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

                                             FILED
                                                               June 3, 2009
                               No. 08-50603
                                                       Charles R. Fulbruge III
                                                               Clerk
LACRESHA MURRAY; R L MURRAY, Individually and As Next Friend
of Cleo Murray, Jason Murray, Tyler Murray, and Trent Murray; SHIRLEY
MURRAY, Individually and As Next Friend of Cleo Murray, Jason Murray,
Tyler Murray, and Trent Murray; SHANTAY MURRAY, Individually

                                   Plaintiffs-Appellants
v.

RONNIE EARLE, Individually and as District Attorney of Travis County,
Texas; DAYNA BLAZEY, Individually and as an Assistant District Attorney
of Travis County, Texas; STEPHANIE EMMONS, Individually and as an
Assistant District Attorney of Travis County, Texas; THOMAS CHAPMAN,
Executive Director, Texas Department of Protective and Regulatory Services;
ANGELA MCGOWN, Individually and as Supervisor of the Travis County
Child Protective Services; MELISSA GREER, Individually and as a Case
Worker, Travis County Child Protective Services; MEGAN MOORE,
Individually and as Case Worker Travis County Child Protective Services;
STANLEY KNEE, Chief of the City of Austin Police Department; HECTOR
REVELES, Individually and as a Detective of the Austin Police Department;
PAUL JOHNSON, Individually and as a Detective of the Austin Police
Department; ERNEST PEDRAZA, Individually and as a Detective of the
Austin Police Department; ALBERT EELLS, Individually and as a Detective
of the Austin Police Department

                                   Defendants-Appellees


                Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. 1:02-CV-552


Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit
Judges.
                                       No. 08-50603

PER CURIAM:*
                                    I. I NTRODUCTION
        On her third appeal to this Court, appellant LaCresha Murray (“Murray”)
raises five issues, challenging: (1) this Court’s March 31, 2005 interlocutory
order reversing the district court’s denial of immunity for appellees Dayna
Blazey, Stephanie Emmons, Hector Reveles, Angela McGown, Ernest Pedraza
and Albert Eells on her Fifth Amendment and related state civil-conspiracy
claims; (2) this Court’s April 11, 2008 interlocutory order reversing the district
court’s denial of immunity for appellees Emmons, McGown, Reveles, Pedraza,
and Eells on her Fourteenth Amendment claims; (3) the district court’s dismissal
of Murray’s Sixth Amendment claims against appellee Dayna Blazey and the
“Travis County District Attorney’s Office”; (4) the district court’s alleged failure
to observe a Texas Court of Appeals ruling as the “law of the case”; and (5) the
district court’s dismissal of Murray’s Thirteenth and Fourteenth Amendment
claims against appellee (former 1 ) District Attorney Ronnie Earle. Finding no
grounds for reversal, we AFFIRM the district court’s judgment dismissing this
case.
                                     II. B ACKGROUND
        The facts underlying this appeal were set forth by this Court in Murray v.
Earle, 405 F.3d 278, 283-84 (5th Cir. 2005) (“Murray I”). Two-year old Jayla
Belton died in 1996. During the investigation into her death, Murray, then
eleven-years old, became a suspect. While Murray was staying in foster care,
Detective Reveles directed Detectives Pedraza and Eels, along with McGown, the



        *
         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.
        1
       Mr. Earle retired as Travis County District Attorney at the conclusion of his last term
in December of 2008.

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supervisor of the Travis County Child Protective Services, to interview her.
Before the interview, Reveles and Pedraza consulted with assistant district
attorney Emmons on the proper method of interrogating Murray. The detectives
questioned Murray at the foster home for approximately two hours, eventually
eliciting a confession. Murray was arrested and prosecuted for Jayla’s death.
The confession was admitted at her trial, Murray was convicted of injury to a
child, and she was sentenced to twenty-five years in the custody of the Texas
Youth Commission. Finding that the confession was inadmissible under Texas
law, the Texas Court of Appeals reversed Murray’s conviction. See In re L.M.,
993 S.W.2d 276, 291 (Tex.App. – Austin 1999, pet. denied). The appellate court
ruled that Murray had been in the custody of the State, and therefore
law-enforcement authorities had violated Texas law by not taking her before a
magistrate prior to the interrogation. Id.
      In 2002, Murray, on behalf of herself and seven other family members,
filed a lengthy civil complaint, alleging numerous violations of her federal and
state constitutional and statutory rights, and claiming more than thirty million
dollars in damages. Over the course of the litigation, a number of parties and
claims have been dismissed, leaving for our consideration only Murray’s five
issues on appeal concerning seven remaining appellants.
                               III. D ISCUSSION
      A.    Fifth Amendment
      Murray reasserts her Fifth Amendment claim “so that [she] will not be
said to have waived her appeal rights on this issue[.]” However, the subject has
already been addressed by a panel of this Court, and rehearing en banc and
certiorari were denied. See Murray v. Earle, 546 U.S. 1033 (2005). It is well-
settled that the “law of the case doctrine” bars a subsequent panel from
reexamining an issue of fact or law that has been previously decided on appeal
absent exceptional circumstances. United States v. Lee, 358 F.3d 315, 320 (5th

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Cir. 2004) (citing United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)).
The three exceptions to the doctrine apply if: “(1) The evidence at a subsequent
trial is substantially different; (2) there has been an intervening change of law
by a controlling authority; and (3) the earlier decision is clearly erroneous and
would work a manifest injustice.” Matthews, 312 F.3d at 657. Murray has failed
to establish that any of these exceptions apply here. Accordingly, we decline her
request to “revisit” the law of this case.
       B.     Fourteenth Amendment
       Murray next invites this Court to reconsider our 2008 order applying
immunity for her Fourteenth Amendment claims. She does not argue that new
facts have come to light or that there has been a change in controlling law;
instead, she claims that the Court’s application of qualified immunity was
erroneous and unjust.         Murray’s argument raises nothing new that would
overcome the law of the case doctrine as applied to our 2008 ruling.
Accordingly, we decline to revisit that ruling.
       C.     Sixth Amendment
       Murray challenges the district court’s dismissal of her Sixth Amendment
claims against Blazey and the “Travis County District Attorney’s Office.” 2 The
district court dismissed all such claims under Federal Rule of Civil Procedure
12(c).3 First, the court dismissed Murray’s official capacity claims because she
had not pled that Travis County had a custom or policy of violating rights
protected by the Sixth Amendment. She does not challenge that holding. See


       2
        Of course, the “Travis County District Attorney’s Office” is not a separate entity. Nor
did Murray purport to sue it. She did sue Ronnie Earle, then the district attorney; the district
attorney is the proper party to sue when contending a constitutional violation by a district
attorney’s office.
       3
         Murray does not address the dismissal of her Sixth Amendment claims against
defendants Earle, Emmons, Knee, Reveles, Johnson, Pedraza, Eells, McGown, Greer,
Chapman, Morris, or the City of Austin. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993) (issues not argued in Appellant’s brief are deemed abandoned).

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                                   No. 08-50603

Yohey, 985 F.2d at 225. Second, the court dismissed the Sixth Amendment claim
against Blazey in her individual capacity, since no arrest or formal judicial
proceedings had been initiated at the time of Murray’s interrogation.
      It is uncontested that the questioning of Murray took place at a stage of
the case where no criminal or judicial proceedings had been instituted against
her. For that reason, Murray’s Sixth Amendment claim was correctly dismissed.
It is well-settled that the Sixth Amendment right to counsel attaches only after
adversarial judicial proceedings are commenced against a defendant and
restrictions are imposed on her liberty. See Rothgery v. Gillespie County, Tex.,
128 S. Ct. 2578, 2583 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175
(1991)) (“The Sixth Amendment right of the ‘accused’ to assistance of counsel in
‘all criminal prosecutions’ is limited by its terms: ‘it does not attach until a
prosecution is commenced.’”); see also Kirby v. Illinois, 406 U.S. 682, 688 (1972)
(collecting cases); Self v. Collins, 973 F.2d 1198, 1206 (5th Cir. 1992) (“The Fifth
Amendment right to counsel during custodial interrogation is distinct from that
under the Sixth Amendment, which attaches at the commencement of formal
judicial proceedings against an accused and applies regardless of whether the
accused is in custody.”).
      On appeal, Murray contends that the Sixth Amendment right to counsel
attached when the state filed a Petition in a Suit Affecting the Parent-Child
Relationship (“SAPCR”) in civil court to determine the guardianship of Murray
and her siblings. However, she cites no authority for the proposition that the
filing of a civil SAPCR triggers Sixth Amendment protections; instead, she raises
only general precedent establishing that juveniles are entitled to counsel in
criminal delinquency proceedings.       See In re Gault, 387 U.S. 1, 13 (1967).
Murray provides no support for her claim that “[t]he case law was well-settled
in 1996, that the [rights implicated by the] filing of a civil family law proceeding,
where the legal interests of a child are at issue, [are] the same as those that are

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understood to exist in a juvenile delinquency proceeding.” Murray cites no cases
that suggest that an individual who is the subject of a civil guardianship hearing
qualifies as an “accused” defendant “faced with the prosecutorial forces of
organized society, and immersed in the intricacies of substantive and procedural
criminal law.” Kirby, 406 U.S. at 689. Accordingly, the district court correctly
dismissed the case under Federal Rule of Civil Procedure 12.
       In addition, because there is no case law establishing a constitutional
violation in a case like this one, it was not well-established that Murray had a
Sixth Amendment right to counsel upon the filing of the SAPCR. A reasonable
official would not have known that the failure to provide counsel in this instance
might violate the Sixth Amendment. See, e.g., Saucier v. Katz, 533 U.S. 194,
200-01 (2001). Accordingly, qualified immunity would also apply to Murray’s
Sixth Amendment claims.
       D.     The “Law of the Case Doctrine”
       Murray suggests, without clear explanation, that the district court or this
Court failed to respect the findings of the Texas appellate court contained in In
re L.M. She seems concerned that the district court or the 2005 or 2008 panels
did not adopt the state court’s purported holding that her statements were
unconstitutionally obtained as a result of custodial interrogation.4 However, our
2005 opinion not only reflected the finding of the Texas court that Murray was
in custody for purposes of the Texas statute, but also found a Fifth Amendment
violation, because she was in custody and provided an involuntary statement.
In her reply brief, Murray seems to suggest that the law of the case doctrine
permits her to attach the Texas appellate ruling to avoid dismissal under a
heightened pleading standard imposed by the district court. This point of error


       4
         In reality, the state appellate court simply held that Murray was in custody for
purposes of the Texas statute, and she should have been afforded a magistrate’s warning prior
to her statement. In re L.M., 993 S.W.2d at 291.

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                                       No. 08-50603

was not made with sufficient clarity to permit this Court to address it.
Accordingly, it provides no basis for relief. See Yohey, 985 F.2d at 225.
       E.     Thirteenth and Fourteenth Amendments
       Finally, Murray challenges the district court’s dismissal of her claims
against (former) District Attorney Ronnie Earle under the Thirteenth
Amendment and the Equal Protection Clause of the Fourteenth Amendment.5
She contends that Earle treated her differently than other, similarly-situated
white children. However, the only conduct she cites to support her Thirteenth
and Fourteenth Amendment claims was a statement purportedly made by Earle
to a newspaper reporter in 1978 that he would recommend a lenient sentence for
a white thirteen-year old who murdered his school teacher. Murray urges that
such allegedly differential treatment was a violation of equal protection and
violates section two of the Thirteenth Amendment as among the “badges and
incidents of slavery.”6
       The Supreme Court has recognized that section two of the Thirteenth
Amendment empowers Congress to define and legislatively abolish the “badges
and incidents of slavery.” Griffin v. Breckenridge, 403 U.S. 88, 105 (1971). It is
not altogether clear that there is a private right of action under § 1983 for
violations of the Thirteenth Amendment. See Channer v. Hall, 112 F.3d 214, 217
n.5 (5th Cir. 1997) (“suits attacking the ‘badges and incidents of slavery’ must
be based on a statute enacted under § 2.”).               However, other circuits have


       5
        Murray does not here challenge the dismissal of her equal protection claims against
Blazey, Emmons, Knee, Reveles, Johnson, Pedraza, Eels, McGown, Greer, Chapman, Morris,
or the City of Austin. Accordingly, this issue is waived. Yohey, 985 F.2d at 225.
       6
        Murray’s complaint itself broadly alleges that “Defendants would not have subjected
them to the treatment they received if they were White citizens of the City of Austin, State of
Texas. The treatment they received is an incident of slavery that was abolished by the
Thirteenth Amendment.” The district court summarily dismissed the Thirteenth Amendment
as improperly pled, since “plaintiffs have not alleged Earle . . . subjected the plaintiffs to
involuntary servitude (Thirteenth Amendment).”

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                                       No. 08-50603

concluded that state actors may be held responsible for Thirteenth Amendment
violations under § 1983. See, e.g., Sumpter v. Harper, 683 F.2d 106, 108 (4th Cir.
1982).
        Even assuming a private right of action under § 1983 for a Thirteenth
Amendment violation, there is no indication that Earle had any personal role in
Murray’s interrogation or prosecution, nor that he was deliberately indifferent
to Thirteenth Amendment violations by his subordinates.                       See Evett v.
DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003) (citing Monell v. New York City
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)) (“Section 1983 does not create
vicarious or respondeat superior liability.”).            The sole conduct alleged to
constitute a “badge and incident of slavery” is his plan to urge a lenient sentence
for one white juvenile in 1978 while apparently not doing so for Murray twenty
years later. This claim, even if accepted as true, does not allege a violation of §
2 of the Thirteenth Amendment, nor would a reasonable official understand that
such conduct violated any clearly-established constitutional right. See Anderson
v. Creighton, 483 U.S. 635, 640 (1987). Accordingly, Earle cannot be held liable
here.
        Similarly, Murray’s Fourteenth Amendment equal protection claim
against Earle was correctly dismissed.7 Murray alleged no particular policy or
custom that led to an equal protection violation. The sole instance cited on
appeal to support an equal protection claim against Earle was the same
“leniency” statement contained in the 1978 newspaper article. Earle’s statement
in favor of lenient treatment for one juvenile in 1978 simply does not support a
§ 1983 claim alleging a Fourteenth Amendment violation. See, e.g., Coleman v.


        7
          Murray claimed in her complaint that, “The acts of the Defendants, individually and
as conspirators, deprived LaCresha Murray particularly, and the other Plaintiffs generally,
of life, liberty, and property without due process of law and denied them of the equal
protection of the laws.” She provided no other explanation of this allegation in her complaint
or her Rule Seven statement.

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Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997) (“In order to state
a claim of racial discrimination under the Equal Protection Clause and § 1983,
a plaintiff must demonstrate that the governmental official was motivated by
intentional discrimination on the basis of race.”).
      The district court was correct that Murray failed to adequately plead her
Fourteenth Amendment claim, since she pleaded no facts in support of the denial
of the “equal protection of the laws” in her complaint, and provided no additional
explanation in her Rule Seven statement. It is well-settled that a plaintiff
invoking § 1983 must plead specific facts that, if proved, would overcome an
official’s immunity defense; “complaints containing conclusory allegations,
absent reference to material facts, will not survive motions to dismiss.” Geter v.
Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988). Certainly, then, it would not
be clear to a reasonable official that such conduct violated the Fourteenth
Amendment. See Anderson, 483 U.S. at 640. Accordingly, the district court’s
dismissal of Murray’s Thirteenth and Fourteenth Amendment claims was
appropriate.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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