     Case: 11-40774     Document: 00511759956         Page: 1     Date Filed: 02/15/2012




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

                                                                            FILED
                                                                         February 15, 2012

                                     No. 11-40774                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JOHN DAVID LUERA,

                                                  Plaintiff - Appellant
v.

KLEBERG COUNTY TEXAS; Deputy CAVAZOS,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:10-CV-369


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant John David Luera appeals the summary judgment
dismissing his claims, and the denial of his motion for a continuance. The
district court found that Defendant-Appellee Albert Cavazos was entitled to
qualified immunity on Luera’s constitutional claims and official immunity on
Luera’s state law claims. The court further held that Cavazos had not violated
any of Luera’s constitutional or statutory rights and, consequently, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-40774

summary judgment in favor of Kleberg County. We AFFIRM the judgment of
the district court, based on its well-reasoned opinion.
                                        I.
      On June 25, 2010, Luera was driving through Kleberg County, Texas,
when he was pulled over for speeding by Cavazos, a patrol sergeant with the
Kleberg County Sheriff’s Department.         When Deputy Cavazos approached
Luera’s car, Luera presented the officer with both a driver’s license and a Texas
Commission on Law Enforcement Officer Standards and Education
(“TCLEOSE”) license. Upon further questioning, Luera told Deputy Cavazos
that he was employed with the Falfurrias Police Department.
      During the course of the stop, Deputy Cavazos contacted the Kleberg
County Sheriff’s Department and requested that it verify Luera’s employment
as a Falfurrias police officer. In response, the Falfurrias Police Department said
that Luera had not been employed as a police officer for almost two months.
Luera told Cavazos that he was not an active police officer because of an injury;
however, he insisted that he was still employed with the department and that
his TCLEOSE license was still active.
      Nevertheless, Cavazos arrested Luera for impersonating a public servant
and booked him in the Kleberg County jail where he was detained for two days.
All charges against Luera were eventually dismissed by the Kleberg County
District Attorney’s Office.
      On November 19, 2010, Luera filed a complaint against Cavazos in the
United States District Court for the Southern District of Texas, alleging § 1983
causes of action for malicious prosecution and violation of his Fourth
Amendment rights as well as state law causes of action for malicious prosecution
and false imprisonment. Luera also sued Kleberg County under section 1983,
on the basis of malicious prosecution and that the County failed to properly
supervise and train its employees.

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                                   No. 11-40774

      On March 14, 2011, Cavazos filed a motion for summary judgment. Luera
did not respond to Cavazos’s motion for summary judgment, and the district
court treated the motion as unopposed. The district court proceeded to an
analysis on the merits and granted Cavazos’s motion. The court held that
Cavazos was entitled to qualified immunity on Luera’s constitutional claims
because Cavazos had probable cause to arrest Luera, had acted reasonably
under the circumstances, and had not violated any of Luera’s constitutional
rights. The court further ruled on Luera’s state law claims finding that Cavazos
was entitled to official immunity under Texas state law and that the Texas Tort
Claims Act does not apply to intentional torts.
      Given the district court’s prior determination that Cavazos had probable
cause to arrest Luera and that Cavazos did not violate Luera’s constitutional
rights, Kleberg County moved for summary judgment on May 16, 2011, on
grounds that municipalities cannot be liable for violations of § 1983 if its officers
do not inflict any constitutional harm.        Instead of responding to Kleberg
County’s motion, Luera requested additional time for discovery and moved for
reconsideration of the court’s grant of summary judgment to Cavazos. On June
27, 2011, the district court granted summary judgment in favor of Kleberg
County, finding that there were no genuine issues of material fact to be
discovered and that Luera’s constitutional rights had not been violated. In turn,
the district court denied Luera’s motion for a continuance.
      Luera appeals the district court’s judgment on the basis (1) that the court
improperly dismissed the suit with prejudice as a sanction, because Luera failed
to respond to the defendants’ motions for summary judgment; (2) that summary
judgment was improper because there are many genuine issues of material fact




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                                       No. 11-40774

that have not been resolved; and (3) that the court erred by rejecting Luera’s
motion for a continuance.1
                                              II.
       First, Luera contends that the district court improperly dismissed his suit
with prejudice because he failed to file a response to Cavazos’s summary
judgment motion. We have approached the automatic grant of a dispositive
motion, such as a grant of summary judgment based solely on a litigant’s failure
to respond, with considerable aversion; and we have permitted such dismissals
only when there is a record of extreme delay or contumacious conduct. See
Ramsey v. Signal Delivery Serv., Inc., 631 F.2d 1210, 1214 (5th Cir. 1980). In this
case, however, the record makes clear that the district court dismissed the suit
based on its merits and not as a sanction. Thus, we find no merit to this
argument.
                                             III.
       Next, Luera argues that summary judgment was premature because there
remained unresolved questions whether Cavazos was entitled to qualified
immunity.2
       The qualified immunity analysis is a two-step inquiry. Glenn v. City of
Tyler, 242 F.3d 307, 312 (5th Cir. 2001). First, the court must determine whether
the plaintiff has alleged a violation of a constitutional right. Id. (citing Hale v.
Townley, 45 F.3d 914, 917 (5th Cir. 1995)). Second, if the plaintiff has alleged a
constitutional violation, the court must decide whether the conduct was

       1
          On appeal, Luera has forfeited his § 1983 malicious prosecution claim and both of his
state law claims. See generally United Paperworkers Int’l Union v. Champion Int’l Corp., 908
F.2d 1252, 1255 (5th Cir. 1990) (“[A]n appellant abandons all issues not raised in its initial
brief.”) (citations omitted).
       2
        Luera also argues that there is a fact issue concerning whether Cavazos had probable
cause to arrest him and whether Cavazos’s actions violated Luera’s “statutory or
constitutional” right; these inquiries, however, are subsumed into the qualified immunity
analysis.

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objectively reasonable in the light of clearly established law Id. (citing Hale, 45
F.3d at 917). On this note, both parties concede that searches and seizure
completely lacking probable cause violate the clearly established bounds of the
Constitution. See generally Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)
(“[A] qualified immunity defense cannot succeed where it is obvious that a
reasonably competent officer would find no probable cause.”).
       The record shows that Cavazos had probable cause to arrest Luera for
impersonating a police officer.         The Texas Penal Code provides: “A person
commits an offense if he . . . impersonates a public servant with intent to induce
another to submit to his pretended official authority or to rely on his pretended
official acts . . . .” TEX. PEN. CODE § 37.11(a)(1). Furthermore, the undisputed
facts are: (1) that Luera presented his TCLEOSE license to Cavazos; (2) that
Luera informed Cavazos that he was employed by the Falfurrias Police
Department; (3) that Cavazos received reliable information suggesting that Luera
was not employed by the Falfurrias Police Department; and (4) that Cavazos “felt
like Luera was alleging that he was a peace officer with the Falfurrias Police
Department in order to induce [Cavazos] into not issuing [Luera] a ticket for
speeding.” In this situation, “at the moment the arrest was made . . . the facts
and circumstances within [Cavazos’s] knowledge and of which [he] had
reasonably trustworthy information were sufficient to warrant a prudent man
into believing” that Luera was violating § 37.11(a)(1) of the Texas Penal Code.
Beck v. Ohio, 379 U.S. 89, 91 (1964) (articulating the test for probable cause).
Moreover, Luera points to no potential evidence which would undermine the
reasonableness of Cavazos’ probable cause determination during the arrest.3
Thus, given that Cavazos had probable cause to arrest Luera, there was no


       3
       Luera seeks to rely upon Cavazos’s deposition, where he cannot recite verbatim the
elements of the crime of impersonating a public officer. This, however, does not diminish the
reasonableness of Cavazos’ actions at the time of arrest.

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constitutional violation in this case; and Cavazos and Kleberg County were
therefore entitled to summary judgment.
                                             IV.
       Finally, Luera contends that the district court erred by denying his Rule
56 motion for a continuance. A district court is not required to allow parties to
conduct discovery before ruling on a motion for summary judgment. McCarty v.
United States, 929 F.2d 1085, 1088 (5th Cir. 1991). To obtain a Rule 56
continuance, the party opposing summary judgment “must present specific facts
explaining how postponement of a ruling on the motion will enable him to rebut
the movant’s showing of the absence of a genuine issue of fact.” Cormier v.
Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (citing
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990)); see also
Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas, 364 F.3d 274,
304-05 (5th Cir. 2004) (holding that when ruling on a Rule 56 motion, “[a] district
court may not simply rely on vague assertions that additional discovery will
produce needed, but unspecified, facts”) (citation omitted). Moreover, “[i]t is not
sufficient to allege that discovery is incomplete or that it will produce needed but
unspecified facts.” McCarty, 929 F.2d at 1088 (citing Washington, 901 F.2d at
1284-85). Here, Luera did not demonstrate what facts, if any, he would discover
that would give rise to a constitutional claim against Kleberg County.4 Thus,
even though Rule 56 motions for a continuance should be “liberally” granted, no
genuine issues of fact remained in this case, and the district court did not err by




       4
        Luera filed the Rule 56 motion for a continuance almost two months after the court
entered summary judgment in favor of Cavazos. Thus, with regard to his claims against
Cavazos, the motion was untimely and procedurally barred. Furthermore, because the
continuance would not affect the court’s prior determination that Cavazos did not violate any
of Luera’s constitutional rights, it is unclear how Luera would derive any benefit whatsoever
from more discovery.

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denying Luera’s motion for a continuance. See generally, Access Telecom, Inc. v.
MCI Telecomms. Corp., 197 F.3d 694, 720 (5th Cir. 1999).
                                       V.
      We conclude that the district court did not err by granting summary
judgment in favor of Cavazos and Kleberg County or by denying Luera’s Rule 56
motion for a continuance. Accordingly, essentially for the reasons given by the
district court in its well-considered opinion, the judgment is
                                                                     AFFIRMED.




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