United States Court of Appeals

for the Fifth Circuit

No. 21-20118

Clarence Evans, 

Plaintiff—Appellant,

versus

Garrett Lindley, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:19-CV-03627

Before Barksdale, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:*

Plaintiff brought this 42 U.S.C. § 1983 action in Texas state court 

claiming that the Defendant law enforcement officer unlawfully detained him

in violation of the Fourth and Fourteenth Amendments. After removal and 

discovery, the district court granted the Defendant’s motion for summary 

judgment and denied Plaintiff’s motion for reconsideration. We AFFIRM.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 2, 2021

Lyle W. Cayce

Clerk

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I.

Garrett Lindley is a law enforcement officer working for the Harris 

County Constable’s Office. In May 2019, he received a dispatch call alerting 

him that two bail bondsmen believed that Quintin Prejean, a wanted fugitive 

with two active felony warrants, might be in the area. Lindley met with the 

bondsmen, who told him they had seen a man matching Prejean’s description 

walking a dog nearby. After taking a cell phone photograph of Prejean’s

mugshot and verifying the warrant information with dispatch, Lindley drove 

to the area where the bondsmen claimed to have seen Prejean. Lindley 

spotted Clarence Evans, compared Evans to the cell phone picture, believed

that he was Prejean, and approached him under the pretext of asking about 

Evans’ dog. Although the details are disputed, Lindley informed Evans that 

he was looking for a fugitive; Evans replied that he was not the man for whom

Lindley was looking. Evans retrieved his wallet and held it in his hand but

refused to tell Lindley his name or provide identification.

1 Evans began to 

walk up his driveway towards his garage. Lindley, still believing Evans to be 

Prejean, followed.

At this point, Evans’ wife began recording with her cell phone.

2

 

Lindley placed an open hand on Evans’ back and used his other hand to hold 

Evans’ right wrist. Evans continued to hold his wallet in his left hand. Both 

1 We note that Evans’ statement of facts is inconsistent with the record in this case. 

For example, Evans claims that he provided his name to Lindley when the encounter began. 

This contradicts Evans’ own allegation that he refused to provide his name and 

identification, his response to a request for admission to the same effect, and the joint 

proposed pretrial order wherein Evans’ refusal to provide his name and identification is 

listed as an admission of fact.

2 Lindley’s bodycam was not active during the encounter. There is no mention of 

any dashcam or other bodycam footage in the record. Thus, the only video evidence in this 

case is the cell phone recording taken by Kenya, Evans’ wife. That evidence consists of two 

videos, about seven and a half minutes in total, filed manually with the district court.

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Evans and his wife repeated that Evans was “not Quintin.” Lindley, 

meanwhile, told Evans that if he could “see the ID then we’ll be done.” 

Lindley offered to show Evans the photo of Prejean on Lindley’s cell phone, 

to which Evans responded, “show me the picture, show me the picture.” But 

upon learning that the picture was on a cell phone in Lindley’s car, Evans 

declined to go with him to retrieve it. Evans continued refusing to tell Lindley 

his name. Lindley radioed for backup and Deputy Jeremy Gheen arrived 

shortly thereafter. Deputy Gheen retrieved Lindley’s cell phone and, before 

showing Evans the photo, Lindley said “I want to do this so we’re done.” 

Lindley showed Evans the photo, saying “doesn’t that look a lot like you?” 

Evans again denied that he was Prejean, and in the ensuing disagreement 

Lindley obtained Evans’ wallet, though his method of doing so is disputed. 

Lindley, in a span of about five seconds, opened Evans’ wallet, checked

Evans’ identification, saw that Evans was telling the truth, and returned the 

wallet. Lindley and Deputy Gheen drafted an incident report, provided it to 

Evans, and left the premises.

About a month later, Evans, represented by counsel, sued Lindley in 

Texas state court under 42 U.S.C. § 1983, claiming that Lindley’s actions 

constituted an unlawful detention in violation of the Fourth and Fourteenth 

Amendments to the United States Constitution.

II.

We must first ascertain the issues properly before us.3 The district 

court made a slew of evidentiary rulings, Evans v. Lindley, No. CV H-19-3627, 

2020 WL 6504449, at *1–2 (S.D. Tex. Nov. 5, 2020), determined that the 

3 Evans asks the Court only to reverse the district court’s grant of summary 

judgment and remand for further proceedings. But Evans briefed an additional evidentiary 

issue, so we conclude that he seeks relief on that ground as well.

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only claim before it was an unlawful detention claim, id. at *6, and granted 

summary judgment on qualified immunity grounds. Id. As best we can tell, 

Evans argues that: 1) the district court erred in granting qualified immunity 

on the unlawful detention claim; 2) the district court erred in admitting a 

screenshot of two arrest warrants over Evans’ hearsay and authentication 

objections; and 3) the district court erred in determining that Evans’ claim 

concerning the search and seizure of his wallet was not properly raised in the 

pleadings. The first two issues are clearly before us; the third is not.

The district court granted summary judgment only on Evans’ claim of 

unlawful detention in violation of the Fourth and Fourteenth Amendments, 

since this was the only claim under § 1983 that Evans asserted in his petition.4

Id. at *6. Relying on this court’s opinion in Hoffman v. L & M Arts, the district 

court concluded that Evans’ search-and-seizure claim was raised for the first 

time in summary judgment briefing and, therefore, was not properly before 

it. Id. at *6 (citing Hoffman v. L & M Arts, 838 F.3d 568, 576 (5th Cir. 2016) 

(claims raised only in response to a summary judgment motion are not 

properly before the court)).

Evans must dispute that determination in his opening brief to avoid 

waiving his objection on appeal. CenturyTel of Chatham, LLC v. Sprint 

Commc’ns Co., 861 F.3d 566, 573 (5th Cir. 2017). Even arguments nominally 

raised on appeal must be adequately briefed. A party must “clearly identify[] 

a theory as a proposed basis for deciding the case.” United States v. Scroggins, 

599 F.3d 433, 447 (5th Cir. 2010). This ordinarily involves “identify[ing] the 

relevant legal standards” and relevant circuit caselaw. Id.

4 Evans commenced the suit with an “Original Petition” in Texas state court. This 

document is the operative complaint but will be referred to herein as a petition.

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While Evans argues that the search and seizure of his wallet was 

unconstitutional, he does not argue that the district court erred in 

determining that the search-and-seizure claim was not properly before it. In 

his argument on reply, Evans cites no statement in his opening brief that 

ostensibly raises the issue. Thus, the argument is waived for failure to raise it 

in the opening brief. CenturyTel, 861 F.3d at 573. But even if the argument is 

raised, in his opening brief it is inadequately briefed and is waived for that 

reason as well. Scroggins, 599 F.3d at 447. Evans does not discuss the 

pleadings or cite authority on pleading standards, nor does he make any 

discernible argument that the district court erred in disregarding the searchand-seizure claim. This failure to raise the argument lulled Lindley into 

believing that Evans did “not challenge th[e] ruling on appeal,” only to have 

Evans raise the issue in his reply brief. This sort of briefing is fundamentally 

unfair. When appellants raise arguments this way it deprives appellees of any 

meaningful opportunity, short of a disfavored surreply, to respond. See 

RedHawk Holdings Corp. v. Schreiber, 836 F. App’x 232, 235 (5th Cir. 2020)

(per curiam) (surreplies disfavored). That is why we consider such 

arguments waived and do so here.

III.

We next turn to whether there is a genuine dispute of material fact as

to whether Lindley’s detention of Evans was lawful. We hold that there is 

none and that Lindley is entitled to judgment as a matter of law. We therefore

affirm.

A. Standard of Review

We review a grant of summary judgment de novo and apply the same 

standard as the district court. Renfroe v. Parker, 974 F.3d 594, 599 (5th Cir. 

2020). Summary judgment is appropriate when “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of 

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law.” Fed. R. Civ. P. 56(a). We construe all the evidence and make all 

reasonable inferences in the light most favorable to the nonmoving party, but 

“will not consider evidence or arguments that were not presented to the 

district court . . . .” Am. Fam. Life Assurance Co. of Columbus v. Biles, 714 F.3d 

887, 895 (5th Cir. 2013) (per curiam) (internal quotation marks omitted).

Further, when a party’s story is “blatantly contradicted by the record . . . a 

court should not adopt that version of facts for purposes of ruling on a motion 

for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Thus, 

“facts established by video record” form the basis for our decision when they 

contradict those asserted by the parties. Kokesh v. Curlee, 14 F.4th 382, 385

n.2 (5th Cir. 2021). We are not limited to the district court’s analysis and may 

affirm on any basis presented to the district court. Boyett v. Redland Ins. Co., 

741 F.3d 604, 606–07 (5th Cir. 2014).

Because Lindley raised a qualified immunity defense, the “usual 

summary judgment burden of proof” shifts to Evans, “who must rebut the 

defense by establishing a genuine fact issue” material to whether Lindley’s 

actions violated clearly established law. Brown v. Callahan, 623 F.3d 249, 253 

(5th Cir. 2010) (citing Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 

2005)).

Qualified immunity has two prongs. The first requires us to determine 

“whether an official’s conduct violated a constitutional right.” Id. (citing 

Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)). The second requires us 

to determine “whether that right was clearly established at the time of the 

violation.” Id. Answering either in the negative is enough for the official to 

prevail. Id. For an official to violate a clearly established right, “the contours 

of [that] right [must be] sufficiently clear that every reasonable official would 

have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 

563 U.S. 731, 741 (2011) (cleaned up). The Supreme Court has “repeatedly 

told courts . . . not to define clearly established law at a high level of 

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generality.” Id. at 742. Instead, “the violative nature of [the] particular 

conduct” at issue must be clearly established. Id. Thus, qualified immunity 

protects “all but the plainly incompetent or those who knowingly violate the 

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

B. Factual Basis for Summary Judgment

At the outset we must resolve two disputes regarding the issue of

mistaken identity. First, the district court examined “side-by-side pictures of 

Quintin [Prejean] and Evans” along with “other pictures received in Evans’ 

deposition.” Evans, 2020 WL 6504449, at *3 n.3. Based on this examination, 

the court concluded that “Lindley’s mistaken identification of Evans as 

Quintin [Prejean] was objectively reasonable.” Id. Lindley argues, relying on 

United States v. Ferguson, that this “finding must stand on appeal” absent a 

showing of clear error. But Ferguson was an appeal from denial of a motion to 

suppress. United States v. Ferguson, 816 F. App’x 991, 992 (5th Cir. 2020)

(per curiam). This is an appeal from a grant of summary judgment reviewed 

de novo to determine if there is a genuine dispute of material fact. Renfroe, 

974 F.3d at 599.

Evans asserts throughout his briefs that he and Prejean do not 

resemble each other and cites the same pictures in the record. Based on our 

review of the record, we agree with the district court that, even drawing all 

inferences in favor of Evans, an officer could form an objectively reasonable 

suspicion that Evans might indeed be Prejean. In fact, the Supreme Court has 

explained that “[t]he Fourth Amendment is not violated by an arrest based 

on probable cause, even though the wrong person is arrested, nor by the 

mistaken execution of a valid search warrant on the wrong premises.” 

Graham v. Connor, 490 U.S. 386, 396 (1989) (emphasis added) (citations 

omitted). As discussed below, a Terry or investigative stop (the police action 

at issue here) requires only reasonable suspicion, a lower hurdle than 

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probable cause. United States v. Hensley, 469 U.S. 221, 229 (1985). Because it 

would be objectively reasonable to suspect that Evans might be Prejean, and 

Evans provides no analysis or record evidence to the contrary, there is no 

genuine dispute as to whether Lindley had a reasonable suspicion that Evans 

was Prejean at the outset of the incident.

Next, several factual assertions are contradicted by the video record 

in this case. See Kokesh, 14 F.4th at 385 n.2 (video evidence prevails over 

contrary assertions). Evans repeats at various points that once Lindley 

produced the cell phone photograph of Prejean, the confusion of Evans with

Prejean was “immediately dispelled” along with any reasonable suspicion 

that led to the stop. He also asserts that Deputy Gheen told Lindley that 

Evans was not Prejean, and that “he, Lindley, Evans, and Kenya, Evans’ 

wife, each compared the person on the photo . . . to Mr. Evans and each 

person immediately acknowledged the man in the photograph was not Mr. 

Evans.” But the video shows nothing of the sort. There is no discernible 

indication, verbal or otherwise, that Lindley or Deputy Gheen believed Evans 

was not the person in the photograph. There is likewise no support for the 

assertion that Deputy Gheen, Lindley, or even Kenya “acknowledged” that 

Evans was not the person in the photograph before Lindley searched Evans’ 

wallet. What the video does show is that Kenya is too far away to see the 

photograph, so she could not have examined it in order to acknowledge 

anything. And of those who did examine the photograph—Deputy Gheen, 

Evans, and Lindley—only Evans makes any statement that he is not the 

person in the photograph. Deputy Gheen continues to stand by and hold 

Evans. He does not tell Lindley that Evans is not Prejean. 

Evans’ conclusory assertion that “[a]ny facts to the contrary are . . .

disputed” is insufficient because “the mere existence of some alleged factual 

dispute . . . will not defeat . . . summary judgment; the requirement is that 

there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 

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U.S. 242, 247–48 (1986). Evans cites no record support outside the video to 

create a genuine dispute. Thus, on our review of the record we find that there 

is no genuine dispute that the confusion regarding Evans’ identity persisted 

until Lindley examined his identification and ascertained that he was being 

truthful.

C. Whether Lindley Violated a Constitutional Right5

Evans claims that Lindley detained him unlawfully, violating his rights 

under the Fourth Amendment. Lindley does not contest that he detained 

Evans.

The Fourth Amendment, through the Fourteenth Amendment,

prohibits unreasonable searches and seizures by state and local officials. U.S.

Const. amends. IV, XIV. Warrantless search and seizure are per se

unreasonable unless they fall within an exception to the warrant requirement. 

See Katz v. United States, 389 U.S. 347, 357 (1967). One exception permits 

brief investigatory stops based on “reasonable suspicion, grounded in 

specific and articulable facts,” that the person being stopped may be engaged 

in criminal activity or, more relevant here, “is wanted in connection with a 

completed felony.” Hensley, 469 U.S. at 229; see Terry v. Ohio, 392 U.S. 1, 

20–22 (1968). Terry governs this case. An investigative stop must be justified 

at the outset, and an officer’s actions during the stop must be “reasonably 

related in scope to the circumstances which justified the interference in the 

first place.” Terry, 392 U.S. at 20; United States v. Lopez-Moreno, 420 F.3d 

420, 430 (5th Cir. 2005).

5 Our decision to engage with the first prong of qualified immunity analysis in no 

way reflects disapproval of the district court’s decision to grant summary judgment on the 

second prong alone. District courts are busy places, and the Supreme Court has expressly 

recognized that foregoing lengthy first-prong analysis of issues that can be easily resolved 

on the second prong is permissible. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

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Lindley’s initiation of the investigative stop is squarely permitted by 

Supreme Court precedent. Again, officers meeting the reasonable suspicion 

standard may initiate a Terry stop of a person they suspect “was involved in 

or is wanted in connection with a completed felony.” Hensley, 469 U.S. at 

229. Thus, Lindley did not violate the law when he initiated the stop after he 

formed a reasonable suspicion that Evans was a wanted fugitive based on a 

comparison of Evans with the photograph of Prejean and a report by two bail 

bondsmen that Prejean might be in the area. 

Further, Lindley’s actions during the stop were reasonable and closely 

related to ascertaining whether Evans was Prejean and, if he was, preventing

further escape. Lindley’s initial approach, asking unrelated questions about 

Evans’ dog, did not violate the Fourth Amendment. See United States v. 

Brigham, 382 F.3d 500, 508 (5th Cir. 2004) (en banc) (questioning on topics 

unrelated to the purpose of the stop does not alone violate the Fourth 

Amendment). Asking Evans for identification was quintessentially related to 

the purpose of the stop: determining if Evans was a wanted fugitive. Neither 

party contests that Lindley initiated physical contact only after Evans refused 

to provide his name or identification and began walking up the driveway. 

Evans’ actions justified the additional restraint. A fugitive is likely to attempt 

an escape, and evasive or intransigent answers to questions regarding identity

are suspicious since a wanted fugitive is unlikely to be truthful about his or 

her identity. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“[E]vasive 

behavior is a pertinent factor in determining reasonable suspicion.”); Hill v. 

California, 401 U.S. 797, 803 (1971) (noting, in the probable cause context,

that “aliases and false identifications are not uncommon”). Finally, once 

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Lindley grabbed6 Evans’ wallet and checked the identification within, 

fulfilling the purpose of the stop, he immediately returned the wallet and 

released Evans, ending the detention. We therefore conclude that Lindley’s 

actions were fully consistent with a lawful Terry stop and, as a result, there 

was no unlawful detention.

Evans’ arguments to the contrary are unavailing. Beyond the odd 

citation to a case stating general Fourth Amendment principles, Evans fails 

to grapple with “Terry’s progeny, which includes thousands of cases.” 

Scroggins, 599 F.3d at 447. Instead, he makes three arguments. First, he 

argues that when Deputy Gheen “dispelled the reasonable belief or suspicion 

that Mr. Evans was the suspect,” the detention did not end and was therefore 

unlawful. But as we discuss above, there is no evidence in the record 

supporting the assertion that Deputy Gheen had any opinion whatsoever as 

to whether Evans resembled Prejean, much less that he “dispelled” the 

suspicion already formed by Lindley. This argument falls flat.

Next, Evans argues that his driveway is “curtilage” within the 

meaning of Fourth Amendment law and, as a result, Lindley’s invasion of the 

driveway to detain Evans violated the Fourth Amendment. The record shows 

that the entire incident took place on Evans’ open driveway and on the lawn 

beside it. Whether a particular location is curtilage depends on four factors: 

the proximity to the home, whether the area is within an enclosure that also 

encapsulates the home, what the area is used for, and the “steps taken by the 

resident to protect the area from observation by [passers-by].” United States 

v. Dunn, 480 U.S. 294, 301 (1987). Our decision in United States v. Beene

compels our holding here that Evans’ driveway is not curtilage. 818 F.3d 157, 

6 Although the parties dispute how Lindley obtained the wallet, Evans describes 

Lindley as “snatch[ing]” or “grabb[ing]” it. Viewing the video in the light most favorable 

to Evans, as we must, “grabbed” is an appropriate term.

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162 (5th Cir. 2016). As in Beene, “only the driveway’s proximity to the 

residence weighs in favor of a finding that it was part of the curtilage of the 

home.” Id. It is not enclosed and is therefore distinct from the partially 

enclosed and set back driveway at issue in Collins v. Virginia, 138 S. Ct. 1663, 

1670–71 (2018). Evans asserts no special usage that would confer curtilage 

status. Neither does Evans describe any steps he took to ensure the driveway, 

clearly visible from the street and surrounding neighborhood, was protected 

from observation. Evans’ driveway is not curtilage, and he was not afforded 

extra protection by being on it.

Finally, Evans argues that Lindley could have pursued alternate 

methods of investigating his reasonable suspicion. This argument also fails. 

“The Supreme Court has instructed that, once an officer has established 

reasonable suspicion, appellate courts are limited in reviewing how the police 

choose to alleviate that suspicion” if the intrusion is not of excessive length. 

United States v. Vickers, 540 F.3d 356, 362 (5th Cir. 2008). A contrary “rule 

would unduly hamper the police’s ability to make swift, on-the-spot decisions 

. . . and it would require courts to indulge in unrealistic second-guessing.”

United States v. Sokolow, 490 U.S. 1, 11 (1989) (cleaned up).7

Because the record, construed in the light most favorable to Evans, 

does not create a genuine fact dispute as to whether Lindley violated a 

constitutional right, Lindley is entitled to summary judgment. See Brown, 623 

F.3d at 253.

7 Evans also discusses Texas’ “stop-and-identify” law, but it is unclear why. 

Lindley did not arrest Evans for his failure to produce identification. To the extent Evans 

argues that Texas law provides a right to refuse to provide identification, the cited statute 

does no such thing. See TEX. PENAL CODE § 38.02 (not requiring a detainee to produce 

identification under these circumstances, but not speaking to a right to refuse). Because 

this statute neither proscribes nor protects the conduct at issue in this case, it is 

inapplicable.

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IV.

Evans also appeals the district court’s admission of evidence—

namely, a screenshot of the arrest warrants for Prejean—over his objections. 

We review a district court’s evidentiary rulings, even on summary judgment, 

for “manifest error.” Chevron Oronite Co., L.L.C. v. Jacobs Field Servs. N. 

Am., Inc., 951 F.3d 219, 227 (5th Cir. 2020) (internal quotation marks 

omitted). Manifest error must be “plain and indisputable,” and so 

unjustified as to constitute “a complete disregard of the controlling law.” 

Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 615 (5th Cir. 2018)

(internal quotation marks omitted).

Evans argues that the screenshot is hearsay and that it cannot be 

authenticated by anything other than Lindley’s testimony. The district court 

held that the screenshot was not hearsay because it was not being used to 

establish the truth of the matter asserted, and that it “satisfie[d] the low 

standard for authentication” of Federal Rule of Evidence 901. Evans, 2020 

WL 6504449, at *1. On appeal, Evans cites a single case, United States v. 

Higdon, that stands for the general proposition that a jury’s role includes 

evaluating witness testimony at trial. 832 F.2d 312, 315 (5th Cir. 1987). We 

cannot conclude, based on this meager showing, that the district court 

committed manifest error. Thus, we affirm.

V.

We hold that Evans has waived his argument that the district court 

improperly disregarded his search-and-seizure claim by his failure to raise 

that argument in his opening brief. We affirm the district court’s grant of 

summary judgment on Evans’ unlawful detention claim because Evans failed 

to create a genuine dispute of material fact as to whether Lindley violated a 

constitutional right. Finally, we affirm the district court’s admission of the 

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arrest warrant screenshot because it was not manifest error. For these 

reasons, the district court’s judgment is AFFIRMED.

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