Castro v. McCord , 259 F. App'x 664 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 18, 2007
No. 05-21034 Charles R. Fulbruge III
Clerk
ALMA ROSA CASTRO,
Individually and as Representative of
the Estate of Melvin Geovanny Romero Sagusteme,
Also Known as Melvin Alejandro Romero, Also Known as Melvin Romero,
and as Next Friend of Jennifer Johanna Romero Castro, a Minor;
ENRIQUE OSCAR ROMERO; CANDIDA ROSA SAGUSTEME,
Plaintiffs-Appellants,
v.
MATTHEW W. MCCORD,
Individually and in His Official Capacity;
CONSTABLE JACK ABERCIA,
Individually and in His Official Capacity;
HARRIS COUNTY, TEXAS,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Texas
No. 4:04-CV-1612
No. 05-21034
Before JONES, Chief Judge, REAVLEY and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Family members of Melvin Romero (the “plaintiffs”) appeal a jury verdict
in favor of officer Matthew McCord, the judgment as a matter of law (“j.m.l.”) in
favor of Constable Jack Abercia and Harris County, and the ruling that plaintiff
Alma Castro lacks standing. Finding no error, we affirm.
I.
McCord, an on-duty licensed police officer employed as a deputy constable
for Harris County, stopped Romero’s car, performed a pat-down search of Ro-
mero, and felt a gun in his pocket. Backing away while drawing his service
weapon, McCord repeatedly instructed Romero not to move, but Romero instead
put his hand into the pocket with the gun. McCord shot three times, killing Ro-
mero. At the time of the shooting, McCord had completed all state-mandated
basic police training. He was not disciplined.
II.
Castro, Romero, and Candida Sagusteme sued McCord, Harris County,
and Abercia under 42 U.S.C. § 1983 and the Fourth Amendment and urged state
law claims including, inter alia, assault, battery, and wrongful death. After
plaintiffs had presented their case, the court granted j.m.l. for Harris County
and Abercia. It found that plaintiffs (1) had not shown deliberate indifference
on the part of Harris County or Abercia that would subject them to liability for
a failure to train or supervise McCord; (2) had failed to demonstrate that Harris
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 05-21034
County or Abercia had established an official or unofficial policy that caused the
shooting; (3) had not established a link between Abercia’s decision to hire Mc-
Cord and the injury; (4) had failed to show that Abercia is a policymaker for the
county; and (5) had not presented evidence that could establish a causal connec-
tion between the county or Abercia and McCord’s actions that would make the
county or Abercia liable under state law.
The court dismissed Castro for lack of standing because it found that she
was never formally or informally married to Romero. It also dismissed Enrique
Romero as a party because he had failed, in contravention of court orders, to ap-
pear or participate in any court proceedings and because plaintiffs had presented
no evidence of damages suffered by Enrique Romero. The jury answered inter-
rogatories finding that McCord had violated Romero’s right to be free from ex-
cessive force but that his use of deadly force was objectively reasonable in light
of the facts and circumstances confronting him at the time he acted.
III.
Because of inadequate briefing, plaintiffs have waived their appeal with
respect to the jury verdict, Castro’s standing, the state law claims, and certain
of the § 1983 claims. They have also failed to establish that Abercia or Harris
County is liable under the remaining § 1983 claims.
A.
“A defendant waives an issue if he fails to adequately brief it.” United
States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001). “[T]his court requires ar-
guments to be briefed to be preserved and issues not adequately briefed are
deemed abandoned . . . .” Regmi v. Gonzalez, 157 F. App’x 675, 676 (5th Cir.
2005) (citing Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)) Though pro
se litigants’ briefs are liberally construed so as to avoid waiver of issues, the in-
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No. 05-21034
dulgence for parties represented by counsel is necessarily narrower. See Yohey,
985 F.2d at 225. We will decline to address an issue where an argument lacks
citation to authority or references to the record.1 Failure to include an argument
in the issue statement or body of the brief may also constitute waiver.2
1.
Plaintiffs’ brief specifies two items in the “Issues” section: “Whether the
trial court erred in granting Judgment as a Matter of Law for defendants Harris
County and Constable Jack Abercia on all of plaintiffs [sic] claims and against
plaintiff Alma Rosa Castro as to all defendants due to lack of standing.” There
is no mention of a challenge to the verdict in favor of McCord. In the section of
the brief discussing the j.m.l., plaintiffs seem to challenge the jury’s finding that
McCord is entitled to qualified immunity, but the exact scope of the argument
is murky. In the final paragraph of the argument section, Plaintiffs appear to
argue that the interrogatories sent to the jury were improper, but they provide
no explanation beyond the assertion.
Finally, in the brief’s penultimate paragraph, plaintiffs request that this
court vacate the jury’s finding that McCord had qualified immunity and “con-
firm” the finding that McCord used excessive force. They also request “that all
findings of fact and conclusions of law be vacated or in the alternative those in-
consistent with this brief be vacated.” The mere request for relief in the con-
cluding section of an appellate brief does not constitute a supported argument
or adequate briefing, nor does it preserve the issue for review, so the issue is
1
United States v. Upton, 91 F.3d 677, 684 n.10 (5th Cir. 1996) (citing United States v.
Ballard, 779 F.2d 287, 295 (5th Cir. 1986)); L&A Contracting Co. v. S. Concrete Servs., 17 F.3d
106, 113 (5th Cir. 1994) (waiver for failing to cite authority); United States v. Beaumont, 972
F.2d 553, 563 (5th Cir. 1992) (failure to argue the issue adequately).
2
FED. R. APP. P. 28(a); State v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000) (waiver
for failure to include arguments in statement of issue or body of brief).
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No. 05-21034
waived.
2.
Plaintiffs’ brief is wholly inadequate on the issue of Castro’s standing.
That issue is mentioned in three places in the briefSSfirst in the designation of
the issues, second in the statement of facts, and finally in the prayer for relief.
Assuming, arguendo, that the facts section is an appropriate place to make an
argument, plaintiffs do not do so. Their entire “argument” is as follows: “Just
prior to being killed by Deputy McCord Melvin had a child, Jennifer Johanna
Romero, three years old at time of trial, through plaintiff/appellant Alma Rosa
Castro. Melvin lived with Alma at the time of his death,” so “Alma Rosa Castro
was properly in this suit as next friend of her and Melvin’s daughter Jennifer
Johanna Romero and she request [sic] that she should be reinstated as a plain-
tiff against all defendants.” There is no citation to relevant case or statutory
law, nor is there an argument going to Romero’s paternity of Jennifer Romero.3
As we have said, the mere request for relief in the concluding section of an appel-
late brief does not constitute a supported argument, nor does it preserve the is-
sue for review. Accordingly, this argument is waived.
3
For Castro to have succeeded on this issue, she would have had to prove her marriage
to Romero or some act on his part acknowledging paternity. See TEX. FAM. CODE §§ 101.24,
160.204. She does not present any argument supporting the existence of her marriage to Ro-
mero, thereby waiving the argument as to her marriage.
The only other option is some acknowledgment on the part of Romero of his paternity.
The record is lacking in any such showing. The birth certificate is the only evidence in the rec-
ord indicating Romero as the father, but that is not enough, because Castro admits that Ro-
mero did not consent to his name being on the form. See Yavapai-Apache Tribe v. Mejia, 906
S.W.2d 152, 175 n.15 (Tex. App.SSHouston [14th Dist.] 1995, no writ).
Additionally, paternity can be proven where the man continuously resides with the child
for two years and represents that he is the father. TEX. FAM. CODE. § 160.204(a)(5). There has
been no showing of that in this case, and Romero died only five days after the child’s birth.
Finally, even if Castro was improperly dismissed, there is no cause of action available because
of the district court’s and this court’s ruling on the other issues.
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No. 05-21034
3.
Plaintiffs waive the question of Harris County’s and Abercia’s § 1983 lia-
bility for failing to train or supervise McCord. The totality of the argument on
this point consists of the following: “Constable Abercia is liable as Abercia
(1) failed to train or supervise the officers involved, (2) there was a causal con-
nection between the alleged failure to supervise or train and the alleged viola-
tion of the plaintiff’s rights, and (3) deliberate indifference to the plaintiff’s con-
stitutional rights.”4 Although these are the elements that constitute what a
plaintiff must show to establish liability for failure to train or supervise,5 this
statement does not constitute an argument. Assertion is not a substitute for ar-
gument. It is not enough to assert the outcome of a contested issue, even where,
as here, the appellate court reviews the judgment de novo.6
4.
The district court held that although plaintiffs presented evidence of vari-
ous juvenile run-ins with the law, they did not demonstrate a causal link be-
tween McCord’s hiring and the shooting. On appeal, although plaintiffs make
scattered references to McCord’s juvenile record and military discipline record,
4
To the extent that plaintiffs make an argument on this point, it appears to relate to
the failure to retrain McCord following a 1999 shooting incident. Once again, however, plain-
tiffs fail to argue that the failure to retrain was causally linked to Romero’s death. Plaintiffs
also have not overcome the fact that a pattern of violations must be established to satisfy the
deliberate indifference prongs. Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406
F.3d 375, 381 (5th Cir. 2005).
5
To establish liability under § 1983 for failure to train or supervise, “the plaintiff must
show that: (1) the supervisor either failed to supervise or train the subordinate official; (2) a
causal link exists between the failure to train or supervise and the violation of the plaintiff's
rights; and (3) the failure to train or supervise amounts to deliberate indifference.” Id. (quoting
Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998)).
6
See Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1527 (5th Cir. 1993) (“For an
appellate court to perform its role requires at least a minimal reasoned attack.”).
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No. 05-21034
they make no argument as to how those facts relate to the issue of a causal link.
They have failed to argue this issue adequately and have waived it on appeal.
5.
The district court held that plaintiffs had failed to demonstrate that Aber-
cia was a policymaker for Harris County such that his actions could subject the
county to liability. Before this court, plaintiffs assert that “Precinct 1 Constable
Abercia testified that he was a policymaker” and that “[a]n admitted policy mak-
er, such as Constable Abercia, can make Harris County liable.” There are no ci-
tations to authority indicating that constables are policymakers, as required by
L&A Contracting, 17 F.3d at 113. This failure to cite authority or the record is
not surprising in light of the district court’s recognition of our caselaw that in-
dicates that, as a matter of law, constables are not policymakers.7 Accordingly,
plaintiffs have waived this issue.
6.
The district court dismissed the state law claims because plaintiffs had
failed to demonstrate a connection between McCord’s actions and Abercia or
Harris County that would subject the county to liability. In their brief on ap-
peal, plaintiffs do not even mention the state law claims, so they have waived
them.
B.
The only issue plaintiffs did not waive is the allegation that McCord acted
7
See, e.g., Rhode v. Denson, 776 F.2d 107, 108 (5th Cir. 1985) (“We are unpersuaded
that a constable of a Texas county precinct occupies a relationship to the county such that his
edicts or acts may fairly be said to represent official county policy”). For this reason, Abercia’s
tentative assertion of some policymaking authority is not enough to establish that he was a
policymaker.
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No. 05-21034
pursuant to a policy or custom that would give rise to liability under § 1983. We
review a j.m.l. de novo and apply the same legal standard as did the district
court. Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002). A dis-
trict court properly enters j.m.l. where “a party has been fully heard on an issue
and there is no legally sufficient evidentiary basis for a reasonable jury to find
for the party on that issue.” FED. R. CIV. P. 50(a). To survive a rule 50(a) mo-
tion, the non-moving party must establish a conflict in the substantial evidence
on each essential element of their claim such that a jury would not “ultimately
rest its verdict on mere speculation and conjecture.” Anthony, 284 F.3d at 583.
In making this determination, the court considers the evidence in the light most
favorable to the non-moving party. Id.
Plaintiffs allege that McCord improperly patted down Romero, did not call
for a Spanish-speaking officer, did not take cover behind a nearby pole, shot Ro-
mero before a threat existed, and planted a “throw down” gun to cover up the
shooting. They insinuate that these actions were in accordance with the accept-
ed custom or policy of Harris County. The only evidence offered to establish that
that was custom or policy is Abercia’s failure to discipline or retrain McCord af-
ter the shooting.
Under § 1983, to recover from a governmental entity based on the theory
of official policy or custom, a plaintiff must demonstrate “(1) an official policy (or
custom), of which (2) a policy maker can be charged with actual or constructive
knowledge, and (3) a constitutional violation whose ‘moving force’ is that policy
(or custom).” Pineda, 291 F.3d 325, 328 (5th Cir. 2002) (citing Piotrowski v. City
of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
The first prong, the existence of a custom or policy, can be established in
two ways. First, it can be shown by a policy statement, regulation, or official po-
sition adopted by policymakers that resulted in the plaintiff’s injury. Id. Al-
though plaintiffs claim Abercia was a policymaker, they have waived that claim
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No. 05-21034
by their inadequate briefing, as we have said. Moreover, even if they had made
the argument, as a matter of law a constable is not a policymaker.
Rather, plaintiffs rely on the second method, which requires showing
[a] persistent, widespread practice of city officials or employees
which, although not authorized by officially adopted and promulgat-
ed policy, is so common and well settled as to constitute a custom
that fairly represents municipal policy. Actual or constructive
knowledge of such custom must be attributable to the governing
body of the municipality or to an official to whom that body had del-
egated policy-making authority. Actions of officers or employees of
a municipality do not render the municipality liable under § 1983
unless they execute official policy . . . .
Id. (citing Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en
banc)).
Plaintiffs did not establish a “persistent, widespread practice” of shootings
by Harris County officers. Abercia testified to three shooting deaths, including
Romero’s, by the thirty-four patrol officers in the five years preceding trial.8
Further, even if it is assumed, arguendo, that plaintiffs satisfied the first two
prongs by establishing the existence of a custom that a policymaker knew about,
they failed to show, and do not even attempt to show, that the custom was the
“moving force” behind the constitutional violation.9
Finally, to establish the existence of policy or custom, plaintiffs allege that
the post-shooting conduct of Abercia and Harris County constituted “ratification”
of McCord’s conduct. They rely exclusively on Grandstaff v. City of Borger, 767
8
Abercia also testified that the population of Precinct 1 was about 700,000.
9
The closest plaintiffs come to alleging that the custom was the moving force is two sen-
tences, without record citations or supporting caselaw, in a paragraph on the existence of policy
or custom: “Here Precinct 1 deputy constable [sic] blasted Melvin Romero with three 40 caliber
hollow point bullets after employing techniques that are bound to result in death eventually
as Lt. Clark testified. An obvious throw down weapon was present and Constable Abercia and
Harris County investigators looked the other way.” Plaintiffs do not specify which techniques
or which statements of Clark’s they are referring to, nor do they include any analysis or prece-
dent showing that these unnamed techniques satisfy the moving force prong of the analysis.
9
No. 05-21034
F.2d 161 (5th Cir. 1985), to support that argument.
Grandstaff, however, has been limited to its unique facts.10 Coon included
a description of Grandstaff, whose facts are plainly distinguishable from those
here:
Grandstaff, however, 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. Rather, Grand-
staff affirmed a judgment against a Texas city on a highly peculiar
set of facts: in response to a minor traffic violation, three patrol cars
engaged in a high speed chase during which they fired wildly at the
suspected misdemeanant; the object of this chase took refuge on an
innocent person’s ranch, where the entire night shift of the city pol-
ice force converged and proceeded to direct hails of gunfire at any-
thing that moved; although nobody except the police was ever shown
to have fired a shot, the innocent rancher was killed when the police
shot him in the back as he was emerging from his own vehicle; after
this “incompetent and catastrophic performance,” which involved a
whole series of abusive acts, the officers’ supervisors “denied their
failures and concerned themselves only with unworthy, if not des-
picable, means to avoid legal liability.”
Coon, 780 F.2d at 1161 (internal citations omitted). The differences between the
facts of Grandstaff and those of the present case are obviousSShere there was a
single officer firing on a defendant reaching, against instructions, into his pocket
allegedly for a gun, as distinguished from “the entire night shift” directing “hails
of gunfire” at someone accused of a minor traffic violation, and killing an inno-
cent bystander.
Perhaps even more fatal to plaintiffs’ argument is that they base their en-
tire case on the testimony of one expert witness, Lieutenant Roger Clark . More
is required to establish liability under § 1983:
10
See Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986) (“The Grandstaff panel em-
phasized the extraordinary facts of the case, and its analysis can be applied only to equally ex-
treme factual situations.”).
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No. 05-21034
[W]e have emphasized that, when seeking to prove a municipality's
malevolent motive, plaintiffs must introduce more evidence than
merely the opinion of an expert witness. In Stokes v. Bullins, 844
F.2d 269 (5th Cir. 1988), the district court relied primarily on the
testimony of a single expert witness in holding that the municipality
violated § 1983. We disagreed, remarking that “an expert’s opinion
should not be alone sufficient to establish constitutional ‘fault’ by a
municipality in a case of alleged omissions, where no facts support
the inference that the town’s motives were contrary to constitutional
standards.” Id. at 275.
Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998). Without more, plaintiffs
cannot rely on Clark’s testimony to demonstrate that Harris County’s post-inci-
dent actions constituted a malevolent policy.
The judgment is AFFIRMED.
11