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

                                                 FILED
                                                                           December 9, 2009

                                        No. 08-50854                     Charles R. Fulbruge III
                                                                                 Clerk

PATRICK MCCLURE; MAXIMUM ENTERTAINMENT LLC,

                                                    Plaintiffs - Appellants
v.

WILLIAM BIESENBACH, Lieutenant, San Antonio Police Department;
RUDY DAVILLA, San Antonio Code Compliance Supervisor; CITY OF SAN
ANTONIO,

                                                    Defendants - Appellees




               Appeal from the United States District Court for the
                            Western District of Texas
                             USDC No. 5:04-CV-797


Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
       Before the court are claims of municipal liability and procedural due
process violations. Plaintiffs Patrick McClure and his company, Maximum
Entertainment LLC, sued Defendants William Biesenbach, Rudy Davilla 1 , and
the City of San Antonio under 42 U.S.C. § 1983. After construing the first

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
        This appellee’s name is spelled “Davilla” on our briefing notice. Elsewhere it is spelled
“Davila.” Either spelling refers to the same person.
                                 No. 08-50854

amended complaint, the district court dismissed the municipal liability claim
against San Antonio pursuant to Federal Rule of Civil Procedure 12(b)(6). The
district court then entered summary judgment on the procedural due process
claim in favor of Biesenbach and Davilla. Extant claims were tried to a jury,
which returned verdicts for Defendants. We now review only the district court’s
pre-trial rulings, and affirm.
                                       I.
      The following factual allegations are from the first amended complaint.
Plaintiffs organized a concert to be held in San Antonio from Sunday, April 18,
2004 to Tuesday, April 20, 2004. They signed several well-known bands, leased
a large outdoor venue, recruited a major sponsor, hired engineers and architects
to design the stage and sound systems, and obtained an event permit from the
City of San Antonio. On the first night of the concert, several citizens made
noise complaints.    Officers of the San Antonio Police Department (SAPD)
responded, noise levels were adjusted, and the concert proceeded. The next
morning, April 19, City Councilman Christopher “Chip” Haass called
Biesenbach, an SAPD officer, to express concern about noise levels. Biesenbach
visited the concert site and told sound engineer Carlos Garcia that the SAPD
would carefully monitor the situation that night, including reviewing permits
and enforcing noise ordinance violations.
      At 5:00 p.m. on April 19, Biesenbach returned to the venue, accompanied
by Davilla, who was Supervisor of the Abatement Patrol Division of the City
Code Compliance Department. Biesenbach and Davilla then “presided over an
enforcement effort so full of objectively unreasonable actions, improprieties and
apparent bias that one could only conclude that the officers’ objective was to
shut-down the concert.” Specifically, they enforced a 70 decibel noise limit
applicable to areas zoned “business” under San Antonio’s noise ordinance.
However, Plaintiffs say (1) their permit exempted them from noise limits, or (2)

                                       2
                                  No. 08-50854

the noise limit was 72 decibels, because the area was zoned “industrial.” Davilla
allegedly failed to measure noise levels in accordance with the sound ordinance
and proper operating procedures. Biesenbach and Davilla engaged in bullying
and intimidation by showing up with between 15 and 30 law enforcement
officers, threatening staffers and band members with arrest, and telling
performers and patrons that the show would not go on.
      The first band began to play at 5:35 p.m. Around 6 p.m., Biesenbach asked
the sound engineer whether the volume could be turned down. The engineer
replied that adjustments would have to be made by the performers on stage after
the song was finished. Biesenbach said: “OK – this is the last song – shut it
down!” Plaintiffs tried to gain a reprieve. They called City Councilman Ron
Segovia, who urged Biesenbach to be lenient, but he did not budge.             The
performers packed up and left. While the final evening of the concert took place
indoors, the shut down led to hundreds of thousands of dollars in lost profits, and
destroyed McClure’s credit and reputation as a music promoter.
      The first amended complaint alleged that the City of San Antonio,
Biesenbach and Davilla deprived Plaintiffs of procedural due process, and that
the deprivations “were effected pursuant to City ‘policy, practice and/or custom.’”
Plaintiffs also pleaded a deprivation of First Amendment rights, a taking under
state law, tortious interference with business relationships, and estoppel. All
Defendants moved for dismissal or summary judgment. The court granted San
Antonio’s motion to dismiss, noting: “Plaintiffs do not allege that Biesenbach and
Davilla acted in accordance with City policy” when they cancelled the concert.
Rather, Plaintiffs said Biesenbach and Davilla altogether disregarded the event
permit and the City’s noise ordinance. Moreover, Plaintiffs did not allege that
the City condoned Biesenbach’s and Davilla’s actions. Neither the complaint
from Haass nor Segovia’s abortive effort to keep the concert going was plausibly
alleged to be an official policy. The court reasoned that Texas municipalities

                                        3
                                   No. 08-50854

create policy through their governing bodies, not the isolated statements or
actions of individual councilmen.
      After limited discovery, the court granted summary judgment in favor of
Biesenbach and Davilla on Plaintiffs’ procedural due process claims. Plaintiffs
asserted that Biesenbach and Davilla had acted in a random and unauthorized
manner; thus, their conduct was not foreseeable or traceable to a state
procedure. Plaintiffs also failed to show that pre-deprivation process would have
helped them. The court held that Biesenbach and Davilla were entitled to
qualified immunity because Plaintiffs failed to show (1) that their allegations,
if true, established a violation of a clearly established right; and (2) that
Defendants’ conduct was objectively unreasonable in light of clearly established
law at the time of the incident.
                                        II.
      We first hold that the district court properly granted San Antonio’s motion.
To withstand dismissal under Federal Rule of Civil Procedure 12(b)(6), the
complaint must state “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We review the
dismissal de novo, accepting well-pleaded facts as true and viewing them in the
light most favorable to the plaintiff. Lindquist v. City of Pasadena, 525 F.3d 383,
386 (5th Cir. 2008). The allegations must “be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”      Twombly, 550 U.S. at 555
(citations omitted). “[A] formulaic recitation of the elements of a cause of action
will not do.” Id.; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
      A municipality may be held liable under § 1983 if its policy or custom
causes a constitutional tort. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978); Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999). A
complaint must show that, “through its deliberate conduct, the municipality was

                                        4
                                  No. 08-50854

the ‘moving force’ behind the injury alleged.” Bd. of County Comm’rs v. Brown,
520 U.S. 397, 404 (1997). “Where a plaintiff claims that the municipality has not
directly inflicted an injury, but nonetheless has caused an employee to do so,
rigorous standards of culpability and causation must be applied to ensure that
the municipality is not held liable solely for the actions of its employee.” Id. at
405. Thus, to state a claim, Plaintiffs must plead facts showing that a policy or
custom existed, and that such custom or policy was the cause in fact or moving
force behind a constitutional violation. See, e.g., Spiller v. City of Tex. City,
Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997).
      Plaintiffs complain of two distinct policies. First, they say the City’s noise
ordinance is defective because it does not give pre-deprivation process. However,
the first amended complaint states that Biesenbach and Davilla acted arbitrarily
and capriciously. The factual averments were that the officers ignored the terms
of the noise ordinance, not that the ordinance was constitutionally defective.
Only after the court dismissed the municipal liability claim did Plaintiffs develop
this thesis. Plaintiffs did not seek to amend their complaint in order to re-urge
the claim; therefore, we will not consider it on appeal. Cf. id., 130 F.3d at 167.
If the officers’ conduct was random, unauthorized, and in derogation of the noise
ordinance, one cannot say that the concert was stopped pursuant to the officially
promulgated policies of San Antonio.
      Plaintiffs next say Biesenbach and Davilla acted pursuant to a de facto,
selective zero-tolerance policy, which required them to shut the concert down at
any cost upon receiving the complaint from Councilman Haass. However, the
first amended complaint fails to plausibly articulate this theory. The complaint
says Biesenbach first visited the concert site “in an apparent response to a call
from [Haass].” The complaint later makes a sweeping statement that, “[u]pon
information and belief, these [due process] deprivations were effected pursuant
to City ‘policy, practice and/or custom.’” This is Plaintiffs’ sole reference to a

                                         5
                                   No. 08-50854

policy or custom. Never do Plaintiffs state that the call from Councilman Haass
was “deliberate conduct” on behalf of San Antonio and was the “moving force”
behind an extra-legal, zero-tolerance enforcement policy. Cf. Brown, 520 U.S.
at 404. At best, Plaintiffs have provided a “formulaic recitation of the elements
of a cause of action,” or “a legal conclusion couched as a factual allegation,”
which fails to state allegations raising the right to relief above the level of
speculation. See Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)). The district court did not err in dismissing § 1983 claims
against the City of San Antonio.
                                       III.
      We now hold that the district court properly granted summary judgment
on the procedural due process claim. Our standard of review is de novo. Arthur
W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 705 (5th Cir. 2009). “The
judgment sought should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(c)(2). The evidence and justifiable inferences
therefrom are to be viewed in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
                                        A.
      “Government officials acting within their discretionary authority are
immune from civil damages if their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Mack v. City of Abilene, 461 F.3d 547, 555 (5th Cir. 2006). When an
official sued for damages under § 1983 raises the defense of qualified immunity,
the plaintiff has the burden of rebutting the defense. Johnson v. Deep E. Tex.
Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004). We
first inquire whether the evidence presented can sustain a finding that the

                                        6
                                  No. 08-50854

defendant violated plaintiff’s constitutional rights.     Id.   “If not, no further
inquiry is needed and the defendant is entitled to qualified immunity.” Id.
       When confronted with a claim for deprivation of procedural due process,
we first ask whether the state has deprived the individual of a liberty or
property interest. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). We
then   ask   whether     procedures    accompanying     such    deprivation   were
unconstitutional. Id. A procedural due process claim does not lie where the
deprivation results from the unauthorized, intentional conduct of a state
employee and the state provides a meaningful post-deprivation remedy. Hudson
v. Palmer, 468 U.S. 517, 533 (1984); see also Parratt v. Taylor, 451 U.S. 527, 542-
43 (1981) (no procedural due process claim available where deprivation results
from official’s negligence), overruled in part by Daniels v. Williams, 474 U.S. 327,
330-31 (1986). It does not matter whether the official can foresee a deprivation
or provide some form of process: “[t]he controlling inquiry is solely whether the
state is in a position to provide for predeprivation process.” Hudson, 468 U.S. at
534 (emphasis added). Post-deprivation process is adequate if it allows the
prospect of compensation for the loss suffered. See Parratt, 451 U.S. at 543-44.
                                        B.
       Plaintiffs presented evidence of a property interest in holding the concert,
of which Defendants deprived them under color of law. The first element of a
procedural due process claim is fulfilled for Rule 56 purposes. The salient
question is whether the process afforded to Defendants is constitutionally
deficient. See Thompson, 490 U.S. at 460. We conclude that Plaintiffs’ claim
fails under the authority of Parratt and Hudson. The operative pleading alleged
that Biesenbach and Davilla “preside[d] over an enforcement effort so full of
objectively unreasonable actions, improprieties and apparent bias that one could
only conclude that the officers’ objective was to shut-down the concert.” In our



                                         7
                                       No. 08-50854

view, such allegations depict “random and unauthorized” conduct which was “not
a result of some established state procedure.” See Parratt, 451 U.S. at 541.
       Plaintiffs’ attempts to circumvent Parratt and Hudson come up short.
Plaintiffs say Hudson is not on point because this case does not concern the
rights of prisoners, or a scenario where meaningful pre-deprivation process is
available. These observations are misguided. The pleadings portray the officers’
acts as rogue conduct. This is antithetical to a challenge to the adequacy of an
established procedure. Plaintiffs next point to provisions of San Antonio’s noise
ordinance which empower officials to issue citations, make arrests, or seek
administrative stop orders. Prior to the court’s ruling, Plaintiffs never said these
processes would have been unconstitutional had they been followed. Moreover,
on appeal, Plaintiffs still aver that Defendants “did not avail themselves” of
these mechanisms. Because San Antonio cannot anticipate when officers will
ignore the terms of its ordinance, it is nonsense to say that more exacting
process would have prevented the deprivation. See Hudson, 468 U.S. at 533-34;
Zinermon v. Burch, 494 U.S. 113, 137-38 (1990). Plaintiffs next urge that even
if Defendants had followed these rules, they would have been insufficient in light
of the “shadow enforcement policy and scheme” triggered by the call from
Councilman Haass. However, Plaintiffs did not plead this theory in the first
amended complaint or provide evidence of an extralegal policy before the court’s
entry of summary judgment. The argument is forfeited.2


       2
          Even were the court to notice Plaintiffs’ argument, when taken to its logical
conclusion, it is absurd. Plaintiffs in essence argue that pre-deprivation process is always
required before officers can abate a noise nuisance, or that “zero tolerance” noise policies are
per se unconstitutional. However, the mandates of due process are inherently flexible, and the
courts must balance public and private interests. See Mathews v. Eldridge, 424 U.S. 319, 334-
35 (1976). The interest of preserving public order, peace and quiet cannot always be trumped
by a private citizen’s desire to “rock on” and rattle the neighborhood’s windows on a school
night. See Gilbert v. Homar, 520 U.S. 924, 930 (1997) (“[W]here a State must act quickly, or
where it would be impractical to provide predeprivation process, postdeprivation process
satisfies the requirements of the Due Process Clause.”).

                                               8
                                  No. 08-50854

      Finally, post-deprivation process offered Plaintiffs a chance to seek
compensation for the deprivations. See Parratt, 451 U.S. at 543-44. In Bennett
v. Monette, 507 F. Supp. 2d 514, 516 (E.D.N.C. 2007), a sheriff shut down an
outdoor concert after receiving complaints about noise levels and profanity. The
district court granted the sheriff’s motion for summary judgment on a procedural
due process claim because North Carolina law provided a post-deprivation
remedy: a claim for tortious interference with a contract. Id. at 518-19. Here,
Plaintiffs pursued several claims arising from the shut-down of their concert.
After discovery and a lengthy trial on the merits, the jury returned defense
verdicts. While Plaintiffs did not prevail, they had their day in court.
      In sum, Plaintiffs’ claims were premised not on inadequacy of procedure,
but rather, state actors’ unforeseeable failure to abide by procedure, for which
post-deprivation remedies were available. The allegations run squarely into the
Parratt/Hudson doctrine, and for this reason do not state a claim for deprivation
of procedural due process. Because there was no violation of procedural due
process rights, Biesenbach and Davilla were entitled to summary judgment and
qualified immunity on this claim. See Johnson, 379 F.3d at 301.
                                     IV.
      Plaintiffs’ first amended complaint failed to state a claim under § 1983
against the City of San Antonio. Plaintiffs also failed to present a genuine issue
of fact as to a deprivation of procedural due process rights, entitling Biesenbach
and Davilla to qualified immunity and summary judgment. The district court’s
rulings are in all respects
      AFFIRMED.




                                        9
