     Case: 14-50390      Document: 00512836711         Page: 1    Date Filed: 11/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50390                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
TAMARA SCOTCH,                                                          November 14, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

DONNIE LETSINGER, Sheriff of Edwards County, Texas (in his individual
and official capacities); EDWARDS COUNTY, TEXAS,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:13-CV-15


Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant      Tamara       Scotch      (“Scotch”)     brings           several
constitutional claims under 42 U.S.C. § 1983 against Defendant-Appellee
Donnie Letsinger (“Letsinger”) in his individual and official capacities, as well
as against Defendant-Appellee Edwards County, Texas (the “County”). The
district court rejected Scotch’s request to conduct discovery and granted



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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summary judgment in Defendants-Appellees’ favor on all of Scotch’s claims.
We affirm.


                                        I.
      Scotch was a member of the Rocksprings, Texas city council. Letsinger
served as the County’s Sheriff. Chris David (“David”), a candidate whom
Scotch had defeated in the 2009 city council election, contacted Letsinger on
or about May 11, 2009 to request that he investigate irregularities in the
election. David reported that Scotch was an invalid candidate because she
had not continuously resided in Rocksprings during the six-month period
preceding the application deadline. David also reported that Scotch falsely
swore on her application that she satisfied this residency requirement.
      Letsinger began investigating David’s allegations. On February 19,
2010, Letsinger signed a sworn investigative report accusing Scotch of falsely
affirming on her ballot application that she had resided continuously in
Rocksprings for the previous six months. The report claimed that Scotch
resided at a ranch outside the Rocksprings city limits, but that Scotch instead
listed an address at which she had not resided for two years.
      After Letsinger investigated Scotch’s eligibility for office, another
informant told Letsinger that Scotch and other city council members had
violated the Texas Open Meetings Act (“TOMA”). The informant reported
that the council members unlawfully met privately with an attorney to
discuss a settlement offer in a civil case pending against the city. Letsinger
began investigating these allegations as well.
      On September 23, 2011, Letsinger signed an affidavit of probable cause
detailing the results of the TOMA investigation. On the basis of Letsinger’s
affidavit, a state district attorney filed a criminal information charging
Scotch and other councilmembers with TOMA violations. A law enforcement
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                                   No. 14-50390
officer arrested Scotch, and Scotch posted bond. The Texas state court
ultimately dismissed the information on procedural grounds.
      On February 29, 2012, a Texas grand jury, on the basis of Letsinger’s
investigation into Scotch’s allegedly false statements regarding her residency,
charged Scotch in a one-count indictment with tampering with a
governmental record. A law enforcement officer arrested Scotch, and Scotch
again posted bond. Because the indictment did not allege the necessary
element of intent to harm or defraud, the district attorney agreed to quash
the indictment so the State could refile the charge. The grand jury again
charged Scotch with tampering with a governmental record on July 20, 2012.
The state court dismissed the second indictment on statute of limitations
grounds on November 21, 2012.
      Scotch filed this suit on February 25, 2013. Letsinger and the County
asserted the defense of qualified immunity. The district court stayed
discovery pending its resolution of the qualified immunity defense. Letsinger
and the County thereafter moved for summary judgment. Scotch then
requested that the district court permit discovery pursuant to Federal Rule of
Civil Procedure 56(d). The district court denied Scotch’s request and granted
summary judgment. Scotch now appeals.


                                        II.
      We first consider whether the district court improperly denied Scotch’s
request to conduct discovery. Scotch’s request consists of a single paragraph
embedded in her response to the summary judgment motion in which she
contends that “there are facts within Letsinger’s knowledge that Plaintiff can
learn only through discovery, such as the testimony given to the grand jury
by Letsinger and Letsinger’s knowledge of certain matters pertaining to
Plaintiff’s residency.”
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       Rule 56(d) provides: “If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its
opposition [to a motion for summary judgment], the court may . . . allow time
to obtain affidavits or declarations or to take discovery.” We review a district
court’s denial of a Rule 56(d) motion for abuse of discretion. 1
       The district court did not abuse its discretion here. Rule 56(d) requires
the party seeking discovery to submit an affidavit or declaration that
specifies why the party cannot present facts essential to justify its opposition
to the motion for summary judgment. 2 Because Scotch did not submit either
an affidavit or a declaration, the district court did not err in denying Scotch’s
request. 3


                                            III.
       We now consider whether the district court properly granted summary
judgment. We review a district court’s order granting summary judgment de
novo. 4 Summary judgment is proper if the record demonstrates no genuine
issue as to any material fact and the movant is entitled to judgment as a
matter of law. 5 We “construe the evidence and draw all reasonable inferences
in the light most favorable to the non-moving party.” 6




       1 Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir.
2013) (quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)).
       2 See FED. R. CIV. P. 56(d); 28 U.S.C. § 1746. See also Leza v. City of Laredo, 496 F.

App’x 375, 377-78 (5th Cir. 2012) (affirming a district court’s denial of a motion to reopen
discovery because the motion was not accompanied by an affidavit or declaration).
       3 See Leza, 496 F. App’x at 377-78.
       4 Kitchen v. Dallas Cnty., Tex., 759 F.3d 468, 476 (5th Cir. 2014) (citing Deville v.

Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009); Burge v. Parish of St. Tammany, 187 F.3d
452, 464 (5th Cir. 1999)).
       5 Id. (citing Deville, 567 F.3d at 163-64; Burge, 187 F.3d at 464-65.
       6 Id. (citing Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004)).

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                                       No. 14-50390
                                              A.
       We first consider Scotch’s claims against Letsinger in his individual
capacity. “[W]hen a defendant invokes the defense of qualified immunity, the
burden is on the plaintiff to demonstrate the inapplicability of the defense.” 7
To determine whether qualified immunity applies, we consider (1) whether
the defendant violated one or more of the plaintiff’s constitutional rights and
(2) whether that right was “clearly established” at the time of the violation. 8
       Scotch first claims that Letsinger caused her to be falsely arrested in
violation of the Fourth Amendment. 9 She asserts that Letsinger “submitted a
false affidavit of probable cause and provided false testimony to the grand
jury, which resulted in Scotch’s arrest and indictment on various state
criminal charges” which “were subsequently dismissed.”
       Scotch produced no evidence that Letsinger provided any false
information whatsoever. With respect to the tampering charge, Letsinger
averred that Scotch (1) resided outside the Rocksprings city limits during the
six months preceding the 2009 ballot application deadline and (2) listed an
address at which she had not resided for two years on her application. Scotch
has not demonstrated that any of this information is false. 10 Scotch argues
that she qualified as a Rocksprings resident because she “inten[ded] to




       7 Id. (citing Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008); Bazan ex rel.
Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001)).
       8 Id. (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)).
       9 Scotch also characterizes her Fourth Amendment claim as a malicious prosecution

claim, but “causing charges to be filed without probable cause will not without more violate
the Constitution.” Castellano v. Fragozo, 352 F.3d 939, 953. (5th Cir. 2003) (en banc), cert.
denied, 543 U.S. 808 (2004). Consequently, a plaintiff may not bring “a freestanding 42 U.S.C.
§ 1983 claim based solely on malicious prosecution.” Cuadra v. Hous. Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2010), cert. denied, 131 S. Ct. 2972 (2011) (citing Castellano, 352 F.3d
at 942).
       10 See Shine v. Mars, 459 F. App’x 449, 449-50 (5th Cir. 2012).

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                                       No. 14-50390
return” to a house she owned within the city limits, but the record contains
no evidence of any such intent.
       Nor does the record contain any evidence that Letsinger submitted a
false affidavit regarding the alleged TOMA violations. Letsinger averred that
Scotch and other council members unlawfully conducted a secret meeting
with an attorney to discuss a settlement offer. Scotch introduces no evidence
that this information is false. Indeed, the record contains the certified
minutes of a council meeting at which Scotch admitted to conducting the
secret meeting without first providing public notice. Because there is no
evidence that Letsinger violated Scotch’s constitutional rights, the district
court properly granted summary judgment in Letsinger’s favor on Scotch’s
Fourth Amendment claim.
       Scotch also claims that Letsinger prosecuted her in retaliation for
exercising her First Amendment right to run for and retain elected office.
When a plaintiff alleges that a defendant initiated a criminal prosecution to
retaliate against the plaintiff’s exercise of his or her First Amendment rights,
the plaintiff must establish, inter alia, that the defendant lacked probable
cause to initiate the prosecution. 11 As discussed above, the record contains no
evidence that Letsinger lacked probable cause to prosecute Scotch on the
TOMA and tampering charges. Therefore, the district court properly granted
summary judgment on Scotch’s retaliation claim. 12


                                             B.
       The district court also properly dismissed Scotch’s official capacity
claims against Letsinger, as well as her claims against the County. “Because


       11 Izen v. Catalina, 398 F.3d 363, 367-68 (5th Cir. 2005) (citing Keenan v. Tejeda, 290
F.3d 252, 258 (5th Cir. 2002)).
       12 See id. (citing Keenan, 290 F.3d at 258).

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                                       No. 14-50390
official capacity suits are really suits against the governmental entity,”
Scotch’s attempt to hold Letsinger liable in his official capacity “is subsumed
within her identical claim against” the County. 13
       “No liability exists under the doctrine of respondeat superior in claims
brought under 42 U.S.C. § 1983.” 14 To hold a municipality liable for the
actions of its employees in a § 1983 suit, “the plaintiff must show that the
municipality had adopted a policy, practice, or custom that was the moving
force behind the constitutional violation.” 15 The summary judgment record
contains no evidence of any wrongdoing at all, let alone a municipal policy,
custom, or pattern of violating constitutional rights. The district court
therefore properly granted summary judgment in favor of the County and
Letsinger.
       AFFIRMED.




       13 See Goodman v. Harris Cnty., 571 F.3d 388, 396 (5th Cir. 2009).
       14 Kitchen, 759 F.3d at 476 (citing World Wide St. Preachers Fellowship v. Town of
Columbia, 591 F.3d 747, 752-53 (5th Cir. 2009)).
       15 Id. (citing Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978); Duvall

v. Dallas Cnty., Tex., 631 F.3d 203, 209 (5th Cir. 2011)).
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