Legranb v. Gillman

576 F. App'x 334
Court of Appeals for the Fifth Circuit·Decided July 23, 2014·No. No. 13-10733·Published·Cited by 4 cases

Opinion

PER CURIAM: *

Plaintiff-appellant Sarah Bays Legrand appeals, pro se, from the district court’s order granting summary judgment dismissal of her 42 U.S.C. § 1983 claim against defendant Jim Gillman. Before the district court, Legrand contended that Gillman violated her Fourth and Fourteenth Amendment rights by using excessive force while facilitating her arrest and by entering her home without cause, warrant, or invitation. The district court held that, because Legrand failed to present evidence of a constitutional violation, Gill-man was entitled to qualified immunity and summary judgment. For the reasons that follow, we affirm.

I.

On September 28, 2010, while working an evening shift as a courtesy officer at Legrand’s condominium complex, Gillman observed an altercation between Legrand and another resident of the complex.1 Specifically, Gillman claims he saw Le-grand throw a chunk of ice at the resident’s moving vehicle while yelling “slow down.” Legrand disputes throwing the ice, claiming instead that the ice inadvertently flew from her bucket as she turned to observe the passing car. Legrand claims that Gillman, upon witnessing the flying ice, grabbed her upper left arm and placed his right fist against her back, and she asserts that this act constitutes excessive force in violation of her Fourth Amendment rights. Gillman maintains that he made contact with Legrand, but at no time did he take Mrs. Legrand into custody or assault her.

Legrand and Gillman next proceeded on foot to Legrand’s nearby home so that Legrand could retrieve her identification. According to Legrand, Gillman ordered her to her home; Gillman remembers asking Legrand to return to her residence. [336] Legrand claims that, when she returned from her bedroom with her identification, Gillman was standing in her living room, in violation of her Fourth Amendment protection against illegal searches and seizures and her Fourteenth Amendment right to equal protection. Legrand’s son, Edward Stobart, filed an affidavit to this effect as well. Gillman claims that he did not enter Legrand’s home, but waited at her threshold while he telephoned the Arlington Police Department and requested that an officer be dispatched to his location to report on the ice incident. After ascertaining Legrand’s identity, Gillman left Le-grand and returned to his shift; soon thereafter, Arlington Police arrived on the scene and arrested Legrand for criminal mischief. The charge was dismissed after Legrand completed an anger-management course, pursuant to a pre-trial diversion agreement between Legrand and the Tar-rant County District Attorney’s Office.

II.

Legrand brought this suit against Gill-man in October of 2012. Gillman filed a motion for summary judgment based on qualified immunity. The court ordered that the motion be unfiled because Gillman had not mailed a copy of the motion to chambers, as required by local rules. The error was corrected the same day, and Gillman refiled the motion in accordance with the court’s procedural requirements. This time, however, Gillman failed to reserve Legrand with the motion, and, as a result, Legrand did not file a response to the motion for summary judgment. Le-grand did receive the original motion, however, which was identical to the one Gill-man refiled.

The district court entered an order granting Gillman’s motion for summary judgment and dismissing all of Legrand’s claims with prejudice. Although Legrand had not filed a response, she had previously filed numerous documents and pleadings (most prominently, her verified amended complaint and her verified response to Gillman’s assertion of qualified immunity) in which she submitted her account of the events underlying the suit and opposed Gillman’s request for qualified immunity. Adopting Legrand’s version of events as presented in those documents, the district court held that Gillman was entitled to qualified immunity because Legrand had failed to raise an issue of material fact as to whether Gillman had committed any constitutional violations.

Once Gillman’s counsel learned that he had failed to re-serve Legrand with the motion for summary judgment, he advised the court accordingly and suggested that the issue would best be addressed by allowing Legrand to file a post-judgment motion under Federal Rule of Civil Procedure 59 or 60 to permit her to file an opposition.2 Legrand filed a response to this advisory, in which she explicitly refused to file a post-judgment motion.

III.

Legrand argues on appeal that the district court erred by granting Gillman’s motion for summary judgment without allowing her an opportunity to respond. We cannot agree. In her response to the de[337] fendant’s advisory to the court, Legrand emphatically indicated that there was no need for such a motion because she had already provided the court with all of her legal arguments concerning Gillman’s entitlement to qualified immunity in previous filings. The district court considered these arguments in its ruling on the summary judgment motion. Thus, any assertion that summary judgment was granted without Legrand having an opportunity to make an argument in opposition is without merit.

Legrand also argues on appeal that the district court erred in concluding that the summary-judgment evidence raised no issue of material fact as to whether Gillman violated her constitutional rights by (1) allegedly grasping her upper left arm and placing his right fist on her back and (2) allegedly entering her home without warrant, cause, or invitation. The district court held, even in the light most favorable to Legrand, that no constitutional violation had occurred because Legrand failed to allege even a de minimis injury with respect to Gillman’s alleged use of excessive force, and because Gillman’s entry into Legrand’s home was at most a trespass. Legrand, however, has failed to preserve any claim of error concerning the district court’s resolution of her constitutional claims.

Although this court liberally construes the briefs of pro se appellants, “we also require that arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988). An appellant’s brief must contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R.App. P. 28. “Conclusory briefing” that “fails to address the ... substantive reasons articulated by the [lower court]” is inadequate. Stevens v. Hayes, 535 Fed.Appx. 358, 359 (5th Cir.2013) (per curiam)).

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Legranb v. Gillman, 576 F. App'x 334 (5th Cir. 2014).

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