     Case: 12-50323       Document: 00512220842         Page: 1     Date Filed: 04/25/2013




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

                                                                            FILED
                                                                           April 25, 2013

                                     No. 12-50323                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CARLOS SOTO,

                                                  Plaintiff-Appellant,
v.

AMADEO ORTIZ, BEXAR COUNTY SHERIFF; RICARDO GONZALEZ,

                                                  Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-164


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Carlos Soto appeals the district court’s grant of
summary judgment in favor of Defendant-Appellees Sheriff Amadeo Ortiz and
booking officer Ricardo Gonzalez with respect to his state law claims of false
imprisonment and defamation, and violations of Soto’s constitutional rights
under 42 U.S.C. § 1983. For the following reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                             I.
       On the night of January 16, 2010, an officer with the San Antonio Police
Department stopped Soto for a speeding violation. During the stop, the officer
discovered an outstanding warrant for a parole violation originating in Frio
County, Texas for one Carlos Reyes Soto. The officer believed Plaintiff Soto to
be the Carlos Reyes Soto with the outstanding warrant, but in fact they are
different people.1 After the officer verified the warrant, Soto was arrested and
transported to the Bexar County Detention Center (“Detention Center”) where
Soto’s identity was confirmed by the Texas Department of Public Safety
Information System and the Automated Fingerprint Information System. The
Texas Department of Criminal Justice Parole Division-Austin (“TDCJ-Austin”)
confirmed that the warrant was active, and the Texas Department of Public
Safety Information System matched the Social Security number and date of
birth in the warrant with Soto’s. Soto allegedly informed both the arresting and
booking officers that this was a case of mistaken identity.
       On January 17, 2010, Soto’s wife contacted the Detention Center claiming
that Soto could not have violated parole since he had never been imprisoned.
After Soto’s identity was called into question, Sergeant Jerri Harrison of the
Bexar County Sheriff Office (“Harrison”) requested and received from Frio
County a faxed copy of Reyes’s fingerprints and photographs, but the fax was of
such poor quality that Harrison was unable to conclusively match Soto to Reyes.
Harrison suspected, however, that Soto’s and Reyes’s fingerprints and
photographs probably were not a positive match.                      In continuing her
investigation, Harrison contacted TDCJ-Austin, which informed her that it was
unable to provide Reyes’s fingerprints until after the Martin Luther King, Jr.,



       1
        For purposes of this opinion, we refer to Carlos Soto as “Soto” and Carlos Reyes Soto
as “Reyes.”

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                                      No. 12-50323

holiday. Accordingly, Soto remained in the Detention Center over the holiday
weekend.
       On January 19, 2010, Sergeant Alejandro Sanchez continued the
investigation and obtained several faxes from TDCJ-Austin and Frio County.
Ultimately, Sanchez’s investigation revealed that Soto was previously arrested
and booked in Frio County. In August 2006, Frio County mistakenly sent Soto’s
identifiers to TDCJ-Austin as Reyes’s identifiers. TDCJ-Austin then used Soto’s
identification information in issuing a warrant for Reyes. Although Sanchez
discovered the error on January 19, 2010, Soto remained in the Detention Center
until TDCJ-Austin confirmed his identity on January 20, 2010. In total, Soto
was detained for four days.
       Soto filed suit in Texas state court, alleging false imprisonment,
defamation, and violations of his constitutional rights under 42 U.S.C. § 1983
against booking officer Ricardo Gonzalez2 in his individual capacity and Bexar
County Sheriff Amadeo Ortiz Sheriff Ortiz in his individual and official capacity
under a respondeat superior theory of liability (collectively “Defendants”).3
Defendants removed the case to federal court and moved for summary judgment,
claiming immunity from Soto’s false imprisonment and defamation claims under
the Texas Tort Claims Act, and qualified immunity with respect to Soto’s claims
under 42 U.S.C. § 1983. In response, Soto further alleged that the Sheriff
breached the non-delegable duty to commit all prisoners by lawful authority
pursuant to Tex. Loc. Gov’t Code § 351.041. The district court granted summary



       2
        Ricardo Gonzalez did not book Soto, and his only role was to confirm that the
information on Reyes’s warrant matched the information of the person arrested.
       3
         On appeal, Soto does not raise his false imprisonment and defamation claims.
Accordingly, these arguments are waived. See Procter & Gamble Co. v. Amway Corp., 376
F.3d 496, 499 n.1 (5th Cir. 2004) (noting waiver of argument where appellant failed to brief
the issue).

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judgment in favor of Defendants pursuant to the Texas Tort Claims Act and
qualified immunity. Soto now appeals.
                                        II.
      We review the district court’s grant of summary judgment de novo.
Admiral Ins. Co. v. Ford, 607 F.3d 420, 422 (5th Cir. 2010) (citation omitted).
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). We must view all facts and evidence
in the light most favorable to the non-moving party when considering a motion
for summary judgment. Dameware Dev., L.L.C. v. Am. Gen. Life Ins. Co., 688
F.3d 203, 206-07 (5th Cir. 2012) (citation omitted).
                                        III.
                                         A.
      Soto makes three arguments on appeal.            First, Soto contends that
Defendants did not sufficiently plead the defense of qualified immunity in its
answer. Second, Soto claims that Defendants’ conduct in wrongfully detaining
him amounted to a violation of due process under the Fourteenth Amendment.
Finally, Soto claims that Defendants violated Tex. Loc. Gov’t Code § 351.041
because Defendants did not have lawful authority to hold him in custody. For
the reasons explained more fully below, Soto’s arguments are without merit.
                                         B.
      As to Soto’s first contention on appeal, Soto argues that Defendants did not
sufficiently plead the defense of qualified immunity in its answer as required by
Fed. R. Civ. P. 8(c). Soto alleges that Defendants did not plead that their actions
in holding Soto in custody were supported by good faith and were within their
scope of discretionary authority.
      Qualified immunity is an affirmative defense. Pasco ex rel. Pasco v.
Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009). As such, the defendant has the

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burden to plead and prove qualified immunity. Id. (citing Gomez v. Toledo, 446
U.S. 635, 640, (1980)) (other citation omitted). Generally, Fed. R. Civ. P. 8(c)
requires the defendant to raise an affirmative defense in its first responsive
pleading. Pasco, 566 F.3d at 577. Nonetheless,“[w]here the matter is raised in
the trial court in a manner that does not result in unfair surprise . . . technical
failure to comply precisely with Rule 8(c) is not fatal.” Id. (quoting Allied Chem.
Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983)) (alteration in original).
Rather, this court examines the overall context of the litigation and has found
no waiver where there is no evidence of prejudice and the plaintiff has sufficient
time to respond to the defense before trial. Id. (citing Giles v. Gen. Elec. Co., 245
F.3d 474, 492 (5th Cir. 2001)).
      In their answer, the Defendants stated, “Defendants are immune from the
claims asserted.” Defendants’ answer provided notice to Soto that Defendants
were seeking immunity in defending against Soto’s claims, and Soto has not
asserted he was prejudiced in any way. We therefore conclude that Soto’s waiver
argument fails.
                                         C.
      Soto next argues that the district court erred in ruling that Defendants
were entitled to qualified immunity with respect to his 42 U.S.C. § 1983 claim
because his wrongful detention constituted a violation of due process under the
Fourteenth Amendment.
      A qualified immunity defense alters the summary judgment burden of
proof. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005) (citation omitted).
Once the defendant pleads qualified immunity, the burden then shifts to the
plaintiff, who “must rebut the defense by establishing that the official’s allegedly
wrongful conduct violated clearly established law and that genuine issues of
material fact exist regarding the reasonableness of the official’s conduct.” Gates



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                                  No. 12-50323

v. Tex. Dep’t of Protective and Regulatory Servs., 537 F.3d 404, 419 (5th Cir.
2008) (citation omitted).
      In reviewing a claim of qualified immunity, we employ a two-prong test:
(1) whether an official’s conduct violated a constitutional right of the plaintiff;
and (2) whether the right was clearly established at the time of the violation.
Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (citation omitted). If the
defendant’s actions violated a clearly established constitutional right, the court
then asks whether qualified immunity is still appropriate because the
defendant’s actions were “objectively reasonable” in light of “law which was
clearly established at the time of the disputed action.” Collins v. Ainsworth, 382
F.3d 529, 537 (5th Cir. 2004) (citation omitted). Whether an official’s conduct
was objectively reasonable is a question of law for the court. Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010). “To be clearly established for purposes of
qualified immunity, the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008) (citation omitted).
      We conclude that the district court did not err in granting summary
judgment to Defendants with respect to qualified immunity, as there is no due
process violation in this case.
      In Baker v. McCollan, the Supreme Court addressed the issue presented
in this case–whether a plaintiff’s erroneous detention constituted a violation of
his due process rights in a § 1983 action. 443 U.S. 137 (1979). In Baker, the
plaintiff was stopped for a routine traffic violation and subsequently arrested
pursuant to a facially valid warrant. Id. at 143. It was later discovered that the
plaintiff was wrongfully detained and that the warrant was intended for
plaintiff’s brother. Id. Prior to the plaintiff’s arrest, the plaintiff’s brother
obtained a duplicate of his brother’s driver’s license and represented himself as



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the plaintiff during a prior booking. Id. As a result, the plaintiff was wrongfully
detained for three days. Id.
      The Supreme Court held that the plaintiff’s wrongful detention pursuant
to a facially valid warrant did not amount to a deprivation of his constitutional
rights for purposes of his § 1983 claim. Id. at 143-44. Central to the Court’s
holding was that the Fourteenth Amendment does not protect against all
deprivations of liberty but only against deprivations of liberty “without due
process of law.” Id. at 145. The Court reasoned,
             Given the requirements that arrest be made only on
             probable cause and that one detained be accorded a
             speedy trial, we do not think a sheriff executing an
             arrest warrant is required by the Constitution to
             investigate independently every claim of innocence,
             whether the claim is based on mistaken identity or a
             defense such as lack of requisite intent. Nor is the
             official charged with maintaining custody of the accused
             named in the warrant required by the Constitution to
             perform an error-free investigation of such a claim.

Id. at 145-46.
      Nevertheless, the Court cautioned that a wrongful detention pursuant to
a valid warrant in the face of repeated protestations of innocence over a duration
of time could amount to a violation of due process. Id. at 145. The facts of
Baker, however, did not implicate this concern. Id. In Daniels v. Williams, the
Court held that the “Due Process Clause is simply not implicated by a negligent
act of an official causing unintended loss of or injury to life, liberty, or property.”
474 U.S. 327, 328 (1986).
      This court has similarly held that an erroneous detention does not amount
to a due process violation in a § 1983 action where defendants’ actions do not
exceed mere negligence. Compare Simmons v. McElveen, 846 F.2d 337, 338-39
(5th Cir. 1988) (holding police officer’s conduct did not exceed mere negligence


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where plaintiff spent eight months in jail after being identified as an assailant
in an armed robbery, although his fingerprints did not match those of the true
assailant), and Sanchez v. Swyden, 139 F.3d 464, 468-69 (5th Cir. 1998) (holding
an erroneous detention that lasted for 26 hours did not amount to a due process
violation where Sanchez was held pursuant to a facially valid warrant, and
Sanchez’s allegations that officers were in possession of information that
exculpated him did not amount to more than mere negligence), with Sanders v.
English, 950 F.2d 1152, 1154, 1161-62 (5th Cir. 1992) (holding that an arresting
officer was not entitled to qualified immunity on summary judgment where the
office knowingly and willfully ignored substantial exculpatory evidence and the
defendant remained incarcerated for 50 days).
      Here, Soto has failed to rebut the Defendants’ qualified immunity defense
because he has not shown a genuine dispute as to any material fact regarding
a violation of his constitutional right. Similar to Baker, Soto was arrested and
detained pursuant to a facially valid warrant. See Baker, 443 U.S. at 143. The
Texas Department of Public Safety Information System and the Automated
Fingerprint Information System returned a positive match of Soto’s identifiers
with the warrant, which provided a good faith basis for the officers’ belief that
Soto was in fact Reyes.4
      When Soto’s wife contacted the Detention Center, Harrison immediately
began an investigation into Soto’s identity and ran Soto’s Texas Department of
Public Safety identification number through a database. The database noted
that Soto’s date of birth and Social Security number matched the information
contained in the warrant. Despite this confirmation, Harrison continued her



      4
        The Detention Center used other databases in investigating Soto’s identity, which
included the National Crime Information Center and the Criminal Justice Information
System.


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investigation by requesting fingerprints and photographs of Reyes from Frio
County and TDCJ-Austin. After she received a fax from Frio County, Harrison
believed that Soto and Reyes were not the same person. Harrison, however,
could not make a positive confirmation of Soto’s identity because of the poor
quality of the fax and the failure to obtain fingerprints and photographs from
TDCJ-Austin due to its closure over the holiday weekend. On January 19, 2010,
Sanchez resumed the investigation and ultimately concluded that Soto was not
Reyes. Soto was released on January 20, 2010 after his identity was confirmed
by TDCJ-Austin.
      Although Soto was wrongfully detained, Baker teaches us that the
Fourteenth Amendment does not protect against all deprivations of liberty and
that the Constitution does not require that the Detention Center conduct an
error-free investigation of Soto’s claim. 443 U.S. at 145-46. The Detention
Center actively investigated to ascertain Soto’s identity through various
databases and law enforcement agencies, and while we do not express an opinion
on whether there was any negligence on the part of the Detention Center, it is
clear that the Detention Center’s actions do not exceed mere negligence.
Therefore, we conclude Soto has failed to satisfy the first prong of our qualified
immunity inquiry–whether an official’s conduct violated a constitutional right
of the plaintiff. See Sanchez, 139 F.3d at 469 (citation omitted) (“[W]e have
required proof that the official’s actions went beyond mere negligence before
[the] tort [of false imprisonment] takes on constitutional dimensions.”).
Accordingly, Soto’s § 1983 claim fails.
                                          D.
      Soto finally contends that Tex. Loc. Gov’t Code § 351.041(a), which
requires the sheriff to commit prisoners by lawful authority, is an independent
ground for recovery separate and apart from Soto’s false imprisonment claim.
Soto also alleges that Defendants failed to address Tex. Loc. Gov’t Code §

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351.041(a) in their motion for summary judgment, and as a result, the district
court erred in granting summary judgment in favor of Defendants.5
       Tex. Loc. Gov’t Code § 351.041 (a) provides, “[t]he sheriff of each county is
the keeper of the county jail. The sheriff shall safely keep all prisoners
committed to the jail by a lawful authority, subject to an order of the proper
court.” In Whirl v. Kern, we noted that the duty imposed by the predecessor
provision of Tex. Loc. Gov’t Code § 351.041(a) is a duty to investigate.6 407 F.2d
781, 795-96 (5th Cir. 1969). In Douthit v. Jones, we further clarified that duty
by stating,
                 Construing Whirl and [a later case] together, we
                 conclude that art. 5116 imposes a duty upon county
                 sheriffs in Texas to incarcerate only those persons
                 whom he has lawful authority to imprison. A sheriff
                 may satisfy this duty by adopting reasonable internal
                 procedures to ensure that only those persons are
                 incarcerated for whom the sheriff, or the deputy to
                 whom he delegates such responsibilities, has a good
                 faith belief based upon objective circumstances that he
                 possesses valid legal authority to imprison.

641 F.2d 345, 346-47 (5th Cir. 1981), reh’g opinion of 619 F.2d 527 (5th Cir.
1980).
       Even assuming arguendo that Tex. Loc. Gov’t Code § 351.041(a) provides
an independent ground for recovery, we conclude that Soto’s claim is without
merit. The Detention Center’s investigation revealed “objective circumstances”
justifying a good faith belief that the sheriff possessed valid legal authority to
hold Soto in custody pursuant to a facially valid warrant and the confirmation
results of various databases.             As the foregoing discussion illustrates, the


       5
        Contrary to Soto’s argument, Defendants specifically reference Tex. Loc. Gov’t Code
§ 351.041 in their motion for summary judgment.
       6
           Tex. Loc. Gov’t Code § 351.041 was formerly codified as Tex. Rev. Civ. Stat. art. 5116.

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Detention Center had in place and employed reasonable internal procedures in
ascertaining Soto’s identity. See supra Part III. C. We thus conclude that Soto’s
argument is without merit.
                                      IV.
      For these reasons, we AFFIRM the district court’s grant of summary
judgment.




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