     Case: 16-40311      Document: 00513841100         Page: 1    Date Filed: 01/19/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-40311                                 FILED
                                                                            January 19, 2017

REBECCA BOWDEN,                                                               Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellant

v.

JEFFERSON COUNTY, TEXAS; NICK SALEME,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:14-CV-287


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
       Plaintiff-Appellant Rebecca Bowden appeals the district court’s grant of
Jefferson County, Texas’ motion for summary judgment dismissing her First
and Fourteenth Amendment claims under 42 U.S.C. § 1983. Bowden brought
suit against newly elected Constable Nick Saleme, in his official capacity, and
the County for her constructive termination from her job as Chief Deputy




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40311
Constable. Because Constable Saleme is not a policymaker for the County,
Bowden’s § 1983 claims must fail. We AFFIRM.
                                        I.
      Nick Saleme defeated incumbent Charles Wiggins in the November 2012
election for Jefferson County, Texas Precinct 1 Constable. Bowden served as
the Chief Deputy Constable under Wiggins, and had previously served as a
deputy for two prior constables.
      Bowden alleged that one week after the election, Saleme and Wiggins
spoke on the telephone and Wiggins allowed Bowden and several other
employees to listen to the call over speakerphone without Saleme’s knowledge.
Bowden alleged that during that phone call Saleme said that he was going to
terminate everyone in the Precinct 1 Constable’s office because they supported
Wiggins during the election. Other employees who listened in on the call also
testified that they believed Saleme “made it clear that he was going to
terminate everyone in the office” because of their “political loyalties” to
Wiggins. Saleme disputed these statements and claimed that he said that he
wanted to “bring in his own people.”
      After that purported phone call, Bowden contacted the director of the
Jefferson County Human Resources Department who allegedly told her that
the current constable’s office staff would no longer be on the payroll as of
January 1, 2013. Bowden said she believed her options were to retire or be
fired, so on November 19, 2012, she signed and filed the necessary documents
to retire effective December 31, 2012. When Saleme took office on January 1,
2013, he did not retain any of his predecessor’s staff.
      Bowden filed suit in state court on February 28, 2013, seeking a
declaratory judgment that Saleme, in his official capacity, and Jefferson
County violated her rights under the Texas constitution. Later, she amended
her petition to assert First and Fourteenth Amendment violations under 42
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                                       No. 16-40311
U.S.C. § 1983 against the County and Saleme, in his official capacity, for her
constructive termination from the Constable’s office. Defendants removed the
case to the district court based on federal question jurisdiction and moved for
summary judgment on the § 1983 claims.
       Finding Bowden failed to raise a genuine issue of material fact, the
district court granted summary judgment in favor of the County and Saleme,
in his official capacity, on Bowden’s § 1983 claims and remanded the remaining
state constitutional claims back to the Texas state court.
                                              II.
       We review a grant of summary judgment de novo, applying the same
standard as the district court. 1 The moving party has the burden of proving
there is no genuine issue of material fact and that it is entitled to judgment as
a matter of law. 2 The non-moving party must show that summary judgment
is inappropriate by setting out facts that show the existence of a genuine issue
of material fact. 3
                                             III.
       To sustain a municipal liability action under 42 U.S.C. § 1983 for a
violation of constitutional rights, a plaintiff must present “proof of three
elements: a policymaker; an official policy; and a violation of constitutional
rights whose ‘moving force’ is the policy or custom.” 4
       Bowden does not allege that Saleme’s refusal to retain her as a deputy
constable was pursuant to an official policy of Jefferson County.                      So our




       1  Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir. 2003) (citing Dickerson
v. Bailey, 336 F.3d 388, 394 (5th Cir. 2003)).
        2 FED. R. CIV. P. 56(c).
        3 Rivera, 349 F.3d at 247 (quoting Morris v. Covan World Wide Moving, Inc., 144 F.3d

377, 380 (5th Cir. 1998)).
        4 Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t

of Social Servs., 436 U.S. 658, 694 (1978)).
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                                          No. 16-40311
resolution of this case narrows to whether Constable Saleme is a policymaker
with “final policymaking authority” for Jefferson County. 5                        “[A] local
government is liable under § 1983 for its policies that cause constitutional
torts,” and these policies “may be set by the government’s lawmakers, ‘or by
those whose edicts or acts may fairly be said to represent official policy.’” 6
Therefore, “[a] court’s task is to ‘identify those officials or governmental bodies
who speak with final policymaking authority for the local governmental actor
concerning the action alleged to have caused the particular constitutional or
statutory violation at issue.’” 7            And this inquiry, whether a particular
individual is a final policymaker for the County, is a matter of state law. 8
         Under Texas law, a policymaker must
         be one who “takes the place of the governing body in a designated
         area of city administration,” and who (1) decides the goals for a
         particular city function, (2) devises the means of achieving those
         goals, (3) acts in the place of the governing body in the area of
         delegated responsibility, and (4) is not supervised except as to the
         totality of performance.
         [T]he delegation of policymaking authority requires more than a
         showing of mere discretion or decisionmaking authority on the
         part of the delegee . . . . The governing body must expressly or
         impliedly acknowledge that the agent or board acts in lieu of the
         governing body to set goals and to structure and design the area of
         the delegated responsibility, subject only to the power of the
         governing body to control finances and to discharge or curtail the
         authority of the agent or board. 9




         5   See City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988).
         6   McMillian v. Monroe Cty., 520 U.S. 781, 784-85 (1997) (quoting Monell, 436 U.S. at
694).
         7Id. (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).
         8Id. at 786 (citing Praprotnik, 485 U.S. at 123).
        9 Democracy Coalition v. City of Austin, 141 S.W.3d 282, 293 (Tex. App. 2004)

(citations omitted).
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      We have applied Texas law in a variety of factual patterns and held that
the constables in those cases were not policymakers for their respective
counties.
      In Rhode v. Denson, Rhode sued Constable Denson and San Jacinto
County under § 1983 for misconduct in connection with an arrest. 10 Rhode
obtained a substantial verdict against Denson and the County. 11 The jury also
awarded Rhode punitive damages against Denson individually. 12 We reversed
the judgment rendered against the County and found that Constable Denson
was not a policymaker for the County. 13 We contrasted the role of constable
with that of a sheriff, county treasurer, or county judge, and were
“unpersuaded that a constable of a Texas county precinct occupies a
relationship to the County such that his edicts or acts may be fairly said to
represent official county policy.” 14 We concluded that “Denson, as a constable,
lacked the power to make county policy.” 15
      In Keenan v. Tejeda, former deputy constables filed suit against the
constable, in his individual capacity, and the County. 16 The deputies resigned
after witnessing some unlawful activity in the constable’s office and then
participated in a highly critical news report about the constable’s misconduct. 17
They alleged that following the news report they were unlawfully detained and
arrested by the constable and his deputies. 18 Following Rhode, we held that




      10 776 F.2d 107, 107-08 (5th Cir. 1985).
      11 Id. at 108.
      12 Id.
      13 Id. at 109-10.
      14 Id.
      15 Id. at 110.
      16 290 F.3d 252, 256 (5th Cir. 2002).
      17 Id.
      18 Id. at 256-57.

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the County could not be held liable for the actions of the constable because
constables are not policymakers. 19
       Our unpublished opinion in Tonkin v. Harris County Texas is directly on
point. 20 Former deputy constables filed a § 1983 suit against the County
alleging that the constable violated their First Amendment rights. 21                       The
constable threatened to fire the deputies if they aired their grievances about
his policies to the commissioners court. 22 The constable also required the
deputies to support his reelection campaign. 23 When the deputies refused to
comply, they were terminated and filed suit. 24
       There, as in this case, the threshold question was whether the constable
was a policymaker for the County so that the County could be held liable for
the constable’s action in terminating the deputies. 25 Relying primarily on
Rhode, we concluded that constables have limited authority and are not
policymakers. 26 We concluded that constables are not policymakers for the
County even though constables are seemingly independent and lack
supervision. 27 Because the constable was not a policymaker and the plaintiffs
sued only the County rather than the constable in his individual capacity, we
held that the former deputies’ § 1983 claim must fail. 28
       In Frank v. Harris County, a former deputy constable filed suit against
the County pursuant to § 1983 and Title VII, alleging the constable sexually


       19 Id. at 262-63.
       20 257 F. App’x 762, 763 (5th Cir. 2007).
       21 Id.; Brief of Appellants at 7-9, Tonkin v. Harris Cty. Tex., 257 F. App’x 762 (5th Cir.

2007) (No. 07-20061), 2007 WL 4982759.
       22 Brief of Appellants at 12, Tonkin, 257 F. App’x 762 (No. 07-20061), 2007 WL

4982759.
       23 Id.
       24 Id.
       25 Tonkin, 257 F. App’x at 763.
       26 Id. at 763-64 (quoting Rhode, 776 F.2d at 110).
       27 Id. (quoting Rhode, 776 F.2d at 110).
       28 Id. at 764.

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                                    No. 16-40311
harassed and then fired her. 29 The district court granted the County’s motion
for summary judgment on the § 1983 claim and we affirmed, holding that the
constable is not a final policymaker. 30
      Bowden relies on a Texas court of appeals case, Harris County v. Nagel,
which held that the particular constable in that case was a policymaker for the
County for the limited purpose of serving mental-health warrants. 31
      In Nagel, the mother of a mentally ill man sought a mental-health
warrant to move her son from her home to a hospital to stabilize his
medication. 32   Harris County Precinct 1 deputy constables executed the
warrant and the man died in the process. 33 The survivors of the deceased man
brought a § 1983 action against the County and the deputies who executed the
mental-health warrant on grounds they used excessive force. 34 To impose
liability on Harris County, the plaintiffs argued, and the court agreed, that the
Precinct 1 Constable was a policymaker for the County. 35
      The court emphasized however that the commissioners court delegated
to this constable the authority to execute all mental-health warrants in Harris
County. 36   The commissioners court also appropriated funding for this
constable to carry out this delegated function. 37            In light of this broad
delegation, the court held that the Precinct 1 Constable was a “final
policymaker concerning the manner in which mental-health warrants [were]
executed in Harris County.” 38


      29 118 F. App’x 799, 801 (5th Cir. 2004).
      30 Id. at 801-02.
      31 349 S.W.3d 769, 793-94 (Tex. App. 2011).
      32 Id. at 773-74.
      33 Id. at 774-75.
      34 Id. at 775.
      35 See id. at 791.
      36 Id. at 794.
      37 Id. at 794.
      38 Id.

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                                       No. 16-40311
       As demonstrated by the court’s limiting language, the Texas court’s
finding that the Harris County Precinct 1 Constable was a policymaker is
limited to that County’s constable for the specific purpose covered by the broad
delegation of serving mental-health warrants. 39 The limited holding in Nagel
is inapplicable here.
       Bowden also argues, as she did below, that Saleme testified that he was
a “policymaker” for the purposes of hiring and firing deputies. As the district
court correctly concluded, Saleme’s use of the word “policymaker” in testimony
does not make him a policymaker for the County to impose § 1983 liability. 40
       As the constable of one out of eight precincts in Jefferson County, Saleme
may have been a decision maker for a single precinct, but he was not a
policymaker for all of Jefferson County when he constructively terminated
Bowden.
       Because Bowden failed to establish a policymaker or a County policy to
support her claim, we need not examine whether there was a “violation of
constitutional rights whose ‘moving force’ is the policy or custom.” 41
                                             IV.
       Bowden failed to raise a genuine issue of material fact regarding her §
1983 liability claim against Jefferson County.              Constable Saleme is not a
policymaker under Texas law and Bowden failed to assert that the County had
a policy or custom that served as the moving force behind the alleged violation
of her First and Fourteenth Amendment rights. The judgment of the district
court is AFFIRMED.




       39 See id. at 791-94.
       40 Bowden v. Jefferson Cty.; Saleme, No. 1:14-CV-287, slip op. at 14-15 (E.D. Tex. Nov.
6, 2015) (discussing Frank, 118 F. App’x at 802).
       41 Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694).

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