IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10679

Summary Calendar

TERRANCE WOODS,

Plaintiff-Appellant

v.

DEPUTY CONSTABLE JOHN KEIFFER,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:13-CV-957

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Terrance Woods appeals the dismissal of his claims under 42 U.S.C. 

§ 1983 and Texas law against John Kiefer, a Tarrant County deputy constable, 

in his individual and official capacities. The claims arose from Kiefer’s actions 

in executing a writ of possession to evict Woods from a residence. Our review 

is de novo, “applying the same standard as the district court.” Michalik v. 

Hermann, 422 F.3d 252, 257 (5th Cir. 2005).

 

* 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

July 22, 2015

Lyle W. Cayce

Clerk

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No. 14-10679

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We reject Woods’s contention that Kiefer is not entitled to summary 

judgment based on qualified immunity on the Fourth Amendment and 

excessive force claims against him. Kiefer properly supported his summary 

judgment motion with an affidavit establishing “that he was acting within the 

scope of his discretionary authority” in evicting Woods pursuant to a writ of 

possession. Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 

2001) (internal quotation marks and citation omitted). This shifted the 

summary judgment burden to Woods, who was required to rebut the qualified 

immunity defense by showing that Kiefer’s “conduct violated clearly 

established law.” Id. (internal quotation marks and citation omitted). No 

warrant or probable cause is necessarily required when a state actor executes 

an eviction under court order. See Soldal v. Cook County, Illinois, 506 U.S. 56,

71 (1992); Freeman v. City of Dallas, 242 F.3d 642, 647 (5th Cir. 2001). And

even if a constitutional right were assumed, Woods fails to show that it was 

clearly established when Kiefer acted. See Rockwell v. Brown, 664 F.3d 985, 

990-91 (5th Cir. 2011).

Woods filed no counteraffidavit and offered only argument rather than 

evidence. See id. at 490; Foval v. First Nat’l Bank of Commerce in New Orleans, 

841 F.2d 126, 129 (5th Cir. 1988). Consequently, we may not assume that 

Woods could or would prove the facts necessary to prevail. Wallace v. Texas 

Tech University, 80 F.3d 1042, 1048 (5th Cir. 1996). All that the evidence 

shows is that Kiefer mistakenly tried to evict Woods on the wrong day. That 

evidence does not bar Kiefer’s invocation of the qualified immunity defense; 

qualified immunity allows “ample room for mistaken judgments.” Malley v. 

Briggs, 475 U.S. 335, 343 (1986). 

We reject also the excessive force claim that is based on allegations that 

Kiefer and other officers shoved Woods aside, screamed at him, and drew their 

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guns when first attempting to evict him. When executing warrants, officials 

“may take reasonable action to secure the premises and to ensure their own 

safety and the efficacy of the search.” Los Angeles County, California v. Rettele, 

550 U.S. 609, 614 (2007). “The risk of harm to both the police and the 

occupants is minimized if the officers routinely exercise unquestioned 

command of the situation.” Id. at 615 (internal quotation marks, citation, and 

alteration omitted). Woods’s barebones argument points us to no case 

establishing that the parameters of the right Woods claims were so clearly 

established that a reasonable official would have understood that Kiefer’s 

actions violated that right. See Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 

1997); see also Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994); Rettele, 550 

U.S. at 614. This claim is meritless.

Additionally, we find no merit in the official capacity claim, which was 

in reality a claim against Tarrant County. See Goodman v. Harris County, 571 

F.3d 388, 395 (5th Cir. 2009). Woods failed to allege facts that would show that 

Kiefer acted in accordance with any official policy or custom of the county or to 

show deliberate indifference by the county to any actions or omissions by 

Kiefer, a prerequisite to county liability. See City of Oklahoma City v. Tuttle, 

471 U.S. 808, 823-24 (1985). Woods’s conclusory assertions of an official 

eviction-preferred policy and of incompetence are insufficient to reverse the 

district court. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).

Woods fails to address the district court’s reasons for dismissing the state 

law claims. Failing to identify error in a district court’s ruling dismissing a 

claim is the same as not having appealed the dismissal at all. Brinkmann v. 

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey 

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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The district court did not abuse its discretion in denying Woods leave to 

amend his complaint. See Jones v. Robinson Prop. Grp., 427 F.3d 987, 994-95

(5th Cir. 2005); FED. R. CIV. P. 15(a). Woods advised the district court that the 

proposed amendments to his complaint would not affect the substance of his 

claims. Therefore, denial of leave to amend caused Woods no harm. 

AFFIRMED.

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