IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60412

JOSEPH BRADLEY CLARK,

Plaintiff-Appellant

v.

JOHN MASSENGILL, Sergeant; DEPUTY JUSTIN BRANNING; KENNETH 

MORAN; MELVIN BRISOLARA, Sheriff,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:12-CV-216

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:*

Joseph Bradley Clark, Mississippi prisoner # 09867, filed a pro se lawsuit 

raising 42 U.S.C. § 1983 claims against Sergeant John Massengill, Sergeant 

Ray Miller, Deputy Justin Branning, Deputy Kenneth Moran, and Sheriff 

Melvin Brisolara, all of the Harrison County Sheriff’s Office. Clark alleged 

that the defendants had used excessive force when arresting him by 

instructing a canine to attack him and using a taser on him after he had 

 

* 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

Fifth Circuit

FILED

March 9, 2016

Lyle W. Cayce

Clerk

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stopped resisting arrest. The district court granted qualified immunity via 

summary judgment in favor of defendants. With respect to Clark’s claims as 

to the dog bites he sustained, the district court dismissed the claims as to 

Massengill, Branning, and Moran because Clark failed to allege that these 

officers were personally involved in the canine attack. The court also dismissed 

all of Clark’s claims against Brisolara because Clark failed to allege or show 

that Brisolara was personally involved and failed to present evidence that 

would give rise to supervisory liability. The district court dismissed the 

remaining claims after finding that the officers were entitled to qualified 

immunity, concluding that “there was no evidence to support Clark’s claim that 

a ‘taser’ was deployed,” that the individual defendants acted in a reasonable 

manner, and that Clark’s constitutional rights were not violated.

We review de novo the grant of summary judgment, applying the same 

standard used by the district court. Nickell v. Beau View of Biloxi, L.L.C., 636 

F.3d 752, 754 (5th Cir. 2011). Summary judgment is proper only where “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). A dispute about a material 

fact is “genuine” if “the [summary judgment] evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). Although a plaintiff bears the burden of 

proof in the qualified immunity analysis, it is axiomatic that at the summary 

judgment stage “[w]e must accept all well-pleaded facts as true, draw all 

inferences in favor of the nonmoving party, and view all facts and inferences 

in the light most favorable to the nonmoving party.” Club Retro, L.L.C. v. 

Hilton, 568 F.3d 181, 194 (5th Cir. 2009). 

This court “liberally construe[s] briefs of pro se litigants and appl[ies] 

less stringent standards to parties proceeding pro se than to parties 

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represented by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). 

Reading Clark’s pro se brief liberally, Clark’s sole issue1 on appeal is whether

summary judgment on grounds of qualified immunity was inappropriate 

because there was a genuine dispute concerning the material fact of whether 

any officer shot Clark with a taser.2 Although conclusory allegations, 

unsubstantiated assertions, and speculation are insufficient to show a genuine 

issue of fact, Jones v. Lowndes County, Miss., 678 F.3d 344, 348 (5th Cir. 2012), 

Clark did provide summary judgment evidence via affidavit and deposition 

that could support a finding of taser use: he heard three pops and had knots 

on his stomach, he subjectively complained of bruising to his stomach from 

tasing when he was treated at the hospital, and a hospital worker stated that 

there was bruising to his abdomen. Viewing this evidence in the light most 

favorable to Clark, and drawing the reasonable inferences therefrom, a 

reasonable juror could conclude that Clark was tased and suffered injury as a 

result. The district court therefore erred in discounting Clark’s version of the 

events and accepting the officers’ version. See Tarver v. City of Edna, 410 F.3d 

745, 753 (5th Cir. 2005). 

Branning is entitled to qualified immunity only if, viewing the evidence 

in the light most favorable to Clark and drawing the reasonable inferences

therefrom in his favor, Clark has failed to demonstrate that (1) Branning’s

 

1 Because Clark fails to raise any argument regarding the dismissal of the dog bite 

claims as to Massengill, Branning, Moran, and Brisolara, they are abandoned. See 

Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). 

Additionally, the appeal as to Sergeant Miller has been dismissed as moot due to his death. 

2 Although Clark did not explicitly challenge the district court’s finding that Branning 

was entitled to qualified immunity, the district court dismissed Clark’s excessive force claim 

against Branning on qualified immunity grounds, and Clark’s appeal challenges that 

dismissal. Furthermore, the bulk of Clark’s brief directly contests the basis for the finding 

of qualified immunity—the district court’s determination that Clark’s claim that a taser was 

deployed was “wholly unsupported by the record”—and Clark asserts that the use of a taser 

violated his Fourth Amendment right to be free from the use of excessive force.

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conduct violated one of Clark’s constitutional rights and (2) that right was 

clearly established at the time of the violation. See Tolan v. Cotton, 134 S. Ct. 

1861, 1868 (2014); Saucier v. Katz, 533 U.S. 194, 201 (2001). With respect to 

the first prong, Branning is entitled to qualified immunity at the summary 

judgment stage only if, viewing the summary judgment facts in the light most 

favorable to Clark, his use of force was not “clearly excessive to the need” or

the excessiveness was not “objectively unreasonable.” Rockwell v. Brown, 664 

F.3d 985, 991 (5th Cir. 2011) (internal quotation marks omitted). “Excessive 

force claims are necessarily fact-intensive; whether the force used is ‘excessive’ 

or ‘unreasonable’ depends on ‘the facts and circumstances of each particular 

case.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Graham 

v. Connor, 490 U.S. 386, 396 (1989)). If Clark’s allegations are true, Branning 

and Miller tased him three times when he was lying on the ground, injured, 

after he had stopped resisting. Viewing the summary judgment facts in the 

light most favorable to Clark, a genuine dispute of material fact exists as to 

whether this use of force was clearly excessive and objectively unreasonable. 

See Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir. 2015) (citing Anderson v. 

McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam),3 and Autin v. City 

of Baytown, 174 F. App’x 183, 185 (5th Cir. 2005), as standing for the 

proposition that “repeated applications of a Taser after a suspect is arrested, 

subdued, and ‘no longer resisting arrest’” may be clearly excessive and 

objectively unreasonable). 

With respect to the second prong, the law was clearly established at the 

time of Clark’s arrest that “once a suspect has been handcuffed and subdued, 

and is no longer resisting, an officer’s subsequent use of force is excessive.” 

 

3 Although Anderson was not decided until 2012, the court there held that in December 

2008, a police officer “should have known that he could not beat [the suspect] after he stopped

resisting arrest.” 480 F. App’x at 773.

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Carroll, 800 F.3d at 177. It was also clearly established that the amount of 

force that an officer could use “depend[ed] on the severity of the crime at issue, 

whether the suspect posed a threat to the officer’s safety, and whether the 

suspect was resisting arrest or attempting to flee.” Bush v. Strain, 513 F.3d 

492, 502 (5th Cir. 2008). Crediting his allegations, as we must at this stage of 

the proceedings, Clark, an unarmed man with an artificial right hip and a 

crippled right arm who had just driven his car into a tree, was tased while lying 

on the ground, after he had submitted and after he had been bitten repeatedly

by a police dog. “These alleged facts are sufficiently egregious to warrant a 

denial of qualified immunity because a reasonable officer would have known 

that the degree of force was unconstitutionally excessive under the 

circumstances.” Deville 567 F.3d at 169; see also Bush, 513 F.3d at 502 (“While 

the Fourth Amendment’s reasonableness test is ‘not capable of precise 

definition or mechanical application,’ the test is clear enough that [the officer]

should have known that he could not forcefully slam Bush’s face into a vehicle 

while she was restrained and subdued.” (quoting Graham, 490 U.S. at 396)). 

Branning is therefore not entitled to qualified immunity at this stage.

Because whether Branning employed a taser on Clark involves a genuine 

dispute of material fact, see FED. R. CIV. P. 56(a), the district court’s judgment 

as to Clark’s claim of excessive force based on Branning’s alleged use of a taser 

on him is VACATED and REMANDED. And because, viewing the summary 

judgment facts in the light most favorable to Clark, a genuine dispute of 

material fact exists as to whether Branning’s alleged use of force was 

unconstitutionally excessive, the district court’s grant of qualified immunity is 

REVERSED. In all other respects, the judgment of the district court is 

AFFIRMED. 

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RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

For this pro se appeal, I agree with the majority that, because, inter alia, 

the former dog-bite claim is not presented, only an excessive-force claim

against Officer Branning for allegedly “tasing” Clark remains. But, that taser 

claim fails for the following reasons, including its being waived on appeal. 

Therefore, I must dissent.

I.

In 2010, Clark was apprehended by law enforcement after a high-speed 

chase. The vehicle involved in the chase, which Clark maintains he was not 

driving, struck a tree, after which Clark fled into a wooded area. Clark 

contends: after being tracked and subdued by a police canine, Officer Branning 

(with Officer Miller, dismissed from this appeal due to his death) deployed a

taser against him, even though he was not resisting apprehension. 

Contending the use of a taser was excessive and a violation of his federal 

constitutional rights, he filed a pro se complaint, pursuant to 42 U.S.C. § 1983. 

Officer Branning moved for summary judgment, inter alia, on the basis of 

qualified immunity. In a thorough, well-reasoned opinion, the district judge 

adopted the magistrate judge’s report and recommendation and granted, inter 

alia, Officer Branning’s qualified-immunity claim. Clark v. Miller, No. 

1:12CV216-LG-JMR, 2014 WL 2161816, at *13–14 (S.D. Miss. 23 May 2014). 

II.

Not until his reply brief does Clark, proceeding pro se, challenge the 

court’s ruling qualified immunity applies, having asserted in his opening brief 

only that a “genuine factual dispute” exists for whether Officer Branning 

violated the Fourth Amendment by tasing him after he stopped resisting 

arrest, as discussed supra and infra. For the reasons that follow, he has: 

waived any challenge to the qualified-immunity’s ruling; and, in the 

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alternative, fails to satisfy the first prong of our two-part analysis for 

overcoming such immunity.

“To defeat summary judgment, [Clark] must show genuine disputes of 

material fact for: whether [Officer Branning] violated his constitutional 

(Fourth Amendment) right against excessive force; and whether [the Officer’s] 

actions were objectively unreasonable in the light of then clearly-established 

law.” Buchanan v. Gulfport Police Dep’t, 530 F. App’x 307, 312 (5th Cir. 2013) 

(citing Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012)). Of 

extreme importance for this appeal, when, as here, qualified immunity is 

claimed, the burden is on the plaintiff to show it is not applicable. E.g., 

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Clark fails to do so.

A.

Although briefs of pro se appellants are liberally construed, our court

“require[s] . . . arguments . . . be briefed to be preserved”. Yohey v. Collins, 985 

F.2d 222, 225 (5th Cir. 1993). “Fed. R. App. P. 28(a)[ ] requires that [Clark’s] 

argument contain the reasons he deserves the requested relief with citation to 

the authorities, statutes and parts of the record relied on.” Id. (internal 

quotation marks and citation omitted). As noted, Clark has the burden to show 

qualified immunity is not applicable; but, he does not mention qualified 

immunity until his two-and-one-half-page reply brief, after such immunity was 

briefed by Officer Branning. 

“Arguments raised for the first time in a reply brief, even by pro se 

litigants . . . are waived.” United States v. Jackson, 426 F.3d 301, 304 n.2 (5th 

Cir. 2005) (emphasis added). This is especially applicable when, as here, 

appellant has the burden of proof. To allow otherwise is extremely prejudicial 

to Officer Branning. Obviously, because Clark failed to brief the qualifiedimmunity ruling in his opening brief, Officer Branning was not able, in his 

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response brief, to address and counter the untimely remarks in Clark’s reply 

brief about such immunity. Clark’s being pro se does not absolve this prejudice. 

 Moreover, in his three-and-one-half-page opening brief, Clark does not 

directly mention excessive force, and refers to the Fourth Amendment only in 

part of a citation to caselaw (“[t]asering of unresting [sic] motorist violated the 

Fourth Amendment”). Generously construing the facts as presented by Clark, 

he avers: he was tased by Officers Miller (now deceased), and Branning after 

he stopped resisting, causing him injury (“big black knots that formed on my 

abdomen from being tased”). He further asserts the court erred in stating 

Officer Miller’s actions were reasonable under the circumstances, but makes 

no mention of Officer Branning in that context. Therefore, even affording the 

requisite “liberal construction” to Clark’s opening brief, he does not 

meaningfully address either prong of the qualified-immunity analysis; 

accordingly, his assertions are waived due to his failure to adequately brief 

them, and his appeal should be resolved on that basis. 

Although the majority at 3 n.2 concedes Clark does “not explicitly 

challenge the district court’s” granting qualified immunity to Officer Branning, 

it is satisfied with Clark’s simply challenging the dismissal of his action, which 

dismissal was based in part on qualified immunity, and his assertions about a 

taser’s being used in violation of the Fourth Amendment. Such imaginative, 

outcome-determinative justification for the issue’s not being waived flies in the 

face of one of the core tenets of appellate procedure: issues must be adequately 

raised and briefed. In effect, because Clark is pro se, the majority gives him a 

free pass on the judicial railroad. 

B.

Assuming, arguendo, Clark’s contentions were adequately briefed and 

properly preserved, he fails to demonstrate the requisite genuine dispute of 

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material fact for even the first prong of our qualified-immunity analysis: the 

claimed excessive force. See Lockett v. New Orleans City, 607 F.3d 992, 999 

(5th Cir. 2010). Clark must show such a genuine dispute for: “(1) an injury (2) 

which resulted directly and only from the use of force that was excessive to the 

need and (3) the force used was objectively unreasonable”. Id. And, to do so, 

Clark must provide more than “conclusory allegations, unsubstantiated 

assertions, or only a scintilla of evidence”. Turner v. Baylor Richardson Med. 

Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (internal quotation marks omitted). The 

majority at 3 states Clark provided “evidence via affidavit and deposition that 

could support a finding of taser use: he heard three pops and had knots on his 

stomach, he subjectively complained of bruising to his stomach from tasing 

when he was treated at the hospital, and a hospital worker stated that there 

was bruising to his abdomen”. 

A review of the record, however, reflects that, although Clark claimed 

his bruising resulted from the use of a taser (which is reflected in only the 

“subjective” portion of the medical-encounter record Clark submitted in 

opposition to summary judgment), the nurse practitioner examining his 

injuries made no mention of a taser in the “objective” portion of the record, and 

instead assessed the injuries as resulting from “dog bite wound[s]” (which, 

again, are not at issue here). 

As the majority notes at 3, the medical record does note “bruising to 

abdomen” under the “objective” portion of the assessment. But this appears to 

be the only evidence, beyond Clark’s self-serving testimony, that could be 

interpreted to contradict the Officers’ version of events. The Officers present 

at the scene, including Officer Branning, testified a taser was not deployed. 

Given the “assessment” portion of the medical record attributed the injuries to 

“dog bite wound[s]”, with no mention of a taser, the note in the medical record 

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about abdominal bruising, alone, does not constitute the more than “a scintilla 

of evidence” required to defeat summary judgment. Turner, 476 F.3d at 343. 

III.

For the foregoing reasons, I would affirm the district court. Because the 

majority holds otherwise, most especially through its very ill-advised ruling on 

waiver, I must dissent.

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