     Case: 14-20763      Document: 00513487588         Page: 1    Date Filed: 05/02/2016




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

                                                                                    FILED
                                                                                  May 2, 2016
                                      No. 14-20763
                                                                                 Lyle W. Cayce
                                                                                      Clerk
BERTHA M. FONTENOT, Individually and on Behalf of Those Similarly
Situated; DAVID MILLER; SANTA ZAMARRON,

               Plaintiffs - Appellants

v.

CITY OF HOUSTON; CLERK OF COURT CHARLOTTE BOOKER,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3503


Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       David Miller appeals the district court’s summary judgment in favor of
the City of Houston in this suit brought under 42 U.S.C. § 1983. Miller alleges
that the City violated his due process rights when it reported to the State that
he had been convicted of committing a more serious driving offense than in fact
was true. As a result of the misreporting, the State assessed a surcharge



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20763
against Miller for which he was not statutorily liable. The City’s misreporting
was not unique to Miller; for over six years, the City of Houston regularly
reported convictions like Miller’s as different, more serious convictions. Miller
has not created a fact dispute, however, as to whether the City had a policy or
custom of misreporting convictions. Accordingly, Miller cannot succeed on his
municipal liability claim and we must AFFIRM the district court’s grant of
summary judgment in favor of the City.
                                                 I.
       This suit arises from the conflation of two sections of the Texas
Transportation Code by the Municipal Courts Department of the City of
Houston. Both sections proscribe what might be characterized as “driving
without a license.” See Fontenot v. McCraw, 777 F.3d 741, 744 (5th Cir. 2015).
One section prohibits a person from driving on Texas roads unless that person
has been issued a driver’s license (hereinafter, “Unlicensed Driver”). TEX.
TRANSP. CODE ANN. § 521.021. 1 The other section requires that a person have
his or her driver’s license in his or her possession when driving and that he or
she display the license when asked to do so by a police officer (hereinafter,
“Failure to Display”). TEX. TRANSP. CODE ANN. § 521.025. 2 Violation of either
section is classified as a Class C misdemeanor. See TEX. PENAL CODE ANN.
§ 12.03(b). Crucially for purposes of this suit, however, individuals convicted
only of Unlicensed Driver (§ 521.021) are subject to a state-imposed surcharge


       1 In its entirety, § 521.021 states: “License Required. A person, other than a person
expressly exempted under this chapter, may not operate a motor vehicle on a highway in this
state unless the person holds a driver’s license issued under this chapter.”
       2   In relevant part, § 521.025 states:
             (a) A person required to hold a license under Section 521.021 shall:
                  (1) have in the person’s possession while operating a motor vehicle the class
                      of driver’s license appropriate for the type of vehicle operated; and
                  (2) display the license on the demand of a magistrate, court officer, or peace
                      officer.
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of up to $100 per year pursuant to a Driver Responsibility Program. See TEX.
TRANSP. CODE ANN. § 708.104. The state does not assess a surcharge for
convictions of Failure to Display (§ 521.025). The Houston Municipal Courts
Department is required to report convictions for either offense to the Texas
Department of Public Safety (“DPS”), which assesses surcharges as
appropriate. See TEX. TRANSP. CODE ANN. § 521.347(b).
      The Houston Municipal Court is the largest fine-only court in the United
States. In 2001, the court began work on transitioning to a new electronic case
management      system   called   the   Municipal    Courts   Integrated    Case
Management System (“ICMS”).         ICMS finally went online in April 2006.
Among its many features, ICMS interfaced with external systems to exchange
data and was used to report convictions to DPS. Part of the transition to ICMS
required matching the Houston Municipal Courts Department’s internal codes
for various convictions with the corresponding codes used internally by DPS.
In addition to computer programmers, individuals from the clerk’s office and
the prosecutor’s office were involved in ensuring that the codes were matched
correctly.   Before ICMS went online, the team working on the transition
reviewed a sample of conviction data to make sure it was correct.
      In December 2012—over six years after ICMS went live—the Houston
Municipal Courts Department learned that it had been incorrectly reporting
convictions for Failure to Display as convictions for Unlicensed Driver to DPS.
Specifically, the City’s Action Code “TP60,” which indicates Failure to Display,
had been linked in ICMS with the State DPS code “BMV 3103” for Unlicensed
Driver rather than with the correct code, “BMV 3263.” Between 2006 and
2012, approximately 50,000 convictions for Failure to Display (which are not
eligible for a state-assessed surcharge) were incorrectly reported to DPS as
convictions for Unlicensed Driver (which are subject to a surcharge). Upon
being informed of the issue in 2012, the Houston Municipal Courts Department
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                                No. 14-20763
conducted an internal investigation and concluded that the problem was due
to a “coding error” but was unable to determine when precisely the error
occurred or who had made the error. The Courts Department updated ICMS
to properly link the City’s code for Failure to Display with the corresponding
DPS code and forwarded amended data files to DPS to correct its prior
mistaken reports.    DPS in turn endeavored to correct the corresponding
conviction records and refund the improperly-assessed surcharges.
      There is no evidence that anyone in the Houston Municipal Courts
Department knew that the convictions for Failure to Display were being
improperly reported to DPS prior to 2012. The Department employees who
were involved in implementing ICMS have described the issue as
“inadvertent,” a “mistake,” or a “coding error.” Rex Billings, the Assistant
Director of the City of Houston’s Information Technology Services, explained
that the incorrect code was entered into ICMS at one point in time and that
that mistake impacted approximately 50,000 cases, not that any employees
incorrectly entered the code 50,000 times. He also testified, however, that he
“believe[d] that the City of Houston made a decision that led to TP60 being
associated with 3103,” and that this was “not the sort of accidental mistake as
if someone fell against a keyboard.”
      Plaintiff-appellant David Miller was one of the individuals whom the
Houston Municipal Courts Department incorrectly reported to DPS as having
been convicted of Unlicensed Driver. Accordingly, although Miller was found
guilty of Failure to Display, he later received a “Surcharge Notification” from
a State of Texas vendor ordering him to pay a surcharge of $100 per year and
warning that failure to pay would lead to suspension of his license.
      On January 2, 2014, Miller and two other plaintiffs filed a Second
Amended Class Action Complaint, the operative complaint in this case. The
plaintiffs also moved for class certification.     The complaint named as
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                                   No. 14-20763
defendants the City of Houston, the vendor used by the City to develop ICMS,
the Director of DPS, the Clerk of Court/Deputy Director for the City of Houston
Municipal Courts, and the private vendor used by DPS to collect surcharges.
The complaint alleged violations of due process pursuant to 42 U.S.C. § 1983
and also brought state law claims. The City and the Clerk of Court moved for
summary judgment.
      On August 7, 2014, the district court granted summary judgment in
favor of the City and the Clerk of Court, and denied the motion for class
certification as moot because the plaintiffs could not establish the deprivation
of a federally protected right. Fontenot v. City of Houston, No. 4:12-CV-3503,
2014 WL 3891682, at *5 (S.D. Tex. Aug. 7, 2014). Miller is the only plaintiff
who has appealed the district court’s summary judgment and he has appealed
the judgment only as to the § 1983 claim against the City. 3
                                         II.
      We apply de novo review to a grant of summary judgment. Baker v. Am.
Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005).           Summary judgment is
appropriate when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Vuncannon v. United
States, 711 F.3d 536, 538 (5th Cir. 2013) (per curiam) (quoting FED. R. CIV. P.
56(a)). When reviewing a summary judgment decision, we construe all facts
and inferences in the light most favorable to the nonmoving party. See Tolan
v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam). “A panel may affirm
summary judgment on any ground supported by the record, even if it is




      3 The Director of DPS was previously dismissed from the suit due to Eleventh
Amendment immunity. See Fontenot v. McCraw, 777 F.3d 741 (5th Cir. 2015). Miller does
not appeal summary judgment as to the Clerk of Court.
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                                  No. 14-20763
different from that relied on by the district court.” Reed v. Neopost USA, Inc.,
701 F.3d 434, 438 (5th Cir. 2012) (internal quotation marks omitted).
                                        A.
      The only claim covered by this appeal is Miller’s municipal liability claim
against the City based on an alleged violation of his constitutional due process
rights. To succeed on a municipal liability claim, a plaintiff must show that
some “action pursuant to official municipal policy” caused a constitutional
injury. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978). “A
plaintiff must identify: ‘(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)). Miller has failed to offer
sufficient evidence to create a triable issue on the first prong.
      It is undisputed that the City did not have an “official policy,” created by
its lawmaking officers, to report Failure to Display convictions as Unlicensed
Driver convictions to DPS. Even so, a plaintiff can establish municipal liability
by showing that the city had a “custom” that violated the plaintiff’s rights. A
plaintiff must present evidence of a “persistent, widespread practice of city
officials or 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.” Johnson v. Deep E. Tex. Reg’l
Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004) (quoting
Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)). Miller argues that the City
had a “persistent, widespread practice” of misreporting convictions to the State
because the City reported Failure to Display as Unlicensed Driver for over six
years, which affected nearly 50,000 cases. Miller’s argument fails because the


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                                  No. 14-20763
unrefuted record evidence makes clear that the City had no custom to
misreport convictions.
      Employees of the Houston Municipal Courts Department did not make
50,000 separate decisions to report Failure to Display as Unlicensed Driver.
Instead, the undisputed evidence shows that when the electronic ICMS was
being implemented, someone made the one-time mistake of linking the City’s
internal code for Failure to Display with the State’s internal Code for
Unlicensed Driver. The electronic system took it from there—every time a City
employee correctly entered a Failure to Display conviction into ICMS, ICMS
incorrectly reported it to DPS as a conviction for Unlicensed Driver. Thus,
although the mistake had a large impact, City employees were not engaged in
a pattern of improper conduct. “Isolated violations are not the persistent, often
repeated constant violations that constitute custom and policy as required for
municipal section 1983 liability.” Campbell v. City of San Antonio, 43 F.3d
973, 977 (5th Cir. 1995) (quotation marks omitted) (holding that single
instance of city failing to correct detective’s erroneous identification of suspect
could not establish a policy or custom). “A customary municipal policy cannot
ordinarily be inferred from single constitutional violations.” Piotrowski v. City
of Houston, 237 F.3d 567, 581 (5th Cir. 2001). Despite the wide ranging-
consequences, the sole mistake at issue here was similar to the type of clerical
error that does not give rise to liability. See Teaster v. City of Glenpool, No. 11-
CV-257, 2011 WL 2217480, at *3 (N.D. Okla. June 7, 2011) (holding that
plaintiff had failed to state a claim for municipal liability where he had
received an enhanced sentence as a result of a clerical error). Furthermore,
there is no evidence in the record that any of the City’s employees
(policymakers or otherwise) knew that convictions were being misreported
until 2012, at which time the City took action to correct the issue.


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                                       No. 14-20763
       Miller states that the record contains evidence City employees intended
to link the City and State codes incorrectly, and that the district court failed to
apply the correct summary judgment standard in holding otherwise. Miller
hangs his claim on deposition testimony in which Mr. Billings (the City’s
Assistant IT Director) said that he “believe[s] that the City of Houston made a
decision that led to TP60 [the City’s code for Failure to Display] being
associated with 3103 [the State’s code for Unlicensed Driver].”                   Billings’s
statement, however, was in response to questions of whether the City’s vendor
had the authority to decide which conviction codes should be linked and
whether the mistake had happened from “someone [falling] against a
keyboard.” Even when giving Miller the benefit of all reasonable inferences,
the record offers no evidence for the proposition that anyone intended
convictions to be reported incorrectly to the State. In fact, Billings stated that
any directive to report Failure to Display as Unlicensed Driver would have
been contrary to the policy of the Municipal Courts Department. All of the
record testimony supports the City’s position that the misreporting was caused
by an inadvertent mistake during the transition to ICMS. 4 Miller has thus
failed to create a fact issue on whether the City had an official policy or custom
to misreport convictions, which dooms his municipal liability claim. Since
Miller has proffered insufficient evidence to survive summary judgment on the
first prong of the conjunctive test for municipal liability, we need not consider
his evidence on the two remaining prongs. See Valle, 613 F.3d at 541-42.




       4Miller also highlights evidence that the City prosecutor’s office had a preference for
trying defendants on charges of Failure to Display rather than Unlicensed Driver, because
the former offense was easier to prove in court. It is not clear how this is relevant. A
preference for trials on Failure to Display does not suggest that the City had a custom of
misreporting convictions to the State.
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                                      B.
      After determining that the City was entitled to summary judgment, the
district court correctly denied Miller’s motion for class certification as moot.
Fontenot v. City of Houston, 2014 WL 3891682, at *5. Since Miller has not
created a genuine dispute of material fact on municipal liability, the putative
class cannot be certified on that claim either. See Casas v. Am. Airlines, Inc.,
304 F.3d 517, 526 (5th Cir. 2002).
                                      III.
      Miller has not presented enough evidence to create a genuine dispute of
material fact as to whether the City had an official policy or custom to
misreport convictions. For this reason, we AFFIRM the district court’s grant
of summary judgment and its denial of Miller’s motion for class certification.




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