     Case: 16-41405      Document: 00514038508         Page: 1    Date Filed: 06/19/2017




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

                                    No. 16-41405                                    FILED
                                  Summary Calendar                              June 19, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
CHRISTOPHER LOCK; KEVIN MEYER,

              Plaintiffs - Appellants

v.

CINDIA TORRES; DARREN FRANCES; CHARLES MCQUEEN; HARRIS
COUNTY, TEXAS,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-2766


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:*
       Christopher Lock and Kevin Meyer sued Cindia Torres, Darren Frances,
Charles McQueen, and Harris County, alleging violations of 42 U.S.C. § 1983.
The defendants filed motions for summary judgment, which the district court
granted. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41405
              FACTUAL AND PROCEDURAL BACKGROUND
      On September 29, 2012, Kevin Meyer, a Harris County Sheriff’s Deputy,
hosted his wedding reception at a lodge in Houston, Texas. We will call him
Deputy Meyer to distinguish him from his father. Several hundred guests
attended the reception.    Cindia Torres and Darren Frances, both Harris
County Constable’s Office Precinct 1 Deputies, provided security for the event.
Torres wore her uniform; Frances worked in plain clothes but displayed his
gun, handcuffs, badge, and police identification.
      The reception featured an open bar that served, among other things,
draft and canned beer.     Some guests also brought wine and hard liquor.
Around 8:30 p.m., the bartender decided to stop serving alcohol because he
“noticed a significant number of guests who were dressed slopp[ily], slurring
their words and stumbling.” The bartender then informed Torres, Frances,
and the groom’s mother about his decision.
      Robert Meyer (“Mr. Meyer”), Deputy Meyer’s father, became visibly
agitated when he learned of the bartender’s decision to cease the alcohol
service. As a result, he “began loudly complaining” and informed the bartender
that his son was a police officer who could handle any problems himself.
Frances then intervened to inform Mr. Meyer that “the bartenders were simply
doing what they had a right to do.” There is no dispute that Mr. Meyer
responded with some degree of physical force, though only some witnesses said
he “struck or pushed” Frances. Frances gave a strong warning not to touch
him again. There is some evidence that Mr. Meyer later stumbled backward
and touched Frances a second time.         Other possibilities of how a later
“touching” occurred is that Mr. Meyer “pushed” Frances, or that he simply
placed his hand on Frances’s shoulder to better hear what he was saying.
      Cindia Torres, who we remind was the uniformed constable, observed
the disagreement and began to escort Mr. Meyer from the ballroom. Deputy
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                                 No. 16-41405
Meyer, the groom, came to his father’s aid, along with thirty to forty other
people. Torres claims Deputy Meyer grabbed her “shoulder or shirt collar.”
Torres asked the deputy to release her, and, when he refused, the plain-clothed
constable Frances put Deputy Meyer “in a bear-hug and told him to identify
himself.” Other witnesses recall the scene differently. Some claim that Deputy
Meyer never touched Torres or interfered with his father’s arrest.             The
appellees claim that both Meyers were intoxicated at the time of the incident.
      After the initial altercation, Torres and Frances directed both Meyers to
the lounge area for questioning. During the conversation, a large crowd formed
in the hallway, prompting the bartender to place a table in front of the doorway
to prevent additional congregants from crowding the area. Torres and Frances
then asked the partygoers “to move away and to leave” the premises
immediately or they would be arrested.
      Accounts differ as to what happened after this warning. Torres states
that several guests, including Christopher Lock, claimed to be police officers
and refused to leave the scene. Torres maintains that Lock ignored her threat
to arrest him for criminal trespass and continued to disturb the scene by
yelling to Deputy Meyer and using profanity toward her. Torres claims she
physically escorted Lock to the exit but was unable to make him leave. Lock,
on the other hand, claims that Torres used profanity toward him after he tried
to identify himself as a police officer. By his account, he never responded to
her comments. He claims instead to have “left and went off the property” to
stand on the street outside. Other witnesses corroborated Lock’s version of
events.
      At   some   point,   Torres   called   her    supervisors   and    requested
reinforcement. Along with other deputies, Harris County Constable Sergeant
Charles McQueen arrived and talked with Lock. Their conversation is the
point of some debate. Lock claims that McQueen gave him permission to
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                                  No. 16-41405
reenter the lodge; McQueen denies ever giving such permission. For her part,
Torres states that she did not hear McQueen give Lock permission but that he
later told her he had done so.
      Torres arrested Deputy Meyer “for interfering with public duties when
he grabbed and pulled her” as she attempted to detain his father. She arrested
Lock for criminal trespass after he “remained on the premises after receiving
notice to depart . . . .” When McQueen arrived on the scene, he asked Torres
not to file charges in order to avoid “bad blood” between the sheriff’s office and
the constable’s office. By then, Torres had already called an assistant district
attorney (“ADA”), who agreed to bring charges. Torres did not inform the ADA
that Deputy Meyer and Lock were law enforcement officers, but the ADA
claims that information “wouldn’t have changed [her] decision” to accept the
charges. Although McQueen would have released Deputy Meyer and Lock as
a professional courtesy, he maintains that Torres “had total probable cause for
her actions at the scene.”
      Both of the Meyers and Lock were taken to jail and formally charged. A
Harris County Criminal Court judge, Pam Derbyshire, found probable cause
and set bail. All charges were later dismissed.
      Only Deputy Meyer and Lock brought this Section 1983 suit; Mr. Meyer
did not sue. They claimed “Torres arrested them without probable cause.”
They further alleged that McQueen was deliberately indifferent to their rights
by failing to properly train and supervise his subordinates. Finally, they
claimed Harris County has enacted unconstitutional practices and customs
that caused the alleged Section 1983 violations. The district court granted
summary judgment to all defendants. Deputy Meyer and Lock timely appealed.




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                                 No. 16-41405
                                 DISCUSSION
      Our review of summary judgment is de novo, in which we apply the same
legal standard to the evidence as the district court did. Gowesky v. Singing
River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003). Summary judgment is
appropriate when “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the
initial burden of identifying the basis for its motion and the portions of the
record that support it. Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783
F.3d 527, 536 (5th Cir. 2015). Once that burden is satisfied, the nonmovant
must “go beyond the pleadings and by her own affidavits . . . designate specific
facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). Our review of the evidence must be in the light most
favorable to the non-moving party, with all reasonable inferences from the
evidence made in that party’s favor. Nola Spice, 783 F.3d at 536.
      Section 1983 provides a cause of action against any person who deprives
another of “any rights, privileges, or immunities secured by the Constitution
and laws” of the United States. To make a sufficient claim, plaintiffs “must (1)
allege a violation of a right secured by the Constitution or laws of the United
States and (2) demonstrate that the alleged deprivation was committed by a
person acting under color of state law.” Moore v. Willis Indep. Sch. Dist., 233
F.3d 871, 874 (5th Cir. 2000). Plaintiffs “must identify defendants who were
either personally involved in the constitutional violation or whose acts are
causally connected to the constitutional violation alleged.”        Anderson v.
Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). We address the
claims against the individual and municipal defendants separately.
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                                  No. 16-41405
 I.    Individual Defendants Torres, Frances, and McQueen
       Both plaintiffs allege that Torres arrested them without probable cause
and that Frances failed to protect them from unlawful arrest. Lock further
alleges that McQueen failed to protect him from unlawful arrest and failed to
supervise Torres when she arrested him. The district court held that the
individual defendants were entitled to qualified immunity.
       Qualified   immunity     protects    “government     officials   performing
discretionary functions . . . from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).      Once a defendant raises the defense of qualified
immunity, the plaintiff bears the burden of showing the defense does not apply.
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). To do so, the plaintiff
must show: “(1) that the official violated a statutory or constitutional right, and
(2) that the right was clearly established at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 536 U.S. 731, 735 (2011). We have discretion to determine
which step to address first. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.
2013).
       We first address the claims against Torres. “The right to be free from
arrest without probable cause is a clearly established constitutional right.”
Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994). To overcome the
qualified-immunity defense, the plaintiffs must show Torres did not have
probable cause to arrest them. Probable cause exists when a police officer “had
knowledge that would warrant a prudent person’s belief that the person
arrested had already committed or was committing a crime.” Id. An officer is
entitled to qualified immunity even if she “reasonably but mistakenly
conclude[d] that probable cause [was] present.” Id. at 1017.


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                                  No. 16-41405
      Relevant here is the independent-intermediary doctrine. See Cuadra v.
Houston Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010). “Under that
doctrine, if facts supporting an arrest are placed before an independent
intermediary such as a magistrate or grand jury, the intermediary’s decision
breaks the chain of causation for the Fourth Amendment violation.” Jennings
v. Patton, 644 F.3d 297, 300–01 (5th Cir. 2011). The rule applies even if the
intermediary acted after the arrest. Buehler v. City of Austin/Austin Police
Dep’t, 824 F.3d 548, 554 (5th Cir. 2016). It does not apply, though, if “it can be
shown that the deliberations of [the] intermediary were in some way tainted
by the actions of the defendant.” Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir.
1988).
      The district court held that the independent-intermediary doctrine
applied to bar the claims against Torres. After the arrests, these two plaintiffs
were brought before Judge Pam Derbyshire. She found there to be probable
cause for their detention.    Though the facts surrounding the arrests are
disputed, all that matters is that there is no competent summary-judgment
evidence to suggest the police in any way tainted Judge Derbyshire’s
determination. See Buehler, 824 F.3d at 556. Whether probable cause existed
is thus moot.
      On appeal, the plaintiffs attempt to distinguish Buehler, alleging that
Torres intentionally misdirected Judge Derbyshire by lying in her presentation
of facts.   These claims are simply allegations, which, “without more, are
insufficient to overcome summary judgment.”          Cuadra, 626 F.3d at 813.
Instead, “the plaintiff[s] must affirmatively show that the defendants tainted
the intermediary’s decision.”     See Buehler, 824 F.3d at 555 (alterations
omitted). No such evidence is in the record. Torres is thus entitled to qualified
immunity. See id.


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                                  No. 16-41405
       The independent-intermediary doctrine also bars the claims against
Frances and McQueen. On appeal, Deputy Meyer and Lock confine their
argument to whether McQueen needed to be present for supervisory liability
to attach. He did, as “liability will not attach where an officer is not present at
the scene of the constitutional violation.” Whitley, 726 F.3d at 646. Also
important is whether there was acquiescence by a defendant officer in the
violation. Id. at 647. Here, McQueen was not present at the time of the events
giving rise to the arrests. He did not encourage or approve of Torres’s conduct
prior to his arrival, nor did he communicate such support in some way.
Moreover, the district court correctly concluded that the judicial determination
of probable cause “broke the causal chain between Torres’s actions and any
resulting constitutional harm.” Likewise, that determination broke any causal
chain between the arrests and the alleged failure to intervene or supervise.
The district court correctly granted summary judgment in favor of Frances and
McQueen also.


II.    Municipal Defendant Harris County
       The plaintiffs argue that Harris County is liable because it has four
“unconstitutional practices and customs” that combined to cause the alleged
constitutional violations.      These are inadequate supervision of law-
enforcement personnel; failure to train and discipline officers engaged in
wrongdoing; retaining officers who should be fired; and improperly
maintaining law-enforcement records.
       Before a municipality can be liable under Section 1983, it must be shown
that it had policies that were the “moving force” that led to constitutional
violations. City of Canton v. Harris, 489 U.S. 378, 388–89 (1989). The fact that
an official policy may have led to police misconduct is not the test. “There must
at least be an affirmative link between the training inadequacies alleged, and
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                                 No. 16-41405
the particular constitutional violation at issue.” City of Oklahoma City v.
Tuttle, 471 U.S. 808, 824 n.8 (1985). Municipal liability will not attach if the
complaining party “has suffered no constitutional injury” at the hands of a
municipal employee. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
      Because the independent-intermediary doctrine operates as a bar to all
claims against Torres, Frances, and McQueen, there is no constitutional
violation arising from the actions of the individual defendants. Without a
constitutional violation, Harris County is not liable under Section 1983. See
Shields v. Twiss, 389 F.3d 142, 151 (5th Cir. 2004).
      AFFIRMED.




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