Roe v. Johnson County

Case: 21-10890 Document: 00516599026 Page: 1 Date Filed: 01/05/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

No. 21-10890

Summary Calendar FILED

January 5, 2023

Lyle W. Cayce

John Roe, Clerk

Plaintiff—Appellant,

versus

Johnson County; Southwestern Correctional, L.L.C.,

doing business as LaSalle Corrections, L.L.C., doing business as

LaSalle Southwest Corrections; LaSalle Management

Company, L.L.C.; David Blankenship, Johnson County Peace

Officer; Bill Moore; Stu Madison, Assistant Johnson County

Attorney; Jeffrey Acklen, Johnson County Attorney's Investigator;

Eddie Williams; Philip Roden; Robert Matson; Adam

King, Sheriff; Bob Alford, former Johnson County Sheriff, Individually

& Officially; United States of America,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-2497

Before King, Higginson, and Willett, Circuit Judges.

Case: 21-10890 Document: 00516599026 Page: 2 Date Filed: 01/05/2023

No. 21-10890

Per Curiam:*

John Roe brought various constitutional claims, Bivens claims, and

state law claims related to his arrest for allegedly filing a false sexual assault

report. The district court dismissed all but one of Roe’s claims and later

granted Defendants-Appellees’ motion for summary judgment on the

remaining claim. Roe appeals. We affirm.

I.

In November 2015, John Roe was in Immigration and Customs

Enforcement custody in Texas at the Johnson County jail. He alleged that

Defendant-Appellee Roden, a corrections officer, sexually assaulted Roe

with his gun. Defendant-Appellee Blankenship interviewed Roe about his

assault and conducted an investigation. During this investigation,

Blankenship found inconsistencies in Roe’s allegations and identified

concerns about his behavior. Blankenship concluded that probable cause

existed to arrest Roe for making a false report to a peace officer, a

misdemeanor under Texas Penal Code § 37.08. Blankenship arrested Roe

and forwarded the case to the County Attorney’s Office of Johnson County.

In May 2018, Roe was found not guilty after a jury trial.

Proceeding pro se, Roe sued Blankenship, Roden, other prison

officials, state officials, prosecutors, entities operating the Johnson County

jail, and other individuals. He brought claims under 42 U.S.C. § 1983 for

alleged violations of his constitutional rights under the First Amendment,

Fourth Amendment, Fifth Amendment, Sixth Amendment, and Fourteenth

Amendment; he also brought claims pursuant to 42 U.S.C. §§ 1981 and

1985(3) and 28 U.S.C. § 1350, Bivens claims, and state law claims. In

September 2020, the district court granted motions to dismiss filed by

various Defendants-Appellees; the only claim surviving these motions was a

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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Fourth Amendment claim against Blankenship related to the alleged seizure

of Roe without probable cause. In August 2021, the district court granted

Blankenship’s motion for summary judgment based on his defense of

qualified immunity. Roe appeals.

II.

Roe challenges the district court’s grant of summary judgment in

favor of Blankenship based on qualified immunity. We review a grant of

summary judgment based on qualified immunity de novo. Carnaby v. City of

Hous., 636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is proper if the

pleadings and discovery on file, together with affidavits, show no genuine

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

a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We liberally

construe briefs of pro se litigants. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.

1995).

To determine whether a defendant is entitled to qualified immunity,

we ask “(1) whether the plaintiff has alleged a violation of a clearly

established constitutional right; and (2) if so, whether the defendant's

conduct was objectively unreasonable in the light of the clearly established

law at the time of the incident.” Domino v. Tex. Dep’t of Crim. Just., 239 F.3d

752, 755 (5th Cir. 2001) (quoting Hare v. City of Corinth, 135 F.3d 320, 325

(5th Cir. 1998) (en banc)). We may “analyze the prongs in either order or

resolve the case on a single prong.” Garcia v. Blevins, 957 F.3d 596, 600 (5th

Cir. 2020).

Roe has the burden of showing that the qualified immunity defense is

unavailable to Blankenship because Blankenship made a good-faith assertion

of that defense. Joseph v. Bartlett, 981 F.3d 319, 329–30 (5th Cir. 2020). Roe

must thus “show that there is a genuine dispute of material fact and that a

jury could return a verdict entitling the plaintiff to relief for a constitutional

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injury.” Id. at 330. And “the plaintiff's version of those disputed facts must

also constitute a violation of clearly established law,” meaning that Roe must

“identify a case—usually, a body of relevant case law—in which an officer

acting under similar circumstances . . . was held to have violated the

[Constitution].” Id. (alteration in original) (internal quotations omitted). We

need not accept Roe’s version of the facts as true when they are “blatantly

contradicted by the record, so that no reasonable jury could believe it.” Id. at

325 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

We assume arguendo that Roe successfully alleged violations of clearly

established Fourth Amendment constitutional rights protecting against (1)

an arrest not supported by probable cause and (2) the initiation of criminal

charges without probable cause. Even under this assumption, we hold that

Blankenship can successfully claim that he is entitled to qualified immunity

because Roe fails to identify analogous caselaw that is sufficient to show that

Blankenship violated clearly established law. 1

To meet his burden, Roe must identify a case or statute making

sufficiently clear that every reasonable officer would have understood that

what Blankenship did violated that law. Keller v. Fleming, 952 F.3d 216, 225

(5th Cir. 2020). Specifically, Roe must identify clearly established law

making it sufficiently clear that despite his consideration of Roe’s

inconsistent statements, extrinsic evidence, and witness testimony

suggesting that Roe was not being truthful in his sexual assault claim,

Blankenship did not have probable cause to arrest Roe.

1

Roe does not meet the “sky high” burden to show that analogous case law is not

necessary because this case presents the extreme circumstance of an obvious constitutional

violation. Joseph, 981 F.3d at 338.

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Roe does not identify that Blankenship violated clearly established law

with these actions. Although he correctly notes that he does not need to

identify relevant caselaw that is directly on point, the cases he cites only

announce general propositions about, e.g., the Fourth Amendment’s

protections against searches without probable cause. This is insufficient to

meet the required burden. Joseph, 981 F.3d at 329. 2

III.

Roe also argues that the district court erroneously dismissed his

official capacity claims against Blankenship. Roe argues that Blankenship was

responsible for overseeing the day-to-day operation of the Johnson County

jail, which gave him final policymaking authority as to the jail. Roe thus

attempts to establish county liability based on an alleged unconstitutional

action taken by Blankenship alone, as the final policymaker.

We review a dismissal for failure to state a claim under Rule 12(b)(6)

de novo. Whitaker v. Collier, 862 F.3d 490, 496–97 (5th Cir. 2017). We accept

all well-pleaded facts as true and must view those facts in a light most

favorable to the plaintiff. Campbell v. City of San Antonio, 43 F.3d 973, 975

(5th Cir. 1995). However, only facts set forth in the pleadings are considered;

unsupported conclusions and conclusory allegations are not considered in

this assessment. Id.

“Under Texas law, sheriffs are ‘final policymakers’ in the area of law

enforcement for the purposes of holding a county liable under § 1983.” James

v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009) (quoting Williams v.

2

Roe raises other arguments outlining various factual disputes concerning the

summary judgment evidence. None of these disputes affect the reasonableness of

Blankenship’s decision after evaluating the totality of the evidence in identifying probable

cause, and Roe’s conclusory arguments do not rectify his failure to identify that

Blankenship’s actions were a violation of clearly established law.

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Kaufman Cnty., 352 F.3d 994, 1013 (5th Cir. 2003)). And the Texas Local

Government Code allows the county sheriff to appoint a jailer to “operate

the jail and meet the needs of the prisoners, but the sheriff shall continue to

exercise supervision and control over the jail.” Tex. Loc. Gov’t Code

Ann. § 351.041.

Roe misunderstands the point that “[t]here is a fundamental

difference between decision makers and policymakers,” such that

“[d]iscretion to exercise a particular function does not necessarily entail final

policymaking authority over that function.” Martinez v. City of N. Richland

Hills, 846 F. App’x 238, 246 (5th Cir. 2021) (per curiam) (quoting Bolton v.

City of Dallas, 541 F.3d 545, 548–49 (5th Cir. 2008) (per curiam)). None of

his citations to the record nor his arguments on appeal point to the contrary

conclusion that Blankenship could be considered a final policymaker based

only on his ability to make decisions. 3 As such, the district court correctly

dismissed Roe’s official capacity claims.

Finally, we briefly address other arguments made by Roe in briefing.

Roe’s civil conspiracy allegations are unsupported by the record and were

thus correctly dismissed on summary judgment. See Montgomery v. Walton,

759 F. App’x 312, 314 (5th Cir. 2019) (per curiam) (“Conclusory allegations

that do not reference specific factual allegations tending to show an

agreement do not suffice to state a civil rights conspiracy claim under

§ 1983.”). Roe’s fabrication of evidence claim fails because he offers no

3

Roe analogizes his case to Paz v. Weir, 137 F. Supp. 2d 782 (S.D. Tex. 2001).

There, the court found that there was a jail “custom” of allowing misconduct and denied

summary judgment because of factual issues as to whether the county and the jail

administrator displayed deliberate indifference to reports of misconduct and as to whether

said alleged indifference was the “moving force” behind misconduct related to the

plaintiff. Id. at 815–16. Roe does not adequately argue that such a custom or deliberate

indifference is present here, and Paz is thus inapposite.

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material facts showing that any pretrial deprivations of his liberty were

caused by Blankenship’s alleged malfeasance in fabricating evidence. See

McDonough v. Smith, 139 S. Ct. 2149, 2156 (2019) (requiring plaintiff to show

that the deprivations of his liberty were caused by defendant’s malfeasance

in fabricating evidence). Roe’s collateral estoppel claim fails because his

argument that the district court found no probable cause mischaracterizes the

district court’s ruling that an affidavit did not establish probable cause.

Finally, Roe’s argument that the district court should have retained

jurisdiction over the remaining state law claims fails because he does not

show why the district court should have deviated from the general rule of

declining to exercise jurisdiction over remaining state-law claims 4 when all

federal-law claims are eliminated before trial. Brookshire Bros. Holding, Inc. v.

Dayco Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009). 5

IV.

For the foregoing reasons, we AFFIRM.

4

For clarity, this includes the indemnity claim against Defendants-Appellees

Southwestern Correctional, L.L.C. and LaSalle Management Company, L.L.C.

5

Roe’s remaining arguments are inadequately briefed and thus abandoned. See

Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party who inadequately briefs an

issue is considered to have abandoned the claim.”).

7