United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 04-50194
Summary Calendar
JUDY DABNEY; MELVIN DABNEY,
on behalf of all surviving heirs,
Plaintiffs-Appellants,
versus
CITY OF MEXIA; POLICE DEPARTMENT OF MEXIA, TEXAS;
UNKNOWN POLICE OFFICERS; ROGER BROOKS,
Chief of Police, Mexia, Texas,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-03-CV-40
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Judy and Melvin Dabney (the “Plaintiffs”) appeal the
district court’s summary judgment dismissal of their civil
complaint for damages against the City of Mexia (the “City”) and
Chief of Police Roger Brooks (“Chief Brooke”).** The Plaintiffs
assert that they produced summary judgment evidence sufficient to
establish a genuine issue of material fact concerning municipal
*
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this opinion should not be published and is not precedent except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.
**
The correct spelling is Roger Brooke.
No. 04-50194
-2-
liability, i.e., evidence of a municipal policy or custom that
was causally linked to the alleged violation of Lynn Dabney’s
constitutional rights.
We review a grant of summary judgment de novo; we consider
the evidence and inferences to be drawn therefrom in the light
most favorable to the nonmovant. See Olabisiomotosho v. Houston,
185 F.3d 521, 525 (5th Cir. 1999). Summary judgment is proper if
the pleadings and discovery “show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” FED. R. CIV. P. 56(c). “In
response to a properly supported motion for summary judgment, the
nonmovant must identify specific evidence in the record and
articulate the manner in which that evidence supports that
party’s claim.” Johnson v. Deep East Texas Regional Narcotics
Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004). The
nonmovant cannot meet his burden with conclusional allegations,
unsubstantiated assertions, or a scintilla of evidence. See
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc).
The Plaintiffs assert that they raised a genuine issue of
material fact concerning the City’s failure to train its police
officers on the use of force and police brutality. In support of
this assertion, the Plaintiffs presented in their motion for new
trial, Officer Boyd’s testimony that the City did not train him
regarding the use of force.
No. 04-50194
-3-
The Plaintiffs’ evidence did not establish that Chief Brooke
failed to train the officers whose conduct allegedly violated
Lynn Dabney’s constitutional rights. Thompson v. Upshur County
245 F.3d 447, 459 (5th Cir. 2001). The evidence did not
establish that the alleged failure to train Officer Boyd was
causally connected with the violation of Lynn Dabney’s rights.
See id.
The Plaintiffs assert that they produced evidence of a
practice of widespread harassment and use of excessive force by
the City’s police officers. Charlie Hays, a Mexia citizen,
testified that Officer Whisler, who is his uncle, threatened and
harassed him and Lynn Dabney. Hays testified that on one
occasion, an unidentified Mexia police officer, without
provocation, punched him and injured his face.
Hays’ testimony did not establish a “pattern of similar
incidents in which citizens were injured or endangered by
intentional or negligent police misconduct and/or that serious
incompetence or misbehavior was general or widespread throughout
the police force.” See Fraire v. City of Arlington, 957 F.2d
1268, 1278 (5th Cir. 1992). Hays’ testimony did not establish
that a governing body or policy-maker of the City had actual or
constructive knowledge of any such “practice” of police
misconduct. See Piotrowski v. City of Houston, 237 F.3d 567, 579
(5th Cir. 2001).
No. 04-50194
-4-
The Plaintiffs assert that Chief Brooke, a policy-maker,
delegated his authority to Officer Whisler, thereby making
Whisler a policy-maker. The Plaintiffs contend that Whisler’s
actions were a direct cause of the violation of Lynn Dabney’s
constitutional rights, and because Whisler is a policy-maker, the
City is liable for Whisler’s actions.
The Plaintiffs’ evidence did not establish that Chief Brooke
delegated policy-making authority to Officer Whisler. Webster v.
City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc).
Absent evidence that Whisler was a policy-maker, the City was not
liable for Whisler’s conduct. See Bass v. Parkwood Hosp., 180
F.3d 234, 244 (5th Cir. 1999). The Plaintiffs did not produce
evidence sufficient to establish a genuine issue of material fact
concerning municipal liability for Lynn Dabney’s injuries and
death. See Johnson, 379 F.3d at 301.
Because the Plaintiffs have not challenged the district
court’s finding that they did not name individual officers as
defendants or the district court’s dismissal of their claims
against the Mexia Police Department, they have abandoned any
appeal of these issues. See Evans v. City of Marlin, Texas, 986
F.2d 104, 106 n.1 (5th Cir. 1993); Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
The Plaintiffs have not shown that the district court’s
denial of their motion for new trial was an abuse of discretion.
Wallace v. Texas Tech Univ., 80 F.3d 1042, 1052 (5th Cir. 1996).
No. 04-50194
-5-
The Plaintiffs have not shown that the district court’s denial of
their motion for a continuance to conduct additional discovery
was an abuse of discretion. See Canady v. Bossier Parish Sch.
Bd., 240 F.3d 437, 445 (5th Cir. 2001); Chevron U.S.A., Inc. v.
Traillour Oil Co., 987 F.2d 1138, 1155 (5th Cir. 1993) (we will
not disturb the district court’s decision on a motion for a
continuance absent an abuse of discretion and will affirm the
denial of a continuance on a summary judgment motion “unless it
is arbitrary or clearly unreasonable.”).
Accordingly, the judgment of the district court is AFFIRMED.