Leslie Hendershot v. Dustin Slovacek, et al

Filing

UNPUBLISHED OPINION FILED. [16-40346 Affirmed ] Judge: EGJ , Judge: PRO , Judge: CH Mandate pull date is 09/29/2017; denying motion to allow attachment to brief filed by Appellant Mr. Leslie Hendershot [8323571-2], denying motion to allow attachment to brief filed by Appellant Mr. Leslie Hendershot [8313263-2]; denying motion to dismiss appeal filed by Appellees Mr. Jeffery Thompson and Mr. Raul Diaz, Sr. [8561321-2]; denying motion to appoint counsel filed by Appellant Mr. Leslie Hendershot [8273765-2] [16-40346]

Case: 16-40346

Document: 00514147963

Page: 1

Date Filed: 09/08/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40346
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
September 8, 2017
Lyle W. Cayce
Clerk

LESLIE HENDERSHOT,
Plaintiff-Appellant
v.

CORPORAL DUSTIN SLOVACEK, Texas Department of Public Safety State
Highway Trooper; DEPUTY JEFFERY THOMPSON, DeWitt County Sheriff's
Department; DEPUTY RAUL DIAZ, SR., DeWitt County Sheriff's
Department; DOCTOR ALFRED BOWLES, DeWitt County Professional
Certified and Licensed Medical Doctor; DOCTOR DAVID HILL, DeWitt
County Professional Certified and Licensed Physician; DOCTOR DAVID
BLOMSTROM, Victoria County Professional Certified and Licensed Medical
Doctor; TEXAS DEPARTMENT OF PUBLIC SAFETY TROOPERS, Unknown
Law
Enforcement
Authorities;
DEWITT
COUNTY
SHERIFF'S
DEPARTMENT DEPUTIES, Unknown Law Enforcement Authorities; LAW
ENFORCEMENT OFFICERS, Unknown Law Enforcement Authorities;
OTHER AUTHORITIES, Unknown Law Enforcement Authority,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:14-CV-70

Case: 16-40346

Document: 00514147963

Page: 2

Date Filed: 09/08/2017

No. 16-40346
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Leslie Hendershot, federal prisoner # 52223-379, appeals the summary
judgment dismissal of his civil rights lawsuit under 42 U.S.C. § 1983 against
Texas State Trooper Dustin Slovacek, DeWitt County Sheriff Deputies Jeffery
Thompson and Raul Diaz, and three doctors—Alfred Bowles, David Hill, and
David Blomstrom. Hendershot alleged that after he consumed 32 grams of
methamphetamine during a traffic stop in front of a Texas Aryan Brotherhood
compound, gunfire from the compound erupted and Thompson shot him in the
face with a shotgun.

He argued that the law enforcement officers used

excessive force and that the doctors failed to diagnose and treat his gunshot
wounds.
We review the grant of a motion for summary judgment de novo,
“applying the same standard as the district court.” Estate of Henson v. Wichita
Cnty., 795 F.3d 456, 461 (5th Cir. 2015). Summary judgment is warranted “if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
The district court dismissed the claims against the officers in their
individual capacities pursuant to the doctrine of qualified immunity.

To

overcome qualified immunity, Hendershot had to show a genuine dispute as to
whether the officers “violate[d] clearly established law.” Pearson v. Callahan,
555 U.S. 223, 243 (2009); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Because Hendershot’s version of events is “blatantly
contradicted” by the record evidence, which includes photos of him in the

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.
*

2

Case: 16-40346

Document: 00514147963

Page: 3

Date Filed: 09/08/2017

No. 16-40346
hospital after his arrest without any gunshot wounds, “no reasonable jury
could believe” his assertions. Scott v. Harris, 550 U.S. 372, 380 (2007). For the
same reason, Hendershot fails to show a genuine dispute as to any material
fact regarding his claims against the doctors. See Holtzclaw v. DSC Commc’ns
Corp., 255 F.3d 254, 257-58 (5th Cir. 2001).
Hendershot has failed to brief, and thus “effectively abandoned,” the
dismissal of the official capacity claims against Slovacek as barred by sovereign
immunity. Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008). Although
Hendershot also contends that the district court erred in denying his motion
for production of the video surveillance footage from the hospital the day that
he was admitted, he fails to show that the court abused its discretion. Am.
Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013).
Accordingly, we affirm the judgment of the district court. We deny the
motion of Thompson and Diaz, incorporated in their brief, to dismiss the
appeal. We deny Hendershot’s motion for appointment of counsel, see Ulmer
v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982), and his motions for leave to
file supplemental attachments to his brief, see Theriot v. Parish of Jefferson,
185 F.3d 477, 491 n.26 (5th Cir. 1999).
AFFIRMED; MOTIONS DENIED.

3