The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2008
No. 07-50723 Charles R. Fulbruge III
Summary Calendar Clerk
MARIAN C. BLOSS
Plaintiff-Appellant
v.
RONALD L. MOORE
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-43
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
Marian Bloss appeals the district court’s order grant of summary judgment
in favor of Ronald Moore on her 42 U.S.C. § 1983 claims. She also appeals the
district court’s dismissal of her state law claim for malicious prosecution. We
affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-50723
Bloss is an attorney and a resident of Llano County, Texas. Moore is the
administrator of the Llano County Department of Natural Resources. Bloss
sued Moore alleging that he violated her constitutional rights by initiating what
she perceives as an inappropriate prosecution against her for not providing a
proper receipt for the disposal of demolition debris. She asserts that Moore’s
motive was to “harass her and to injure her reputation.” On appeal, Bloss
argues (1) that Moore is not entitled to federal qualified immunity, (2) that
Moore is not entitled to state official immunity, and (3) that she is entitled to
declaratory relief. We address each issue in turn.
This court reviews a district court’s grant of summary judgment de novo.
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is
proper “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)
(quoting Fed. R. Civ. P. 56(c)).
First, Bloss argues that the district court erred by finding Moore was
entitled to qualified immunity and dismissing her § 1983 claims. Qualified
immunity shields government officials acting within their discretionary
authority from suits when “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002)
(en banc) (internal quotation marks and citation omitted). On appeal, Bloss
alleges that Moore violated her constitutional rights by initiating a prosecution
against her without probable cause. Her claim fails because this court no longer
2
No. 07-50723
recognizes a freestanding § 1983 claim for malicious prosecution. See Castellano
v. Fragozo, 352 F.3d 939 (5th Cir. 2003). Bloss also alleges that Moore subjected
her to an unlawful search and seizure. Her claim fails because she has not
alleged any facts that could show a search or seizure on the part of Moore, let
alone an unreasonable search or seizure. See County of Sacramento v. Lewis,
523 U.S. 833, 843 (1998). (“The Fourth Amendment covers only ‘searches and
seizures,’ neither of which took place here.”). Because Bloss’s allegations, if true,
do not establish a violation of a clearly established constitutional right, Moore
is entitled to qualified immunity. See Mace v. City of Palestine, 333 F.3d 621,
623-24 (5th Cir. 2003) (“If there is no constitutional violation, our inquiry
ends.”).1
Second, Bloss argues that the district court erred in dismissing her state
law claim for malicious prosecution. She contends that Moore is not entitled to
state official immunity from suit. Official immunity protects public officials from
suits arising from the performance of their (1) discretionary duties (2) in good
faith (3) within the scope of their authority. Ballantyne v. Champion Builders,
1
Bloss alleges in her complaint, but not in her appellate briefs, that Moore violated her
rights under the First and Fourteenth Amendments. Issues not briefed on appeal are waived.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Even so, these additional
allegations also fail to establish a constitutional violation. Her Fourteenth Amendment
procedural due process claim fails because she has not alleged the deprivation of a protected
liberty or property interest. See Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 561 n.3
(5th Cir. 2003) (“[M]ere injury to reputation, even if defamatory, does not constitute the
deprivation of a liberty interest.”). Similarly, her First Amendment retaliation claim and
Fourteenth Amendment equal protection claim fail because they are based on
“unsubstantiated assertions” that Moore retaliated against her for her political activities and
legal work. See Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007)
(“[A] party cannot defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of evidence.’”).
3
No. 07-50723
Inc., 144 S.W.3d 417, 422 (Tex. 2004).2 Moore is entitled to official immunity
because he was carrying out his duty to administer complaints involving
provisions of the TEXAS HEALTH AND SAFETY CODE when he made a discretionary
decision based on a citizen’s complaint to investigate Bloss for possible illegal
dumping and nuisance violations. See, e.g., Ballantyne, 144 S.W.3d at 424
(“[P]ublic officials act within the scope of their authority if they are discharging
the duties generally assigned to them.”); id. at 426 (“To show good faith in this
context, we do not require the [defendants’] application of [the ordinance] to be
legally correct, only colorable.”); Fowler v. Szostek, 905 S.W.2d 336, 342 (Tex.
App. 1995) (“Investigating and acting on gathered facts has been characterized
as a discretionary function.”).
Third, Bloss argues that the district court erred in denying her federal and
state law claims for declaratory relief and attorney’s fees. She contends that
“Texas law waives immunity as to declaratory relief and attorney’s fees on
constitutional issues.” The district court did not specifically address Bloss’s
requests for a declaratory judgment, but it did deny all relief not expressly
granted. To be entitled to a declaratory judgment under federal law, a plaintiff
must show that there is an actual case or controversy under Article III of the
Constitution. See Bauer v. Texas, 341 F.3d 352, 357-58 (5th Cir. 2003).
Similarly, to be entitled to a declaratory judgment under Texas law, a party
must show that “a justiciable controversy exists as to the rights and status of the
parties and the controversy will be resolved by the declaration sought.” Bonham
2
See also Johnson v. Campbell, 142 S.W.3d 592, 594 (Tex. App. 2004) (“If a government
employee acts within the scope of his employment in the performance of a discretionary duty
and acts in good faith, he is entitled to official immunity even though his acts are negligent,
or even illegal.”) (emphasis added).
4
No. 07-50723
State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Because there is no
ongoing injury to Bloss and any threat of future injury is neither imminent or
likely, there is not a live case or controversy for this court to resolve. See, e.g.,
City of Los Angeles v. Lyons, 461 U.S. 95, 103-04 (1983); Bauer, 341 F.3d at 358.
Thus, her appeal from the district court’s denial of declaratory relief has no
merit.
Furthermore, Bloss is not entitled to attorney’s fees under either federal
or state law. She cannot recover attorney’s fees under 42 U.S.C. § 1988(b)
because she is not the prevailing party in her § 1983 action. Likewise, she
cannot recover attorney’s fees under the TEXAS DECLARATORY JUDGMENT ACT,
TEX. CIV. PRAC. & REM. CODE ANN. § 37.009, because this court has held that
under Erie principles the TEXAS DECLARATORY JUDGMENT ACT is procedural and
thus not applicable in federal court. Camacho v. Texas Workforce Comm’n, 445
F.3d 407, 413 (5th Cir. 2006).
For the reasons stated, we affirm the district court’s judgment dismissing
this entire action.
AFFIRMED.
5