IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60818

TRACY YOUNG, 

 Plaintiff - Appellant 

v. 

ISOLA, MISSISSIPPI, By and Through its Mayor, Bobbie Miller; OFFICER 

MICHAEL KINGDOM, Individually; JOHN DOES 1-5; ISOLA POLICE 

DEPARTMENT, By and Through its Chief of Police, Charles Sharkey, 

 Defendants - Appellees 

Appeal from the United States District Court

for the Northern District of Mississippi 

USDC No. 3:15-CV-108

Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

While Michael Kingdom served as a police officer for the City of Isola, 

Mississippi, he allegedly made sexually suggestive and offensive comments to 

Tracy Young on three occasions and grabbed her arm on one of those occasions.

Young brought suit against Kingdom and Isola, as well as against Mayor 

Bobbie Miller and Police Chief Charles Sharkey in their official capacities only, 

 

* 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.

United States Court of Appeals

Fif h Circuit

FILED

August 31, 2017

Lyle W. Cayce

Clerk

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asserting a variety of federal and state law claims. The district court granted 

summary judgment to Isola, Miller, and Sharkey (collectively, “Municipal 

Defendant”) on all of Young’s claims. It also dismissed all of Young’s claims 

against Kingdom. We VACATE and REMAND the district court’s dismissal of 

Young’s assault claim against Kingdom. We otherwise AFFIRM the judgment 

of the district court. 

I 

Young worked as a clerk at a Double Quick convenience store (“Double 

Quick”) located on Highway 49 in Humphreys County, Mississippi. Although 

Double Quick was “outside the corporate limits” of Isola, Isola police officers 

routinely refueled their police vehicles there and Double Quick offered on-duty 

officers one free drink per day. 

Kingdom repeatedly went to Double Quick in uniform. In February 2014, 

he allegedly entered Double Quick and made sexually explicit and offensive 

comments to Young. Young reported the incident to her manager and filled out 

a report. Young and Kingdom allegedly had two additional encounters in 

October 2014. According to Young, Kingdom grabbed Young’s arm and made 

sexually suggestive and offensive comments on October 14 or 15, 2014. On 

October 17, 2014, Kingdom walked into Double Quick and made comments 

about Young speaking with other men. Young laughed at him. 

Young told her cousin, Alderman Lawrence Anderson, about her 

encounters with Kingdom, and he told her to report the incidents to the police. 

Young went to the Humphreys County Sheriff’s Department on October 20, 

2014 and filed a complaint against Kingdom. She later returned to the Sheriff’s 

Department and spoke with Bubba Lloyd about her allegations. He called 

Young’s manager and a coworker to discuss the allegations and obtained 

security camera footage of the October 17, 2014 incident from Double Quick. 

Sharkey also reviewed the footage, which did not have audio. He testified that 

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the footage showed Kingdom walking around Double Quick and Young 

laughing. 

Young brought suit against Kingdom and Municipal Defendant, 

asserting a variety of federal and state law claims relating to her encounters 

with Kingdom. Municipal Defendant timely filed an answer, but Kingdom did 

not file any responsive pleading. The clerk later entered an entry of default 

against Kingdom. 

Municipal Defendant moved for summary judgment, which Young 

opposed. Young and Municipal Defendant then submitted a pretrial order, 

approved by the district court, which provided that “[t]he pleadings are 

amended to conform to this pretrial order.” Young asserted nine claims in the 

pretrial order. She asserted the following claims under § 1983: (1) violation of 

the right to procedural and substantive due process under the Fifth 

Amendment; (2) violation of the right to procedural and substantive due 

process under the Fourteenth Amendment; (3) violation of the right to equal 

protection under the Fourteenth Amendment; and (4) violation of the right 

against unreasonable seizure under the Fourteenth Amendment. Young also 

asserted a claim for conspiracy to interfere with civil rights under 42 U.S.C. 

§ 1985, as well as four state law claims: (1) assault; (2) violation of the right to 

equal protection under the Mississippi Constitution; (3) violation of the right 

to procedural and substantive due process under the Mississippi Constitution; 

and (4) breach of the duty to exercise reasonable care in the hiring, training, 

and supervision of a sworn police officer. 

The district court granted summary judgment to Municipal Defendant

on all of Young’s claims. It also dismissed Young’s claims against Kingdom. 

Young timely appealed. 

 

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II 

This court reviews an order granting summary judgment de novo, 

“applying the same standard as the district court.” Vela v. City of Hous., 276 

F.3d 659, 666 (5th Cir. 2001). Summary judgment is appropriate “if the movant 

shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

III 

Young appeals the district court’s grant of summary judgment. She 

argues that the district court erred by dismissing Young’s claims: (1) against 

Kingdom; (2) under § 1983; (3) under § 1985; and (4) under Mississippi state

law. We will address each of her arguments in turn. 

A 

Young argues that the district court erred in dismissing her claims 

against Kingdom because: (1) Kingdom defaulted and did not move for 

summary judgment; and (2) there is a genuine dispute of material fact 

regarding her assault claim against Kingdom. But contrary to Young’s 

assertions, the district court “did not err in allowing [Kingdom] to benefit from 

the [Municipal Defendant’s] favorable summary judgment motion.” Lewis v. 

Lynn, 236 F.3d 766, 768 (5th Cir. 2001). A “party is not entitled to a default 

judgment as a matter of right, even where the defendant is technically in 

default.” Id. at 767 (quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996)). 

“[W]here a defending party establishes that plaintiff has no cause of 

action . . . this defense generally inures also to the benefit of a defaulting 

defendant.” Id. at 768 (internal quotation marks omitted). As such, the district 

court had the authority to dismiss Young’s claims against Kingdom, despite 

his default. 

Young argues in the alternative that the district court erred by 

dismissing her assault claim against Kingdom because there are genuine 

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disputes of material fact regarding that claim. We agree. Under Mississippi 

law, “[a]n assault occurs where a person (1) acts intending to cause a harmful 

or offensive contact with the person of the other or a third person, or an 

imminent apprehension of such contact, and (2) the other is thereby put in such 

imminent apprehension.” Morgan v. Greenwaldt, 786 So. 2d 1037, 1043 (Miss. 

2001). Young testified at her deposition that Kingdom “grabbed [her] arm” and 

made offensive comments about her and her relationship with her husband in 

October 2014. 

Sharkey watched footage of the October 17, 2014 incident. He testified 

at his deposition that the video did not have audio, but that Young appeared 

to laugh. Young argues on appeal that the district court erred by considering 

Sharkey’s testimony regarding the contents of the footage because it is 

inadmissible under Mississippi’s best evidence rule. We need not resolve 

Young’s evidentiary challenge because, even considering Sharkey’s testimony, 

there is a genuine dispute of material fact regarding Young’s assault claim 

against Kingdom. Viewing the evidence in the light most favorable to Young, 

Kingdom grabbed her arm during an incident on October 14 or 15, 2014, and 

Sharkey watched footage of a separate incident between Kingdom and Young 

on October 17, 2014. As such, we VACATE the district court’s dismissal of 

Young’s assault claim against Kingdom and REMAND to the district court for 

further proceedings. 

B 

Young argues that the district court erred in granting summary 

judgment to Municipal Defendant on her § 1983 claims. To establish a claim 

under § 1983, “a plaintiff must (1) allege a violation of a right secured by the 

Constitution or laws of the United States and (2) demonstrate that the alleged 

deprivation was committed by a person acting under color of state law.” Whitley 

v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting James v. Tex. Collin Cty., 

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535 F.3d 365, 373 (5th Cir. 2008)). A governmental entity cannot be held 

vicariously liable under § 1983. Hicks-Fields v. Harris Cty., 860 F.3d 803, 808 

(5th Cir. 2017) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). 

As such, a plaintiff bringing a § 1983 claim against a governmental entity must 

also establish that “the action that is alleged to be unconstitutional” was 

caused by a custom or policy of that governmental entity. Id. (quoting Monell, 

436 U.S. at 690). The district court held that Young failed to establish any 

underlying constitutional violation and that, even if she had, she failed to 

establish municipal liability under Monell. It did not decide whether Kingdom 

acted under color of state law. 

In her initial brief, Young addresses only her underlying claim for 

violation of the right to substantive due process under the Fourteenth 

Amendment. But Young failed to make her arguments regarding substantive 

due process before the district court. As such, these arguments are waived on 

appeal. See Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir. 

2009). 

Young fails to address her underlying constitutional claims for violation 

of the right to substantive due process under the Fifth Amendment, violation 

of the right to equal protection under the Fourteenth Amendment, and 

violation of the right against unreasonable seizure under the Fourteenth 

Amendment in her initial appellate brief. This failure “constitutes a waiver of 

the right to have us review” these claims. Health Care Serv. Corp. v. Methodist 

Hosps. of Dall., 814 F.3d 242, 252 (5th Cir. 2016) (failure to challenge district 

court’s determination of a certain issue in initial appellate brief waives review 

of that determination). That Young addresses her claim for violation of the 

right to equal protection under the Fourteenth Amendment in her reply brief 

does not change the waiver analysis. See id. 

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Because we hold that Young waived review of her arguments regarding 

her underlying constitutional claims against Municipal Defendant, we do not 

address whether Kingdom acted under color of state law or whether Young 

established municipal liability under Monell. 

C 

 Young summarily argues that the district court erred in granting 

summary judgment to Municipal Defendant on her § 1985 conspiracy claim, 

asserting without record citation that Municipal Defendant conspired against 

her. To establish a claim under § 1985(3), a plaintiff must show that “(1) a 

racial or class-based discriminatory animus lay behind the conspiracy and 

(2) the conspiracy aimed to violate rights protected against private 

infringement.” Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 270 (5th 

Cir. 2001). The district court concluded, among other things, that Young “failed 

to present any proof that, even if the Municipal Defendant conspired to 

dissuade her from asserting her sexual harassment claim, it did so based on 

any gender-based discriminatory animus.” Young fails to argue in her initial 

appellate brief that Municipal Defendant conspired against her based on any

discriminatory animus. Young has thus waived review of this issue. See Health 

Care Serv. Corp., 814 F.3d at 252. 

D 

Young argues that the district court erred in granting summary 

judgment to Municipal Defendant on her state law claims. Young asserted four 

claims under Mississippi state law: (1) assault; (2) violation of the right to 

equal protection under the Mississippi Constitution; (3) violation of procedural 

and substantive due process under the Mississippi Constitution; and (4) breach 

of the duty to exercise reasonable care in the hiring, training, and supervision 

of a sworn police officer. But Young fails to address the first three claims 

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against Municipal Defendant in her initial appellate brief. As such, she waived 

review of these issues. See id. 

We reject Young’s challenge of the district court’s grant of summary 

judgment regarding her claims for breach of duty to exercise reasonable care 

in the hiring, training, and supervision of Kingdom. The district court held that 

Municipal Defendant was immune from suit on these claims under the 

Mississippi Tort Claims Act (“MTCA”). The MTCA “is the exclusive civil 

remedy against a governmental entity or its employee for tortious acts or 

omissions which give rise to a suit.” Elkins v. McKenzie, 865 So. 2d 1065, 1073 

(Miss. 2003) (citing Miss. Code Ann. § 11-46-7(1)). A governmental entity is not 

liable under the MTCA for any claim “[b]ased upon the exercise or performance 

or the failure to exercise or perform a discretionary function or duty on the part 

of a governmental entity or employee thereof, whether or not the discretion be 

abused” or “[a]rising out of the exercise of discretion in determining . . . the 

hiring of personnel.” Miss. Code Ann. § 11-46-9(1)(d), (g). The Mississippi 

Supreme Court held that “[t]he manner in which a police department 

supervises, disciplines and regulates its police officers is a discretionary 

function of the government” for which the governmental entity is immune to 

suit. City of Jackson v. Sandifer, 107 So. 3d 978, 987 (Miss. 2013) (quoting City 

of Jackson v. Powell, 917 So. 2d 59, 74 (Miss. 2005)). Municipal Defendant is 

thus not liable under the MTCA for Young’s claims that it breached its duty to 

exercise reasonable care in the hiring, training, and supervision of Kingdom. 

IV 

We VACATE and REMAND the district court’s dismissal of Young’s 

assault claim against Kingdom. We otherwise AFFIRM the judgment of the 

district court. 

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