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

                                                                            FILED
                                                                         February 18, 2008

                                     No. 06-51396                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


GEORGE DE ANGELIS

                                                  Plaintiff–Appellant
v.

THE CITY OF EL PASO; EL PASO POLICE CHIEF CARLOS LEON,
Individually and in his Capacity as Chief of Police

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                       For the Western District of Texas
                      El Paso Division, No. 3:05-cv-113-DB


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       George De Angelis sued the City of El Paso (City) and Carlos Leon, the
former El Paso Police Chief, under 42 U.S.C. § 1983, after officers of the El Paso
Police Department (EPPD) allegedly arrested De Angelis without probable cause
and searched his home without a warrant. The district court granted summary
judgment in favor of the City and Leon. De Angelis appeals that ruling, as well



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-51396

as the district court’s denial of De Angelis’s recusal motion and the district
court’s imposition of sanctions against De Angelis for a frivolous motion to
compel. We affirm all of the district court’s rulings.
                                        I
      In April 2003, Frank Gonzalez told his brother-in-law Commander Michael
Czerwinsky of the EPPD that retired EPPD Assistant Chief of Police George De
Angelis had threatened former EPPD Chief of Police Carlos Leon. Specifically,
De Angelis allegedly said of Leon, who was not present, “one of these days the
first chance I get, I am going to put two rounds right here.” De Angelis then
gestured behind his ear.
      Czerwinsky relayed Gonzalez’s story to Deputy Chief Robert Almonte, who
in turn told Leon. Leon filed a complaint against De Angelis and requested
Almonte investigate the matter further. The next day, Almonte directed two
detectives, Jesus Pantoja and David Samaniego, to investigate the threat
further.   Samaniego interviewed Gonzalez and found his story credible.
Czerwinsky further vouched for Gonzalez’s credibility given the two men’s
personal relationship. Pantoja met with Leon and concluded Leon legitimately
feared De Angelis’s threat. Pantoja then drafted an affidavit demonstrating
probable cause and delivered it to Judge Kosturakis Oaxaca, who reviewed the
affidavit and signed an arrest warrant. Later that night, Pantoja, Samaniego,
and several EPPD officers went to De Angelis’s house and arrested him. The
parties dispute whether De Angelis permitted the detectives inside.
      De Angelis sued the City and Leon, and the district court granted
summary judgment in favor of both defendants. On appeal, De Angelis alleges
the district court erred by: (1) improperly granting summary judgment in favor
of the City and Leon; (2) improperly denying De Angelis’s motion to recuse; and
(3) sanctioning De Angelis.



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                                         No. 06-51396

                                                II
       De Angelis first argues that the trial court erred when it granted summary
judgment in favor of both the City and Leon. We review de novo the district
court’s grant of summary judgment.1 Summary judgment is proper when the
record shows that no genuine issue of material fact exists and that the movant
is entitled to judgment as a matter of law.2 To defeat summary judgment, the
nonmoving party must introduce specific facts demonstrating a genuine issue.3
The court must view the evidence in the most favorable light to the nonmovant
and draw all reasonable inferences in the nonmovant’s favor.4
                                                A
       De Angelis argues that summary judgment in favor of the City was
inappropriate.         As an initial matter, he argues that the district court
acknowledged in its summary judgment order that “a dispute exists as to
whether the Detectives were invited in or entered the house without
permission.” Since summary judgment is appropriate only if “there is no
genuine issue as to any material fact,”5 De Angelis concludes that the district
court clearly erred. But as the district court further wrote, “[t]his factual dispute
is immaterial to the Court’s analysis.”
       The Supreme Court has held that a municipality is liable under § 1983
when its official policies or customs violate the Constitution.6 However, a


       1
           FDIC v. Myers, 955 F.2d 348, 349 (5th Cir. 1992).
       2
           FED. R. CIV. PRO. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
       3
           Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005).
       4
           Id.
       5
           FED. R. CIV. PRO. 56(c).
       6
          Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Pineda v. City of
Houston, 291 F.3d 325, 328 (5th Cir. 2002) (noting that a plaintiff may establish municipal
liability under § 1983 by establishing “[a] persistent, widespread practice of city officials or

                                                 3
                                        No. 06-51396

municipality will not face liability under a respondeat superior liability theory.7
Thus, even if the City’s detectives entered De Angelis’s house without
permission, the City is not liable unless its customs or policies caused the
unlawful entrance.8 We pause to note that De Angelis pleaded that a City
custom existed that would establish liability, but he has waived that argument
on appeal since he presents no argument or evidence establishing that custom.9
       The Supreme Court has held that a municipal policy maker’s single
decision might constitute an official policy, thus subjecting the municipality to
liability.10 In some situations, a municipality “chooses a course of action tailored
to a particular situation and not intended to control decisions in later
situations.”11 If an authorized decision maker—i.e., an individual with final
authority under state law to establish municipal policy—adopts the particular
course of conduct, this decision may constitute official policy.12                However,
“municipal liability under § 1983 attaches where—and only where—a deliberate
choice to follow a course of action is made from among various alternatives by
the official or officials responsible for establishing final policy with respect to the
subject matter in question.”13




employees which, although not authorized by officially adopted and promulgated policy, is so
common and well settled as to constitute a custom that fairly represents municipal policy.”).
       7
           Monell, 436 U.S. at 691.
       8
           Id. at 690.
       9
           Jason D.W. v. Houston Indep. Sch. Sys., 158 F.3d 205, 212 (5th Cir. 1998).
       10
            Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
       11
            Id. at 481.
       12
            Id.
       13
            Id. at 483.

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                                      No. 06-51396

      Nonetheless, the Supreme Court has rejected the argument that merely
identifying some decision properly attributable to the municipality is sufficient
to prove liability.14 Rather, the plaintiff must prove that the municipality was
the “moving force” through “deliberate conduct.”15            The plaintiff should
demonstrate “the requisite degree of culpability and . . . a direct causal link”
between the municipal action and the rights violation.16 “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.”17
      Thus, it is unsurprising that case law generally requires a close nexus
between the policy maker’s decision and the constitutional violation.           For
example, in Pembaur v. City of Cincinnati, a county prosecutor—an authorized
decision maker—ordered police officers to enter the plaintiff’s office to execute
a warrant against a third person, a constitutional violation.18 In other words,
the official ordered the actual violation. By contrast, in Bryan County v. Brown,
the Supreme Court rejected plaintiff’s argument that the county was liable for
a deputy’s use of excessive force because the Sheriff, the final decision maker
under state law, had hired the deputy after only a cursory review, thereby
setting in motion events leading to the injury.19 As the Supreme Court further
stated: “Where a claim of municipal liability rests on a single decision, not itself


      14
           Bryan County v. Brown, 520 U.S. 397, 404 (1997).
      15
           Id.
      16
           Id.
      17
           Id. at 405.
      18
           Pembaur, 475 U.S. at 473-74.
      19
           Bryan County, 420 U.S. at 405.

                                             5
                                       No. 06-51396

representing a violation of federal law and not directing such a violation, the
danger that a municipality will be held liable without fault is high.”20
       De Angelis argues that Leon, as the final decision maker, “hand picked the
person, his own employee, who was to head the investigation.” But De Angelis
does not argue, and the record does not indicate, that Leon ordered the officers
to enter De Angelis’s house, or even ordered the officers to go to his house. De
Angelis provides no evidence of a causal link between Leon’s choice of
investigators and the alleged rights violation. Like the hiring decision in Bryan
County, Leon’s mere choice of investigators, a lawful action, does not, without
more, subject the City to liability for those officers’ acts. To hold the City liable
for Leon’s decision to appoint certain investigators, who allegedly violated De
Angelis’s rights, is to hold the City liable under a respondeat superior theory,
which the Supreme Court has explicitly rejected.21
       Moreover, we also reject De Angelis’s argument that Leon’s decision
constituted deliberate indifference, another possible predicate for municipal
liability. The Supreme Court has said “‘deliberate indifference’ is a stringent
standard of fault, requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.”22 A mere showing of generalized risk is
insufficient to establish deliberate indifference;23 rather the plaintiff must show
that a reasonable policy maker would conclude that the rights deprivation that




       20
            Id. at 408.
       21
         Monell, 436 U.S. at 690-91; see also Bryan County, 520 U.S. at 410 (“To prevent
municipal liability for a hiring decision from collapsing into respondeat superior liability, a
court must carefully test the link between the policymaker’s inadequate decision and the
particular injury alleged.”).
       22
            Bryan County, 520 U.S. at 410.
       23
            Id.

                                              6
                                        No. 06-51396

occurred was a “plainly obvious consequence” of his decision.24
       De Angelis has pointed to no evidence, and we find none in the record,
suggesting that the plainly obvious consequence of Leon’s decision to appoint
Almonte was a violation of De Angelis’s rights. De Angelis speculates that since
Leon was the alleged victim, his appointed investigators would use any means
necessary to please their superior. This is, at best, a speculative showing of
generalized harm and misses the high bar the Supreme Court has set. We
conclude that the District Court correctly granted summary judgment in favor
of the City.
                                               B
       De Angelis also argues that the district court erred when it granted
summary judgment in favor of Leon. We construe De Angelis’s brief to argue
two theories: Leon is liable, first, in his personal capacity for pressing charges
against De Angelis and, second, in his official capacity for appointing Almonte
as the lead investigator. We note at the outset that Leon is not liable under
§ 1983 for pressing charges, because he was not acting under color of state law,25
a point De Angelis concedes. De Angelis fails to provide further arguments in
favor of personal liability or cite contrary authority supporting personal liability.
       We now determine whether Leon is liable in his official capacity. Leon
invoked qualified immunity. When a defendant asserts a qualified immunity
defense, the plaintiff bears the burden to prove its inapplicability.26 The district
court agreed Leon was entitled to qualified immunity, determined that under the




       24
            Id. at 411.
       25
          42 U.S.C. §1983; see also West v. Atkins, 487 U.S. 42, 49-50 (1988) (“It is firmly
established that a defendant in a § 1983 suit acts under color of state law when he abuses the
position given to him by the State.”).
       26
            McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).

                                               7
                                        No. 06-51396

first prong27 of the qualified immunity analysis no constitutional violation
occurred, and granted Leon summary judgment.
       On appeal, De Angelis barely attempts to meet his burden. The brief does
not argue that qualified immunity is inapplicable. The brief provides no legal
analysis regarding qualified immunity, cites no case law for any legal
propositions regarding qualified immunity, and in fact does not even use the
term “qualified immunity.” Rather than discussing qualified immunity, De
Angelis’s brief argues that the officers who arrested De Angelis, and who are not
parties, lacked probable cause. De Angelis further notes that Gonzalez had a
criminal record, whereas De Angelis was awarded the “1998 El Paso Police
Department Executive of the Year.” Thus, he argues no reasonable officer could
have concluded probable cause existed.
       Even if we construe these statements as an argument regarding the first
prong of qualified immunity analysis,28 we do not find it persuasive and conclude
no constitutional violation occurred. The arresting officers obtained a warrant
signed by a magistrate. When reviewing a warrant’s issuance, we defer to the
magistrate’s determination of probable cause.29 The magistrate must have a
substantial basis for concluding probable cause exists.30                   In this case, the
magistrate reviewed affidavits and other documents that detailed what Gonzalez
had heard and the reasons the investigating officers believed Gonzalez credible.

       27
         Id. at 322-23 (“[C]ourts evaluating § 1983 claims based on allegedly unconstitutional
conduct by state actors should conduct a two-prong inquiry to determine whether the state
actors are entitled to qualified immunity. ‘The first inquiry must be whether a constitutional
right would have been violated on the facts alleged. If a violation could be made out on a
favorable view of the parties’ submissions, the next sequential step is to ask whether the right
was clearly established.’”) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)).
       28
            See id.
       29
         Mack v. City of Abilene, 461 F.3d 547, 551 (5th Cir. 2006) (citing Illinois v. Gates, 462
U.S. 213, 236 (1983)).
       30
            Id.

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                                        No. 06-51396

Under our case law, the magistrate had a substantial basis for finding probable
cause.31 The fact that De Angelis was not ultimately charged or convicted does
not make his arrest unconstitutional. “The Constitution does not guarantee that
only the guilty will be arrested.”32 Moreover, this court has held that “if the facts
supporting an arrest are put before an intermediary such as a magistrate or
grand jury, the intermediary’s decision to issue a warrant or return an
indictment breaks the causal chain and insulates the initiating party.”33 Thus,
De Angelis’s arrest pursuant to a properly issued warrant is not
unconstitutional. Without proving a constitutional violation, De Angelis has
failed to meet his burden under the qualified immunity analysis.
                                               III
       De Angelis next challenges the district judge’s denial of De Angelis’s
motion to recuse. Leon, but not the City, argues that this court lacks jurisdiction
for this portion of the appeal, because De Angelis’s notice of appeal only
references the final judgment entered October 2, 2006 and not the July 14, 2005
Order denying De Angelis’s motion to recuse. Citing Warfield v. Fidelity &
Deposit Company,34 Leon argues “the Court cannot fairly infer [De Angelis’s]
intent to appeal from the [recusal order].” We note that the rule articulated




       31
         See id. (finding a substantial basis for probable cause based on officer’s affidavit
concerning informant’s statements, basis of knowledge, and veracity).
       32
            Id. at 552 (quoting Baker v. McCollan, 443 U.S. 137, 145 (1979)).
       33
            Smith v. Gonzalez, 670 F.2d 522, 526 (5th Cir. 1982).
       34
          904 F.2d 322, 325 (5th Cir. 1990) (“Where the appellant notices the appeal of a
specified judgment only or a part thereof, however, this court has no jurisdiction to review
other judgments or issues which are not expressly referred to . . . .”).

                                                9
                                             No. 06-51396

in Warfield is inapplicable when the notice of appeal is from the final judgment35
as it is here.
       We review the district court’s decision to deny the motion to recuse for an
abuse of discretion.36 It is an abuse of discretion to deny recusal where a
“reasonable man, cognizant of the relevant circumstances surrounding the
judge’s failure to recuse, would harbor legitimate doubts about that judge’s
impartiality.”37
       As a general matter, a judge shall grant the recusal motion if “his
impartiality might reasonably be questioned.”38 More specifically, a judge must
also grant recusal if:
       He or his spouse, or a person within the third degree of relationship to
       either of them, or the spouse of such a person: (i) is a party to the
       proceeding, or an officer, director, or trustee of a party; (ii) is acting as a
       lawyer in the proceeding; (iii) is known by the judge to have an interest
       that could be substantially affected by the outcome of the proceeding;
       (iv) is to the judge’s knowledge likely to be a material witness in the
       proceeding.39

       De Angelis moved for recusal, arguing that the City’s mayor had recently
hired the district judge’s nephew, Matthew Briones, as an executive assistant.
De Angelis argued in his motion that Matthew Briones’s employment as an
executive assistant “was the equivalent to being an officer or a party,” and thus
§ 455(b)(5)(i) required recusal.              After the motion was denied, De Angelis

       35
         Trust Co. of Louisiana v. N.N.P. Inc., 104 F.3d 1478, 1485 (5th Cir. 1997) (“[W]e have
held that an appeal from a final judgment sufficiently preserves all prior orders intertwined
with the final judgment.”).
       36
            In re Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993).
       37
         Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (quoting United States v.
Bremers, 195 F.3d 221, 226 (5th Cir. 1999)).
       38
            28 U.S.C. § 455(a).
       39
            28 U.S.C. § 455(b)(5)(i)-(iv).

                                                 10
                                         No. 06-51396

identified Matthew Briones as a witness against the City. On appeal, De Angelis
argues the district judge’s impartiality might reasonably be questioned because
his nephew both works for the City and was a potential witness.
       Contrary to De Angelis’s assertion, Matthew Briones’s mere employment
as an executive assistant does not make him an officer, director, or trustee for
the City or the equivalent of a party to this lawsuit. Moreover, several cases in
this and other circuits hold that the mere salary interest of a judge’s relative
generally is not a “financial interest”40 as § 455 defines.41 Thus, Matthew
Briones’s position with the City was not automatic grounds for the district
judge’s recusal.
       We also think that the judge’s failure to recuse himself after De Angelis
designated Matthew Briones a witness was, at the worst, harmless error. Again,
§ 455(b)(5) requires a judge to recuse himself if his spouse or relative within the
third degree “is to the judge’s knowledge likely to be a material witness in the
proceeding.”42 De Angelis has shown, and the record exhibits, little evidence
demonstrating that Matthew Briones would have been a material witness. De
Angelis’s own recusal motion establishes that Matthew Briones was hired long
after the events at issue to work for a new mayor elected over two years after



       40
          Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004) (rejecting argument that
judge’s impartiality called into question whenever judge’s family member is an at-will
employee in office representing a party); United States ex rel. Weinberger v. Equifax, Inc., 557
F.2d 456, 463 (5th Cir. 1977) (holding the judge did not abuse his discretion by failing to recuse
himself from a case in which one party’s counsel employed the judge’s son as an associate
because “[h]is salary interest as an associate is too remote to fall under th[e] ‘financial interest’
prohibition”). See also In re Kansas Public Employees Retirement System, 85 F.3d 1353, 1364-
65 (8th Cir. 1996) (finding no abuse of discretion when judge denied recusal after his daughter
accepted defendant’s offer of employment as associate attorney).
       41
          28 U.S.C. § 455(d)(4) (“‘[F]inancial interest’ means ownership of a legal or equitable
interest, however small, or a relationship as director, adviser, or other active participant in the
affairs of a party . . . .”).
       42
            28 U.S.C. § 455(b)(5)(iv) (emphasis added).

                                                11
                                            No. 06-51396

those events occurred.          Ultimately, since Matthew Briones never testified
because the case was dismissed at summary judgment, we cannot determine
whether he would have been a material witness. Nonetheless, we have reviewed
de novo the grant of summary judgment and concluded it was proper. Therefore,
no conflict arose and any error was harmless.
                                                IV
      De Angelis filed a motion to compel and a request for a temporary
restraining order; in both, De Angelis incorrectly represented that the City had
illegally attached secret grand jury testimony to a pleading filed in another
federal proceeding. In fact, the attached document was an indictment against
De Angelis, which was a public record. De Angelis’s motion to compel sought to
continue deposing the City’s attorney, who had attached the document,
regarding where she had obtained it. The court denied De Angelis’s motion to
compel as frivolous since the document was publicly available and awarded the
City costs and expenses for defending the motion. De Angelis argues that the
district court erred when it sanctioned De Angelis for filing a frivolous motion.
We review the district court’s decision for an abuse of discretion.43
      A judge who denies a motion to compel “must, after giving an opportunity
to be heard, require the movant, the attorney filing the motion, or both to pay
the party or deponent who opposed the motions its reasonable expenses incurred
in opposing the motion, including attorney’s fees” unless “the motion was
substantially justified.”44 In Pierce v. Underwood, the Supreme Court wrote that
a motion is “substantially justified” if “there is a ‘genuine dispute,’ or ‘if
reasonable people could differ as to [the appropriateness of the contested




      43
           Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002).
      44
           FED. R. CIV. PRO. 37(a)(5)(B).

                                                12
                                            No. 06-51396

action].’”45
       Reasonable people cannot have a genuine dispute regarding whether the
City improperly disseminated secret grand jury testimony when the document
at issue is not secret grand jury testimony but a public record that is clearly
labeled “indictment.” We find no abuse of discretion in the district court’s order.
                                        *        *         *
       We conclude that the district court properly granted summary judgement.
Additionally, we find the district court committed no error in denying De
Angelis’s motion to recuse or in ordering costs and expenses assessed against De
Angelis. For the foregoing reasons, we AFFIRM.




       45
            487 U.S. 552, 565 (1988) (brackets in original).

                                                13
