Castaneda v. Guerra ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-40863
Summary Calendar
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ERNESTO C. CASTANEDA, doing business as
Castaneda’s Nationwide Federal Bonding
and Bail Bonds Companies, Ltd.,
Plaintiff-Appellant,
versus
RENE GUERRA, In His Individual Capacity as
District Attorney of Hidalgo County, Texas;
WILLIAM McPHERSON, In His Individual
Capacity as Assistant District Attorney
of Hidalgo County, Texas,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(M-97-CV-195)
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December 23, 1999
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ernesto C. Castaneda, pro se, appeals the summary judgment
dismissing his action against Hidalgo County, Texas, District
Attorney Rene Guerra, and Assistant District Attorney William
McPherson. Castaneda claimed that his constitutional right to due
*
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this opinion should not be published and is not precedent except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.
process was violated when the Hidalgo County Sheriff, after
receiving a letter from the Hidalgo County District Attorney,
refused to accept bail bonds issued by Castaneda. He also claimed
that the defendants violated his rights to equal protection and
freedom of association, as well as the Contract Clause, the Dormant
Commerce Clause, the federal Privacy Act, the Sherman Antitrust
Act, the Racketeer Influenced and Corrupt Organizations Act (RICO),
and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Castaneda admitted that he was not
licensed to operate a bail bond business in Hidalgo County, but
maintained that he was exempt from the licensing requirement under
a “grandfather clause”, because he has been writing such bonds in
South Texas for several decades.
We review a summary judgment de novo. E.g., Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825(1992). It “shall be rendered forthwith, [, pursuant to the
summary judgment record,] there is no genuine issue as to any
material fact and ... the moving party is entitled to a judgment as
a matter of law”. FED. R. CIV. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). If the movant meets the initial
burden of showing that there is no material fact issue, the burden
shifts to the nonmovant to produce evidence or otherwise designate
specific facts showing the existence of such an issue for trial.
FED. R. CIV. P. 56(e); see also Little v. Liquid Air Corp., 37 F.3d
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1069, 1075 (5th Cir. 1994) (en banc). (Castaneda’s and Appellees’
motions to supplement the record are GRANTED.)
Summary judgment was appropriate against Castaneda’s due
process claim, because he did not demonstrate that the defendants
deprived him of a constitutionally-protected liberty or property
interest. Under Texas law, he was required to obtain a license
before issuing the bonds. See TEX. REV. STAT. ANN. art. 2372p-3. It
is undisputed that he never applied for the license; likewise, he
failed to establish that, pursuant to a “grandfather clause”, he
was exempt from the licensing requirements. See Blackburn v. City
of Marshall, 42 F.3d 925, 935-41 (5th Cir. 1995). Similarly
because Castaneda is free to seek a license to issue bail bonds in
the County, he has not established that he was deprived of a
protected liberty interest in pursuing his occupation. See Martin
v. Memorial Hospital at Gulfport, 130 F.3d 1143, 1147-49 (5th Cir.
1997). As to Castaneda’s claim that the defendants damaged his
reputation, he did not present evidence that the defendants’
conduct so “stigmatized him and so damaged his reputation in the
community that he could not earn a living”. Id. at 1149.
Summary judgment was proper against Castaneda’s equal
protection claim, because he did not present evidence that the
defendants allowed other unlicensed bail bondsmen to issue bonds in
the County. See Vera v. Tue, 73 F.3d 604, 609-10 (5th Cir. 1996).
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Finally, summary judgment was proper against Castaneda’s
claims against defendants in their official capacities. Concerning
the damage claims, defendants are immune from liability under the
Eleventh Amendment. See Esteves v. Brock, 106 F.3d 674, 677 n.8
(5th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 91 (1997).
Regarding the requested permanent injunction, the County is subject
to liability under § 1983 only if constitutional violations
resulted from an official county policy or custom. See Flores v.
Cameron County, 92 F.3d 258, 263 (5th Cir. 1996). As stated,
Castaneda did not establish such violations.
Castaneda did not adequately brief, and therefore abandoned,
his contentions that the defendants’ actions violated the
constitutional prohibition against bills of attainder, his right to
freedom of association, the Contract Clause, the Dormant Commerce
Clause, Bivens, the Privacy Act, the Sherman Antitrust Act, and
RICO. See FED. R. APP. P. 28(a)(9); Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
AFFIRMED
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