     Case: 14-50183      Document: 00512810746         Page: 1    Date Filed: 10/22/2014




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

                                                                                  FILED
                                                                             October 22, 2014
                                    No. 14-50183
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


DAVID GREMAR; LORINDA INNOCENCIO,

                                                 Plaintiffs-Appellants
v.

BEXAR COUNTY, TEXAS,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-434



Before CLEMENT, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants, David Gremar and Lorinda Innocencio, appeal the
district court’s grant of summary judgment in favor of Defendant-Appellee
Bexar County, Texas (the “County”). For the reasons explained, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50183
                              STATEMENT OF FACTS
       Appellants worked for the Bexar County Constables’ office. After $1,000
disappeared from a safe in a precinct office, they were charged with stealing
the funds. The charges were later dismissed. Appellants filed a state-law
malicious prosecution claim (“state-law claim”) against the County in Texas
court. After the court dismissed the state-law claim on state sovereign
immunity grounds, Appellants amended their complaint to state a claim under
42 U.S.C. § 1983. The County removed the case to federal court.
       The County moved for summary judgment, arguing that Appellants
failed to adduce evidence that a County custom or policy caused their alleged
injuries. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (holding
that local government may not be sued under § 1983 unless government’s
custom or policy leads to alleged injury). The County also maintained that
Appellants had alleged a freestanding malicious prosecution action, which
cannot serve as the basis for a § 1983 claim. Appellants contended that they
did not have to allege the existence of a custom or policy in order to state a
claim for malicious prosecution under § 1983, and that the Fifth Circuit
recognizes a freestanding malicious prosecution action. The district court
found that Appellants had failed to adduce any evidence of a County custom or
policy and granted the County’s motion for summary judgment. 1 Appellants
appeal the district court’s order granting summary judgment for the County.




       1Appellants also filed a motion for a new trial, which the district court construed as a
motion to alter or amend judgment under Fed. R. Civ. P. 59(e). The court once again held
that Appellants failed to adduce any evidence of a County custom or policy and denied the
motion.

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                                 No. 14-50183
                          STANDARD OF REVIEW
      We review the district court’s grant of summary judgment de novo. City
of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014). Summary judgment
is appropriate when the pleadings, the discovery and disclosure material on
file, and any affidavits show that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of law. Id. No
genuine dispute of fact exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party. Id. We view the facts in
the light most favorable to the non-moving party. Id. We may affirm summary
judgment on any basis raised below and supported by the record. Id.


                                DISCUSSION
      Appellants argue that after Castellano v. Fragozo, 352 F.3d 939 (5th Cir.
2003) (en banc), they are not required to show that a County custom or policy
caused their alleged injuries. Thus they argue that the district court erred by
requiring them to adduce evidence of a custom or policy to avoid summary
judgment.
      We reject this argument. Appellants misread Castellano, which makes it
clear that there is no such thing as a freestanding malicious prosecution claim
under § 1983. See id. at 942 (“We decide that ‘malicious prosecution’ standing
alone is no violation of the United States Constitution, and that to proceed
under 42 U.S.C. § 1983 such a claim must rest upon a denial of rights secured
under federal and not state law.”). More importantly, this court does not have
the authority to ignore either Congress’s or the Supreme Court’s instruction
that municipalities are not liable under § 1983 unless “official policy [i]s the
moving force of the constitutional violation.” Monell, 436 U.S. at 694. Until
Congress amends § 1983 or the Supreme Court overturns Monell, every
plaintiff who seeks to hold a municipality liable under § 1983 must show that
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                                  No. 14-50183
the municipality’s “own illegal acts” caused the alleged injury. Connick v.
Thompson, 131 S.Ct. 1350, 1359 (2011) (quoting Pembaur v. Cincinnati, 475
U.S. 469, 479 (1986)).
      Appellants also contend that the district court improperly dismissed
their state-law claim and urge the court to remand for trial on this claim.
Appellants fail to adduce any evidence that they pressed a state-law claim
before the district court. Appellants also fail to respond to the County’s record
citations, which suggest that Appellants did not press the state-law claim
below. Because Appellants raise the state-law claim for the first time on
appeal, we will not consider it here. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).


                                 CONCLUSION
      For the reasons explained, the judgment of the district court is
AFFIRMED.




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