     Case: 17-50121      Document: 00514332384         Page: 1    Date Filed: 02/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                      No. 17-50121
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 1, 2018
SCOTT RISTOW,                                                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

MICHAEL HANSEN; MARC BANE; MANUEL CASAS,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CV-999


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Scott Ristow, a former police officer for the City of
Schertz, Texas, filed a § 1983 lawsuit against that city’s police chief, assistant
police chief, and one of its lieutenants. Ristow alleged that the defendants
violated his Fifth and Fourteenth Amendment due process rights and his
Fourth Amendment right to be free from unlawful searches and seizures.
Ristow’s claims arise from an incident that occurred while he was a Schertz



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 17-50121      Document: 00514332384         Page: 2    Date Filed: 02/01/2018



                                      No. 17-50121
police officer. He alleged that, while on duty in September 2015, he conducted
a traffic stop which led to the eventual arrest of two individuals in the vehicle.
According to Ristow, one week after the stop and resulting arrest, Assistant
Chief Bane and Lieutenant Casas, at the instruction of Chief Hansen, informed
Ristow that his search of the vehicle and its two passengers was a “criminal
act for which [he] would face incarceration.” Ristow claims that Bane and
Casas falsely stated that the district attorney was prepared to file criminal
charges against him unless he immediately resigned. Ristow resigned as a
result of that conversation.
       Ristow filed this § 1983 lawsuit against Hansen, Bane, and Casas (“the
officers”) claiming that they violated his constitutional rights by forcing him to
resign. The officers filed a motion to dismiss based on qualified immunity. The
magistrate judge concluded that Ristow had failed to allege sufficient facts to
show a constitutional violation and therefore could not overcome the officers’
qualified immunity defense, and recommended that the officers’ motion to
dismiss be granted.
       The district court adopted the magistrate judge’s recommendation and
dismissed Ristow’s claims. He timely appealed, contending that the district
court erred in requiring him to meet a heightened pleading standard to
overcome the officers’ qualified immunity defense. We affirm.
                                             I.
                               FACTS AND PROCEEDINGS
A. Facts 1
       Ristow observed the driver of a car commit a traffic violation and stopped
the vehicle. During the stop, Ristow asked the two occupants if there were any



       1 All facts derive from Ristow’s amended complaint and, in this posture, are taken as
true. See Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012).
                                             2
     Case: 17-50121      Document: 00514332384        Page: 3    Date Filed: 02/01/2018



                                     No. 17-50121
narcotics in the car. When they did not answer the question, Ristow asked for
consent to search the vehicle. The owner of the vehicle consented, and Ristow
searched the vehicle. He discovered a backpack and cigarette box both
containing methamphetamine, then arrested the driver and passenger for
possession of methamphetamine.
      Approximately one week later, Chief Hansen told Assistant Chief Bane
and Lieutenant Casas to inform Ristow that the September 14, 2015 search
and subsequent arrests were illegal, and that—unless Ristow resigned
immediately—the district attorney was prepared to file criminal charges
against him. Ristow claims that the officers lied in making these threats, as
the district attorney had no knowledge of the subject stop and search, and had
no intention of filing charges against him. After hearing Bane’s and Casas’s
threats, Ristow resigned.
B. Proceedings
      In October 2016, Ristow filed suit against Hansen, Bane, and Casas in
the Western District of Texas, claiming that those officers’ threats amounted
to a “deprivation of rights under 42 U.S.C. § 1983.” Ristow did not state
whether he was suing the officers in their individual or official capacities, and
did not name the City of Schertz as a defendant. 2
      The three officers filed a motion to dismiss Ristow’s original complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting the affirmative
defense of qualified immunity. Ristow then filed a response to the officers’
motion as well as a first amended complaint. In that amended complaint,
Ristow clarified his allegations against the officers, claiming that they acted in



      2   Ristow did assert, however, that the officers were “policymakers for the Schertz
Police Department and they formulated a policy . . . to threaten illegal arrests and
prosecution in order to deny individuals like [Ristow] their constitutionally protected
rights[,]” including Ristow’s “constitutionally protected interest in his employment.”
                                            3
    Case: 17-50121         Document: 00514332384        Page: 4   Date Filed: 02/01/2018



                                       No. 17-50121
concert and under color of law to deprive him of his constitutional rights,
including “his Fourth Amendment right to be free from unlawful seizure of his
person, his Fifth and Fourteenth Amendment rights to due process of law,
including the right to be free to pursue his chosen profession.” In his response
to the defendants’ motion to dismiss, Ristow argued that, as his complaint
alleged that the officers were the policymakers for the City of Schertz and were
acting according to City policy when they threatened him with “a false and
illegal arrest,” the officers were not entitled to a dismissal under Rule 12(b)(6).
      The magistrate judge recommended that the district court grant the
officers’ motion to dismiss because Ristow failed (1) to state a claim on which
relief could be granted and (2) to allege sufficient facts to overcome the officers’
qualified immunity defense. Ristow objected to the magistrate judge’s
recommendation. After considering the magistrate judge’s report and
recommendation, as well as Ristow’s objections, the district court determined
that the magistrate judge’s recommendation should be accepted in its entirety.
The district court granted the officers’ motion to dismiss, and Ristow timely
appealed.
                                              II.
                                  STANDARD OF REVIEW
      We review a district court’s grant of a motion to dismiss based on
qualified immunity de novo. 3 We accept all well-pleaded facts as true and view
them in the light most favorable to the non-movant. 4 “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,




      3   Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).
      4   Id.
                                              4
     Case: 17-50121         Document: 00514332384        Page: 5     Date Filed: 02/01/2018



                                        No. 17-50121
to ‘state a claim to relief that is plausible on its face.’” 5 “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 6 “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” 7 Although a complaint “does
not need detailed factual allegations,” the “allegations must be enough to raise
a right to relief above the speculative level . . . .” 8 “[C]onclusory allegations or
legal conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.” 9
       To state a claim under 42 U.S.C. § 1983, a plaintiff must show (1) a
violation of the Constitution or of federal law, and (2) that the violation was
committed by someone acting under color of state law. 10 “The doctrine of
qualified immunity protects government officials from civil damages liability
when their actions could reasonably have been believed to be legal.” 11 When a
defendant raises a qualified immunity defense, 12 the plaintiff has the burden




       5Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
       6   Id.
       7   Id.
       8   Twombly, 550 U.S. at 555.
       9Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Fernandez-
Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
       10James v. Texas Collin Cty., 535 F.3d 365, 373 (5th Cir. 2008) (citing Moore v. Willis
Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000)).
       11   Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
       12 Ristow insists that the officers should not be allowed to raise a qualified immunity
defense in their motion to dismiss, but instead must wait to raise that defense until they file
their answer. We have previously urged that “[q]ualified immunity questions should be
resolved ‘at the earliest possible stage in litigation.’” Porter v. Epps, 659 F.3d 440, 445 (5th
Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). According to this
principle, the district court was correct in addressing the officers’ claims to qualified
                                               5
     Case: 17-50121          Document: 00514332384         Page: 6      Date Filed: 02/01/2018



                                         No. 17-50121
of demonstrating the inapplicability of that defense. 13 To meet this burden, 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.” 14
                                                III.
                                            ANALYSIS
A. Fourth Amendment Claim
       Ristow first claims that the officers violated his Fourth Amendment
rights when they threatened him with “false arrest and prosecution.” “A
‘seizure’ triggering the Fourth Amendment’s protections occurs only when
government actors have, ‘by means of physical force or show of authority, in
some way restrained the liberty of a citizen.’” 15 When considering whether a
seizure occurred, we ask “in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to
leave.” 16
       Ristow’s amended complaint does not contain any factual allegations
that indicate he was seized. 17 He asserts conclusionally that the officers



immunity at this stage in the litigation. See, e.g., Turner v. Lieutenant Driver, 848 F.3d 678,
683 (5th Cir. 2017) (addressing qualified immunity defense raised in a motion to dismiss).
       13   Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010).
       14   Whitley, 726 F.3d at 638 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
       15 Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (quoting Terry v. Ohio, 392 U.S.
1, 19 n.16 (1968)).
        Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting United States v.
       16

Mendenhall, 446 U.S. 544, 554 (1980)).
       17 Ristow seems to argue that the mere threat of arrest is a Fourth Amendment
violation. This is not supported by our precedent. Contra Short v. West, 662 F.3d 320, 326
(5th Cir. 2011) (holding that threatened arrest constituted a seizure because at the time of
the threat, sheriff deputies surrounded a police officer’s vehicle, displayed a “menacing
behavior and tone, ” and prevented the officer from leaving the scene while the threats were
being made).
                                                 6
     Case: 17-50121          Document: 00514332384         Page: 7     Date Filed: 02/01/2018



                                            No. 17-50121
deprived him of “his Fourth Amendment right to be free from unlawful seizure
of his person,” but does not allege any discrete facts in support of this
allegation. Because Ristow does not allege facts beyond that conclusional
allegation that “state a claim to relief that is plausible on its face,” his Fourth
Amendment claim cannot survive the officers’ motion to dismiss. 18
Furthermore, because he has not adequately alleged a constitutional violation,
Ristow cannot overcome the officers’ qualified immunity defense. 19 The district
court was correct in dismissing Ristow’s Fourth Amendment claims. 20
B. Fifth Amendment Claim
       Ristow also alleged that the officers violated his Fifth Amendment right
to due process. “The Fifth Amendment applies only to violations of
constitutional rights by the United States or a federal actor.” 21               Ristow does
not claim that any of the officers are federal actors; in fact, he conceded that
they are employees of the City. Because the officers are not federal actors,




       18   See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
       19   See Whitley, 726 F.3d at 638.
       20 Ristow contends that the magistrate judge erred in requiring him to meet a
heightened pleading standard to overcome the officers’ qualified immunity defense. This
misconstrues the magistrate judge’s holding. She recommended dismissing Ristow’s claims
because his complaint did not include “a particularized statement of facts to show” that his
constitutional rights were violated. We have previously held that a plaintiff need not meet a
heightened pleading standard to overcome a qualified immunity defense, but must “file a
short and plain statement of his complaint, a statement that rests on more than conclusions
alone.” Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). The magistrate judge
determined that Ristow’s conclusional allegations repeatedly failed to meet this standard.
She was therefore correct in determining that his claims could not survive a Rule 12(b)(6)
motion to dismiss. See Beavers, 566 F.3d at 439 (quoting Fernandez-Montes, 987 F.2d at 284).
Ristow failed to adequately plead a constitutional violation, so it was not necessary for the
magistrate judge to determine whether the officers were entitled to qualified immunity. As
she noted, a plaintiff can only overcome a qualified immunity defense if he demonstrates a
constitutional violation—and Ristow made no such demonstration.
       21   Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000).
                                                 7
     Case: 17-50121       Document: 00514332384          Page: 8     Date Filed: 02/01/2018



                                       No. 17-50121
Ristow’s claim that they violated his Fifth Amendment due process rights
cannot survive the officers’ motion to dismiss. 22
C. Fourteenth Amendment Claim
       Ristow also claimed that the officers violated his Fourteenth Amendment
due process rights. He alleged that the officers deprived him of “the right to be
free to pursue his chosen profession,” and failed to comply with the Texas
Government Code by forcing him to resign before conducting an investigation
or providing him with a signed complaint regarding his alleged misconduct.
       “The guarantee of due process enshrined in the Fourteenth Amendment
has two components—(1) a guarantee of procedural protections when a state
seeks to deprive an individual of protected liberty or property interests, and (2)
a substantive protection against conduct that ‘shocks the conscience.’” 23 Ristow
does not indicate whether the officers violated his procedural or substantive
due process rights. So, like the district court, we will assume he intended to
allege both procedural and substantive violations of his due process rights and
will address both.
       To state a § 1983 claim for violation of the Fourteenth Amendment right
to procedural due process, a plaintiff must allege that: “(1) [he] has a property
interest in [his] employment sufficient to entitle [him] to due process
protection, and (2) [he] was terminated without receiving the due process
protections to which [he] was entitled.” 24 “State law controls the analysis of


       22 Again, because Ristow failed to adequately allege a violation of his constitutional
rights, he has not overcome the officers’ claims to qualified immunity. See Whitley, 726 F.3d
at 638 (quoting al-Kidd, 563 U.S. at 735). Because his claims cannot survive a Rule 12(b)(6)
motion to dismiss, however, it is not necessary for us to analyze whether Ristow can overcome
the high bar of a qualified immunity defense.
       23Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016), as revised (June 27, 2016), cert.
denied, 137 S. Ct. 1069 (2017).
       24LeBeouf v. Manning, 575 F. App’x 374, 376 (5th Cir. 2014) (citing McDonald v. City
of Corinth, 102 F.3d 152, 155–56 (5th Cir. 1996)).
                                              8
     Case: 17-50121         Document: 00514332384        Page: 9     Date Filed: 02/01/2018



                                         No. 17-50121
whether [a plaintiff] has a property interest in his employment sufficient to
entitle him to due process protection.” 25 “An employee has a property interest
in his employment only when a legitimate right to continued employment
exists.” 26
       “In Texas, employment is terminable at will absent a contract to the
contrary.” 27 Ristow has not alleged any facts to support the existence of an
employment contract or any other indication that his employment was not at
will. Because he did not allege that he has a property interest in his
employment, his claim of a Fourteenth Amendment procedural due process
violation cannot survive a motion to dismiss. 28
       Ristow also fails to state a claim for a substantive due process violation
under the Fourteenth Amendment.                    “To succeed with a claim based on
substantive due process in the public employment context, the plaintiff must
show two things: (1) that he had a property interest/right in his employment,
and (2) that the public employer’s termination of that interest was arbitrary or



       25   McDonald, 102 F.3d at 155.
       26   Id.
       27   Schultea, 47 F.3d at 1429.
       28 Assuming Ristow seeks to establish that he was constructively discharged in
violation of the Fourteenth Amendment, he must allege facts to establish that the state’s
actions were “motivated by a desire to avoid subjecting its actions to the scrutiny of a
termination-related hearing.” Fowler v. Carrollton Pub. Library, 799 F.2d 976, 981 (5th Cir.
1986). Ristow has not alleged that he was told to resign to avoid formal termination
proceedings; therefore, he has not adequately pled a constructive termination claim. See id.
Ristow also alleges that the officers violated his due process rights by violating the Texas
Government Code, which he claims required the officers to conduct an investigation and
present him with a signed complaint before he was “forced to resign . . . under the false threat
of arrest and incarceration.” As the magistrate judge emphasized in her recommendation,
however, Ristow failed to provide “argument or authority to show [that] a violation of the
Texas Government Code is cognizable under § 1983.” Thus, this allegation is also insufficient
to establish a Fourteenth Amendment violation. See Texas Collin Cty., 535 F.3d at 373
(explaining that a plaintiff must show a violation of the Constitution or federal law to state
a claim under § 1983).
                                               9
    Case: 17-50121          Document: 00514332384         Page: 10     Date Filed: 02/01/2018



                                         No. 17-50121
capricious.” 29 As noted above, Ristow has not alleged facts indicating that he
had a property interest in his employment by the City. He therefore has failed
to state a valid claim of a substantive due process violation under the
Fourteenth Amendment. 30
       To the extent that Ristow claims that his substantive due process rights
were violated when the officers allegedly prevented him from gaining
employment with other law-enforcement agencies by stating he was
unemployable as a peace officer, “[a]llegations of damage to one’s reputation or
the impairment of future employment prospects fail to state a claim of denial
of a constitutional right.” 31 “However, damage to an individual’s reputation as
a result of defamatory statements made by a state actor, accompanied by an
infringement of some other interest, is actionable under § 1983.” 32 This is
known as the “stigma-plus-infringement” test. 33 To recover under this theory,
Ristow had to allege that:
       (1) he was discharged; (2) stigmatizing charges were made against
       him in connection with the discharge; (3) the charges were false;
       (4) he was not provided notice or an opportunity to be heard prior
       to the discharge; (5) the charges were made public; (6) he requested
       a hearing to clear his name; and (7) the employer denied [his]
       request. 34
       Ristow has failed to allege that he was not provided notice or an
opportunity to be heard prior to his discharge. He does not claim that the
stigmatizing charges were made public, that he requested a hearing to clear


       29Lewis v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011)
(quoting Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993)).
       30   See id.
       31   State of Texas v. Thompson, 70 F.3d 390, 392 (5th Cir. 1995).
       32   Id.
       33   Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006).
       34   Id.
                                               10
    Case: 17-50121         Document: 00514332384          Page: 11     Date Filed: 02/01/2018



                                        No. 17-50121
his name, or that the City denied such a request. Ristow’s amended complaint
therefore fails to state a claim for a substantive due process violation under a
“stigma-plus-infringement” theory. 35 The district court correctly granted the
officers’ motion to dismiss Ristow’s Fourteenth Amendment claims.
D. Monell Liability
      Neither does Ristow state whether he is suing the officers in their
individual or official capacities. He does assert, however, that the officers “are
the policymakers for the Schertz Police Department and they formulated a
policy whereby they use their capacity as peace officers to threaten illegal
arrests and prosecution in order to deny . . . constitutionally protected rights.”
The district court did not address whether Ristow also intended to assert
claims against the City. On appeal, Ristow contends that his complaint does
state claims against the City and that the district court erred in not addressing
these claims. We will assume, without deciding, that Ristow’s amended
complaint does assert claims against the City.
      “[A] local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.” 36 Instead, a plaintiff must
demonstrate that the municipality acted “pursuant to official municipal policy”
when it violated a federally protected right. 37 “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.’” 38 “We have stated time and again that




      35   See id.
      36   Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).
      37   Id. at 691.
      38 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).
                                               11
    Case: 17-50121        Document: 00514332384          Page: 12     Date Filed: 02/01/2018



                                       No. 17-50121
‘[w]ithout an underlying constitutional violation, an essential element of
municipal liability is missing.’” 39
       Not only has Ristow failed to plead sufficient facts to demonstrate that
the officers violated his constitutional rights, he has not alleged sufficient facts
to show that any such violations were caused by a custom or policy of the city.
Ristow states that the officers “are the policymakers for the Schertz Police
Department,” but he does not allege any facts to support that conclusional
allegation. As Ristow has not pleaded facts beyond conclusional allegations
which demonstrate that his constitutional rights were violated or that any such
violations were the result of an official policy promulgated by the municipal
policymaker, he has failed to state a valid Monell claim against the City. 40
                                           IV.
                                        CONCLUSION
       Ristow has failed to allege facts sufficient to state a claim that Officers
Hansen, Bane, and Casas—or the City for that matter—violated his
constitutional rights. We therefore affirm the district court’s grant of the
officers’ motion to dismiss.
AFFIRMED.




       39 Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 866–67 (5th
Cir. 2012) (en banc) (alteration in original) (quoting Becerra v. Asher, 105 F.3d 1042, 1048
(5th Cir. 1997)).
       40 See Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir. 1995) (holding that the
plaintiff did not state a § 1983 claim against a municipality where the alleged injury was
caused by individual police officers, not city policy or custom); Fernandez-Montes, 987 F.2d
at 284 (“[C]onclusory allegations or legal conclusions masquerading as factual conclusions
will not suffice to prevent a motion to dismiss.”).
                                              12
