The opinion
Case: 11-20235 Document: 00511845106 Page: 1 Date Filed: 05/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 4, 2012
No. 11-20235 Lyle W. Cayce
Clerk
APRIL WALKER,
Plaintiff - Appellant,
v.
HARRIS COUNTY; TOMMY THOMAS, Harris County Sheriff,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-3763
Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
April Walker sued Harris County and Sheriff Tommy Thomas alleging
federal civil rights violations. After dismissing Walker’s claims against Sheriff
Thomas, the district court granted summary judgment in favor of the County.
We AFFIRM.
I.
April Walker is a municipal judge and law professor at Texas Southern
University. According to her complaint, on January 1, 2008, she called the police
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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to report an encounter she had with several individuals who were blocking the
street near her home. Two hours later, in the middle of the night, a sheriff’s
deputy arrived at her house to arrest her for impersonating a public servant.
Walker responded that as a municipal judge she is a public servant.1 She then
asked the deputy to return at daytime to pursue the investigation and called 911
to report the deputy’s behavior. Another deputy arrived, entered Walker’s home,
and threw her down on the living room floor in front of her children. The deputy
broke Walker’s municipal court badge in half. Walker was charged with
impersonating a public servant, but the charges were dismissed on January 3.
Walker filed a complaint with Sheriff Thomas. Thereafter, she alleges
that the sheriff’s department retaliated against her by threatening her
employment at TSU and warning her that the charges would once again be filed
if she did not withdraw her grievance. She refused and was charged with
impersonating a public servant, but the charges were dismissed for lack of
probable cause.2 In April 2008, Walker filed a federal lawsuit alleging
retaliation and civil rights violations, but she agreed to dismiss that action
without prejudice several months later.
In July 2008, Walker was involved in another incident with the sheriff’s
department. Walker learned that sheriff’s deputies were called to one of her
neighbor’s houses and had detained her son and other teenage boys. She arrived
at the scene and tried to speak with the teenagers in the back of the patrol car.
The deputies told her she was at the scene of an active investigation and ordered
1
According to Sheriff Thomas’s brief, Walker was arrested and charged with
impersonating a police officer under Tex. Penal Code § 37.11, which prohibits impersonating
any public servant. That Walker was a municipal judge does not, of course, permit her to
impersonate a police officer.
2
The complaint is unclear as to whether the charges were brought and dismissed twice
or only once. It is possible that this allegation merely reiterates the initial filing and dismissal
of the charges.
2
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No. 11-20235
her back. She fled, followed by a sergeant, who caught up with her in her
driveway, grabbed her, and “manhandled” her. Walker alleges that the officers
recognized her as “the Judge” and treated her as they did in retaliation for her
filing a civil rights lawsuit against the department. She was subsequently
arrested and charged with leaving the scene of a crime. A grand jury terminated
the charges in Walker’s favor.
Walker sued in federal court, alleging governmental liability under 42
U.S.C. §§ 1983, 1985, and 1988 for violations of her rights under the First,
Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
In conclusory fashion, she alleged that these violations resulted from an official
policy, custom, or practice of the sheriff’s department and that Sheriff Thomas
ratified these violations. Walker also asserted numerous state law claims.3 The
district court dismissed the claims against Sheriff Thomas and Harris County
sought summary judgment. Walker responded by requesting a continuance to
conduct discovery; the court granted her request. On February 18, 2010, during
a hearing on a discovery dispute, the court expressly authorized Walker to take
the deposition of Sheriff Thomas as well as other discovery. The court set a
discovery deadline of September 24, 2010.
Even though the district court had authorized the deposition eight months
before the discovery deadline, Walker failed to take the deposition. Once
discovery closed, Harris County again sought summary judgment and, again,
Walker sought a continuance to respond and conduct discovery. The court found
no good cause existed for Walker’s eight-month failure to conduct any discovery
3
Walker filed suit in state court against Deputy Corey Alexander and Sergeant Cook,
who were directly involved in the January and July incidents, respectively. The state district
court denied the officers’ motion for summary judgment, in which they argued that the election
of remedies provision of the Texas Tort Claims Act bars Walker’s suit against them. The state
court of appeals affirmed, and the officers’ petition for review is pending before the Texas
Supreme Court. See Alexander v. Walker, 355 S.W.3d 709 (Tex. App.—Houston [1st Dist.]
2011, pet. pending).
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and denied her request for additional time to conduct discovery. The court did,
however, grant a continuance to file a supplemental response to the motion for
summary judgment. After reviewing the motion and response, the magistrate
judge recommended granting summary judgment to Harris County. The district
court adopted the magistrate judge’s recommendation. Walker timely appealed.
II.
Walker raises two issues on appeal. First, she argues that the district
court erred in granting summary judgment to Harris County.4 Second, she
argues that the district court abused its discretion by denying further discovery.
A.
The district court determined that there was no basis in the summary
judgment record to support a claim for municipal liability against Harris
County. We review the district court’s grant of summary judgment de novo.
Hoog-Watson v. Guadalupe Cnty., Tex., 591 F.3d 431, 434 (5th Cir. 2009).
Summary judgment is proper if “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).
Generally, municipalities, such as Harris County, are not liable for the
constitutional torts of their employees unless those employees act pursuant to
an official action or with approval. See Monell v. N.Y.C. Dep’t of Soc. Servs., 436
U.S. 658, 663 n. 7 (1978). In order to assert a claim for municipal liability under
§ 1983, a plaintiff must establish proof of three elements: (1) a policymaker; (2)
an official policy or custom; and (3) a violation of a constitutional right whose
4
Walker also asks this court to reverse the district court’s dismissal of Sheriff Thomas
in his individual capacity. Walker has not, however, identified any error in the district court’s
qualified immunity analysis. Walker has thus abandoned this contention. See Brinkmann v.
Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); see also United States v.
Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an argument on appeal, but
fails to adequately brief it, is deemed to have waived it.”).
4
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“moving force” is the policy or custom. Piotrowski v. City of Houston, 237 F.3d
567, 578 (5th Cir.2001) (citing Monell, 436 U.S. at 694).
Harris County moved for summary judgment because Walker’s claims are
conclusory, there is no evidence of the existence of any unconstitutional policy
or custom, and the actions that Walker claims to be unconstitutional do not
amount to a persistent and widespread practice. Aside from her conclusory
allegations, Walker did little to factually detail the policy or custom she claimed
was involved and how the particular injury was caused by the execution of that
policy. See Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th
Cir.1997) (“The description of a policy or custom and its relationship to the
underlying constitutional violation . . . cannot be conclusory; it must contain
specific facts.”). Thus, Walker cannot point to a policy, custom, or persistent and
widespread practice that could serve as a basis for municipal liability.
Moreover, even assuming that Walker could establish the existence of a
policy or custom, she has failed to present summary judgment evidence that the
policy was the moving force behind the constitutional violation. E.g. James v.
Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009) (“[T]here can be no municipal
liability unless it is the moving force behind the constitutional violation. . . . In
other words, a plaintiff must show direct causation, i.e., that there was ‘a direct
causal link’ between the policy and the violation.” (quoting Piotrowski, 237 F.3d
at 580)). Absent summary judgment evidence that the deputy who arrested her
had any knowledge of the alleged county policy of not disciplining deputies, it
was impossible for Walker to establish the required causal link.
Walker also argues that Harris County is liable based on Sheriff Thomas’s
ratification of the deputies’ actions. We have stressed that the ratification
theory of municipal liability is only available in “‘extreme factual situations.’”
Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 848 (5th Cir. 2009) (quoting
Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998)). Walker cites Sheriff
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Thomas’s deposition testimony from an unrelated case, claiming it creates a
genuine fact issue regarding ratification. See Ibarra v. Harris Cnty., 243 F.
App’x 830, 836 (5th Cir. 2007) (per curiam) (unpublished). But Sheriff Thomas’s
testimony that he supported his deputies so long as they “acted in good faith”
does not mean that he ratified an illegal act. See Coon v. Ledbetter, 780 F.2d
1158, 1161 (5th Cir. 1986) (precedent “does not stand for the broad proposition
that if a policymaker defends his subordinates and if those subordinates are
later found to have broken the law, then the illegal behavior can be assumed to
have resulted from an official policy”). “Our precedent thus forecloses
ratification liability in this case.” Peterson, 588 F.3d at 848.
Walker has not produced summary judgment evidence that could support
municipal liability.5 The district court properly granted summary judgment to
Harris County.
B.
Walker also contends that the district court erred in denying her motion
for additional discovery. In February 2010, the district court authorized Walker
to take Sheriff Thomas’s deposition. At an April status conference, the district
court set a September 24, 2010 discovery deadline and admonished counsel to
contact the court as often as necessary to resolve any discovery problems as they
occurred. Not until October 31, 2010, more than one month after the deadline,
did Walker complain to the court that defense counsel had failed to cooperate in
scheduling depositions. Despite the eight-month period of time, no depositions
were taken. We have held that a party who does not diligently pursue discovery
is not entitled to relief. See Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595,
606 (5th Cir. 2001). Because Walker failed to contact the district court prior to
5
Insofar as Walker challenges the district court’s rejection of her claims for failure to
train or supervise and failure to adequately investigate, she has inadequately briefed those
contentions and hence abandoned them. See Scroggins, 599 F.3d at 446.
6
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the discovery deadline, it was not an abuse of discretion to deny further
discovery.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
7