     Case: 16-20805      Document: 00514069521         Page: 1    Date Filed: 07/12/2017




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

                                    No. 16-20805
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          July 12, 2017
                                                                           Lyle W. Cayce
DARIAN BAKER,                                                                   Clerk


              Plaintiff - Appellant

v.

CITY OF CLUTE; CLUTE POLICE DEPARTMENT,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2068


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Darian Baker appeals the district court’s dismissal
of his 42 U.S.C. § 1983 suit against the City of Clute. We AFFIRM.
       This case begins on February 13, 2014, when a woman contacted the
Clute Police Department (CPD) to report that her teenage daughter had
received threatening text messages from Baker, a high school classmate. A



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20805
CPD officer interviewed the daughter, who expressed her belief that Baker
“may do something at school to her friends.” Relying on this information, the
CPD officer later that day applied for a warrant to arrest Baker for the
misdemeanor offense of making a terroristic threat. See Tex. Penal Code Ann.
§ 22.07. The next day, February 14, a Brazoria County judge issued a warrant
for Baker’s arrest, and CPD arrested Baker that same day. Baker was held in
a juvenile detention center until February 19; the charges against him were
ultimately dismissed.
       On July 11, 2016, Baker, acting pro se, filed this § 1983 suit, naming the
City of Clute and CPD as defendants. Baker’s second amended complaint
alleged that his Fourth, Fifth, and Fourteenth Amendment rights had been
violated, along with Texas state law claims of malicious prosecution,
intentional and negligent infliction of emotional distress, and false
imprisonment. Baker requested $1 million in damages. The City of Clute
moved to dismiss Baker’s complaint for failure to state a claim. 1 After holding
two pretrial conferences and permitting Baker to twice amend his complaint,
the district court granted the motion to dismiss. Baker timely appeals.
       Baker raises three arguments on appeal. 2 We address each in turn.
First, Baker argues that he was denied due process when the district court
dismissed his complaint. Baker appears to argue that he did not have the
opportunity to respond to documents produced by the City of Clute before the
district court ruled on the motion to dismiss. He also alleges that he was not



       1 CPD did not separately move for dismissal because, as the district court concluded,
CPD is not a separate legal entity from the City of Clute and thus cannot be separately named
as a party. Baker does not appeal this conclusion and, accordingly, the only defendant on
appeal is the City of Clute.
       2 Baker also includes several other arguments in the list of issues in his brief but does

not discuss them in the argument section in his brief. Accordingly, Baker has abandoned any
additional arguments beyond the three we address due to inadequate briefing. Fed. R. App.
P. 28(a)(8); United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
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                                 No. 16-20805
aware that the motion to dismiss would be a subject of hearings and was thus
not prepared to discuss them. We review due process challenges de novo.
United States v. Burns, 526 F.3d 852, 859 (5th Cir. 2008).
      The district court afforded Baker due process.       The record does not
support Baker’s allegations regarding lack of notice or opportunity to respond.
First, Baker had sufficient notice of the City of Clute’s motion to dismiss.
Federal Rule of Procedure 6(c)(1) requires that a motion to dismiss “be served
at least 14 days before the time specified for the hearing.” The first hearing on
the motion to dismiss was held on October 3, and Baker admitted that he
received the motion to dismiss on September 15, more than 14 days prior. He
did not request additional time to respond to it, nor did he ask to postpone the
hearing. In addition, Baker was specifically on notice that the motion to
dismiss could be discussed at the October 3 hearing.         The district court’s
scheduling order, dated July 13, explicitly provided that, at the hearing, the
court “may rule on motions pending or made at the [hearing],” and the motion
to dismiss was one such pending motion. The district court provided additional
notice of its intent to rule on the motion to dismiss at the hearing, where it
stated that it intended to grant the motion to dismiss in the future. After the
first hearing, the district court permitted Baker to amend his complaint for the
second time. The district court then held another hearing on October 7 to
discuss Baker’s amended complaint.      Only after this second hearing did the
district court grant the motion to dismiss.      Baker has not identified any
deficiencies or irregularities in the process by which the district court granted
the motion to dismiss, and accordingly, his due process claim lacks merit.
      Next, Baker argues that the district court erred in dismissing his
complaint under Federal Rule of Procedure 12(b)(6) for failure to state a claim.
We review a Rule 12(b)(6) dismissal de novo, “accepting all well-pleaded facts
as true and viewing those facts in the light most favorable to the plaintiff.”
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                                  No. 16-20805
Hines v. Alldredge, 783 F.3d 197, 200–01 (5th Cir. 2015) (quoting True v.
Robles, 571 F.3d 412, 417 (5th Cir. 2009)). A complaint should be dismissed if
it does not “contain sufficient factual matter, accepted as true, to ‘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 claim
is plausible on its face “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
      Here, Baker’s claim is for municipal liability under § 1983. In order to
establish municipal liability under § 1983, a plaintiff must prove three
elements: “(1) an official policy (or custom), of which (2) a policymaker can be
charged with actual or constructive knowledge, and (3) a constitutional
violation whose ‘moving force’ is that policy or custom.”        Valle v. City of
Houston, 613 F.3d 536, 541–42 (5th Cir. 2010) (quoting Pineda v. City of
Houston, 291 F.3d 325, 328 (5th Cir. 2002)). However, Baker did not plead any
of these elements. The allegations in Baker’s second amended complaint relate
only to the conduct of individuals; the second amended complaint is devoid of
any discussion of a citywide policy. Indeed, Baker’s brief appears to concede
that he failed to identify an official policy or custom but asserts that such a
policy or custom is not required to show liability. This assertion, as just
demonstrated, is contrary to well-established law. Accordingly, Baker has
failed to plead a facially plausible claim for municipal liability.       Because
“[d]ismissal is proper if the complaint lacks an allegation regarding a required
element necessary to obtain relief,” the district court did not err in dismissing
Baker’s claims. Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.
1995) (quoting 2A MOORE’S FEDERAL PRACTICE ¶ 12.07 (footnote omitted)).
      Finally, Baker argues that the district court erred in not granting him a
continuance to conduct additional discovery before ruling on the motion to
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dismiss. Because Baker did not move for a continuance in the district court,
he waived this argument. See Access Telecom, Inc. v. MCI Telecomms. Corp.,
197 F.3d 694, 719 (5th Cir. 1999).
      The judgment of the district court is AFFIRMED.




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