Scott Ristow v. Michael Hansen

Case: 17-50121 Document: 00514332384 Page: 1 Date Filed: 02/01/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 17-50121

Fifth Circuit

FILED

February 1, 2018

SCOTT RISTOW, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

MICHAEL HANSEN; MARC BANE; MANUEL CASAS,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:16-CV-999

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Scott Ristow, a former police officer for the City of

Schertz, Texas, filed a § 1983 lawsuit against that city’s police chief, assistant

police chief, and one of its lieutenants. Ristow alleged that the defendants

violated his Fifth and Fourteenth Amendment due process rights and his

Fourth Amendment right to be free from unlawful searches and seizures.

Ristow’s claims arise from an incident that occurred while he was a Schertz

* 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.

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police officer. He alleged that, while on duty in September 2015, he conducted

a traffic stop which led to the eventual arrest of two individuals in the vehicle.

According to Ristow, one week after the stop and resulting arrest, Assistant

Chief Bane and Lieutenant Casas, at the instruction of Chief Hansen, informed

Ristow that his search of the vehicle and its two passengers was a “criminal

act for which [he] would face incarceration.” Ristow claims that Bane and

Casas falsely stated that the district attorney was prepared to file criminal

charges against him unless he immediately resigned. Ristow resigned as a

result of that conversation.

Ristow filed this § 1983 lawsuit against Hansen, Bane, and Casas (“the

officers”) claiming that they violated his constitutional rights by forcing him to

resign. The officers filed a motion to dismiss based on qualified immunity. The

magistrate judge concluded that Ristow had failed to allege sufficient facts to

show a constitutional violation and therefore could not overcome the officers’

qualified immunity defense, and recommended that the officers’ motion to

dismiss be granted.

The district court adopted the magistrate judge’s recommendation and

dismissed Ristow’s claims. He timely appealed, contending that the district

court erred in requiring him to meet a heightened pleading standard to

overcome the officers’ qualified immunity defense. We affirm.

I.

FACTS AND PROCEEDINGS

A. Facts 1

Ristow observed the driver of a car commit a traffic violation and stopped

the vehicle. During the stop, Ristow asked the two occupants if there were any

1 All facts derive from Ristow’s amended complaint and, in this posture, are taken as

true. See Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012).

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narcotics in the car. When they did not answer the question, Ristow asked for

consent to search the vehicle. The owner of the vehicle consented, and Ristow

searched the vehicle. He discovered a backpack and cigarette box both

containing methamphetamine, then arrested the driver and passenger for

possession of methamphetamine.

Approximately one week later, Chief Hansen told Assistant Chief Bane

and Lieutenant Casas to inform Ristow that the September 14, 2015 search

and subsequent arrests were illegal, and that—unless Ristow resigned

immediately—the district attorney was prepared to file criminal charges

against him. Ristow claims that the officers lied in making these threats, as

the district attorney had no knowledge of the subject stop and search, and had

no intention of filing charges against him. After hearing Bane’s and Casas’s

threats, Ristow resigned.

B. Proceedings

In October 2016, Ristow filed suit against Hansen, Bane, and Casas in

the Western District of Texas, claiming that those officers’ threats amounted

to a “deprivation of rights under 42 U.S.C. § 1983.” Ristow did not state

whether he was suing the officers in their individual or official capacities, and

did not name the City of Schertz as a defendant. 2

The three officers filed a motion to dismiss Ristow’s original complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting the affirmative

defense of qualified immunity. Ristow then filed a response to the officers’

motion as well as a first amended complaint. In that amended complaint,

Ristow clarified his allegations against the officers, claiming that they acted in

2 Ristow did assert, however, that the officers were “policymakers for the Schertz

Police Department and they formulated a policy . . . to threaten illegal arrests and

prosecution in order to deny individuals like [Ristow] their constitutionally protected

rights[,]” including Ristow’s “constitutionally protected interest in his employment.”

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concert and under color of law to deprive him of his constitutional rights,

including “his Fourth Amendment right to be free from unlawful seizure of his

person, his Fifth and Fourteenth Amendment rights to due process of law,

including the right to be free to pursue his chosen profession.” In his response

to the defendants’ motion to dismiss, Ristow argued that, as his complaint

alleged that the officers were the policymakers for the City of Schertz and were

acting according to City policy when they threatened him with “a false and

illegal arrest,” the officers were not entitled to a dismissal under Rule 12(b)(6).

The magistrate judge recommended that the district court grant the

officers’ motion to dismiss because Ristow failed (1) to state a claim on which

relief could be granted and (2) to allege sufficient facts to overcome the officers’

qualified immunity defense. Ristow objected to the magistrate judge’s

recommendation. After considering the magistrate judge’s report and

recommendation, as well as Ristow’s objections, the district court determined

that the magistrate judge’s recommendation should be accepted in its entirety.

The district court granted the officers’ motion to dismiss, and Ristow timely

appealed.

II.

STANDARD OF REVIEW

We review a district court’s grant of a motion to dismiss based on

qualified immunity de novo. 3 We accept all well-pleaded facts as true and view

them in the light most favorable to the non-movant. 4 “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true,

3 Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).

4 Id.

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to ‘state a claim to relief that is plausible on its face.’” 5 “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” 6 “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” 7 Although a complaint “does

not need detailed factual allegations,” the “allegations must be enough to raise

a right to relief above the speculative level . . . .” 8 “[C]onclusory allegations or

legal conclusions masquerading as factual conclusions will not suffice to

prevent a motion to dismiss.” 9

To state a claim under 42 U.S.C. § 1983, a plaintiff must show (1) a

violation of the Constitution or of federal law, and (2) that the violation was

committed by someone acting under color of state law. 10 “The doctrine of

qualified immunity protects government officials from civil damages liability

when their actions could reasonably have been believed to be legal.” 11 When a

defendant raises a qualified immunity defense, 12 the plaintiff has the burden

5Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

6 Id.

7 Id.

8 Twombly, 550 U.S. at 555.

9Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Fernandez-

Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

10James v. Texas Collin Cty., 535 F.3d 365, 373 (5th Cir. 2008) (citing Moore v. Willis

Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000)).

11 Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).

12 Ristow insists that the officers should not be allowed to raise a qualified immunity

defense in their motion to dismiss, but instead must wait to raise that defense until they file

their answer. We have previously urged that “[q]ualified immunity questions should be

resolved ‘at the earliest possible stage in litigation.’” Porter v. Epps, 659 F.3d 440, 445 (5th

Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). According to this

principle, the district court was correct in addressing the officers’ claims to qualified

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of demonstrating the inapplicability of that defense. 13 To meet this burden, the

plaintiff must show “(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” 14

III.

ANALYSIS

A. Fourth Amendment Claim

Ristow first claims that the officers violated his Fourth Amendment

rights when they threatened him with “false arrest and prosecution.” “A

‘seizure’ triggering the Fourth Amendment’s protections occurs only when

government actors have, ‘by means of physical force or show of authority, in

some way restrained the liberty of a citizen.’” 15 When considering whether a

seizure occurred, we ask “in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to

leave.” 16

Ristow’s amended complaint does not contain any factual allegations

that indicate he was seized. 17 He asserts conclusionally that the officers

immunity at this stage in the litigation. See, e.g., Turner v. Lieutenant Driver, 848 F.3d 678,

683 (5th Cir. 2017) (addressing qualified immunity defense raised in a motion to dismiss).

13 Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010).

14 Whitley, 726 F.3d at 638 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

15 Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (quoting Terry v. Ohio, 392 U.S.

1, 19 n.16 (1968)).

Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting United States v.

16

Mendenhall, 446 U.S. 544, 554 (1980)).

17 Ristow seems to argue that the mere threat of arrest is a Fourth Amendment

violation. This is not supported by our precedent. Contra Short v. West, 662 F.3d 320, 326

(5th Cir. 2011) (holding that threatened arrest constituted a seizure because at the time of

the threat, sheriff deputies surrounded a police officer’s vehicle, displayed a “menacing

behavior and tone, ” and prevented the officer from leaving the scene while the threats were

being made).

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deprived him of “his Fourth Amendment right to be free from unlawful seizure

of his person,” but does not allege any discrete facts in support of this

allegation. Because Ristow does not allege facts beyond that conclusional

allegation that “state a claim to relief that is plausible on its face,” his Fourth

Amendment claim cannot survive the officers’ motion to dismiss. 18

Furthermore, because he has not adequately alleged a constitutional violation,

Ristow cannot overcome the officers’ qualified immunity defense. 19 The district

court was correct in dismissing Ristow’s Fourth Amendment claims. 20

B. Fifth Amendment Claim

Ristow also alleged that the officers violated his Fifth Amendment right

to due process. “The Fifth Amendment applies only to violations of

constitutional rights by the United States or a federal actor.” 21 Ristow does

not claim that any of the officers are federal actors; in fact, he conceded that

they are employees of the City. Because the officers are not federal actors,

18 See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

19 See Whitley, 726 F.3d at 638.

20 Ristow contends that the magistrate judge erred in requiring him to meet a

heightened pleading standard to overcome the officers’ qualified immunity defense. This

misconstrues the magistrate judge’s holding. She recommended dismissing Ristow’s claims

because his complaint did not include “a particularized statement of facts to show” that his

constitutional rights were violated. We have previously held that a plaintiff need not meet a

heightened pleading standard to overcome a qualified immunity defense, but must “file a

short and plain statement of his complaint, a statement that rests on more than conclusions

alone.” Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). The magistrate judge

determined that Ristow’s conclusional allegations repeatedly failed to meet this standard.

She was therefore correct in determining that his claims could not survive a Rule 12(b)(6)

motion to dismiss. See Beavers, 566 F.3d at 439 (quoting Fernandez-Montes, 987 F.2d at 284).

Ristow failed to adequately plead a constitutional violation, so it was not necessary for the

magistrate judge to determine whether the officers were entitled to qualified immunity. As

she noted, a plaintiff can only overcome a qualified immunity defense if he demonstrates a

constitutional violation—and Ristow made no such demonstration.

21 Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000).

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Ristow’s claim that they violated his Fifth Amendment due process rights

cannot survive the officers’ motion to dismiss. 22

C. Fourteenth Amendment Claim

Ristow also claimed that the officers violated his Fourteenth Amendment

due process rights. He alleged that the officers deprived him of “the right to be

free to pursue his chosen profession,” and failed to comply with the Texas

Government Code by forcing him to resign before conducting an investigation

or providing him with a signed complaint regarding his alleged misconduct.

“The guarantee of due process enshrined in the Fourteenth Amendment

has two components—(1) a guarantee of procedural protections when a state

seeks to deprive an individual of protected liberty or property interests, and (2)

a substantive protection against conduct that ‘shocks the conscience.’” 23 Ristow

does not indicate whether the officers violated his procedural or substantive

due process rights. So, like the district court, we will assume he intended to

allege both procedural and substantive violations of his due process rights and

will address both.

To state a § 1983 claim for violation of the Fourteenth Amendment right

to procedural due process, a plaintiff must allege that: “(1) [he] has a property

interest in [his] employment sufficient to entitle [him] to due process

protection, and (2) [he] was terminated without receiving the due process

protections to which [he] was entitled.” 24 “State law controls the analysis of

22 Again, because Ristow failed to adequately allege a violation of his constitutional

rights, he has not overcome the officers’ claims to qualified immunity. See Whitley, 726 F.3d

at 638 (quoting al-Kidd, 563 U.S. at 735). Because his claims cannot survive a Rule 12(b)(6)

motion to dismiss, however, it is not necessary for us to analyze whether Ristow can overcome

the high bar of a qualified immunity defense.

23Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016), as revised (June 27, 2016), cert.

denied, 137 S. Ct. 1069 (2017).

24LeBeouf v. Manning, 575 F. App’x 374, 376 (5th Cir. 2014) (citing McDonald v. City

of Corinth, 102 F.3d 152, 155–56 (5th Cir. 1996)).

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whether [a plaintiff] has a property interest in his employment sufficient to

entitle him to due process protection.” 25 “An employee has a property interest

in his employment only when a legitimate right to continued employment

exists.” 26

“In Texas, employment is terminable at will absent a contract to the

contrary.” 27 Ristow has not alleged any facts to support the existence of an

employment contract or any other indication that his employment was not at

will. Because he did not allege that he has a property interest in his

employment, his claim of a Fourteenth Amendment procedural due process

violation cannot survive a motion to dismiss. 28

Ristow also fails to state a claim for a substantive due process violation

under the Fourteenth Amendment. “To succeed with a claim based on

substantive due process in the public employment context, the plaintiff must

show two things: (1) that he had a property interest/right in his employment,

and (2) that the public employer’s termination of that interest was arbitrary or

25 McDonald, 102 F.3d at 155.

26 Id.

27 Schultea, 47 F.3d at 1429.

28 Assuming Ristow seeks to establish that he was constructively discharged in

violation of the Fourteenth Amendment, he must allege facts to establish that the state’s

actions were “motivated by a desire to avoid subjecting its actions to the scrutiny of a

termination-related hearing.” Fowler v. Carrollton Pub. Library, 799 F.2d 976, 981 (5th Cir.

1986). Ristow has not alleged that he was told to resign to avoid formal termination

proceedings; therefore, he has not adequately pled a constructive termination claim. See id.

Ristow also alleges that the officers violated his due process rights by violating the Texas

Government Code, which he claims required the officers to conduct an investigation and

present him with a signed complaint before he was “forced to resign . . . under the false threat

of arrest and incarceration.” As the magistrate judge emphasized in her recommendation,

however, Ristow failed to provide “argument or authority to show [that] a violation of the

Texas Government Code is cognizable under § 1983.” Thus, this allegation is also insufficient

to establish a Fourteenth Amendment violation. See Texas Collin Cty., 535 F.3d at 373

(explaining that a plaintiff must show a violation of the Constitution or federal law to state

a claim under § 1983).

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capricious.” 29 As noted above, Ristow has not alleged facts indicating that he

had a property interest in his employment by the City. He therefore has failed

to state a valid claim of a substantive due process violation under the

Fourteenth Amendment. 30

To the extent that Ristow claims that his substantive due process rights

were violated when the officers allegedly prevented him from gaining

employment with other law-enforcement agencies by stating he was

unemployable as a peace officer, “[a]llegations of damage to one’s reputation or

the impairment of future employment prospects fail to state a claim of denial

of a constitutional right.” 31 “However, damage to an individual’s reputation as

a result of defamatory statements made by a state actor, accompanied by an

infringement of some other interest, is actionable under § 1983.” 32 This is

known as the “stigma-plus-infringement” test. 33 To recover under this theory,

Ristow had to allege that:

(1) he was discharged; (2) stigmatizing charges were made against

him in connection with the discharge; (3) the charges were false;

(4) he was not provided notice or an opportunity to be heard prior

to the discharge; (5) the charges were made public; (6) he requested

a hearing to clear his name; and (7) the employer denied [his]

request. 34

Ristow has failed to allege that he was not provided notice or an

opportunity to be heard prior to his discharge. He does not claim that the

stigmatizing charges were made public, that he requested a hearing to clear

29Lewis v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011)

(quoting Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993)).

30 See id.

31 State of Texas v. Thompson, 70 F.3d 390, 392 (5th Cir. 1995).

32 Id.

33 Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006).

34 Id.

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his name, or that the City denied such a request. Ristow’s amended complaint

therefore fails to state a claim for a substantive due process violation under a

“stigma-plus-infringement” theory. 35 The district court correctly granted the

officers’ motion to dismiss Ristow’s Fourteenth Amendment claims.

D. Monell Liability

Neither does Ristow state whether he is suing the officers in their

individual or official capacities. He does assert, however, that the officers “are

the policymakers for the Schertz Police Department and they formulated a

policy whereby they use their capacity as peace officers to threaten illegal

arrests and prosecution in order to deny . . . constitutionally protected rights.”

The district court did not address whether Ristow also intended to assert

claims against the City. On appeal, Ristow contends that his complaint does

state claims against the City and that the district court erred in not addressing

these claims. We will assume, without deciding, that Ristow’s amended

complaint does assert claims against the City.

“[A] local government may not be sued under § 1983 for an injury

inflicted solely by its employees or agents.” 36 Instead, a plaintiff must

demonstrate that the municipality acted “pursuant to official municipal policy”

when it violated a federally protected right. 37 “A plaintiff must identify: ‘(1) an

official policy (or custom), of which (2) a policymaker can be charged with

actual or constructive knowledge, and (3) a constitutional violation whose

“moving force” is that policy or custom.’” 38 “We have stated time and again that

35 See id.

36 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).

37 Id. at 691.

38 Valle v. City of Houston, 613 F.3d 536, 541–42 (5th Cir. 2010) (quoting Pineda v.

City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).

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‘[w]ithout an underlying constitutional violation, an essential element of

municipal liability is missing.’” 39

Not only has Ristow failed to plead sufficient facts to demonstrate that

the officers violated his constitutional rights, he has not alleged sufficient facts

to show that any such violations were caused by a custom or policy of the city.

Ristow states that the officers “are the policymakers for the Schertz Police

Department,” but he does not allege any facts to support that conclusional

allegation. As Ristow has not pleaded facts beyond conclusional allegations

which demonstrate that his constitutional rights were violated or that any such

violations were the result of an official policy promulgated by the municipal

policymaker, he has failed to state a valid Monell claim against the City. 40

IV.

CONCLUSION

Ristow has failed to allege facts sufficient to state a claim that Officers

Hansen, Bane, and Casas—or the City for that matter—violated his

constitutional rights. We therefore affirm the district court’s grant of the

officers’ motion to dismiss.

AFFIRMED.

39 Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 866–67 (5th

Cir. 2012) (en banc) (alteration in original) (quoting Becerra v. Asher, 105 F.3d 1042, 1048

(5th Cir. 1997)).

40 See Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir. 1995) (holding that the

plaintiff did not state a § 1983 claim against a municipality where the alleged injury was

caused by individual police officers, not city policy or custom); Fernandez-Montes, 987 F.2d

at 284 (“[C]onclusory allegations or legal conclusions masquerading as factual conclusions

will not suffice to prevent a motion to dismiss.”).

12