REVISED September 25, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60774

PEGGY SHUMPERT, Individually, and as Administrator of the Estate of 

Antwun Shumpert, Sr., and on behalf of the heirs and wrongful death 

beneficiaries of Antwun "Ronnie" Shumpert, Sr., Deceased; CHARLES 

FOSTER; THE ESTATE OF ANTWUN SHUMPERT, SR., 

 Plaintiffs - Appellants

v.

CITY OF TUPELO, MISSISSIPPI; OFFICER TYLER COOK, in his 

individual and official capacities, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Mississippi

Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit 

Judges.

WIENER, Circuit Judge:

Plaintiffs-Appellants appeal the district court’s grant of summary 

judgment dismissing their Fourth Amendment, 42 U.S.C. § 1983 excessive 

force and state law claims against Defendants-Appellees, the City of Tupelo 

and Officer Cook. Plaintiffs also appeal the district court’s grant of Defendants’ 

motion for sanctions and denial of Plaintiffs’ motion for sanctions. We affirm.

United States Court of Appeals

Fifth Circuit

FILED

September 24, 2018

Lyle W. Cayce

Clerk

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I. FACTS AND PROCEEDINGS

In June 2016, the Tupelo Police Department (“TPD”) was conducting 

surveillance of suspected narcotics activities at the Townhouse Motel. On the 

evening of June 18, Officer Senter noticed a car that he suspected was involved 

in such activities and followed it. Officer Senter pulled over Antwun Shumpert, 

Sr. and Charles Foster for failing to use a turn signal and driving without a 

working tag light. Shumpert, who was driving, stopped on the side of the road 

and then ran from the car into a nearby neighborhood. Foster, the owner of the 

vehicle, stayed in it. TPD officers, including Officer Cook who was in the area

with his police K9, pursued Shumpert. Officer Cook and his K9 eventually 

located Shumpert hiding in a crawl space under a house. Officer Cook testified 

that he opened the door to the crawl space and “gave [Shumpert] the command 

to come out . . . announced that it was Tupelo Police, show me your hands, told 

[Shumpert that he] had a dog and that it would bite.”

After this warning, Shumpert ran further under the house, prompting 

Officer Cook to release his dog which then bit Shumpert. Officer Cook testified 

that Shumpert began to fight the dog then ran from under the house and 

tackled Officer Cook. Shumpert pinned Officer Cook to the ground and 

repeatedly struck him in the face. Fearing he was about to lose consciousness, 

Officer Cook shot Shumpert four times. Shumpert later died as the result of

his gunshot wounds. 

During the time of Officer Cook’s encounter with Shumpert, Foster 

remained with the vehicle. After Shumpert was shot, Foster was detained by 

the Tupelo Police Department (“TPD”) for about one hour, after which the 

investigation was turned over to the Mississippi Highway Patrol and 

Mississippi Bureau of Investigation. According to Plaintiffs, Foster was 

detained for a total of five or six hours. His car and person were searched, 

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including a body cavity search. Foster was later released and no charges were 

filed against him. 

In October 2016, Foster and Shumpert’s wife, Peggy, individually and on 

behalf of the heirs and wrongful death beneficiaries of Shumpert (collectively 

referred to as “Plaintiffs”) filed suit against the City of Tupelo, Mississippi, 

Mayor Jason Shelton and Police Chief Bart Aguirre, in their official capacities 

(“the City”), and against Officer Tyler Cook in his individual and official 

capacity. Plaintiffs claimed constitutional violations under 42 U.S.C. § 1983, 

and excessive force, wrongful death, negligence, and negligent or intentional 

infliction of emotional distress under 28 U.S.C. § 1343. Plaintiffs also asserted

Mississippi state law claims against Officer Cook. 

Both the City and Officer Cook filed motions for summary judgment. The 

district court held that Plaintiffs failed to establish that the alleged 

constitutional violations resulted from the City’s policies or procedures and 

granted summary judgment on behalf of the City. The court also determined 

that Plaintiffs did not defeat Officer Cook’s qualified immunity defense and 

granted summary judgment on that ground. In response to Defendants’ 

motion, the district court also sanctioned Plaintiffs for discovery violations, but 

declined to sanction Defendants. Plaintiffs now appeal each of the summary 

judgment decisions as well as the district court’s award of sanctions.

II. ANALYSIS

This appeal raises issues regarding Monell liability, qualified immunity, 

Mississippi state law, and discovery sanctions. We address each in turn.

A. Monell Liability

A municipality cannot be held liable under § 1983 on a theory of 

respondeat superior.1 To establish municipal liability pursuant to § 1983, a 

 

1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978).

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plaintiff must demonstrate three elements: “a policymaker; an official policy; 

and a violation of constitutional rights whose ‘moving force’ is the policy or 

custom.”2 An official policy must be either unconstitutional or have been 

adopted “with deliberate indifference to the known or obvious fact that such 

constitutional violations would result.”3 “Deliberate indifference is a degree of 

culpability beyond mere negligence or even gross negligence; it ‘must amount 

to an intentional choice, not merely an unintentionally negligent oversight.’”4

“These requirements must not be diluted, for ‘[w]here a court fails to adhere to 

rigorous requirements of culpability and causation, municipal liability 

collapses into respondeat superior liability.’”5

Plaintiffs allege that the City is liable because the TPD’s failure to train 

Officer Cook caused the constitutional violations. “[T]he failure to provide 

proper training may fairly be said to represent a policy for which the city is 

responsible, and for which the city may be held liable if it actually causes 

injury.”6 “In resolving the issue of a city’s liability, the focus must be on 

adequacy of the training program in relation to the tasks the particular officers

must perform.”7 A plaintiff must show that (1) the municipality’s training 

policy or procedure was inadequate; (2) the inadequate training policy was a 

“moving force” in causing violation of plaintiff’s rights; and (3) the municipality 

 

2 Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 

U.S. at 694).

3 Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309 

(5th Cir. 2004). 4 James v. Harris Cty., 577 F.3d 612, 617–18 (5th Cir. 2009) (quoting Rhyne v. 

Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992)). 

5 Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (alteration in original) 

(quoting Bd. of Cty. Comm’rs of Bryan Cty., v. Brown, 520 U.S. 397, 415 (1997)).

6 City of Canton v. Harris, 489 U.S. 378, 390 (1989).

7 Id. at 390.

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was deliberately indifferent in adopting its training policy.8 “We have said that 

the connection must be more than a mere ‘but for’ coupling between cause and 

effect.”9 “The deficiency in training must be the actual cause of the 

constitutional violation.”10 Plaintiffs assert that the City violated Shumpert’s 

Fourth Amendment rights and is liable under § 1983 for excessive force. They 

also claim that the City is liable for violating Foster’s Fourth Amendment 

rights. 

1. Shumpert’s Fourth Amendment and § 1983 claims

Plaintiffs contend that Officer Cook was not qualified to be a K9 handler 

under TPD policies, and that, after he was promoted to this position, the City 

failed to train him adequately as a K9 handler. The parties agree that TPD 

policy requires officers to have five years of experience, at least three of which 

must be with the TPD, before they are eligible to become K9 handlers. Officer 

Cook became a K9 handler after only two years with the TPD. Defendants 

explain that Officer Cook was promoted because he had previous experience as 

a K9 handler in the military. They emphasize that, before this incident, Officer 

Cook did not have any disciplinary issues and had received K9 training and 

certifications in compliance with TPD policy.

Plaintiffs are correct that the TPD failed to follow department guidelines 

in promoting Officer Cook, but they have failed to demonstrate that this 

decision amounted to “deliberate indifference,” as required to impose

municipal liability.11 To establish deliberate indifference, “[u]sually a plaintiff 

 

8 Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); Valle v. City of 

Houston, 613 F.3d 536, 544 (5th Cir. 2010); Pineda v. City of Houston, 291 F.3d 325, 332 (5th 

Cir. 2002).

9 Valle, 613 F.3d at 546 (quoting Thompson v. Connick, 578 F.3d 293, 300 (5th Cir.

2009), rev’d sub nom. Connick v. Thompson, 563 U.S. 51 (2011) (internal quotations and 

citations omitted)).

10 Id. 11 See Piotrowski, 237 F.3d at 578.

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must show a pattern of similar violations, and in the case of an excessive force 

claim, as here, the prior act must have involved injury to a third party.”12

Plaintiffs have not established that the TPD had a routine policy—or even any 

prior instances—of promoting patrol officers to K9 handlers without the 

requisite experience.13 The undisputed evidence shows that Officer Cook 

received canine training and certifications and had served the TPD as a K9 

handler for three years without incident. Because Plaintiffs have failed to 

demonstrate that the TPD’s K9 training policies were inadequate or that the 

TPD was was deliberately indifferent in training or promoting K9 officers, the 

district court properly granted TPD’s summary judgment motion in regard to

Plaintiffs’ claims that the TPD failed to train Officer Cook as a K9 handler.14

Plaintiffs also claim that Defendants’ fluid and inconsistent policies and 

procedures caused Officer Cook to violate Shumpert’s constitutional rights. In 

particular, Plaintiffs aver that Cook was not adequately trained to (1) set up a 

perimeter or call for backup in a barricade situation, (2) negotiate before using 

force, or (3) obtain a supervisor’s approval before engaging a K9. Plaintiffs 

claim that Officer Cook’s lack of training was evident based on the fact that he 

used a K9 to pursue Shumpert in the first place, as K9s are only supposed to 

be used when pursuing violent or serious offenders. 

Defendants respond that TPD policies did not require Officer Cook to 

establish a perimeter in this case and that he had discretion whether to call 

for backup. Defendants further explain that Officer Cook did not violate TPD 

 

12 Valle, 613 F.3d at 547. 13 Because the single-incident “exception is generally reserved for those cases in which 

the government actor was provided no training whatsoever,” Peña v. City of Rio Grande City, 

879 F.3d 613, 624 (5th Cir. 2018), it does not apply to this case. Furthermore, Plaintiffs do

not raise the single-incident exception in their brief and it is therefore forfeited. United States 

v. Bowen, 818 F.3d 179, 192 (5th Cir. 2016), cert. denied, 136 S. Ct. 2477 (2016).

14 See Sanders-Burns, 594 F.3d at 381; Valle, 613 F.3d at 544; Pineda, 291 F.3d at 332.

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policy in engaging the K9, because TPD policy requires supervisor notification 

only after an officer uses an impact weapon. Defendants also contend that 

Officer Cook did not violate department policy by using the K9 when searching 

for Shumpert because Officer Cook was responding to an all-points bulletin

rather than to a specific K9 request.

Again, Plaintiffs have failed to demonstrate that TPD’s policies were the 

moving force behind the alleged constitutional violation.15 “[M]ere proof that 

the injury could have been prevented if the officer had received better or 

additional training cannot, without more, support liability.”16 Plaintiffs have 

failed to present evidence that additional training would have prevented 

Shumpert’s injuries. The undisputed record indicates that TPD policies 

included detailed training about how to respond to a call for officer assistance 

and the requirements for officers to announce their presence to a suspect.

Officer Cook did not secure the perimeter of the building in accordance with 

department best practices, but TPD policy explains that “[o]fficers have wide 

latitude when determining how best to deal with any situation they encounter” 

and that “[i]f a second officer is unavailable, the first responder must exercise 

discretion in determining the best course of action.” These policies are not 

unconstitutional, and there is no evidence that the TPD was deliberately 

indifferent in adopting these procedures.17 Plaintiffs have not satisfied the 

requirements for municipal liability under Monell, so the district court was 

correct in granting summary judgment on behalf of the City in regard to 

Shumpert’s Fourth Amendment and § 1983 claims.

 

15 See Sanders-Burns, 594 F.3d at 381; Valle, 613 F.3d at 544; Pineda, 291 F.3d at 332. 16 See Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).

17 See Sanders-Burns, 594 F.3d at 381; Valle, 613 F.3d at 544; Pineda, 291 F.3d at 332; 

Piotrowski, 237 F.3d at 578.

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2. Foster’s Fourth Amendment claims

Plaintiff Foster alleges that the TPD violated his Fourth Amendment 

rights because (1) Officer Senter did not have probable cause to stop the 

vehicle; (2) TPD officers did not read Foster his Miranda rights before his 

arrest; (3) Foster’s handcuffs were too tight; (4) officers did not respond to his 

complaints that he could not breathe in the back of the police car; and (5) TPD 

officers subjected Foster to an unreasonable search and seizure. Defendants 

respond that Foster was pulled over during a valid Terry stop, and that after 

just 45 minutes, the entire scene was turned over to the Mississippi State 

Police. Defendants contend that Foster’s claims that his handcuffs were too 

tight and that he could not breathe in the car do not demonstrate TPD officers

acted with reckless disregard for his safety and well-being. They also contend 

that Plaintiffs have failed to identify any TPD policy or custom which caused 

the alleged constitutional violations.

It is true that Plaintiffs have not pointed to an official TPD policy or 

policymaker that caused the alleged constitutional violations.18 In fact, 

Plaintiffs have failed to establish any causal link between the alleged 

violations and a TPD policy that was unconstitutional or adopted “with 

deliberate indifference to the known or obvious fact that such constitutional 

violations would result.”19 Because Plaintiffs failed to provide evidence of “(1) 

an official [TPD] policy (or custom), of which (2) a policy maker can be charged 

with actual or constructive knowledge” that caused Foster’s alleged 

constitutional violations, the district court correctly granted Defendants’ 

motion for summary judgment on Foster’s Fourth Amendment claims.20

 

18 See Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694).

19 Johnson, 379 F.3d at 309. 20 See Pineda, 291 F.3d at 328. Additionally, to the extent Foster contends that his 

Fifth Amendment rights were violated because he never received a Miranda warning, we 

note that he has not alleged that his supposed interrogation led to any incriminating 

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B. Qualified Immunity

Plaintiffs also appeal the district court’s decision to dismiss their § 1983 

excessive force and Fourth Amendment claims against Officer Cook in his 

personal capacity on qualified immunity grounds. Government officials may 

invoke qualified immunity to shield themselves “from liability for civil 

damages insofar as their conduct does not violate clearly established statutory 

or constitutional rights of which a reasonable person would have known.”21

“Once a defendant asserts the qualified immunity defense, ‘[t]he plaintiff bears 

the burden of negating qualified immunity.’”22 “Needless to say, 

unsubstantiated assertions are not competent summary judgment evidence.”23

In reviewing a motion for summary judgment based on qualified 

immunity, this court undertakes a two-step analysis.24 We must decide (1) 

whether an officer’s conduct violated a federal right and (2) whether this right 

was clearly established.25 These steps may be considered in either order.26

“When a plaintiff alleges excessive force during an investigation or 

arrest, the federal right at issue is the Fourth Amendment right against 

 

statements or that his statements were later used against him. Foster was not charged with 

any crime, so his claims of a constitutional violation based on Miranda are entirely without 

merit. See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (“[W]hen an individual is taken 

into custody or otherwise deprived of his freedom by the authorities in any significant way 

and is subjected to questioning, the privilege against self-incrimination is jeopardized . . . . 

until such warnings and waiver are demonstrated by the prosecution at trial, no evidence 

obtained as a result of interrogation can be used against him.”). 21 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 

U.S. 800, 818 (1982)).

22 Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016) (quoting Brown v. Callahan, 623 

F.3d 249, 253 (5th Cir. 2010)).

23 Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

24 Rivera v. Bonner, 691 F. App’x 234, 237 (5th Cir. 2017) (unpublished). 25 See id.

26 Pearson, 555 U.S. at 236 (“The judges of the district courts and the courts of appeals 

should be permitted to exercise their sound discretion in deciding which of the two prongs of 

the qualified immunity analysis should be addressed first in light of the circumstances in the 

particular case at hand.”).

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unreasonable seizures.”27 We thus must consider Officer Cook’s (1) use of K9 

force and (2) use of deadly force. The resolution of this case turns primarily on 

whether these rights were clearly established, so we will begin with that step 

of the qualified immunity analysis. 

To determine whether a right was clearly established, we must evaluate 

whether Officer Cook’s conduct was proscribed by clearly established law at 

the time of the incident. “To answer that question in the affirmative, we must 

be able to point to controlling authority—or a robust consensus of persuasive 

authority—that defines the contours of the right in question with a high degree 

of particularity.”28 In determining what constitutes clearly established law, 

this court first looks to Supreme Court precedent and then to our own.29 If 

there is no directly controlling authority, this court may rely on decisions from 

other circuits to the extent that they constitute “a robust ‘consensus of cases of 

persuasive authority.’”30 

“To be clearly established, a right must be sufficiently clear that every 

reasonable official would have understood that what he is doing violates that 

right.”31 Ultimately, the touchstone is “‘fair warning’: The law can be clearly 

established ‘despite notable factual distinctions between the precedents relied 

on and the cases then before the Court, so long as the prior decisions gave 

 

27 Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).

28 Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (quotation and 

citation omitted). 29 See id. at 412. 30 al-Kidd, 131 S. Ct. at 2084 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).

31 Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Reichle v. Howards, 132 S. 

Ct. 2088, 2093 (2012)); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. 

Creighton, 483 U.S. 635, 640 (1987)) (citations omitted) (“For a constitutional right to be 

clearly established, its contours ‘must be sufficiently clear that a reasonable official would 

understand that what he is doing violates that right. This is not to say that an official action 

is protected by qualified immunity unless the very action in question has previously been 

held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be 

apparent.’”).

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reasonable warning that the conduct then at issue violated constitutional 

rights.’”32

It is “clearly established that [arrestees] ha[ve] a constitutional right to 

be free from excessive force during an investigatory stop or arrest.”33 This does 

not end the inquiry, however, as “[t]he Supreme Court has carefully 

admonished that we are ‘not to define clearly established law at a high level of 

generality.’”34 To defeat qualified immunity, a plaintiff must demonstrate that 

“it would be clear to a reasonable officer that his conduct was unlawful in the 

situation he confronted.”35

1. K9 force

Plaintiffs have the burden of demonstrating that Officer Cook violated a 

“clearly established law at the time the challenged conduct occurred.”36

Plaintiffs do not provide any legal authority to demonstrate that Officer Cook

violated clearly established law by releasing the K9. Instead, they contend

generally that Shumpert had a constitutional right to be free from excessive 

force. This court has previously rejected such general contentions.37

 

32 Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope, 536 

U.S. at 740).

33 Tarver v. City of Edna, 410 F.3d 745, 753–54 (5th Cir. 2005).

34 Hernandez v. United States, 785 F.3d 117, 120 (5th Cir. 2015) (en banc) (quoting alKidd, 563 U.S. at 742). 35 Id. (emphasis added) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)); see 

also Brosseau, 543 U.S. at 198–99 (“[T]here is no doubt that Graham v. Connor clearly 

establishes the general proposition that use of force is contrary to the Fourth Amendment if 

it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, 

we emphasized in Anderson [v. Creighton] ‘that the right the official is alleged to have 

violated must have been “clearly established” in a more particularized, and hence more 

relevant, sense . . . .’” (citation omitted) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001))).

36 Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008).

37 See Cass v. City of Abilene, 814 F.3d 721, 732 (5th Cir. 2016) (“Appellants’ entire 

argument on this second prong of the qualified immunity test is that ‘it is clearly established 

in the law that citizens are protected against unjustified, excessive police force.’ This general 

statement is insufficient to meet Appellants’ burden.”); see also al-Kidd, 563 U.S. at 742 (“We 

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

generality. The general proposition, for example, that an unreasonable search or seizure 

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Even if Plaintiffs had included case law to support their argument, they 

would still be unable to demonstrate that Officer Cook’s conduct violated 

clearly established law. At the time of the challenged conduct, neither the 

United States Supreme Court nor this court had addressed what constitutes

reasonable use of K9 force during an arrest.38 After that date, this court 

decided Cooper v. Brown, which addressed the issue.39

In Cooper, the police initiated a traffic stop based on a suspected DUI.40

The suspect stopped, but then ran from the police and into a residential 

neighborhood.41 The officer who initiated the stop notified officers in the area 

about the fleeing suspect.42 Officer Brown, along with his police K9, responded,

and the K9 located the suspect and bit him on the leg.43 The dog continued to 

bite Cooper for one to two minutes.44 Cooper did not attempt to flee, did not 

strike the dog, and Officer Brown could see Cooper’s hands and “appreciate[d] 

 

violates the Fourth Amendment is of little help in determining whether the violative nature 

of particular conduct is clearly established.”) (citations omitted).

38 Other courts had found the use of K9 force justified in similar circumstances. See 

Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009) (holding use of K9 force during 

arrest—including 31 dog bites—was reasonable because arrestee was suspected of 

committing serious crimes, actively fled from police, and police thought he might be armed); 

Miller v. Clark Cty., 340 F.3d 959, 965 (9th Cir. 2003) (use of K9 force was justified against 

suspect who had fled from police and was hiding in woods); Matthews v. Jones, 35 F.3d 1046, 

1051 (6th Cir. 1994) (use of K9 force was reasonable when suspect fled into the dark woods 

after a traffic stop, making it easier for suspect to ambush the officers); Robinette v. Barnes, 

854 F.2d 909, 913 (6th Cir. 1988) (use of deadly K9 force was warranted when suspected felon 

was hiding inside dark building, had been warned that a dog would be used, and still refused 

to surrender).

39 See Cooper v. Brown, 844 F.3d 517 (5th Cir. 2016). Because Cooper had not been 

decided at the time of the conduct at issue, it cannot define clearly established law for this 

case. Nonetheless, a discussion of Cooper is helpful in fully explaining the issues in this case, 

so we include it in our analysis.

40 Id. at 521.

41 Id. 42 Id. 43 Id. Importantly, the initial bite was not at issue in Cooper, as the record indicated 

that Officer Brown did not give a bite command. Instead, the excessive force claim was based 

on the duration of the dog bite and the officer’s failure to intervene. 

44 Id.

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that he had no weapon.”45 Despite these facts, Officer Brown did not order the 

K9 to release the bite until he had finished handcuffing Cooper.46 Cooper filed 

a § 1983 claim against Officer Brown in his individual capacity, and Officer 

Brown moved for summary judgment on the basis of qualified immunity.47

The court determined that Officer Brown’s use of K9 force was clearly 

excessive and unreasonable given the facts and circumstances of that case, so

he was not entitled to qualified immunity.48 The court explained that “[n]o 

reasonable officer could conclude that Cooper posed an immediate threat to 

Brown or others.”49 There was no indication he was, or would be, violent. 

Officer Brown knew that Cooper did not have a weapon. Once Officer Brown 

found him, Cooper did not resist arrest or further attempt to flee. Rather, he 

complied with Officer Brown’s instructions. Officer Brown, however, did not 

stop the use of K9 force. Because Officer Brown did not attempt to negotiate 

and “subjected Cooper to a lengthy dog attack that inflicted serious injuries, 

even though he had no reason to believe that Cooper posed a threat,” the court 

held that the use of force was clearly excessive and unreasonable.50 Thus, 

under Cooper, the law is now clearly established that when “[n]o reasonable 

officer could conclude that [a suspect] pose[s] an immediate threat to [law 

enforcement officers] or others,” it is unreasonable to use K9 force to subdue a 

suspect who is complying with officer instructions.51

Even if Cooper were applicable, Officer Cook’s conduct would not violate 

clearly established law. We emphasized in Cooper that “[o]ur caselaw makes 

 

45 Id. 46 Id. 47 Id. 48 Id. at 522.

49 Id. 50 Id. at 523.

51 Id.

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certain that once an arrestee stops resisting, the degree of force an officer can 

employ is reduced.”52 Because the officer in Cooper continued to use force and 

even increased its use while the threat to officers decreased, he violated clearly 

established law. By contrast, Officer Cook did not use or increase the use of 

force after Shumpert was subdued; instead, Shumpert ignored Officer Cook’s 

instructions and retreated further under the home, preventing Officer Cook 

from determining whether he was armed. While caselaw establishes that it is 

unreasonable to use force after a suspect is subdued or demonstrates

compliance53 this court has repeatedly held that the “measured and ascending” 

use of force is not excessive when a suspect is resisting arrest—provided the 

officer ceases the use of force once the suspect is subdued.54 Because it is 

undisputed that Shumpert was violently resisting arrest and that Officer Cook 

did not know whether he was armed, Plaintiffs have not met their burden of 

demonstrating that—under the discrete facts of this case—Officer Cook’s use 

of K9 force was objectively unreasonable in light of clearly established law.55

The district court properly determined that Officer Cook was entitled to 

qualified immunity on this claim. 

2. Deadly force

We must next determine whether Officer Cook’s use of deadly force 

violated clearly established law. United States Supreme Court and Fifth 

Circuit precedent is clear that an officer may use deadly force when a suspect 

 

52 Id. at 524. 53 Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013); Bush, 513 F.3d at 501–02.

54 See Bailey v. Preston, 702 F. App’x 210, 211 (5th Cir. 2017) (unpublished); Poole v. 

City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (holding use of force was not 

unreasonable when officers “responded with ‘measured and ascending’ actions that 

corresponded to [the suspect’s] escalating verbal and physical resistance”); Galvan v. City of 

San Antonio, 435 F. App’x. 309, 311 (5th Cir. 2010) (unpublished) (explaining that the use of 

force was reasonable when it involved “measured and ascending responses” to a plaintiff’s 

noncompliance).

55 See cases cited, note 38.

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poses a threat of serious harm either to the officer or to other individuals.56

Whether Shumpert posed a threat of serious harm is based on the facts and 

circumstances of this particular case. We review the facts in the light most 

favorable to Shumpert, “but only when . . . both parties have submitted 

evidence of contradictory facts.”57 Officer Cook testified that Shumpert ran 

from under the crawl space, tackled him, and repeatedly struck him in the 

head. According to Officer Cook’s testimony, he tried to fight Shumpert until 

he (Officer Cook) felt he might lose consciousness. At that point, he fired four 

shots at Shumpert. 

Plaintiffs allege that at least one shot was fired from some distance,

discrediting Officer Cook’s testimony. Plaintiffs also contend that Dr. Mitchell, 

their forensic expert, noted that one of Shumpert’s gun shot wounds was 

caused from a short distance.58 These facts, however, do not conflict with 

Officer Cook’s testimony regarding the incident. The only two individuals to 

witness the shooting were Officer Cook and Shumpert, who is now tragically 

prevented from providing his version of the encounter. Nevertheless, Plaintiffs 

still have the burden of adducing evidence that contradicts Officer Cook’s 

description of the shooting.59 They have failed to meet this burden. A

 

56 Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“Where the officer has probable cause to 

believe that the suspect poses a threat of serious physical harm, either to the officer or to 

others, it is not constitutionally unreasonable to prevent escape by using deadly force.”); Mace

v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003) (“Use of deadly force is not unreasonable 

when an officer would have reason to believe that the suspect poses a threat of serious harm 

to the officer or others.”). 57 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

58 Even if Officer Cook fired one of the four shots from a distance, the use of deadly 

force was still justified, as an officer using deadly force “need not stop shooting until the 

threat has ended.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014). Other officers who were 

in the area, as well as Charles Foster, testified that they heard four shots fired in rapid 

succession, indicating all the shots were fired before the threat ended.

59 “At the summary judgment stage, we require evidence—not absolute proof, but not 

mere allegations either.” Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 (5th Cir. 2009)

(quoting Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991)).

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reasonable officer could have believed that Shumpert “posed a threat of serious 

harm,” so Officer Cook’s use of deadly force under these circumstances did not 

violate clearly established law.60 He is therefore entitled to qualified immunity

on this claim.61

C. Mississippi State Law Claims

Plaintiffs also appeal the district court’s decision to dismiss their state 

law claims against Officer Cook. The Mississippi Tort Claims Act states:

A governmental entity and its employees acting within the course 

and scope of their employment or duties shall not be liable for any 

claim . . . Arising out of any act or omission of an employee of a 

governmental entity engaged in the performance [of] . . . police or 

fire protection unless the employee acted in reckless disregard of 

the safety and well-being of any person not engaged in criminal 

activity at the time of injury[.]62

 

60 In their reply brief and at oral argument, Plaintiffs argued that Officer Cook is not

entitled to qualified immunity because he created the situation which led to Shumpert’s 

injuries. Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994) (“When state 

actors knowingly place a person in danger” the state is “accountable for the foreseeable 

injuries that result from their conduct[.]”). Plaintiffs assert that “state actors may be held 

liable if they created the plaintiff[’s] peril” or “increased the risk of harm.” Piotrowski v. City 

of Houston, 51 F.3d 512, 515 (5th Cir. 1995)). In response, Officer Cook argues that Plaintiffs 

are barred from raising a state-created danger theory at this stage in the proceedings, 

because they did not raise this issue in the district court or their opening brief. 

Plaintiffs have waived this issue, as they did not sufficiently raise it in their opening 

brief. United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an 

argument on appeal, but fails to adequately brief it, is deemed to have waived it.”) (quoting 

Knatt v. Hosp. Serv. Dist. No. 1, 327 F. App’x 472, 483 (5th Cir. 2009) (unpublished)). Even if 

Plaintiffs had preserved this issue, the theory of state-created danger is not clearly 

established law. See Chavis v. Borden, 621 F. App’x 283, 286 (5th Cir. 2015) (unpublished) 

(“Unlike our sister Circuits, we have repeatedly declined to decide whether [a state-created 

danger] cause of action is viable in the Fifth Circuit.”); see also Saenz v. City of McAllen, 396 

F. App’x 173, 177 (5th Cir. 2010) (unpublished) (quoting Walker v. Livingston, 381 F. App’x 

477, 479–80 (5th Cir. 2010) (unpublished)) (“[T]his court has held that the state created 

danger theory is ‘not clearly established law within this circuit such that a § 1983 claim based 

on this theory could be sustained[.]’”). 

61 See Hope, 536 U.S. at 739.

62 Miss. Code Ann. § 11-46-9.

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It is undisputed that at the time of the encounter, Officer Cook was 

acting in the course and scope of his police duties and that Shumpert was 

engaged in criminal activity.63 The plain language of the Mississippi Tort 

Claims Act absolves officers from liability in these circumstances, so we affirm 

the district court’s dismissal of Plaintiffs’ state law claims against Officer Cook.

D. Discovery Sanctions

Plaintiffs also appeal the district court’s decisions regarding discovery 

sanctions. Defendants served Plaintiffs with the first set of interrogatories, 

requests for production, and requests for admission on November 23, 2016. 

Plaintiffs denied the requests for admission on December 12, 2016, but did not 

answer the interrogatories or otherwise respond to the production request. Two 

months after the discovery responses were due, Defendants wrote to Plaintiffs’ 

counsel and requested the information. When Plaintiffs’ counsel failed to 

respond, Defendants filed a motion to compel. Defendants sought costs and 

attorney’s fees related to the motion.

Shortly after Defendants filed the motion to compel, Plaintiffs responded

to the discovery request and filed an opposition to Defendants’ motion to 

compel. Plaintiffs claimed that they did not intend to be defiant or 

noncompliant and that their failure to respond did not “thwart the discovery 

process.” Defendants, however, deemed Plaintiffs’ discovery responses 

insufficient, and again wrote to Plaintiffs’ counsel requesting additional 

information. When Plaintiffs’ counsel did not respond, Defendants filed a 

second motion to compel. 

 

63 See Miss. Dep’t of Pub. Safety v. Durn, 861 So. 2d 990, 997 (Miss. 2003) 

(“Misdemeanor traffic offenses are criminal activities within the [Mississippi Tort Claims 

Act].”).

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The magistrate judge granted both motions to compel64 and sanctioned

Plaintiffs pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). Defendants

submitted records of the costs and fees associated with the discovery motions, 

totaling $3,086.00. Plaintiffs’ counsel also filed a motion for sanctions, claiming 

that Defendants filed the motions to compel before scheduling a conference 

with the magistrate judge, as required by the case management order.65

Defendants explained that they had attempted to contact Plaintiffs’ counsel 

before filing the motions, but never received a response. The magistrate judge 

denied Plaintiffs’ motion for sanctions and held that Defendants costs and fees 

were reasonable. The district court affirmed the magistrate judge’s decisions. 

1. Standard of Review

This court reviews Rule 37 sanctions for an abuse of discretion.66 Factual 

findings underlying the sanctions are reviewed for clear error only.67 “A district 

court has broad discretion in all discovery matters, and such discretion will not 

be disturbed ordinarily unless there are unusual circumstances showing a 

clear abuse.”68 “[T]he vigor of our review of a district court’s sanction award 

depends on the circumstances of the case.”69 “If the sanctions imposed are 

substantial in amount, type, or effect, appellate review of such awards will be 

inherently more rigorous; such sanctions must be quantifiable with some 

 

64 According to the City, the first motion to compel was granted “in its entirety” and 

“nearly all of the second motion to compel” was granted.

65 Plaintiffs’ counsel filed several other motions seeking either to have the sanctions 

set aside or impose sanctions on Defendants, all of which were denied by the magistrate 

judge. Plaintiffs then filed motions to reconsider each of the magistrate judge’s orders. These 

motions were also denied.

66 See Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 

2012).

67 Positive Software Sols., Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460 (5th 

Cir. 2010).

68 Moore v. CITGO Ref. & Chems. Co., L.P., 735 F.3d 309, 315 (5th Cir. 2013) (quoting 

Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000)). 69 United States v. City of Jackson, 359 F.3d 727, 732 (5th Cir. 2004).

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precision.”70 This court has previously held that sanctions of even $50,000 are 

not“on the high end of the scale.”71

2. Sanctions against Plaintiffs’ counsel

Plaintiffs contend that the district court was not required to impose 

sanctions. Plaintiffs’ counsel’s only justification for his failure to respond to the 

discovery request was that he was busy with professional and personal 

obligations. These circumstances do not “substantially justif[y]” Plaintiffs’ 

failure to comply with the discovery deadlines or respond to Defendants.72 The 

district court did not abuse its discretion in granting Defendants’ motion for 

sanctions.73

Plaintiffs also contend that the amount of the sanctions was 

unreasonable. The total sanctions award in this case was $3,086.00, which the 

district court found represented reasonable costs for filing two motions to 

compel. The court noted that this case involved “heightened media scrutiny,”

which necessarily demanded careful research and attention to factual details 

when drafting the discovery motions. There is no evidence that the district 

court abused its discretion in awarding $3,086.00 in sanctions.74

 

70 Topalian v. Ehrman, 3 F.3d 931, 936 (5th Cir. 1993) (emphasis added) (quoting 

Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 883 (5th Cir. 1988)). 71 City of Jackson, 359 F.3d at 732–33. 72 FED. R. CIV. PROC. 37(a)(5). 

73 See FED. R. CIV. PROC. 37(a); Smith & Fuller, 685 F.3d at 488; City of Jackson, 359 

F.3d at 732. Plaintiffs argue the district court abused its discretion in awarding fees and costs 

related to Defendants’ second motion to compel, as that court did not grant that motion in its 

entirety. This argument is without merit. Under Rule 37, when a motion to compel is granted 

in part and denied in part, the district court has discretion to “apportion the reasonable 

expenses for the motion.” The magistrate judge explained that “it would be unconscionable 

to apportion expenses” because “[o]f the five interrogatories placed in issue, the court denied 

only a fraction of one interrogatory, rendering the apportionable expenses, if any, too trivial 

to qualify.” This explanation demonstrates that the court did not abuse its discretion in 

awarding costs and fees in relation to the second motion to compel.

74 See Positive Software Sols., Inc., 619 F.3d at 460. Furthermore, the low amount of 

the sanction award in this case does not require particularly rigorous review. See Topalian, 

3 F.3d at 936.

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3. Plaintiffs’ motion for sanctions against Defendants

Plaintiffs also contend that the district court abused its discretion in 

failing to sanction Defendants for violating the case management order. That 

order states that if a discovery dispute arises, the parties must first 

communicate among themselves to resolve the dispute. If those 

communications fail, the parties must conduct a telephone conference with the 

magistrate judge. “Only if the telephonic conference with the judge is 

unsuccessful in resolving the issue may the party file a discovery motion.” 

It is undisputed that Defendants did not conduct a telephone conference 

with the magistrate judge before filing the motions to compel. But Defendants 

contend that it was impossible to arrange a telephone conference because

Plaintiffs’ counsel would not even respond to their written communications. In 

their view, Plaintiffs’ refusal to communicate exempted Defendants from the 

telephone conference requirement.

In denying Plaintiffs’ motion for sanctions, the magistrate judge 

explained that Federal Rule of Civil Procedure 16(f)(2) states that a party 

should not be sanctioned for violating a case management order if the 

noncompliance “was substantially justified or other circumstances make an 

award of expenses unjust.”75 Because Defendants had twice attempted to 

communicate with Plaintiffs’ counsel but received no response, the magistrate 

judge determined that “an award of sanctions [against Defendants] would be 

wholly unjust.”76 These facts do not amount to “unusual circumstances 

showing a clear abuse.”77 The district court did not abuse its discretion in 

declining to sanction Defendants. 

 

75 FED. R. CIV. PROC. 16. 76 The district court also noted that Defendants had previously agreed to an extension 

of discovery deadlines, at Plaintiffs’ request.

77 See Moore, 735 F.3d at 315 (quoting Kelly, 213 F.3d at 855).

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III. CONCLUSION

We affirm the district court’s summary judgment decisions in favor of 

the City and Officer Cook. We also affirm the district court’s decisions to grant 

Defendants’ motion for sanctions and deny Plaintiffs’ motion for sanctions. 

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