                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        November 3, 2004

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk
                       _____________________

                            No. 03-50862
                            c/w 03-50937
                       _____________________



     ROBERT W MILAM, JR

                                    Plaintiff - Appellee

          v.

     CITY OF SAN ANTONIO, a Homerule Municipality

                                    Defendant - Appellant

_________________________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
                        No. SA-01-CV-1123
_________________________________________________________________

Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

KING, Chief Judge:*

     The City of San Antonio appeals the district court’s entry

of judgment on a jury verdict holding it responsible for an

illegal arrest.   Concluding that there was insufficient evidence

to support municipal liability, we reverse and render judgment in

the City’s favor.


     *
        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that this opinion should not be published and is not precedent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.
               I. FACTUAL AND PROCEDURAL BACKGROUND

     This suit arises from the arrest of Robert Milam at the

hands of employees of the City of San Antonio.    While walking

across a golf course on an evening in December 1999, Milam was

stopped and detained by a San Antonio park ranger, Officer

Escobedo.   Park rangers are licensed peace officers, though with

less training and authority than police officers.     Escobedo says

that his knowledge of past mischief committed on the golf course

after dark led him to suspect that something was amiss, but Milam

says that the ranger did not tell him why he was being detained.

Milam and Escobedo each accuse the other of using abusive

language during the encounter.    Soon a second park ranger,

Officer Coronado, arrived on the scene.    According to Milam, the

two park rangers roughly handcuffed him, then put him in one of

the patrol cars.    Eventually, Milam was turned over to Officer

Land of the San Antonio Police Department1 and taken to the

police station.    Milam was brought before a magistrate and

charged with resisting arrest, though he was not charged with any

underlying offense that had required the arrest in the first

place.   He spent the night in the county jail.   When Milam later

appeared for his arraignment, he found that the district attorney

had dropped the charges for insufficient evidence.


     1
          The park rangers were authorized to make arrests for
Class C misdemeanors, but not Class B misdemeanors such as
resisting arrest.

                                  2
     Milam was quite upset by his treatment and wrote letters to

many City officials telling them of his experience and urging

them to take action to fix the apparent problems with their

rangers and police.   In response, the City’s Municipal Integrity

Division began an investigation into the park rangers’ conduct,

and the Police Department’s Internal Affairs Division started an

inquiry into Land’s conduct.   The Police Department later

informed Milam that it had completed its investigation and had

concluded that Land did not violate any rules.   Milam did not

hear back from City officials regarding the results of the City’s

separate investigation of the park rangers; the Municipal

Integrity Division stopped this investigation, on the advice of

its risk-management staff, when it received notice that Milam was

planning to file suit.   Milam did in fact sue the City in the

district court, asserting a § 1983 cause of action as well as

state-law claims.

     After dismissal of the state-law claims on immunity grounds,

the § 1983 claim proceeded to trial.   Milam produced evidence

tending to show that his detention and arrest were unjustified.

Milam sought to hold the City liable for its employees’ illegal

conduct by introducing evidence that City policymakers were aware

of and were indifferent to a pattern of illegal arrests by park

rangers, that the rangers were inadequately trained and

supervised, and that the City failed to respond meaningfully to

Milam’s complaints.   The City moved for judgment as a matter of

                                 3
law at the close of Milam’s case and again at the close of the

evidence, but the court denied the motions and sent the case to

the jury.

     The jury found that the arrest was illegal, and the City

does not challenge that finding.   For purposes of the present

appeal, two of the questions on the verdict form--both relating

to municipal liability for the illegal arrest--are relevant.      In

Question 2, the jury was asked the following:

     Do you find from a preponderance of the evidence that the
     city of San Antonio was consciously and deliberately
     indifferent to intentional and illegal arrests of
     individuals without probable cause by its park rangers,
     condoning a pattern or practice of such arrests by its
     park rangers?

In Question 3, the jury was asked the following:

     Do you find from a preponderance of the evidence that the
     City’s policy-making authority, ratified the wrongful
     conduct of its officers in violation of Mr. Milam’s
     constitutional rights?2

     2
          The portion of the jury instructions that corresponded
to Question 3 largely mirrored the language of the interrogatory:

     You are instructed that the City may be held liable for
     any civil rights violations committed by its employee if
     the final policymaking authority of the municipality
     condoned the wrongful conduct by knowingly ratifying the
     illegal or unconstitutional actions.         Ratification
     results from the decision or acquiescence of the
     municipal officer or body with “final policymaking
     authority” over the subject matter of the offending
     policy or individuals. . . . You may find the City liable
     of [sic] Mr. Milam’s ratification claim if you find the
     final   policymaking   authority    of   the    particular
     municipality condoned the wrongful conduct of its
     officers   by  knowingly   ratifying    the   illegal   or
     unconstitutional action.


                              4
The jury answered “no” to Question 2 and “yes” to Question 3.

Pursuant to the verdict form’s directive that the jury should

proceed to consider damages if it answered “yes” to either

Question 2 or Question 3, the jury awarded $100,000.

     After the trial, the City again moved for judgment as a

matter of law.   The district court again denied the motion.   The

court later awarded Milam attorneys’ fees based on his status as

a prevailing party.   The City now appeals.

                           II. ANALYSIS

     The City argues that there is no legally sufficient basis

for the jury’s affirmative answer to Question 3, which presented

a ratification theory of municipal liability.   It therefore asks

that we reverse and render judgment in its favor.   Alternatively,

it requests a new trial on the ground that the district court

erroneously instructed the jury that city managers and department

heads, not just the City Council, were policymakers who could

expose the City itself to liability.   We find that we need not

address the City’s alternative request for a new trial, for we

agree with its argument that there was insufficient evidence to

support the ratification verdict.




The parties’ opening and closing arguments at trial largely
focused on the question whether the arrest was illegal and, to
the extent that they concerned municipal liability, did not
discuss ratification but instead discussed the alleged pattern of
illegal arrests and insufficient training.

                                 5
A.   Standard of Review

     We review the district court’s ruling on the City’s motion

for judgment as a matter of law de novo, applying the same Rule

50 standard as did the district court.    See Coffel v. Stryker

Corp., 284 F.3d 625, 630 (5th Cir. 2002).   Judgment as a matter

of law is appropriate with respect to an issue if “there is no

legally sufficient evidentiary basis for a reasonable jury to

find for [a] party on that issue.”   FED. R. CIV. P. 50(a)(1).

This occurs when the facts and inferences point so strongly and

overwhelmingly in the movant’s favor that reasonable jurors could

not reach a contrary verdict.    Coffel, 284 F.3d at 630.   In

considering a Rule 50 motion, the court must review all of the

evidence in the record, drawing all reasonable inferences in

favor of the nonmoving party; the court may not make credibility

determinations or weigh the evidence, as those are jury

functions.   Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000).   In reviewing the record as a whole, the court

“must disregard all evidence favorable to the moving party that

the jury is not required to believe.   That is, the court should

give credence to the evidence favoring the nonmovant as well as

that evidence supporting the moving party that is uncontradicted

and unimpeached, at least to the extent that that evidence comes

from disinterested witnesses.”   Id. at 151 (citation and internal

quotation marks omitted).



                                 6
B.   Principles of Municipal Liability

     Milam’s suit names no employees of San Antonio but only the

municipality itself.      The Supreme Court held in Monell v.

Department of Social Services that municipalities are “persons”

subject to suit under 42 U.S.C. § 1983.     436 U.S. 658, 663, 690

(1978).    At the same time, however, the Court ruled that

municipalities are not liable on a respondeat superior basis;

that is, a municipality cannot be held liable simply by virtue of

the fact that one of its employees violated a person’s federal

rights.    Id. at 691.    For a municipality to be liable, the

municipality itself must cause the violation through its

policies.    “[I]t is when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible under

§ 1983.”    Id. at 694.

     Municipal policy can take several guises.      Monell itself

involved an acknowledged, formal policy.      See id. at 690.    But to

say that municipal policy itself must cause the injury is not to

say that policy is limited to formal pronouncements, ordinances,

and the like.    The Court’s opinion in Monell recognized, in

keeping with the language of § 1983, that a plaintiff can sue a

municipality for deprivations “visited pursuant to governmental

‘custom’ even though such a custom has not received formal



                                    7
approval through the body’s official decisionmaking channels.”

Id. at 691.   Cases have recognized that municipal custom can

sometimes be proven through evidence of a persistent pattern of

conduct.   See City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988) (plurality opinion) (referring to “a widespread practice

that, although not authorized by written law or express municipal

policy, is so permanent and well settled as to constitute a

‘custom or usage’ with the force of law” (internal quotation

marks omitted));   Bennett v. City of Slidell, 728 F.2d 762, 767-

78 (5th Cir. 1984) (en banc).   That is, the existence of a

persistent pattern of illegal conduct, tolerated by municipal

policymakers,3 tends to show that the subject conduct does not

represent an unauthorized departure from lawful policy but

instead represents the realization of an unlawful policy.     Thus,

we have on several occasions upheld findings of municipal

liability that were predicated on patterns of illegality that

rose to the level of customary policy.   See, e.g., Lawson v.

Dallas County, 286 F.3d 257, 263-64 (5th Cir. 2002).   But cf.

Pineda, 291 F.3d at 329 (finding insufficient evidence of a

municipal custom of illegal conduct).




     3
          It is not enough that an illegal custom exist;
municipal policymakers, who are the persons capable of subjecting
a municipality to liability, must be chargeable with awareness of
the custom. See Pineda v. City of Houston, 291 F.3d 325, 330-31
(5th Cir. 2002).

                                 8
     Municipalities can also be liable, in certain situations,

for single episodes of conduct that are not part of any pattern

of illegality.   See generally Bd. of County Comm’rs v. Brown, 520

U.S. 397, 405-06 (1997) (summarizing the Court’s single-episode

cases).   For example, plaintiffs can hold municipalities liable

for single instances of conduct perpetrated by the policymakers

themselves; such one-time conduct can represent official “policy”

even though it does not necessarily form part of a plan or rule

developed to govern all like occasions.   See, e.g., Pembaur v.

City of Cincinnati, 475 U.S. 469, 480-81, 484-85 (1986) (holding

a county liable where the county prosecutor, a policymaker,

directed deputy sheriffs to forcibly serve a capias in violation

of the Fourth Amendment).   In addition, in Praprotnik the Supreme

Court described a scenario in which a municipality could be held

liable for a single episode of conduct initiated by a non-

policymaker employee.   The plaintiff in Praprotnik claimed that

his supervisors in the city government had retaliated against

him, and, through the supervisors’ actions, he hoped to hold the

city itself liable.   Looking to state law, the plurality opinion

determined that the municipality’s policymaking authority over

employment was vested in the mayor, the aldermen, and the civil

service commission, but not in the plaintiffs’ supervisors.   485

U.S. at 124-26, 128-29.   It therefore rejected the plaintiff’s

claim, but in the course of doing so it noted certain factors

that could have changed the outcome:

                                 9
     It would be a different matter if a particular decision
     by a subordinate was cast in the form of a policy
     statement and expressly approved by the supervising
     policymaker. . . . In [such a case], the supervisor could
     realistically be deemed to have adopted a policy that
     happened to have been formulated or initiated by a lower
     ranking official.

Id. at 130.   Elsewhere, the opinion included the following

comments about how a policymaker could “ratify” a subordinate’s

illegal conduct, thus putting the force of municipal policy

behind it:

     [W]hen a subordinate’s decision is subject to review by
     the municipality’s authorized policymakers, they have
     retained the authority to measure the official’s conduct
     for conformance with their policies. If the authorized
     policymakers approve a subordinate’s decision and the
     basis for it, their ratification would be chargeable to
     the municipality because their decision is final.

Id. at 127.

     This sort of ratification is most readily conceptualized in

contexts like employment.   For example, if a school board--a

policymaker under Monell--approves a superintendent’s decision to

transfer an outspoken teacher, knowing of the superintendent’s

retaliatory motive for doing so, the governmental entity itself

may be liable; but if the school board lacks such awareness of

the basis for the decision, it has not ratified the illegality

and so the district itself is not liable.   See Beattie v. Madison

County Sch. Dist., 254 F.3d 595, 603-05 (5th Cir. 2001)

(discussing and distinguishing Harris v. Victoria Independent

School District, 168 F.3d 216, 225 (5th Cir. 1999)).



                                10
     It is important to recognize that the ratification theory,

in whatever context it arises, is necessarily cabined in several

ways.   Praprotnik itself recognized that policymakers who

“[s]imply go[] along with” a subordinate’s decision do not

thereby vest final policymaking authority in the subordinate, nor

does a “mere failure to investigate the basis of a subordinate’s

discretionary decisions” amount to such a delegation.    485 U.S.

at 130.   Such limitations on municipal liability are necessary to

prevent the ratification theory from becoming a theory of

respondeat superior, which theory Monell does not countenance.

See id. at 126 (“If the mere exercise of discretion by an

employee could give rise to a constitutional violation, the

result would be indistinguishable from respondeat superior

liability.”); cf. City of Oklahoma City v. Tuttle, 471 U.S. 808,

830-31 (1985) (Brennan, J., concurring in the judgment).

Policymakers alone can create municipal liability, and so any

violation must be causally traceable to them, not just to their

subordinates.

C.   Application to Milam’s Case

     The evidence adduced at trial might have provided a legally

sufficient basis for the jury to determine that the City’s

policymakers had tolerated a pattern of illegal arrests that rose

to the level of customary policy.    The jury, though, specifically

rejected a pattern-and-practice theory in its negative answer to



                                11
Question 2.    Milam is therefore left with the task of trying to

hang the evidence presented at trial onto the doctrinal hooks of

the ratification theory.    It is not an easy fit because, at least

facially, an illegal arrest that is completed without the

involvement of any policymaker does not look like the typical

situation in which a policymaker could “approve[] [the

employee’s] decision and the basis for it” such that municipal

policy can be said to have caused the harm.      Praprotnik, 485 U.S.

at 127.    Milam attempts in a few different ways to provide

evidentiary support for the ratification verdict, but we conclude

that the evidence does not support this theory of liability.

     Milam’s primary argument is that his ratification theory is

aimed at situations in which policymakers have tacitly permitted

informal practices to rise to the level of official municipal

policy.4   It is certainly true, as we discussed above, that

Monell recognizes that informal customs and usages, no less than

formally promulgated pronouncements and ordinances, can come to

represent a type of municipal policy.      See Monell, 436 U.S. at

690-91.    Actions taken pursuant to such a customary policy can

then subject the municipality to § 1983 liability.      Nonetheless,

this does not help Milam’s case.      If Question 2 on the verdict

     4
          See, e.g., Sur-Reply Br. at 3 (“Liability is clear when
a municipality has a formal practice or procedure that results in
unconstitutional conduct. The ratification theory exists to
address the situation when a subordinate’s unconstitutional
behavior has become customary and clearly tolerated by those in
charge . . . .”)

                                 12
form had limited the jury to considering whether the City had a

policy of the formal-pronouncement type, then perhaps Milam’s

evidence that the City had allowed a pattern of illegal arrests

could be shoe-horned into Question 3, the ratification

interrogatory.   But Question 2 was not so limited; rather, it

fully contemplated the possibility that the City had tacitly

adopted a customary policy.   It did not ask the jury whether the

City had promulgated ordinances or the like, but it instead asked

them whether the City had “condon[ed] a pattern and practice” of

illegal arrests.   The jury answered that it had not.   Milam’s

attempt to equate ratification with liability for customary

policy strips the ratification theory of any independent content

within the circumstances of this case.

     Pursuing another tack, Milam also points to evidence

concerning how the City responded to his arrest as support for

his argument that the City “ratified” the arresting officers’

conduct.   Milam sent letters to many of San Antonio’s officials,

including some who were policymakers; no disciplinary action

against the rangers resulted.   We do not think that this permits

an affirmative answer to Question 3.    First, this record does not

present a situation where the policymakers have approved the

“decision and the basis for it.”     Praprotnik, 485 U.S. at 127;

see also id. at 130 (referring to a situation in which “a

particular decision by a subordinate was cast in the form of a

policy statement and expressly approved by the supervising

                                13
policymaker”).    That the policymakers failed to take disciplinary

action in response to Milam’s complaints does not show that they

knew of and approved the illegal character of the arrest,

determining that it accorded with municipal policy.     See id. at

130.    Second, it is hard to see how a policymaker’s ineffectual

or nonexistent response to an incident, which occurs well after

the fact of the constitutional deprivation, could have caused the

deprivation.     See Thomas ex rel. Thomas v. Roberts, 261 F.3d

1160, 1174-75 (11th Cir. 2001), vacated, 536 U.S. 953 (2002),

reinstated, 323 F.3d 950 (11th Cir. 2003); Vukadinovich v.

McCarthy, 901 F.2d 1439, 1444 (7th Cir. 1990).

       To be clear, we do not say that lackluster disciplinary

responses are never relevant in a Monell case and can never cause

constitutional injuries.    First, municipal policymakers who fail

to supervise and to discipline their police officers, acting with

deliberate indifference to the citizens’ rights, could create

municipal liability if the lack of supervision then caused a

deprivation.     Cf. Brown, 520 U.S. at 406-10 (discussing liability

for inadequate training and hiring policies).    Second, even

though a policymaker’s response to a particular incident may not

cause the injury, the response might provide evidence of the

content of a municipality’s policies.    That is, the failure to

take disciplinary action in response to an illegal arrest, when

combined with other evidence, could tend to support an inference

that there was a preexisting de facto policy of making illegal

                                  14
arrests: the policymaker did not discipline the employee because,

in the policymakers’ eyes, the employee’s illegal conduct

actually conformed with municipal policy.   See Bordanaro v.

McLeod, 871 F.2d 1151, 1166-67 (1st Cir. 1989); Grandstaff v.

City of Borger, 767 F.2d 161, 171 (5th Cir. 1985);5 cf.

Praprotnik, 485 U.S. at 131 (“Refusals to carry out stated

policies could obviously help to show that a municipality’s

actual policies were different from the ones that had been

announced.”).   But, once again, these are all possibilities that

might have supported an affirmative answer to Question 2, which

the jury declined to give.   The unsatisfactory investigation was

not an actionable “ratification,” if that theory is to have any

independent content.

     Milam also presented evidence that the City failed to train

the park rangers properly, and the district court instructed the

jury on a failure-to-train theory.   See generally City of Canton

v. Harris, 489 U.S. 378 (1989) (recognizing and describing this

theory of liability).   The verdict form, however, did not include

a question that contained failure-to-train language.   If either

question was able to embrace the theory, it would be Question 2:

The district court’s failure-to-train instruction in part tracked

     5
          Grandstaff was decided in 1985, before Pembaur,
Praprotnik, Harris, and many other Supreme Court cases that
elucidated the contours of municipal liability. Our court has
read Grandstaff narrowly. See Snyder v. Trepagnier, 142 F.3d
791, 797-98 (5th Cir. 1998), cert. granted, 525 U.S. 1098, and
cert. dismissed, 526 U.S. 1083 (1999).

                                15
the language in Question 2,6 and failure-to-train cases typically

involve policymakers who display indifference to a pattern of

tortious conduct that makes the need for training obvious.      See

Brown, 520 U.S. at 407-10.    In any case, the failure-to-train

theory is not the ratification theory discussed in Praprotnik.

Once more, we must conclude that there is insufficient evidence

to support the jury’s answer to Question 3.

D.   Attorneys’ Fees Award

     Milam was awarded attorneys’ fees under 42 U.S.C. § 1988(b)

based on his status as a prevailing party in this civil-rights

case.    Given our disposition of the case, he is no longer a

prevailing party and so the award cannot stand.    See Johnson v.

Rodriguez, 110 F.3d 299, 316 (5th Cir. 1997).

                           III. CONCLUSION

     For the foregoing reasons, we REVERSE the district court’s

judgment in Milam’s favor, VACATE the award of attorneys’ fees,

and RENDER judgment in the City’s favor that Milam take nothing

on his complaint.




     6
          The instruction began by stating that: “Mr. Milam
complains that the City was consciously and deliberately
indifferent to the intentional and indifferent arrests of
individuals without probable cause, in part, because the City
failed to adequately train its park rangers.”

                                 16
