     Case: 11-20223     Document: 00511765649         Page: 1     Date Filed: 02/23/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         February 23, 2012

                                     No. 11-20223                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



LLOYD HENDERSON; LORETTA HENDERSON


                                                  Plaintiffs - Appellants

v.

ANDERSON; HARRIS COUNTY, TEXAS; TOMMY THOMAS; DAN
BILLINGSLEY; MAJOR DEPUTY JUAN JORGE; DEPUTY D. R. WARREN;
C. A. SANDOVAL,


                                                  Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:09-CV-548


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Lloyd and Loretta Henderson sued Harris County, Texas, the Harris
County Sheriff’s Department, and former officers of the department alleging civil


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20223

rights violations. After all defendants other than Harris County had been
dismissed, Harris County moved for summary judgment. The court below
granted the Hendersons a continuance to conduct discovery in response to the
motion, but no depositions were taken before the discovery deadline. Because
no new evidence was presented, the magistrate judge recommended, and the
district court granted, summary judgment to Harris County. We AFFIRM the
ruling of the district court.
                          FACTS & PROCEEDINGS
      In October 2007, Lloyd Henderson reported a burglary of his business by
calling the Sheriff’s Department. Deputies Anderson and Warren responded to
the call and, while completing the incident report, Henderson alleges that
Deputy Anderson “became rude and belligerent and physically threw Mr.
Henderson on the ground and falsely arrested him” by handcuffing him.
Henderson alleges he was injured as a result of this use of force. Henderson’s
security camera captured the incident, but there was no sound on the video.
After the event, the Hendersons submitted a complaint to the Sheriff’s
Department’s Internal Affairs Division. The Division began an investigation of
the burglary and the alleged assault.
      Unsatisfied with the investigation, the Hendersons brought suit against
the county, Sheriff’s Department, and multiple Sheriff’s Department officers in
state court, later amending their complaint to include federal claims. The
defendants removed the action to federal court and sought dismissal of the
claims. The court dismissed the officers and Harris County sought summary
judgment. The Hendersons responded by requesting a continuance to conduct
discovery which the court granted. On February 18, 2010, during a hearing on
a discovery dispute, the court expressly authorized the Hendersons’ attorney to
take the depositions of former Sheriff Thomas and three sheriff’s deputies, as



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                                  No. 11-20223

well as other discovery. The court set a discovery deadline of September 24,
2010.
        Despite authorizing the depositions and other discovery with sufficient
time, the Hendersons failed to take any depositions. Once discovery closed,
Harris County again sought summary judgment and, once again, the
Hendersons sought a continuance to respond and conduct discovery. The court
found no good cause existed for the Hendersons’ eight month failure to conduct
any discovery and denied their request for additional time to conduct discovery.
The court did, however, grant a continuance to file a supplemental response to
the motion for summary judgment. After reviewing the motion and response,
the magistrate judge recommended granting summary judgment to Harris
County. The district court adopted the recommendation of the district court and
the Hendersons timely appealed.
                           STANDARD OF REVIEW
        We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. Nickell v. Beau View of Biloxi,
L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is appropriate
when the moving party can demonstrate that “there is no genuine dispute as to
any material fact and [it] is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). “We review a district court’s discovery decisions for abuse of discretion
and will affirm such decisions unless they are arbitrary or clearly unreasonable.”
Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000).
                                 DISCUSSION
        The Hendersons raise two issues on appeal. First, they allege that the
district court erred in granting summary judgment. Second, they allege the
district court abused its discretion by denying further discovery.
A.      Summary Judgment



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        The Hendersons first assert that the officers acted as a result of and in
accordance with the County’s practice, custom, or policy of warrantless searches
and seizures, refusing to investigate citizens complaints against deputies, and
intimidating and retaliating against them if they did submit a grievance.
Second, the Hendersons seek to impose municipal liability against the County
based on ratification.
        1.    Practice, Custom, or Policy
        Generally, municipalities, such as Harris County, are not liable for the
constitutional torts of their employees unless those employees act pursuant to
an official action or with approval. Monell v. New York City Dep’t of Soc. Servs.,
436 U.S. 658, 663 n. 7 (1978). In order to assert a claim for municipal liability
under § 1983, a plaintiff must establish proof of three elements: (1) a
policymaker; (2) an official policy or custom; and (3) a violation of a
constitutional right whose “moving force” is the policy or custom. Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir.2001) (citing Monell, 436 U.S. at
694).
        Harris County moved for summary judgment because the Hendersons’
claim was conclusory, there was no evidence of the existence of any
unconstitutional policy or custom, and the unconstitutional actions that the
Hendersons raised did not amount to a persistent and widespread practice.
Aside from their conclusory allegations, the Hendersons did little to factually
detail the policy or custom they claimed was involved and how the particular
injury was incurred because of the execution of that policy. See Spiller v. City
of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir.1997) (“The description of
a policy or custom and its relationship to the underlying constitutional violation
. . .   cannot be conclusory; it must contain specific facts.”).    Because the
Hendersons cannot point to a policy, custom, or a persistent and widespread
practice, we affirm the grant of summary judgment.

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        2.   Ratification
        We have recognized ratification as a theory of liability against a
municipality when the behavior of a state actor is approved by the policymaker.
Valle v. City of Houston, 613 F.3d 536, 542-43 (5th Cir. 2010). However, we have
refused to find ratification simply because a municipality failed to punish an
actor for those actions on one occasion and have refused to infer an official policy
from a single isolated failure to punish an officer’s misconduct. Fraire v. City of
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). The Hendersons suggest that the
deposition testimony of Sheriff Thomas in the Ibarra case supports their claim
that Harris County ratified the conduct of the Sheriff Department deputies by
taking no action thus creating a genuine issue of material fact. See Ibarra v.
Harris Cnty., 243 F. Appx. 830, 836 (5th Cir. 2007). We disagree. Thomas’
testimony in Ibarra concerned another issue and is not relevant here. Even if
it were relevant, the mere fact that former Sheriff Thomas, as the policymaker
for the County, testified in Ibarra that he supported his deputies as long as they
“acted in good faith” does not mean that he ratified an illegal act. See Coon v.
Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986) (the fact that a policymaker
defends his subordinates who are later found to have broken the law does not
show the illegal behavior can be assumed to have resulted from an official
policy). Because the Hendersons produced no evidence that this was anything
more than a one time occurrence, we cannot find Harris County ratified the
officers’ conduct, nor can we infer a persistent and widespread practice or
custom.
B.      Discovery
        The Hendersons next allege the district court erred in denying their
motion for additional discovery. In February 2010, the district court authorized
the Hendersons to take depositions of ex-Sheriff Thomas and three officers. At
an April status conference, the district court set a September 24, 2010 discovery

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deadline and admonished counsel to contact the court as often as necessary to
resolve any discovery problems as they occured. It was not until October 31,
2010, more than one month after the deadline, that the Hendersons complained
to the court that defense counsel had failed to cooperate in scheduling
depositions. Despite the eight month period of time, no depositions were taken.
We have held that a party that does not diligently pursue discovery is not
entitled to relief. See Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th
Cir. 2001). Because the Hendersons failed to contact the district court prior to
the discovery deadline, it was not an abuse of discretion to deny further
discovery.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM the ruling of the district court.




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