explaining that issues raised for the first time on appeal are waived
How later courts described this case
- explaining that issues raised for the first time on appeal are waived
- recognizing those scenarios where “an official sometimes acts for the county, and sometimes acts for another governmental entity, like the state”
- explaining, when district attorney acts for state, there is no county policymaker to support municipal-liability claim
- noting that the Daves opinion “clarifies how to attribute a policymaker’s actions under McMillian”
Written by the judges who cited it.
The opinion
Case: 21-10597 Document: 00516250761 Page: 1 Date Filed: 03/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 23, 2022
No. 21-10597 Lyle W. Cayce
Clerk
Christopher George Arnone,
Plaintiff—Appellant,
versus
County of Dallas County, Texas; William T. Hill, Jr., in
his Individual capacity; Ron Goethals, in his Individual capacity,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-3027
Before Jolly, Willett, and Oldham, Circuit Judges.
Don R. Willett, Circuit Judge:
Christopher Arnone struck a plea deal after being charged with
sexually abusing his son. While on community supervision, Arnone failed two
polygraph tests. The district attorney sought to revoke Arnone’s community
supervision and proceed to adjudication. Arnone was convicted and
sentenced to prison. Years later the Texas Court of Criminal Appeals ordered
Arnone released since polygraph results are inadmissible under Texas
evidence law. Arnone then sued Dallas County under 42 U.S.C. § 1983. The
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No. 21-10597
district court dismissed with prejudice for failure to state a claim. Because the
district attorney’s actions are not attributable to the county, we AFFIRM.
I
Dallas County prosecutors charged Christopher Arnone with sexually
abusing his son. As part of his plea deal, Arnone pleaded nolo contendere to
a single charge of felony injury to a child. The state court then placed him on
ten-years deferred adjudication community supervision, which included the
condition that Arnone submit to sex-offender treatment and polygraph tests.
Arnone was dismissed from sex-offender treatment because he failed
two polygraph tests. The district attorney then moved to proceed to an
adjudication of guilt. The trial court found Arnone guilty and sentenced him
to prison. Nearly thirteen years later the Texas Court of Criminal Appeals
ordered Arnone released. The Court explained that “the sole basis for the
adjudication of [Arnone’s] guilt was his dismissal from sex offender
treatment which was based on failing two polygraph tests.” 1 That entitled
Arnone to release under another CCA decision, Leonard v. Texas, which
holds that polygraph test results are inadmissible under Texas evidence law
because they are “not reliable.” 2
Arnone sued, complaining that the district attorney’s use of the
polygraph tests amounted to an unconstitutional polygraph policy. He
brought claims under 42 U.S.C. § 1983 against Dallas County, former
District Attorney William Hill, and former Director of the Dallas County
1
Ex Parte Arnone, No. WR-60,218-02, 2015 WL 5853688, at *1 (Tex. Crim. App.
Oct. 7, 2015) (per curiam) (unpublished).
2
Id. (citing 385 S.W.3d 570 (Tex. Crim. App. 2012)); Leonard, 385 S.W.3d at 582
(emphasis removed).
2
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No. 21-10597
Community Supervision and Probation Department Ron Goethals. 3 The
district court dismissed Hill and Goethals with prejudice after it dismissed
Arnone’s Fourth Amended Complaint for failure to state a claim. Arnone
repleaded. His Fifth Amended Complaint alleged a single § 1983 claim
against Dallas County. Once again the district court dismissed Arnone’s
complaint; this time with prejudice as to Dallas County.
Arnone timely appealed. His notice of appeal suggested that he was
appealing both the dismissal of his claims against Dallas County and the
dismissal of his claims against the individual defendants. But Arnone’s briefs
make no mention of Goethals, let alone an argument supporting a plausible
claim against him. Nor do Arnone’s briefs make any argument supporting a
plausible claim against Hill. We have said before that “[f]ailure adequately to
brief an issue on appeal constitutes waiver of that argument.” 4 Since Arnone
has waived his claims against the individual defendants, we need not address
them. 5 All that remains, then, is Arnone’s sole § 1983 claim against Dallas
County.
II
The standard of review is well settled. To survive a motion to dismiss,
a plaintiff must plead his claim with “sufficient factual matter” to make it
“plausible on [its] face.” 6 Here, the district court concluded that Arnone
3
Arnone also sued other defendants who are no longer parties.
4
Robinson v. Guarantee Tr. Life Ins. Co., 389 F.3d 475, 481 (5th Cir. 2004) (citations
omitted).
5
Nor do we need to address Dallas County’s alternative argument that the district
court correctly concluded that the district attorney, himself, was protected by absolute
immunity.
6
Ghedi v. Mayorkas, 16 F.4th 456, 463 (5th Cir. 2021) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))).
3
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No. 21-10597
failed to state a facially plausible claim. We review this ruling de novo,
accepting as true all well-pleaded facts in Arnone’s complaint. 7
III
Arnone contends his Fifth Amended Complaint stated a plausible
§ 1983 claim against Dallas County under different theories. His first theory
is that Dallas County is liable under Monell v. Department of Social Services. 8
But if we don’t buy his first theory, then Arnone has a second: that Dallas
County is liable for failing to train or supervise the district attorney’s
subordinates. We don’t buy either.
A
We start with Arnone’s main argument—that Dallas County is liable
under Monell. In that case, the Supreme Court held that plaintiffs can bring
§ 1983 claims against local governing bodies, including counties like Dallas.9
But Monell claims require three elements: “(1) a policymaker; (2) an official
policy; and (3) a violation of a constitutional right whose ‘moving force’ is
the policy or custom.” 10 Arnone lacks the first. 11
7
Id.
8
436 U.S. 658 (1978).
9
Id. at 690.
10
Alvarez v. City of Brownsville, 904 F.3d 382, 389 (5th Cir. 2018) (en banc)
(citation omitted).
11
Thus we need not reach the other two.
4
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(1)
Dallas County is not liable under Monell for just any official policy that
violated Arnone’s constitutional rights. No. Dallas County can be held liable
only for those decided or acquiesced to by a county policymaker. 12 A
policymaker is an “official[] whose decisions represent the official policy of
the local governmental unit.” 13 In other words, an official who has “the
power to make official policy on a particular issue.” 14 When he “speak[s]”
on it, his words represent the local government’s official policy. 15
But sometimes a policymaker wears more than one hat. Again, only
county policymakers count for liability under Monell. So what happens when
an official sometimes acts for the county, and sometimes acts for another
governmental entity, like the state? In those cases, we have to weigh state law
and the policymaker’s complained-of actions. Only then can we decide which
entity is to blame.
The controlling Supreme Court decision on the dual-hat problem is
McMillian v. Monroe County. 16 In McMillian a man was convicted of murder.
12
The Supreme Court explained the relevant inquiry more fully in Jett v. Dallas
Independent School District:
Once those officials who have the power to make official policy on a particular issue
have been identified, it is for the jury to determine whether their decisions have
caused the deprivation of rights at issue by policies which affirmatively command
that it occur, or by acquiescence in a longstanding practice or custom which
constitutes the ‘standard operating procedure’ of the local governmental entity.
491 U.S. 701, 737 (1989) (citations omitted).
13
Id.
14
Id.
15
See id.
16
520 U.S. 781 (1997).
5
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Then he was exonerated. Then, as here, he sued his county under Monell.
The thrust of his claim was that the sheriff had suppressed exculpatory
evidence, among other things. 17 The parties agreed that the sheriff had
“‘final policymaking authority’ in the area of law enforcement.” 18 They
disagreed, though, over whether the sheriff acted as a state or county
policymaker when exercising it. The Court explained that courts do not
categorize officials “in some categorical, ‘all or nothing’ manner.” 19 Rather,
courts must “ask whether governmental officials are final policymakers for
the local government in a particular area, or on a particular issue.” 20 That
inquiry turns on the official’s “actual function” under “relevant state law.” 21
Applying those principles, the Court held that the sheriff had acted as
a state policymaker in McMillian. 22 In support, the Court found that the most
recent state constitution had added sheriffs to the state’s “executive
department” and made them impeachable by the state supreme court (rather
than the county) for failures in properly enforcing the law; 23 the state
supreme court had held that sheriffs were “state officers” and that tort
claims against them “based on their officials acts” were “suits against the
State,” not county; 24 the state code allowed state judges to “order the sheriff
to take certain actions,” without similarly empowering county officials; the
17
Id. at 783–84.
18
Id. at 785.
19
Id.
20
Id.
21
Id. at 786 (emphasis added).
22
Id. at 793.
23
Id. at 787–88.
24
Id. at 789.
6
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state code gave sheriffs “complete authority to enforce the state criminal law
in their counties” without reserving any residual law-enforcement authority
to the county itself; 25 and the state code gave the state governor and attorney
general the power to direct sheriffs in their law-enforcement duties, but none
to county officials. 26
The Court also explained why other provisions “that cut in favor of
the conclusion that sheriffs are county officials” did not sway its analysis. 27
The state code provided that the county both paid the sheriff’s salary and
also provided him with “equipment (including cruisers), supplies, lodging,
and reimbursement for expenses.” 28 But paying the sheriff’s salary did not
“translate into control over him,” said the Court. 29 And the county lacked
discretion to deny the sheriff operational funds below what was “reasonably
necessary.” 30 “[A]t most,” the county’s purse-string power “exert[ed] an
attenuated and indirect influence over the sheriff’s operations.” 31 The state
code also provided that the sheriff’s jurisdiction was “limited to the borders
of his county,” and that he was “elected locally by the voters in his
county.” 32 But neither fact mattered much since “district attorneys and state
25
Id. at 789–90.
26
Id. at 790–91.
27
Id. at 791.
28
Id.
29
Id.
30
Id.
31
Id. at 791–92.
32
Id. at 791.
7
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judges are often considered . . . state officials, even though they, too, have
limited jurisdictions and are elected locally.” 33
Earlier this year we issued our en banc decision in Daves v. Dallas
County. 34 That decision clarifies how to attribute a policymaker’s actions
under McMillian. In Daves the plaintiffs sought injunctive relief under Monell
against Dallas County, among others, for alleged infirmities with the county’s
bail system—specifically, that promulgated “bail schedule[s]” created an
unconstitutional “wealth-based pretrial detention system.” 35 We explained
that, under McMillian, “we examine function . . . when deciding whether an
official is acting for the state or local government in a case brought pursuant
to Section 1983.” 36 That examination turns on “what state law provides as
to the specific relevant function, i.e., the act that is being challenged in the
litigation.” 37 We also held that McMillian’s inquiry is distinct from what we
use to decide whether an official is a state actor for Eleventh Amendment
purposes. 38
Applying McMillian, we held in Daves that Dallas County’s judges
acted as state policymakers when they promulgated the bail schedules. 39 We
reasoned that the state constitution provides that both the county and district
33
Id. at 792.
34
22 F.4th 522 (5th Cir. 2022) (en banc).
35
See id. at 529–530.
36
Id. at 533.
37
Id.
38
Id. at 534; see also id. at 533–34 (explaining the distinctions between the two
inquiries).
39
Id. at 540–41.
8
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judges exercise state judicial power as part of their judicial function, 40 and
that judges act in their judicial function when they “set[] an arrestee’s bail”
at the start of adversary proceedings. 41 The only question was whether
“creating a bail schedule for later application to specific arrestees is also a
judicial act that enforces state law”? 42 We held that it was: “[W]hen judges
decide on a procedure for taking what indisputably will be judicial acts in the
future, that decision is so intertwined with what will follow as to be a judicial
act as well.” 43 It made no difference that the judges creating the bail
schedules were different from the ones who used them. 44 What mattered was
the “inextricabl[e] link[]” to the exercise of state judicial power. 45 And,
citing McMillian, it did not matter either that the bail schedules’ reach was
geographically limited to Dallas County. 46 Therefore, the county and district
judges acted as state policymakers in promulgating the bail schedules. 47
40
Id. at 537 (citing Tex. Const. art. V, § 1); see also id. at 538 ( “[A] municipal
judge acting in his or her judicial capacity to enforce state law does not act as a municipal
official or lawmaker.”(quoting Johnson v. Moore, 958 F.2d, 94 (5th Cir. 1992)).
41
Id. at 539.
42
Id.
43
Id.
44
See id. (calling this a “difference” without a “distinction”).
45
Id. at 540.
46
Id. (citing 520 U.S. at 791).
47
Id. at 540–41; see also id. at 24 (reasoning that “[m]uch of the foregoing analysis
concerning County Judges applies to the District Judges as well”).
9
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(2)
Applying McMillian and Daves, the district attorney acted as a state—
not county—policymaker in promulgating or acquiescing to the polygraph
policy. 48 Relevant Texas law inescapably points that way. And Arnone offers
no persuasive counterargument.
(a)
To begin, the Texas Constitution supports that the district attorney
acts for the state. It provides the Legislature—a state entity—with a direct
role in regulating both the scope of prosecutorial duties and compensation for
district attorneys. 49 That is like the sheriff in McMillian where the Legislature
48
Whether a county policymaker exists is a question of law for the court. See Jett,
491 U.S. at 737 (“[T]he trial judge must identify those officials or governmental bodies who
speak with final policymaking authority for the local governmental actor concerning the
action alleged to have caused the particular constitutional or statutory violation.”). At the
same time, Arnone exclusively pleaded and now argues on appeal that only one county
policymaker is responsible for the polygraph policy: the district attorney. We therefore
need not reach whether another county policymaker could be responsible. See Sindhi v.
Raina, 905 F.3d 327, 333 (5th Cir. 2018) (“[W]e have consistently held, ‘arguments not
raised before the district court are waived and cannot be raised for the first time on
appeal.’” (quoting LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.
2007)); United Paperworkers Int’l Union AFL-CIO, CLC v. Champion Int’l Corp., 908 F.2d
1252, 1255 (5th Cir. 1990) (“[A]ny issues not raised or argued in the appellant’s brief are
considered waived and will not be entertained on appeal.”).
49
The Texas Constitution provides that:
The County Attorneys shall represent the State in all cases in the District and
inferior courts in their respective counties; but if any county shall be included in a
district in which there shall be a District Attorney, the respective duties of District
Attorneys and County Attorneys shall in such counties be regulated by the
Legislature. The Legislature may provide for the election of District Attorneys in
such districts, as may be deemed necessary, and make provision for the
compensation of District Attorneys and County Attorneys. District Attorneys shall
hold office for a term of four years, and until their successors have qualified.
Tex. Const. art. V, § 21.
10
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had a role in determining both the scope of the sheriff’s duties and his
compensation. 50
Texas caselaw from its highest criminal court agrees. As Dallas
County points out in its supplemental brief,51 the Texas Court of Criminal
Appeals explained in Saldano v. Texas that “[e]very constitution of Texas, as
a republic and as a state, has provided for district attorneys to represent
Texas in criminal prosecutions.” 52 Today, “the State of Texas . . . has given
its authority to prosecute [criminal] cases to more than three hundred
independently elected prosecutors, each of whom exercises authority in an
area of the state no larger than a judicial district.” 53 In fact, district attorneys
aren’t just empowered by the state. They are the state, complete with
designation as “officers of the judicial branch of government.” 54
Finally, Texas statutory law also points towards the district attorney
having acted on the state’s behalf. The Legislature has provided in the Texas
Code of Criminal Procedure that district attorneys “represent the State” in
criminal cases. 55 Again, that is like how state law in McMillian gave the sheriff
exclusive jurisdiction to enforce criminal law in the county. 56 Arnone even
50
See McMillian, 520 U.S. at 789–791.
51
We decided Daves after briefing was complete, but before oral argument.
Consequently, we requested the parties submit supplemental briefing “addressing the
impact (if any) that [our] recent en banc decision in 18-11368, Daves v. Dallas County ha[d]
on [their] arguments.” The parties obliged.
52
70 S.W.3d 873, 876 (Tex. Crim. App. 2002) (en banc).
53
Id. at 878 (quoting Texas v. Brabson, 976 S.W.2d 182, 187 (Tex. Crim. App. 1998)
(en banc) (Womack, J., concurring)).
54
Id. (quoting Brabson, 976 S.W.2d at 187).
55
Tex. Code Crim. Proc. art. 2.01 (emphasis added).
56
See McMillian, 520 U.S. at 789–90.
11
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concedes that Dallas County’s district attorney draws his “power to seek
revocation of probation/deferred adjudication and an arrest warrant” from
the state. 57 That is like how, in Daves, the county and district judges drew
their judicial power to set individual bail from the state. 58 Nowhere does
Arnone argue that a grant of authority from Dallas County was necessary to
the district attorney’s deciding or acquiescing to the polygraph policy, let
alone that Dallas County had the power to stop it.
Texas law therefore points one way in this case: district attorneys act
for the state when they decide to seek revocation of probation or deferred
adjudication. A policy governing when to exercise that power in the future—
whether because of a polygraph result, or not—is inextricably linked to that
use of state power, just like it was in Daves. Therefore, the Dallas County
district attorney acted as a state policymaker when he decided or acquiesced
to the polygraph policy in this case.
(b)
Arnone, of course, vigorously contends that the district attorney acted
as a county policymaker in this case. He supports his contention with four
arguments. We reject them all.
First, Arnone argues that Daves is distinguishable. Not on the law,
mind you. But on its facts. After all, says Arnone, “the majority in Daves
agrees with what has been Arnone’s position all along”—that “we examine
57
See Tex. Gov’t Code § 44.157 (providing the duties and powers of the Dallas
County district attorney). Dallas County adds that we have held that prosecutors acting in
their prosecutorial capacity to enforce state laws are agents of the state. In support it cites
our previous decisions extending Eleventh Amendment immunity to prosecutors. As we
already explained above, though, we held in Daves that the Eleventh Amendment inquiry
is distinguishable. Therefore, those authorities add little to our analysis.
58
See Daves, 22 F.4th at 537–38.
12
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function, not funding, when deciding whether an official is acting for the state
or local government.” But when it comes to Daves’s facts, Arnone argues
that they are too different to make Daves applicable here. To be sure, Daves
involved judges, and this case involves a district attorney. And we will
assume, for the sake of argument, that Arnone is right that “none of the
actors in Daves took any action before the establishment of probable cause
nor did any of those actors participate in the determination of probable
cause.” But while those may be distinctions, are they differences? Hardly.
Arnone readily admits that we must look to the function the district attorney
was performing. And we already explained in detail above how that functional
analysis comes out. Who did or didn’t decide probable cause and when
simply has no relevance.
Second, Arnone argues that there’s a difference between a general
grant of state power and its differing, county-level execution, which requires
a county-level policymaker. But we rejected that argument in Daves. The
county and district judges’ decision to promulgate bail schedules governing
future uses of judicial power to set bail was inextricably linked with their
judicial power to set bail in individual cases. 59 That is analogous to here. The
district attorney’s promulgating or acquiescing to a policy governing future
uses of the power to seek revocation of probation or deferred adjudication is
inextricably linked with his power to seek it in individual cases.
Third, Arnone argues that the district attorney is geographically
limited in his jurisdiction and elected by Dallas voters. But, as we already
discussed, the Supreme Court in McMillian rejected those very arguments in
deciding whether an official acts as a local-government policymaker. 60
59
Cf. id. at 539.
60
See McMillian, 520 U.S. at 791–92.
13
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Fourth, Arnone also argues that our decision in Crane v. Texas compels
us to decide that the district attorney acted for the county in this case. 61
Dallas County unexplainedly ignores Crane. Even so, we disagree with
Arnone that Crane controls here. Put simply, both McMillian and Daves were
decided after Crane, and both decisions undermine it.
In Crane I we held that Dallas County had “acted through” its district
attorney to create “an unsound and legally insufficient” capias system. 62
That system caused misdemeanor arrest warrants to issue without a prior
determination of probable cause, as required by Texas law. 63 We reasoned
that the district attorney acted for Dallas County since he “was alone
responsible for the County system and could change it at will.” 64 But Daves
undermined that reasoning. Like the district attorney in Crane and this case,
the county and district judges in Daves were also alone responsible for an
allegedly unconstitutional policy—their bail schedules—that they could
change at will. Yet we did not treat that as a dispositive fact to attribute the
bail schedules to Dallas County. Instead, we focused on how the county and
state judges were exercising their judicial functions—derived from state
power—when they promulgated the bail schedules. 65 Thus, given Daves, we
cannot follow this part of Crane I’s reasoning today.
We also briefly remarked in Crane I that because the district attorney’s
capias system had been held by the Texas Court of Criminal Appeals to
61
(Crane I) 759 F.2d 412 (5th Cir.), modified on rehearing, (Crane II) 766 F.2d 193
(5th Cir. 1985) (per curiam).
62
Crane I, 759 F.2d at 430.
63
Id. at 415, 421–22.
64
Id. at 429.
65
See Daves, 22 F.4th at 537–539.
14
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“violate[] Texas law . . . it can scarcely be said to represent the official policy
of the State of Texas.” 66 But that remark was dictum: “[a] statement [that]
could have been deleted without seriously impairing the analytical
foundations of the holding and being peripheral, may not have received the
full and careful consideration of the court that uttered it.” 67 Our remark fits
that definition since we had held by that point in Crane I that the district
attorney was a county official.68 Because we are not bound by dicta, our
remark from Crane I does not bind us today. 69 But even if it could have been
binding, it, too, has since been undermined. Again, both McMillian and Daves
explain that what matters is the precise “function” that the policymaker is
exercising. 70 Whether the specific application of that function represents
official policy of the state or not does not enter into our analysis. And it does
not act as a bright-line rule for attributing policymaker actions to local
governmental units.
In Crane II we supplemented our holding in Crane I on rehearing. We
also reasoned that the district attorney’s status as a locally elected official
favored classifying him as a county official. 71 But as we already explained
66
Crane I, 759 F.2d at 432.
67
U.S. Bank Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 427–28 (5th Cir.
2014) (quoting Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004)); see
also id. at 428 (“[I]f the statement is ‘necessary to the result or constitutes an explication
of the governing rules of law,’ it is not dictum.” (citation omitted)).
68
Cf. id. at 430.
69
Texas v. Ysleta Del Sur Pueblo, 955 F.3d 408, 415 n.39 (5th Cir. 2020) (“[W]e are
free to disregard dicta from prior panel opinions when we find it unpersuasive.” (quoting
Crose v. Humana Ins. Co., 823 F.3d 344, 349 n.1 (5th Cir. 2016))).
70
McMillian, 520 U.S. at 786; Daves, 22 F.4th at 533 (citing McMillian, 520 U.S. at
786).
71
Crane II, 766 F.2d at 195.
15
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above, McMillian rejected that reasoning. 72 We also supported our reasoning
in Crane II with a pragmatic concern: states be could insulating municipalities
from Monell liability through “ingenious” arrangements. 73 For example,
states might assign state officials, who are entitled to Eleventh Amendment
immunity, to act as policymakers for local governing bodies. 74 While those
arrangements remain troubling, McMillian and Daves no longer leave room
for us to police them. What matters under McMillian and Daves is the specific
function the policymaker exercised under state law. 75 Perhaps our concern
retains its validity in the Eleventh Amendment context, which is governed by
federal law. 76 Since we held in Daves that the Eleventh Amendment inquiry
is distinguishable from Monell’s, 77 though, that fails to help Arnone’s
argument.
* * *
At end, then, Dallas County’s district attorney may very well be
elected only by its voters. He may hold sway only in Dallas County. And he
may even have complete dominion over the internal policies and procedures
used within his office. But on these facts, the Dallas County district attorney
acted for the state—not county—when he promulgated or acquiesced to the
72
In fact, the Eleventh Circuit, which decided McMillian before the Supreme Court
affirmed its opinion, explicitly disagreed with our reasoning in Crane II that “election by
county voters” is a “significant, if not dispositive, factor in holding counties liable for the
officer’s actions under § 1983.” McMillian v. Johnson, 88 F.3d 1573, 1582 n.6 (11th Cir.
1996). That casts even further doubt on the factor’s significance in attributing an official’s
actions to a county.
73
Crane II, 766 F.2d at 195.
74
Id.
75
Daves, 22 F.4th at 533 (citing McMillian, 520 U.S. at 786).
76
Id. at 534 (citation omitted).
77
Id. at 533–34 (explaining the distinctions between the two inquiries).
16
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polygraph policy. Consequently, there isn’t a county policymaker to support
Arnone’s Monell claim. Therefore, the district court properly dismissed it.
B
Arnone also argues an alternative theory for holding Dallas County
liable under § 1983—that it should have better supervised or trained its
prosecutors. Maybe Arnone has a winning argument. 78 But we can’t tell
because, as Dallas County puts it, Arnone has “inexplicably” failed to
“address the legal basis for the district court’s determination that [he] failed
to plead” it. What drove that determination? Our decision in Mowbray v.
Cameron County. 79
In Mowbray, a woman sued a Texas county and alleged it had “failed
to train [its prosecutors] on their Brady duties.” 80 We rejected the claim
because the prosecutors were “state officers,” and so “the county cannot be
liable for a failure to train them.” 81 Admittedly we did not do much more
than that to explain why local-governmental units cannot be liable on a
failure-to-train-or-supervise theory when state officers are responsible for
constitutional violations. Even so, Mowbray also involved Texas
prosecutors; 82 our analysis above tracks Mowbray’s that Dallas County’s
78
Arnone had to plead three elements: (1) Dallas County must have “failed to train
or supervise the [prosecutors] involved”; (2) “there is a causal connection between the
alleged failure to supervise or train and the alleged violation of the plaintiff’s rights”; and
(3) “the failure to train or supervise constituted deliberate indifference to the plaintiff’s
constitutional rights.” Peña v. City of Rio Grande City, 879 F.3d 613, 623 (5th Cir. 2018)
(quoting Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001)).
79
274 F.3d 269, 278 (5th Cir. 2001).
80
Id.
81
Id.
82
See id. at 280.
17
Case: 21-10597 Document: 00516250761 Page: 18 Date Filed: 03/23/2022
No. 21-10597
district attorney acted for the state; and Arnone makes no effort to explain
why Mowbray does not bind us under the rule of orderliness.
Without a distinction, then, Arnone cannot avoid Mowbray. We are
therefore bound to agree with the district court that Arnone has failed to
plausibly plead his failure-to-train-or-supervise theory against Dallas
County. 83
IV
Summing up: There is no county policymaker here to support
Arnone’s § 1983 claim under Monell. Nor can Arnone explain why we aren’t
bound to reject his failure-to-train-or-supervise claim under Mowbray.
Accordingly, we AFFIRM.
83
See United Paperworkers, 908 F.2d at 1255 (explaining that issues not raised in the
appellant’s opening brief are waived).
18