“It is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.” (quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976))
How later courts described this case
- “It is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.” (quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976))
- “We lack subject matter jurisdiction to review a moot claim.”
- “A party forfeits an argument . . . by failing to adequately brief the argument on appeal.”
Written by the judges who cited it.
The opinion
Case: 23-11190 Document: 78-1 Page: 1 Date Filed: 04/26/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-11190
Summary Calendar FILED
____________ April 26, 2024
Lyle W. Cayce
Jacob White, Clerk
Plaintiff—Appellant,
versus
The State of Texas; The City of Grapevine; Bruno
Rumbelow, City Manager in its Individual and Official Capacity;
Jennifer Hibbs, Assistant City Manager, in its Individual and Official
Capacity; Chris Smith, Parks and Recreation Director, in its Individual
and Official Capacity; Leigh Kapsos, Library Director, in its Individual
and Official Capacity; Chad Hetterley, Assistant Library Director, in
its Individual and Official Capacity; Gracie Burckhard, Library
Employee, in its Individual and Official Capacity; Kevin Manning, Police
Officer, in its Individual and Official Capacity; Mike Hamlin, in his
Individual and Official Capacity; William Tate, Mayor, in his Individual
and Official Capacity; Paul Slechta, City Council Member, in his
Individual and Official Capacity; Sharron Rogers, City Council
Member, in her Individual and Official Capacity; Leon Leal, City Council
Member, in his Individual and Official Capacity; Darlene Freed, City
Council Member, in his Individual and Official Capacity; Chris Coy, City
Council Member, in his Individual and Official Capacity; Duff O’Dell,
City Council Member, in its Individual and Official Capacity; Matthew
Boyle, City Attorney, in his Individual and Official Capacity; William
Brandt, Justice of the Peace, Tarrant County, in its Individual and Official
Capacity; John Doe 1-20; Jane Doe 1-20,
Defendants—Appellees.
Case: 23-11190 Document: 78-1 Page: 2 Date Filed: 04/26/2024
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:23-CV-925
______________________________
Before Willett, Duncan, and Ramirez, Circuit Judges.
Per Curiam: *
Jacob White, proceeding pro se, appeals the district court’s dismissal
of his claims challenging the issuance and enforcement of criminal trespass
warnings against him and the issuance of a peace bond in accordance with
Texas law. We AFFIRM.
I
In November of 2022, the City of Grapevine Library staff called the
police to report Jacob White (“White”) for harassment. On November 16,
2022, a Grapevine Police Officer issued criminal trespass warnings against
White notifying him that he was forbidden from entering the Grapevine
Library and Recreation Center. 1 White then sent complaints, record
requests, notices to preserve evidence, and requests to lift the trespass
warnings to various Grapevine employees, including the Library Director,
the Parks and Recreation Director, the City Manager, the Chief of Police, city
council members, and the mayor. On December 2, 2022, library staff filed a
police report stating that White was at the library in violation of the criminal
trespass warning.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
Under Texas law, a person cannot enter the property of another without consent
and with notice that entry is forbidden. Tex. Penal Code § 30.05(a). “Notice” can be
given through oral or written communication by the property owner or someone with
apparent authority to act for the owner. Id. § 30.05(b).
2
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No. 23-11190
The State of Texas issued a criminal summons for White to appear
before a Justice of the Peace (“JP”) in Tarrant County, Texas, at a peace
bond proceeding. 2 While he was represented by counsel, White agreed to the
terms of the peace bond on February 21, 2023, and a JP issued the peace bond
order. Under the peace bond order, (1) the criminal trespass warnings would
remain in effect, which prohibited White from visiting the Grapevine Library
and Recreation Center; (2) White would pay $2,500; and (3) White would
not initiate contact with any Grapevine employee or official, except for the
City Attorney. If White was in full compliance with the terms for one year,
the peace bond would be lifted, and White would be entitled to have the
$2,500 remitted.
On September 7, 2023, White filed this federal action against the JP,
in his individual and official capacities; the City of Grapevine (“City”) and
its employees, in their individual and official capacities; and the State of
Texas. His complaint asserts 108 claims against the defendants on federal and
state civil grounds and seeks millions of dollars in damages, as well as
injunctive and declaratory relief. All the defendants moved to dismiss his
claims. The City and its employees raised immunity defenses to his claims.
Adopting the magistrate judge’s recommendation, the district court
granted the defendants’ motions to dismiss for failure to state a claim upon
which relief can be granted under Federal Rules of Civil Procedure 12(b)(6)
_____________________
2
To obtain a peace bond, under Texas Law a person must allege, under oath, that
an offense is about to be committed against them. Tex. Code Crim. Proc. Ann.
art. 7.01. The accused will be brought before a magistrate who will hear proof as to the
accusation at a proceeding, and if there is “just reason to believe that the offense was
intended to be committed, or that the threat was seriously made,” the magistrate can order
that the accused enter into bond, for a discretionary sum, on the condition that the accused
will not commit the offense for any period of time, not to exceed one year from the date of
the bond. Id. arts. 7.01–7.03. A justice of the peace is a “magistrate” within the meaning of
the Texas Code of Criminal Procedure. Id. art. 2.09.
3
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No. 23-11190
and lack of subject matter jurisdiction under 12(b)(1) and denied all
outstanding motions as moot. 3 This appeal followed.
II
We conduct a de novo review of dismissals under Rules 12(b)(1) and
12(b)(6), applying the same standards used by the district court. Smith v.
Hood, 900 F.3d 180, 184 (5th Cir. 2018). Rule 12(b)(1) allows any party to
challenge the district court’s subject matter jurisdiction over a case. Fed. R.
Civ. P. 12(b)(1). Rule 12(b)(6) requires a plaintiff to plead sufficient facts to
state a plausible claim “upon which relief can be granted.” Id. 12(b)(6); Atl.
Corp. v. Twombly, 550 U.S. 544, 545 (2007).
White appeals pro se. We hold pro se pleadings “to less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 520 (1972). However, “even a liberally construed pro se civil rights
complaint . . . must set forth facts giving rise to a claim on which relief may
be granted.” Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993).
III
Liberally construing White’s brief on appeal, White argues the district
court erred in dismissing his claims against the JP, the City, its employees,
and the State of Texas.
_____________________
3
White moved for summary judgment on four of his claims against several
defendants, but the district court dismissed the motions as moot. White argues the
dismissals were erroneous. Because we affirm the district court’s dismissal of White’s
claims, we will not address this issue. See Am. Precision Ammunition, L.L.C. v. City of Min.
Wells, 90 F.4th 820, 827 (5th Cir. 2024) (“We lack subject matter jurisdiction to review a
moot claim.”) (citation omitted); see also Humphries v. Elliott Co., 760 F.3d 414, 418 (5th
Cir. 2014) (“It is the general rule . . . that a federal appellate court does not consider an
issue not passed upon below.” (quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976))).
4
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No. 23-11190
A
White argues the district court erred when it dismissed his claims
against the JP because he violated White’s due process rights by issuing and
lying on the peace bond. The district court dismissed all claims against the JP
under Rule 12(b)(1) for lack of subject matter jurisdiction, finding that White
did not have standing to sue the JP in federal court for an unfavorable
outcome in a state court proceeding.
“[S]tanding is required before a federal district court can exercise
subject matter jurisdiction.” Arbraugh v. Altimus, 26 F.4th 298, 303 (5th Cir.
2022). A plaintiff must prove (1) injury in fact, (2) traceability, and
(3) redressability to establish Article III standing. Bauer v. Texas, 341 F.3d
352, 358 (5th Cir. 2003). Because the record does not reflect that the JP lied
on the peace bond, and a judge “acting purely in his adjudicative capacity”
is not a proper party in an action challenging a state law, id. at 359, we find
that the district court did not err by dismissing White’s claims against the JP
for lack of standing.
B
White argues the district court erred by dismissing his claims against
the City and its employees in their official and individual capacities because
City officials violated his constitutional rights.
White argues that the district court erred in dismissing his federal
claims against the City because he pleaded sufficient facts to state a claim for
municipal liability. To establish municipal liability under § 1983, a plaintiff is
required show a policymaker, an official policy or custom, and a violation of
constitutional rights whose “moving force” is the execution of said custom
or policy. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
Here, White asserts that it was the City’s policy to usurp his constitutional
rights by issuing trespass warnings and commencing the peace bond
5
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No. 23-11190
proceeding against him in accordance with Texas law. The district court
properly concluded that White failed to plead sufficient facts to identify a city
policy or custom, not a state law, that was the “moving force” behind any
constitutional violation. 4
The district court properly dismissed the claims against the City
employees in their official capacities because “an official-capacity suit
is . . . to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S.
159, 166 (1985).
White specifically argues that the individual capacity claims against
the City employees are not barred by qualified immunity. The district court
dismissed the individual capacity claims, finding that White failed to assert
sufficient facts to support legally cognizable claims against the City
employees and failed to rebut their qualified immunity defense. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). We agree. Qualified immunity shields
government officials performing discretionary functions from civil liability.
Anderson v. Creighton, 483 U.S. 635, 639 (1987). “To defeat a defendant’s
assertion of qualified immunity, the plaintiff must show ‘(1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.’” Trevino v. Iden, 79 F.4th
524, 530–31 (5th Cir. 2023) (citations omitted). Based on our de novo review
of the record, we agree that White failed to plead sufficient facts to show a
violation of his rights by the City employees.
_____________________
4
White also brought various tort claims against the City. The district court
dismissed those claims finding that the City was entitled to sovereign immunity. Because
White failed to brief the issues on appeal, they are forfeited. See Rollins v. Home Depot USA,
8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an argument . . . by failing to adequately
brief the argument on appeal.”).
6
Case: 23-11190 Document: 78-1 Page: 7 Date Filed: 04/26/2024
No. 23-11190
C
White argues that the district court erred when it dismissed his claims
against the State of Texas because his claims are not barred by the Eleventh
Amendment. Unless a state has waived its Eleventh Amendment immunity,
it cannot be sued in federal court by private individuals. Bd. of Trs. of the Univ.
of Al. v. Garrett, 531 U.S. 356, 363 (2001). Here, White failed to identify any
waiver or exception to Texas’s immunity. Because White failed to meet his
burden to show that jurisdiction exists to adjudicate his claims against the
State of Texas, the district court’s dismissal of his claims against the State
was proper.
Finally, because there were no remaining federal law claims, the
district court did not abuse its discretion by declining to exercise
supplemental jurisdiction over White’s state law claims. See Brookshire Bros.
Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009).
IV
We AFFIRM the district court’s dismissal of White’s claims, and all
outstanding motions are DENIED as moot.
7