McClure v. Biesenbach

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 9, 2009

No. 08-50854 Charles R. Fulbruge III

Clerk

PATRICK MCCLURE; MAXIMUM ENTERTAINMENT LLC,

Plaintiffs - Appellants

v.

WILLIAM BIESENBACH, Lieutenant, San Antonio Police Department;

RUDY DAVILLA, San Antonio Code Compliance Supervisor; CITY OF SAN

ANTONIO,

Defendants - Appellees

Appeal from the United States District Court for the

Western District of Texas

USDC No. 5:04-CV-797

Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.

PER CURIAM:*

Before the court are claims of municipal liability and procedural due

process violations. Plaintiffs Patrick McClure and his company, Maximum

Entertainment LLC, sued Defendants William Biesenbach, Rudy Davilla 1 , and

the City of San Antonio under 42 U.S.C. § 1983. After construing the first

*

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.

1

This appellee’s name is spelled “Davilla” on our briefing notice. Elsewhere it is spelled

“Davila.” Either spelling refers to the same person.

No. 08-50854

amended complaint, the district court dismissed the municipal liability claim

against San Antonio pursuant to Federal Rule of Civil Procedure 12(b)(6). The

district court then entered summary judgment on the procedural due process

claim in favor of Biesenbach and Davilla. Extant claims were tried to a jury,

which returned verdicts for Defendants. We now review only the district court’s

pre-trial rulings, and affirm.

I.

The following factual allegations are from the first amended complaint.

Plaintiffs organized a concert to be held in San Antonio from Sunday, April 18,

2004 to Tuesday, April 20, 2004. They signed several well-known bands, leased

a large outdoor venue, recruited a major sponsor, hired engineers and architects

to design the stage and sound systems, and obtained an event permit from the

City of San Antonio. On the first night of the concert, several citizens made

noise complaints. Officers of the San Antonio Police Department (SAPD)

responded, noise levels were adjusted, and the concert proceeded. The next

morning, April 19, City Councilman Christopher “Chip” Haass called

Biesenbach, an SAPD officer, to express concern about noise levels. Biesenbach

visited the concert site and told sound engineer Carlos Garcia that the SAPD

would carefully monitor the situation that night, including reviewing permits

and enforcing noise ordinance violations.

At 5:00 p.m. on April 19, Biesenbach returned to the venue, accompanied

by Davilla, who was Supervisor of the Abatement Patrol Division of the City

Code Compliance Department. Biesenbach and Davilla then “presided over an

enforcement effort so full of objectively unreasonable actions, improprieties and

apparent bias that one could only conclude that the officers’ objective was to

shut-down the concert.” Specifically, they enforced a 70 decibel noise limit

applicable to areas zoned “business” under San Antonio’s noise ordinance.

However, Plaintiffs say (1) their permit exempted them from noise limits, or (2)

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No. 08-50854

the noise limit was 72 decibels, because the area was zoned “industrial.” Davilla

allegedly failed to measure noise levels in accordance with the sound ordinance

and proper operating procedures. Biesenbach and Davilla engaged in bullying

and intimidation by showing up with between 15 and 30 law enforcement

officers, threatening staffers and band members with arrest, and telling

performers and patrons that the show would not go on.

The first band began to play at 5:35 p.m. Around 6 p.m., Biesenbach asked

the sound engineer whether the volume could be turned down. The engineer

replied that adjustments would have to be made by the performers on stage after

the song was finished. Biesenbach said: “OK – this is the last song – shut it

down!” Plaintiffs tried to gain a reprieve. They called City Councilman Ron

Segovia, who urged Biesenbach to be lenient, but he did not budge. The

performers packed up and left. While the final evening of the concert took place

indoors, the shut down led to hundreds of thousands of dollars in lost profits, and

destroyed McClure’s credit and reputation as a music promoter.

The first amended complaint alleged that the City of San Antonio,

Biesenbach and Davilla deprived Plaintiffs of procedural due process, and that

the deprivations “were effected pursuant to City ‘policy, practice and/or custom.’”

Plaintiffs also pleaded a deprivation of First Amendment rights, a taking under

state law, tortious interference with business relationships, and estoppel. All

Defendants moved for dismissal or summary judgment. The court granted San

Antonio’s motion to dismiss, noting: “Plaintiffs do not allege that Biesenbach and

Davilla acted in accordance with City policy” when they cancelled the concert.

Rather, Plaintiffs said Biesenbach and Davilla altogether disregarded the event

permit and the City’s noise ordinance. Moreover, Plaintiffs did not allege that

the City condoned Biesenbach’s and Davilla’s actions. Neither the complaint

from Haass nor Segovia’s abortive effort to keep the concert going was plausibly

alleged to be an official policy. The court reasoned that Texas municipalities

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create policy through their governing bodies, not the isolated statements or

actions of individual councilmen.

After limited discovery, the court granted summary judgment in favor of

Biesenbach and Davilla on Plaintiffs’ procedural due process claims. Plaintiffs

asserted that Biesenbach and Davilla had acted in a random and unauthorized

manner; thus, their conduct was not foreseeable or traceable to a state

procedure. Plaintiffs also failed to show that pre-deprivation process would have

helped them. The court held that Biesenbach and Davilla were entitled to

qualified immunity because Plaintiffs failed to show (1) that their allegations,

if true, established a violation of a clearly established right; and (2) that

Defendants’ conduct was objectively unreasonable in light of clearly established

law at the time of the incident.

II.

We first hold that the district court properly granted San Antonio’s motion.

To withstand dismissal under Federal Rule of Civil Procedure 12(b)(6), the

complaint must state “enough facts to state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We review the

dismissal de novo, accepting well-pleaded facts as true and viewing them in the

light most favorable to the plaintiff. Lindquist v. City of Pasadena, 525 F.3d 383,

386 (5th Cir. 2008). The allegations must “be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555

(citations omitted). “[A] formulaic recitation of the elements of a cause of action

will not do.” Id.; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

A municipality may be held liable under § 1983 if its policy or custom

causes a constitutional tort. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978); Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999). A

complaint must show that, “through its deliberate conduct, the municipality was

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the ‘moving force’ behind the injury alleged.” Bd. of County Comm’rs v. Brown,

520 U.S. 397, 404 (1997). “Where a plaintiff claims that the municipality has not

directly inflicted an injury, but nonetheless has caused an employee to do so,

rigorous standards of culpability and causation must be applied to ensure that

the municipality is not held liable solely for the actions of its employee.” Id. at

405. Thus, to state a claim, Plaintiffs must plead facts showing that a policy or

custom existed, and that such custom or policy was the cause in fact or moving

force behind a constitutional violation. See, e.g., Spiller v. City of Tex. City,

Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997).

Plaintiffs complain of two distinct policies. First, they say the City’s noise

ordinance is defective because it does not give pre-deprivation process. However,

the first amended complaint states that Biesenbach and Davilla acted arbitrarily

and capriciously. The factual averments were that the officers ignored the terms

of the noise ordinance, not that the ordinance was constitutionally defective.

Only after the court dismissed the municipal liability claim did Plaintiffs develop

this thesis. Plaintiffs did not seek to amend their complaint in order to re-urge

the claim; therefore, we will not consider it on appeal. Cf. id., 130 F.3d at 167.

If the officers’ conduct was random, unauthorized, and in derogation of the noise

ordinance, one cannot say that the concert was stopped pursuant to the officially

promulgated policies of San Antonio.

Plaintiffs next say Biesenbach and Davilla acted pursuant to a de facto,

selective zero-tolerance policy, which required them to shut the concert down at

any cost upon receiving the complaint from Councilman Haass. However, the

first amended complaint fails to plausibly articulate this theory. The complaint

says Biesenbach first visited the concert site “in an apparent response to a call

from [Haass].” The complaint later makes a sweeping statement that, “[u]pon

information and belief, these [due process] deprivations were effected pursuant

to City ‘policy, practice and/or custom.’” This is Plaintiffs’ sole reference to a

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No. 08-50854

policy or custom. Never do Plaintiffs state that the call from Councilman Haass

was “deliberate conduct” on behalf of San Antonio and was the “moving force”

behind an extra-legal, zero-tolerance enforcement policy. Cf. Brown, 520 U.S.

at 404. At best, Plaintiffs have provided a “formulaic recitation of the elements

of a cause of action,” or “a legal conclusion couched as a factual allegation,”

which fails to state allegations raising the right to relief above the level of

speculation. See Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S.

265, 286 (1986)). The district court did not err in dismissing § 1983 claims

against the City of San Antonio.

III.

We now hold that the district court properly granted summary judgment

on the procedural due process claim. Our standard of review is de novo. Arthur

W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 705 (5th Cir. 2009). “The

judgment sought should be rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” F ED. R. C IV. P. 56(c)(2). The evidence and justifiable inferences

therefrom are to be viewed in the light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

A.

“Government officials acting within their discretionary authority are

immune from civil damages if their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Mack v. City of Abilene, 461 F.3d 547, 555 (5th Cir. 2006). When an

official sued for damages under § 1983 raises the defense of qualified immunity,

the plaintiff has the burden of rebutting the defense. Johnson v. Deep E. Tex.

Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004). We

first inquire whether the evidence presented can sustain a finding that the

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defendant violated plaintiff’s constitutional rights. Id. “If not, no further

inquiry is needed and the defendant is entitled to qualified immunity.” Id.

When confronted with a claim for deprivation of procedural due process,

we first ask whether the state has deprived the individual of a liberty or

property interest. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). We

then ask whether procedures accompanying such deprivation were

unconstitutional. Id. A procedural due process claim does not lie where the

deprivation results from the unauthorized, intentional conduct of a state

employee and the state provides a meaningful post-deprivation remedy. Hudson

v. Palmer, 468 U.S. 517, 533 (1984); see also Parratt v. Taylor, 451 U.S. 527, 542-

43 (1981) (no procedural due process claim available where deprivation results

from official’s negligence), overruled in part by Daniels v. Williams, 474 U.S. 327,

330-31 (1986). It does not matter whether the official can foresee a deprivation

or provide some form of process: “[t]he controlling inquiry is solely whether the

state is in a position to provide for predeprivation process.” Hudson, 468 U.S. at

534 (emphasis added). Post-deprivation process is adequate if it allows the

prospect of compensation for the loss suffered. See Parratt, 451 U.S. at 543-44.

B.

Plaintiffs presented evidence of a property interest in holding the concert,

of which Defendants deprived them under color of law. The first element of a

procedural due process claim is fulfilled for Rule 56 purposes. The salient

question is whether the process afforded to Defendants is constitutionally

deficient. See Thompson, 490 U.S. at 460. We conclude that Plaintiffs’ claim

fails under the authority of Parratt and Hudson. The operative pleading alleged

that Biesenbach and Davilla “preside[d] over an enforcement effort so full of

objectively unreasonable actions, improprieties and apparent bias that one could

only conclude that the officers’ objective was to shut-down the concert.” In our

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No. 08-50854

view, such allegations depict “random and unauthorized” conduct which was “not

a result of some established state procedure.” See Parratt, 451 U.S. at 541.

Plaintiffs’ attempts to circumvent Parratt and Hudson come up short.

Plaintiffs say Hudson is not on point because this case does not concern the

rights of prisoners, or a scenario where meaningful pre-deprivation process is

available. These observations are misguided. The pleadings portray the officers’

acts as rogue conduct. This is antithetical to a challenge to the adequacy of an

established procedure. Plaintiffs next point to provisions of San Antonio’s noise

ordinance which empower officials to issue citations, make arrests, or seek

administrative stop orders. Prior to the court’s ruling, Plaintiffs never said these

processes would have been unconstitutional had they been followed. Moreover,

on appeal, Plaintiffs still aver that Defendants “did not avail themselves” of

these mechanisms. Because San Antonio cannot anticipate when officers will

ignore the terms of its ordinance, it is nonsense to say that more exacting

process would have prevented the deprivation. See Hudson, 468 U.S. at 533-34;

Zinermon v. Burch, 494 U.S. 113, 137-38 (1990). Plaintiffs next urge that even

if Defendants had followed these rules, they would have been insufficient in light

of the “shadow enforcement policy and scheme” triggered by the call from

Councilman Haass. However, Plaintiffs did not plead this theory in the first

amended complaint or provide evidence of an extralegal policy before the court’s

entry of summary judgment. The argument is forfeited.2

2

Even were the court to notice Plaintiffs’ argument, when taken to its logical

conclusion, it is absurd. Plaintiffs in essence argue that pre-deprivation process is always

required before officers can abate a noise nuisance, or that “zero tolerance” noise policies are

per se unconstitutional. However, the mandates of due process are inherently flexible, and the

courts must balance public and private interests. See Mathews v. Eldridge, 424 U.S. 319, 334-

35 (1976). The interest of preserving public order, peace and quiet cannot always be trumped

by a private citizen’s desire to “rock on” and rattle the neighborhood’s windows on a school

night. See Gilbert v. Homar, 520 U.S. 924, 930 (1997) (“[W]here a State must act quickly, or

where it would be impractical to provide predeprivation process, postdeprivation process

satisfies the requirements of the Due Process Clause.”).

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Finally, post-deprivation process offered Plaintiffs a chance to seek

compensation for the deprivations. See Parratt, 451 U.S. at 543-44. In Bennett

v. Monette, 507 F. Supp. 2d 514, 516 (E.D.N.C. 2007), a sheriff shut down an

outdoor concert after receiving complaints about noise levels and profanity. The

district court granted the sheriff’s motion for summary judgment on a procedural

due process claim because North Carolina law provided a post-deprivation

remedy: a claim for tortious interference with a contract. Id. at 518-19. Here,

Plaintiffs pursued several claims arising from the shut-down of their concert.

After discovery and a lengthy trial on the merits, the jury returned defense

verdicts. While Plaintiffs did not prevail, they had their day in court.

In sum, Plaintiffs’ claims were premised not on inadequacy of procedure,

but rather, state actors’ unforeseeable failure to abide by procedure, for which

post-deprivation remedies were available. The allegations run squarely into the

Parratt/Hudson doctrine, and for this reason do not state a claim for deprivation

of procedural due process. Because there was no violation of procedural due

process rights, Biesenbach and Davilla were entitled to summary judgment and

qualified immunity on this claim. See Johnson, 379 F.3d at 301.

IV.

Plaintiffs’ first amended complaint failed to state a claim under § 1983

against the City of San Antonio. Plaintiffs also failed to present a genuine issue

of fact as to a deprivation of procedural due process rights, entitling Biesenbach

and Davilla to qualified immunity and summary judgment. The district court’s

rulings are in all respects

AFFIRMED.

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