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

                                                 FILED
                                                                        September 23, 2009

                                     No. 08-41271                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MARICELA ARREDONDO; ET AL.,

                                                   Plaintiffs-Appellants
v.

WEBB COUNTY SHERIFF RICK FLORES, SHERIFF OF WEBB COUNTY,
TEXAS; WEBB COUNTY, TEXAS,

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:05-CV-191




Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This is an appeal from a district court’s grant of summary judgment, in
favor of the defendant-appellees, in a 42 U.S.C. § 1983 case for alleged violations
of the plaintiff-appellants’ First Amendment rights to free speech and
association. Finding no error, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-41271

      I.      BACKGROUND
      In March of 2004, Rick Flores campaigned for Sheriff of Webb County,
Texas against the incumbent, Juan Garza, in Webb County’s Democratic
Primary election. Leading up to the primary election, the plaintiff-appellants
were employed under the incumbent Garza’s administration, and in their third
amended complaint, the plaintiff-appellants alleged that they publicly supported
Garza in his campaign to defeat Flores. Flores, however, won both the primary
and the subsequent general election, and as a result, became the Sheriff of Webb
County.
      On December 30 and 31, 2004, Flores delivered termination letters to
ninety–six employees who had served under Garza’s administration (including
all the plaintiff-appellants in the instant action). On August 29, 2005, the
plaintiffs filed suit against both Flores and Webb County, pursuant to 42 U.S.C.
§ 1983, alleging that their First Amendment rights to free speech and
association were violated when their employment with Webb County was
terminated.    On March 31, 2007, the plaintiffs filed their third amended
complaint, and on December 14, 2007, the defendants filed their motion for
summary judgment.
      In their motion for summary judgment, the defendants argued that
judgment in their favor “should be granted in this case because there is no
genuine issue of fact on the elements of Plaintiffs’ cause of action . . . .”
Specifically, the defendants averred they were entitled to judgment in their favor
because none of the plaintiffs could put forth sufficient evidence to demonstrate
“they have been deprived of a constitutionally protected federal right.”
      On September 30, 2008, having concluded that the plaintiffs “offered no
competent summary judgment evidence in support of” their First Amendment
violations, the district court granted the defendant’s motion for summary
judgment on all of the plaintiffs’ claims. On October 9, 2008, the plaintiffs filed

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a motion for reconsideration, asking the district court to “reconsider the
summary judgment entered against them on the ground of their failure to attach
properly verified summary evidence to their response to defendants’ motion for
summary judgment.”           On October 28, 2008, the district court denied the
plaintiffs’ motion for reconsideration.
       On October 31, 2008, the plaintiffs filed their second motion for
reconsideration, arguing that the district court’s analysis in its denial of their
first motion was flawed. On November 11, 2008, the district court denied the
plaintiffs’ second motion for reconsideration, and on March 31, 2009, the district
court entered final judgment in favor of the defendants— on all of the plaintiffs’
claims. The plaintiff-appellants subsequently filed the instant appeal.
       On appeal, the plaintiff-appellants raise two issues. First, the plaintiff-
appellants contend that the district court granted the defendants’ summary
judgment motion sua sponte, basing its decision on an issue to which the
plaintiff-appellants had no notice and consequently, no opportunity to respond.
Second, the plaintiff-appellants argue that the district court’s conclusion that the
plaintiff-appellants had failed to establish the third element of their First
Amendment claim, causation, was in error, and should therefore be reversed.1

       1
          Because this Court finds that the district court’s decision was not based on an issue
the court considered sua sponte (but rather, was based on an issue the defendants had clearly
raised in their motion and to which the plaintiffs had ample opportunity to respond), this
Court will not consider the appellants’ second issue regarding causation. The Court need not
reach the question of whether the plaintiffs’ evidence sufficiently established the third element
of causation because the district court properly concluded the plaintiffs had not engaged in any
protected speech. See Markos v. City of Atlanta, Tex., 364 F.3d 567, 570 (5th Cir. 2004) (“To
establish a First Amendment retaliatory discharge claim, the plaintiff must prove that (1) he
suffered an adverse employment action, (2) his speech involved a matter of public concern, (3)
his interest in commenting on the matter of public concern outweighed the defendant's interest
in promoting efficiency, and (4) his speech was a substantial or motivating factor behind the
defendant's actions.”). Thus, in instances where a plaintiff cannot demonstrate that he
engaged in protected speech, there is no need to consider the fourth Markos factor since
without an act of protected speech, a plaintiff has no First Amendment claim. Id. As such, this
Court today does not reach the question of whether the district court erred in granting
summary judgment against the plaintiff-appellants on the issue of causation. See United

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       II.     ANALYSIS
               A.     STANDARD OF REVIEW
       We review “a district court's grant of summary judgment de novo.”
Leasehold Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 455 (5th
Cir. 2003). “Summary judgment is appropriate, when, viewing the evidence in
the light most favorable to the nonmoving party, the record reflects that no
genuine issue of any material fact exists.” Id. (citing Celotex v. Corp. v. Catrett,
477 U.S. 317, 322-324 (1986)).
               B.     WHETHER THE DISTRICT COURT ERRED IN GRANTING
                      SUMMARY JUDGMENT
       The plaintiff-appellants contend that the district court’s order granting
summary judgment should be reversed because in granting the defendants’
motion, the district court erroneously concluded that none of the plaintiffs had
presented sufficient evidence to demonstrate they engaged in protected speech.
The plaintiff-appellants argue the district court’s conclusion in this regard
constitutes error because the defendants’ motion for summary judgment only
averred that four individual plaintiffs had not engaged in acts constituting
protected speech—not that none of the plaintiffs had engaged in any acts of
protected speech. Consequently, the plaintiff-appellants now argue that the
district court erroneously based its decision on an issue to which the plaintiff-
appellants never had notice or the opportunity to respond.
       While it is true that “a district court may not grant summary judgment
sua sponte on grounds not requested by the moving party[,]" Baker v.
Metropolitan Life Ins. Co., 364 F.3d 624, 632 (5th Cir. 2004), a thorough review
of the record reveals that in the present case, the district court did not grant the



States v. Dunigan, 555 F. 3d 501, 508 n.12 (5th Cir. 2009), cert. denied, --- U.S. ----, 129 S.Ct.
2450, (2009) (“[T]his court may affirm the district court's judgment on any grounds supported
by the record.”) (citation and quotation marks omitted).

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defendants’ motion sua sponte. Instead, the plaintiffs were given ample notice
and opportunity to respond to the defendants’ arguments. Plaintiffs, however,
failed to provide the district court with the evidence necessary to survive the
defendants’ motion for summary judgment. Having failed to provide their own
evidence, the plaintiff-appellants now petition this Court to reverse the district
court based on an error that is solely attributable to the plaintiff-appellants. We
decline to do so.
      In this case, the facts speak for themselves.        It is true that a few
paragraphs in the defendants’ motion highlighted four individual plaintiffs who,
by their own admissions, admitted they had not engaged in protected speech.
The plaintiff-appellants’ extrapolation, however, that the defendants’ motion for
summary judgment was thus limited to those four plaintiffs alone is unfounded.
The defendants’ motion contained numerous paragraphs highlighting several
versions of the same argument: that none of the plaintiffs had submitted
sufficient evidence to “establish a violation of the[ir] First Amendment rights.”
Because an act of protected speech is a necessary element in establishing a First
Amendment violation,2 it should come as no surprise that the district court
considered whether all of the plaintiffs had put forth sufficient evidence to
substantiate their alleged acts of protected speech. Accordingly, we find that the
defendants’ motion for summary judgment did serve to put the plaintiff-
appellants on notice that they would need to produce competent summary
judgment evidence to substantiate their First Amendment claims–including
their allegations that each individual plaintiff engaged in an act of protected
speech.
      Indeed, the plaintiff-appellants not only had notice, but they also had
ample opportunity to put forth the necessary evidence to ensure their claims’



      2
          See Markos, 364 F.3d at 570.

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survival. Defendants filed their motion for summary judgment on December 14,
2007. The district court did not rule on the motion until September 30, 2008.
Thus, the plaintiffs had from December, 2007, to September, 2008, to present
competent summary judgment evidence, and they simply failed to do so.
      Furthermore, although the plaintiff-appellants now claim they had no
notice that the district court would be considering the sufficiency of their
evidence regarding the plaintiffs’ alleged acts of protected speech, a review of the
record reveals the plaintiff-appellants’ characterization of the issue in this
regard is disingenuous. In their first motion for reconsideration, the plaintiffs
asked the district court to “reconsider the summary judgment entered against
them on the ground of their failure to attach properly verified summary evidence
to their response to defendants’ motion for summary judgment.” Nowhere in
their motion for reconsideration did the plaintiffs state that the defendants’
motion had failed to provide them with proper notice or opportunity to respond.
      The plaintiff-appellants now ask this Court for the opportunity to properly
present the evidence they should have presented in the first place. Because “an
unexcused failure to present evidence available at the time of summary
judgment provides a valid basis for denying a subsequent motion for
reconsideration[,]” ICEE Distributors, Inc. v. J&J Snack Foods Corp., 445 F.3d
841, 847 (5th Cir. 2006), we affirm the district court’s denial of the plaintiffs’
motion for reconsideration. In doing so, we also conclude that the district court
properly granted summary judgment in favor of the two defendants on all of the
plaintiffs’ claims. The record clearly demonstrates that the district court did not
grant the motion sua sponte, and accordingly, this Court declines to grant the
plaintiff-appellants an additional opportunity to present evidence to substantiate
a claim they failed to substantiate when their case was properly before the
district court.
      AFFIRMED.

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