     Case: 13-50278       Document: 00512385428         Page: 1     Date Filed: 09/25/2013




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

                                                                            FILED
                                                                        September 25, 2013
                                     No. 13-50278
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DAVID CEVALLOS,

                                                  Plaintiff-Appellant
v.

GEORGE SILVA;
JAMES D. JONES;
THE CITY OF SAN ANTONIO,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:12-CV-45


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       David Cevallos challenges the district court’s dismissal of his claims of
malicious prosecution and abuse of process by Detectives James D. Jones and
George Silva of the San Antonio Police Department, in violation of
42 U.S.C. § 1983. Finding no reason to alter the sound reasoning of the district
court, we AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  BACKGROUND
         Cevallos filed a divorce action against his then-wife, Carolyn Cevallos, in
2008. Cevallos later learned that Carolyn and Silva had a romantic relationship.
In October 2009, Cevallos was with a female companion when she was attacked
and assaulted by Carolyn. San Antonio police officers were dispatched to the
scene. After an investigation at the scene, the reporting police officer filed a
report alleging that Carolyn had assaulted the female companion. Following
this report, Cevallos and his female companion were interviewed by Jones as
part of Jones’ investigation of the charges against Carolyn. In December 2009,
Jones filed criminal charges against Cevallos with the Bexar County Criminal
District Attorney’s office. In January 2010, Silva arrested Cevallos at his home
and transported him to the magistrate’s office. The District Attorney’s office
later dismissed the charges against Cevallos.
         Cevallos brought suit in state court “for malicious prosecution, abuse of
process, and violation of [his] civil and constitutional rights” against Silva and
Jones, and “by virtue of their acting in the course and scope of their authority as
San Antonio Police Officers, the City of San Antonio.” The City removed the case
to federal court and subsequently moved to dismiss pursuant to Federal Rules
of Procedure Rule 12(b)(6), asserting that Cevallos’ pleadings were insufficient
to state a claim against the City. Jones and Silva filed Rule 12(b)(6) motions
asserting insufficient pleadings and, in the alternative, that Jones and Silva
were entitled to qualified immunity. Cevallos moved to remand the case to state
court.     The matter was referred to a magistrate judge who issued a
recommendation that the motions to dismiss be granted; the district court
accepted the recommendations of the magistrate and dismissed Cevallos’ claims.
Cevallos timely appealed.
                                   DISCUSSION
         We review de novo the district court’s order on a motion to dismiss for
failure to state a claim under Rule 12(b)(6). Jebaco, Inc. v. Harrah’s Operating

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Co., 587 F.3d 314, 318 (5th Cir. 2009). Under Federal Rule of Civil Procedure
Rule 8(a)(2), a pleading must contain a short and plain statement of the claim
showing that the pleader is entitled to relief. To survive a Rule 12(b)(6) motion
to dismiss, the factual allegations must be sufficient to state a claim for relief
that is plausible on its face and to raise a right to relief above the speculative
level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 170 S. Ct. 1955 (2007).
A claim has facial plausibility when the pleaded factual content allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). The
mere possibility of misconduct is not sufficient. Id. at 679.
      Cevallos first contests the district court’s denial of his motion to remand
the case back to state district court. Cevallos argues that the defendants waived
their right to removal by filing for removal more than thirty days after they were
served with Cevallos’ original petition. A defendant who receives a pleading or
“other paper” supporting federal jurisdiction may remove the case to federal
court within thirty days of receiving such information. 28 U.S.C. § 1446(b).
Cevallos’ Original Petition alleges “violation of his civil and constitutional rights”
and that Silva and Jones “acted under color of law.” Cevallos argues that by
pleading those two elements, he was pleading a cause of action under § 1983.
However, the well-pleaded complaint rule provides that the plaintiff’s properly
pleaded complaint governs jurisdictional determinations. If, on its face, such a
complaint contains no issue of federal law, there is no federal question
jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 391-92, 107 S. Ct. 2425
(1987). Cevallos’ Original Petition does not allege any specific claim under
§ 1983 or a violation of the United States Constitution; thus, the allegations in
Cevallos’ petition were too ambiguous to establish federal question jurisdiction
definitively.
      Cevallos alternatively argues that defendants’ involvement in state court
proceedings waived their right to remove. The record does not show that the

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City, Silva, or Jones made clear and unequivocal waivers of their rights to
remove. The City’s Motion to dismiss Silva and Jones occurred in state court
before the case was removable and could thus not waive the right to remove
before it arose.
      Against the City of San Antonio, Cevallos argues that the district court
erred in dismissing his claims. The court held the pleadings insufficient to
establish an official policy, practice, or custom of the City or the police
department that was the moving force behind the alleged violations of Cevallos’
constitutional rights. The court aptly noted that Cevallos’ allegation that Silva
and Jones acted “in the course and scope of their authority as San Antonio Police
officers” was not sufficient to impose liability on the city.
      A city is not liable under § 1983 on the theory of respondeat superior; a
municipality is only liable for acts directly attributable to it “through some
official action or imprimatur.” Valle v. City of Hous., 613 F.3d 536, 541 (5th Cir.
2010) (citing Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)). To
establish municipal liability, the plaintiff must show the deprivation of a
federally protected right caused by action taken “pursuant to an official
municipal policy.” Valle, 613 F.3d at 541 (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691, 98 S. Ct. 2018 (1978)). The plaintiff must identify: “(1) an
official policy (or custom), of which (2) a policymaker can be charged with actual
or constructive knowledge, and (3) a constitutional violation whose moving force
is that policy or custom.” Valle, 613 F.3d at 541-42 (internal citations omitted)
Nowhere does Cevallos’ amended complaint allege that a policy, practice,
custom, or procedure of the City or of the police department was the moving
force behind the alleged violations of his constitutional rights.
      It is also not enough that Cevallos’ Response Appellees’ motions to dismiss
elaborated on his allegations against the City. Even if his Response stated a
claim for relief cognizable under Twombly, the complaint must contain either
direct allegations on every material point necessary to sustain recovery or

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contain allegations from which an inference may be fairly drawn that evidence
will be introduced at trial. Twombly, 550 U.S. at 555; Campbell v. City of San
Antonio, 43 F.3d 973, 975 (5th Cir. 1995). Cevallos did not seek leave to amend
his complaint to include the detailed allegations against the City found in his
Response. Accordingly, his pleadings remained void of allegations against the
City sufficient to withstand dismissal under Rule 12(b)(6).1
       Last, Cevallos argues that the district court erred in dismissing his claims
against Silva and Jones on the basis of qualified immunity. The court correctly
noted that this court has rejected a freestanding right to be free from malicious
prosecution or abuse of process. Castellano v. Fragozo, 352 F.3d 939, 945 (5th
Cir. 2003) (malicious prosecution); Sisk v. Levings, 868 F.2d 159, 161-62 (5th Cir.
1989) (abuse of process). Because Cevallos did not distinguish his malicious
prosecution and abuse of process claims from those this Court has rejected or
plead facts demonstrating false arrest without probable cause, the district court
dismissed Cevallos’ claims against Silva and Jones.
       Although it is no longer mandated as a first step in the qualified immunity
analysis, we first “decide whether the facts that [the] plaintiff has alleged . . .
make out a violation of a constitutional right.” Doe ex rel. Magee v. Covington
Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 869 (5th Cir. 2012) (citing Pearson v.
Callahan, 555 U.S. 223, 232, 236, 129 S. Ct. 808 (2009)). Cevallos’ Original
Petition alleges “malicious prosecution and abuse of process and violation of his
civil and constitutional rights.”         Cevallos’ claims predicated on “malicious
prosecution” or “abuse of process” fail as a matter of law unless founded in
another constitutional right. See Castellano, 352 F.3d at 945; Sisk, 868 F.2d at
161-62.     Cevallos alleges that Silva and Jones “violat[ed] his civil and
constitutional rights” but identifies no predicate for such “rights” in his
pleadings. As the district court noted, Cevallos’ Response to defendants’ Motion

       1
        Cevallos’ appellate brief charges the City with unconstitutional failure to train, but
htat theory does not appear in the amended complaint and is waived.

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to Dismiss attempted to assert facts demonstrating false arrest without probable
cause, a claim cognizable under the Fourth Amendment. See, e.g., Gerstein v.
Pugh, 420 U.S. 103, 111-12, 95 S. Ct. 854 (1975). Cevallos did not, however, seek
leave to amend his petition to include this argument. Thus, for the reasons
stated above as applied to Cevallos’ claim against the City, Cevallos’ pleadings
against Silva and Jones are insufficient to withstand dismissal under
Rule 12(b)(6). We need not reach the scope of qualified immunity as to Silva or
Jones. See Doe, 675 F.3d at 869.
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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