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Palacio v. Caraway ( 2021 )


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  • Case: 20-50403      Document: 00516064610         Page: 1     Date Filed: 10/21/2021
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
October 21, 2021
No. 20-50403
Summary Calendar                        Lyle W. Cayce
Clerk
Mauro C. Palacio,
Plaintiff—Appellant,
versus
Justin Caraway; Deputy Sheriff Ray Miller; Deputy
Sheriff Cari Davis; U.S. Marshal Roderick Tisdale,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CV-111
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Mauro C. Palacio, Texas prisoner # 2271249, appeals the dismissal,
on motions for summary judgment and judgment on the pleadings, of his
    42 U.S.C. § 1983
     claims of illegal search and seizure, excessive force, and failure
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50403       Document: 00516064610           Page: 2      Date Filed: 10/21/2021
No. 20-50403
to train against the defendants.        He also seeks remand based on the
defendants’ alleged failure to serve him with their summary judgment
exhibits.
Review of Palacio’s failure-to-serve argument is precluded by his
failure to object in the district court. See Rushing v. Kansas City S. Ry. Co.,
    185 F.3d 496
    , 508 (5th Cir. 1999); 1 McCloud River R. Co. v. Sabine River Forest
Prods., Inc.,
    735 F.2d 879
    , 882 (5th Cir. 1984). Palacio has also abandoned,
through failure to brief, a separate claim that he was subject to an illegal
arrest. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993). Finally, we
do not consider Palacio’s claim that the defendants violated his Fifth
Amendment rights to counsel and silence, as Palacio raises it for the first time
on appeal. See Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    , 342 (5th Cir.
1999).
We review the grant of summary judgment de novo, McFaul v.
Valenzuela,
    684 F.3d 564
    , 571 (5th Cir. 2012), and we “may affirm the district
court’s judgment on any basis supported by the record,” United States v.
Clay,
    408 F.3d 214
    , 218 n. 7 (5th Cir. 2005) (citation omitted).
The district court properly granted summary judgment on Palacio’s
substantive claims for relief. McFaul, 684 F.3d at 571. Regarding municipal
liability, Palacio has identified no “policy statement, ordinance, regulation,
or decision officially adopted and promulgated by [Hamilton County]”
concerning illegal search, seizure, or arrest. Monell v. Dep’t of Social Servs.,
    436 U.S. 658
    , 690-91 (1978). Likewise, on his claim of supervisor liability
against Caraway, Palacio has failed to allege Caraway’s personal involvement
in any unlawful search or arrest and has identified no constitutionally
1
Rushing was superseded by rule amendment on other grounds as noted in Mathis
v. Exxon Corp.,
    302 F.3d 448
    , 459 n.16 (5th Cir. 2002).
2
Case: 20-50403      Document: 00516064610           Page: 3     Date Filed: 10/21/2021
No. 20-50403
deficient policy implemented by Caraway that led to an illegal search or
arrest. See Thompkins v. Belt,
    828 F.2d 298
    , 304 (5th Cir. 1987).
The district court also correctly found that the defendants are entitled
to qualified immunity because Palacio failed to allege facts showing that the
challenged searches were constitutionally unreasonable.           See Melton v.
Phillips,
    875 F.3d 256
    , 261 (5th Cir. 2017). He offered no refutation of or
competent evidence disputing Caraway’s affidavit asserting that the
challenged searches were conducted pursuant to validly obtained consent.
See generally Fernandez v. California,
    571 U.S. 292
    , 306 (2014).
Lastly, the district court properly entered judgment on the pleadings
for Tisdale against Palacio’s claims of illegal search and excessive force. See
Ruiz v. Brennan,
    851 F.3d 464
    , 468 (5th Cir. 2017); Doe v. MySpace, Inc.,
    528 F.3d 413
    , 418 (5th Cir. 2008); Fed. R. Civ. P. 12(b)(6). As noted above,
Palacio failed to show a violation of his Fourth Amendment rights by any
defendant. And his wholly conclusory allegation of excessive force does not
suffice to state a claim for relief. See Taylor v. Books A Million, Inc.,
    296 F.3d 376
    , 378 (5th Cir. 2002).
The judgment of the district court is AFFIRMED.
3