Henry v. City of Taylor, TX , 336 F. App'x 410 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2009
No. 08-50731 Charles R. Fulbruge III
Summary Calendar Clerk
REVEREND ROBERT HENRY
Plaintiff-Appellant
v.
CITY OF TAYLOR, TEXAS; OFFICER JOHN DOE; JANE DOE
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-1007
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Reverend Robert Henry appeals the district court’s
grant of summary judgment in favor of Defendant-Appellee City of Taylor,
Texas, on his municipal liability claim under 42 U.S.C. § 1983. Plaintiff’s suit
arises out of the actions of a housing code enforcement officer who misidentified
Plaintiff as the owner of a property that allegedly violated a housing ordinance
and then sent a notice of abatement to Plaintiff to the wrong address. When
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-50731
Plaintiff did not appear for the scheduled hearing, arrest warrants were issued
and Plaintiff was later arrested. All charges were eventually dismissed.
Reviewing the judgment de novo, see Fabela v. Socorro Indep. Sch. Dist.,
329 F.3d 409, 414 (5th Cir. 2003), and for the reasons that follow, we affirm.
1. “Under 42 U.S.C. § 1983, a municipality cannot be held vicariously liable for
the constitutional torts of its employees or agents.” Gros v. City of Grand
Prairie, 181 F.3d 613, 615 (5th Cir. 1999). For liability to attach, three elements
must be proved: “(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 v. City of
Houston, 291 F.3d 325, 328 (5th Cir. 2002). Plaintiff thus bore the burden of
substantiating either a formal policy officially adopted and promulgated by city
policymakers, or a well-settled and common practice by city officials or
employees of which the city or its policymakers were actually or constructively
aware. See Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en
banc).
2. Plaintiff in his brief wholly fails to allege, let alone substantiate the existence
of, a custom or policy of which the City, through a specific policymaker, knew or
should have known. This is so even though the district court found that the
absence of such proof warranted summary judgment in favor of the City. By
failing to dispute the district court’s adverse finding on an essential element of
his action under § 1983, Plaintiff has necessarily waived his challenge to the
district court’s judgment in favor of the City. See R.R. Mgmt. Co., L.L.C. v. CFS
La. Midstream Co., 428 F.3d 214, 220 n.3 (5th Cir. 2005) (holding that failure to
challenge the district court’s alternative basis for a ruling waived the challenge
asserted); see also United States v. Hatchett, 245 F.3d 625, 644–45 (7th Cir.
2001) (failing to address one of two or more alternative holdings on an issue
waives claims of error with respect to that issue).
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No. 08-50731
3. Plaintiff also asserts for the first time on appeal that the City did not properly
train the code enforcement officer and municipal court clerk who submitted the
affidavits underlying the arrest warrants. Although failure to train may give
rise to § 1983 liability, see City of Canton v. Harris, 489 U.S. 378, 389, 109 S. Ct.
1197 (1989), we will not consider new allegations or legal theories not presented
below, see Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
AFFIRMED.
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