     Case: 18-20270      Document: 00514726641         Page: 1    Date Filed: 11/16/2018




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

                                                                                 FILED
                                    No. 18-20270                         November 16, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
JANE DOE,

              Plaintiff - Appellant

v.

HARRIS COUNTY, TEXAS; MELISSA MUNOZ; JAIME BURRO; SHERIFF
RON HICKMAN, In His Official Capacity,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-3721


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       This case arises from a series of events related to a rape prosecution in
2016. Appellant Jane Doe alleges that appellees violated her constitutional
rights by keeping her in Harris County jail for 53 days past the expiration of
her unrelated drug-possession sentence in order to obtain her testimony at the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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criminal trial of her rapist. The district court granted appellees’ motion to
dismiss all of Doe’s claims. We AFFIRM.
                                       I.
        In 2003, Jane Doe was raped by an unknown attacker. In 2015, while
she was serving a jail sentence for drug possession, prosecutors initiated
criminal proceedings against Doe’s alleged rapist, and Doe agreed to testify. In
order to secure her testimony, prosecutors sought, and a state court issued, a
bench warrant ordering her transfer to the Harris County jail. The warrant
was addressed “TO THE DIRECTOR: Texas Department of Criminal Justice,
Dayton, Texas or, TO THE SHERIFF: Liberty County, Dayton, Texas or TO:
Any Peace Officer of the State of Texas.” The warrant identified Jane Doe as a
witness in the rape prosecution, represented that the case was “set on the
court’s docket for INSTANTER at 08:30 AM,” and ordered its recipient to
“deliver the above named individual to the custody of the Harris County Sheriff
or any of his deputies.”
        Doe arrived at the Harris County jail on November 5, 2015. On December
9, 2015, nine days prior to the release date for her drug-possession conviction,
the senior deputy to the Harris County sheriff emailed the court coordinator to
inform her that Doe’s release date was coming up and to ask whether Doe
should be released. The court coordinator replied a few minutes later stating
that “[a]s of now we still need her held on that case. If anything changes I will
let you know.” The judge issued a bench warrant return, allowing Doe to be
released from jail, on February 9, 2016, 53 days after Doe’s scheduled release
date.
        Doe sued Harris County, Sheriff Ron Hickman, Governor Greg Abbott,
and Attorney General Ken Paxton, as well as Melissa Munoz and Jaime Burro,
two assistant district attorneys in the Harris County District Attorney’s office.
In her complaint, she alleged violations of her rights under the Fourth,
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                                  No. 18-20270
Fourteenth and Sixth Amendments. The district court dismissed her claims as
to all defendants. On appeal, she pursues only her claims under the Fourth
and Fourteenth Amendments and has abandoned her claims against the
Governor and Attorney General.
                                        II.
                                        A.
      This court reviews a district court’s grant of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) de novo. Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009). Although we accept all well-pleaded facts as true, the
complaint must “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S.
544, 570 (2007)). A pleading consisting of conclusory allegations, naked
assertions without any factual enhancement, or formulaic recitations of a
cause of action will not suffice under this standard. See id. at 678.
                                        B.
      We first consider Doe’s allegations against Burro and Munoz. The lower
court found that these claims were barred by prosecutorial immunity.
Assistant district attorneys like Burro and Munoz enjoy absolute immunity
from § 1983 actions related to “initiating a prosecution and . . . presenting the
State’s case” as well as any activities “intimately associated with the judicial
phase of the criminal process.” Esteves v. Brock, 106 F.3d 674, 677 (5th Cir.
1997) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-431 (1976)). Doe argues
that prosecutorial immunity does not apply in this case because the allegedly
unlawful actions taken by Burro and Munoz were administrative, not
prosecutorial. To support this argument, Doe cites out-of-circuit cases in which
courts declined to apply prosecutorial immunity when confronted with the
detention of a witness.


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      This circuit has held (in an unpublished opinion) that detaining a
witness in order to compel testimony at trial is prosecutorial and that any
lawsuits arising out of a prosecutor’s performance of this function are barred.
Harris v. Dallas Cty. Dist. Att’y’s Office, 196 F.3d 1256, 1999 WL 800003 (5th
Cir. Sept. 14, 1999) (unpublished table decision). In Harris, we held that
“efforts to secure the appearance of the state’s trial witnesses in court are
activities intimately associated with the judicial phase of the criminal process,
and thus are entitled to absolute prosecutorial immunity.” Id. at *1. This is so
even where the prosecutor “acted inappropriately.” Id. We find the reasoning
of the Harris panel persuasive: the appearance of witnesses for trial is
intimately associated with a prosecutor’s advocacy. At times, the detention of
witnesses is necessary to secure that appearance.
      The out-of-circuit cases Doe cites are inapposite. Doe first cites a Second
Circuit opinion, Simon v. City of New York, 727 F.3d 167 (2d Cir. 2013). In
Simon, the panel found that “the execution of a material witness warrant is a
police function, not a prosecutorial function,” where the defendants acted
contrary to a court order that required the plaintiff be brought “before the court
at 10:00 a.m. on August 11.” Id. at 172-73. “[H]ad they complied with the terms
of the warrant by bringing her promptly before the court, no liability could
attach to their actions . . . .” Id. at 173. The court explained that because the
defendants’ “actions fell outside the protection of the warrant[,] they were not
acting in the role of advocate in connection with a judicial proceeding.” Id. The
crux of prosecutorial immunity for the purposes of Simon was compliance with
the court’s order.
      Here, Doe likens her case to Simon and contends that Burro and Munoz
failed to comply with the bench warrant by failing to bring her before the court
“INSTANTER,” or immediately. This is incorrect. As discussed, the warrant
stated that the case was docketed for “INSTANTER at 8:30 A.M.,” but it does
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                                      No. 18-20270
not instruct its recipients to bring anyone before the court. Rather, the only
order embodied in the warrant is to transfer Doe to Harris County jail.
Moreover, even if the warrant did contain a command to bring Doe before the
court, it is not addressed to Burro, Munoz, or the Harris County D.A.’s office.
Accordingly, Burro and Munoz did not defy the bench warrant by allowing
Doe’s confinement to continue. Simon is therefore not applicable.
       Doe also cites then-Chief Judge McKee’s concurrence in Schneyder v.
Smith, 653 F.3d 313 (3d Cir. 2011), as support for her contention that
prosecutorial immunity does not apply in this case. Doe cites the following
excerpt:
       The central inquiry before us is simple: would a reasonable
       prosecutor have known that detaining a material witness for 48
       days after a trial has been continued may have been contrary to
       the wishes of the authorizing court, and that this additional
       detention violated the witness’ constitutional rights? It takes
       neither a panel of federal judges nor a prescient prosecutor to know
       that the answer to both questions is a resounding “yes.”

Id. at 335 (McKee, C.J., concurring) (citation omitted). The quoted passage is
distinguishable on its face. As is clear from the excerpt above, it should have
been apparent to the Schneyder defendants that their continuing detention of
plaintiff was contrary to the court’s wishes. Here, a court employee had
specifically instructed the Deputy Sheriff to continue to detain Doe past her
release date. The prosecutors therefore had reason to believe that releasing
Doe would be contrary to the court’s wishes. 1
       Considering the out-of-circuit cases Doe cites, as well as our unpublished
opinion in Harris, we conclude that Burro and Munoz were entitled to


       1 We note that the panel opinion in Schneyder does raise the question as to whether
the sine qua non of prosecutorial immunity in these circumstances is compliance with a
court’s order. See id. at 333. However, because Doe does not brief this issue, and because we
are not bound by Schneyder, we need not consider it.
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prosecutorial immunity in this case. As a result, Doe’s claims against them are
barred.
                                         C.
      We next consider Doe’s claims against Harris County. 2 In a § 1983 case
such as this, a municipality cannot be held liable on a theory of respondeat
superior. Shumpert v. City of Tupelo, ---F.3d---, 2018 WL 4561268, at *2 (5th
Cir. Sept. 24, 2018) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692
(1978)). Instead, a plaintiff must “identify a municipal ‘policy’ or ‘custom’ that
caused the plaintiff’s injury.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403
(1997). A plaintiff may satisfy this burden by alleging that the policy or custom
itself violated the constitution or that the policy or custom was adopted “with
‘deliberate indifference’ as to its known or obvious consequences.” Id. at 407.
       Doe’s brief devotes only one or two sentences to each of her substantive
constitutional allegations. With little clarification, she alleges that Harris
County: (1) subjected her to an unreasonable seizure in violation of the Fourth
Amendment; (2) violated her rights secured by the Fourteenth Amendment’s
Equal Protection Clause; (3) violated her right to procedural due process under
the Fourteenth Amendment by failing to give her a hearing, a bond, or an
attorney; and (4) violated her substantive due process rights because “what
happened to her ‘shocks the judicial conscious [sic].’” In her discussion of
Monell, Doe does not explain which specific constitutional violation was caused
by Harris County’s alleged policies or customs. Accordingly, we will analyze
Doe’s Monell argument in the abstract, doing our best to piece together what
constitutional violation or violations may have been caused by an alleged policy
or custom of Harris County.


      2In her briefing on appeal, Doe refers to Harris County and Sheriff Ron Hickman
(whom she sues in his official capacity) collectively as “Harris County.”

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                                   No. 18-20270
      Doe first alleges that Harris County “had a policy or custom of routinely
receiving bench warrants and, just like this case, instead of bringing witnesses
in front of the court that issued the warrant as ordered, they would instead
bring them straight to Harris County Jail.” The only support Doe offers for this
allegation on appeal is that “this case shows this allegation is plausible as it is
exactly what happened to Doe.”
      These allegations plainly fail under Iqbal. As discussed, threadbare
allegations and recitations of the elements of a cause of action will not suffice
to defeat a motion to dismiss. See Iqbal, 556 U.S. at 678. The simple allegation
that a “policy or custom” existed, without reference to a specific policy or
custom, is precisely the sort of formulaic pleading that does not pass muster
under Iqbal. The only factual support offered for the conclusion that a policy
or custom existed is that Doe herself was jailed. If this court were to treat this
allegation as sufficient, it would collapse municipal liability under § 1983 into
respondeat superior, which we plainly may not do.
      Doe also alleges that Harris County failed to train or supervise its
employees regarding their arrest and detention of witnesses. Doe contends that
this failure to train predictably caused Doe’s alleged constitutional violations
and qualifies for single incident liability.
      It is difficult to see how Harris County employees’ training was
inadequate, given their response to the situation. As discussed, the Deputy
Sheriff contacted the court to see if it was appropriate to continue Doe’s
detention. In her reply brief, Doe points out that it was a court employee, and
not the Judge, who issued the directive to keep Doe in jail. Doe argues that
“non-elected bureaucrats” cannot make decisions properly left to elected judges
and that it was therefore improper to follow these directions. However, the
underlying constitutional question here is not whether the judge or a court
employee should have made the decision as to whether Doe remained in prison;
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                                    No. 18-20270
it is what constitutional infirmity, if any, resulted from the Deputy Sheriff’s
reliance on the court employee’s representations. Doe has not alleged any such
violation, and we strain to find any. Therefore, Doe’s failure-to-train and
failure-to-supervise claims fail.
      Doe finally alleges that former District Attorney Devon Anderson
articulated county policy when she made statements related to the jailing of
another rape victim who was a witness in the trial of her rapist and ratified
the policy through statements made relating to Doe’s case. These statements,
whatever their import, cannot be attributed to Harris County. As we have
previously held, Monell liability cannot be premised on the action of a District
Attorney who is acting as an advocate for the state. See Esteves, 106 F.3d at
677. Whether an individual is acting on behalf of the state or the county “is
determined by state law.” Id. And under Texas law “when acting in the
prosecutorial capacity to enforce state penal law, a district attorney is an agent
of the state, not of the county in which the criminal case happens to be
prosecuted.” Id. at 678. Here, Anderson made these statements as part of a
prosecution predicated on state law. Accordingly, they are not attributable to
Harris County. Doe’s claims against Harris County fail under Monell.
      The judgment of the district court is therefore AFFIRMED.




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