediate threat to the
officers or others, and whether he [was] actively resisting
arrest or attempting to evade arrest by flight. Id. The fact
that police officers are required to make split second judgments
under tense and rapidly evolving circumstances is considered.
Id. If the officer reasonably but mistakenly used excessive
force, he is entitled to qualified immunity. See id.
Day’s allegations, taken as true, could constitute a
constitutional violation. See Saucier v. Katz, 533 U.S. 194,
201-02 (2001); Tennessee v. Garner, 471 U.S. 1, 3 (1985).
However, on the present record, we cannot decide whether there
was a violation of a clearly established right, and whether if
so, the officer’s conduct was objectively reasonable.
Day, in verified pleadings, alleged that Officer Bertrand
used the police car to run him down from behind in order to
apprehend him. Verified documents may serve as competent summary
judgment evidence. King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994). The defendants provided sworn affidavits in which they
stated that as Officer Bertrand was positioning the patrol car so
that Officer Fleming could exit and pursue Day on foot, Day ran
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into the patrol car. The district court decided that “Bertrand
did not drive up onto the sidewalk and run Day down, nor did he
chase Day in the street and run over him.”
The district court’s finding is based on disputed facts and
is material to the determination whether there was a violation of
a clearly established constitutional right and whether Bertrand’s
conduct was objectively reasonable. Accordingly, we REVERSE the
judgment of the district court and REMAND for further
consideration of Day’s claims against Officer Bertrand and the
City of Galveston.
Day asserts that Officer Bertrand acted in retaliation to
avenge an injury that occurred to Officer Oliver. Day asserts
that he raised the retaliation issue in the district court in a
document filed on April 30, 1998, and that the district court did
not address his retaliation claim. Leave of court is required
before a party may amend his complaint if service has been
effected. FED. R. CIV. P. 15(a). Day did not request leave to
amend his complaint to add a retaliation claim.
Day asserts that his allegations of excessive force
constituted a claim of assault and battery under Texas law. Day
did not assert an assault and battery claim and a mental anguish
claim in his complaints or in his amended complaint. Further,
Day does not allege that the district court erred by failing to
consider his state law claims. The failure to assert error in
the district court’s treatment of an issue is the same as if the
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appellant had not appealed that judgment. Brinkmann, 813 F.2d at
748.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.