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

                                                                            FILED
                                                                          August 7, 2008

                                       No. 07-10999                   Charles R. Fulbruge III
                                                                              Clerk

TERRELL BOLTON

                                                  Plaintiff - Appellant
v.

CITY OF DALLAS TEXAS; CITY MANAGER TEODORO BENAVIDES, In
His Official Capacity

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                   (04-CV-501)


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       After a remand from this court, Terrell Bolton, former police chief of the
City of Dallas, Texas, again appeals from the district court’s ruling and
judgment that the City of Dallas is not liable, under 42 U.S.C. § 1983, for his
termination by Ted Benavides, the Dallas city manager. Because we agree that,
even though Benavides was the final decisionmaker, his actions in this respect
were not the policy of the City and, as a result, the City is not liable for his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-10999

termination of Bolton, we AFFIRM. We also DENY the respective motions of the
parties as moot.
                                        I.
      In August 2003, Terrell Bolton was terminated as the Chief of Police of
Dallas by Ted Benavides. Bolton filed a 42 U.S.C. § 1983 suit against both
Benavides and the City of Dallas, alleging that his due process rights under the
Fourteenth Amendment to the United States Constitution had been violated by
the termination. Bolton admitted that Benavides had the authority to remove
Bolton from his position as Chief of Police but argued that Benavides did not
have the authority to terminate him from the police department. Bolton relied
on Chapter XII, § 5, of the Dallas City Charter (“the Charter”):
            If the chief of the police department . . . was selected to
            that position from the ranks of the police department
            and is removed from the position on account of
            unfitness for the discharge of the duties of the position,
            and not for any cause justifying dismissal from the
            service, the chief . . . shall be restored to the rank and
            grade held prior to appointment to the position, or
            reduced to a lower appointive rank.
Bolton initially lost his suit in district court on summary judgment; the district
court found that Bolton, as Chief of Police, had no property interest in further
employment by the City and therefore could not prevail on a due process claim.
      A panel of this court disagreed and held that the Charter did give Bolton
a property interest “in continued employment at the rank and grade held before
his appointment to the executive position.” Bolton v. City of Dallas, 472 F.3d
261, 264 (5th Cir. 2006). The panel also concluded, however, that Benavides was
entitled to qualified immunity in his individual capacity because the precedent
governing the case, Muncy v. City of Dallas, 335 F.3d 394 (5th Cir. 2003), did not
clearly proscribe Benavides’s termination of Bolton. Bolton, 472 F.3d at 266.
The panel therefore dismissed Bolton’s claims against Benavides in his


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individual capacity and remanded the case for determination of further liability,
if any. Id.
                                                II.
       Back in the district court, Benavides and the City once again moved for
summary judgment. The district court granted the motion. The district court
held that the only remaining claim against Benavides was in his official
capacity, and therefore Bolton’s suit contested only the liability of the City. It
further held that the City of Dallas could not be held responsible for Benavides’s
actions because Benavides had frustrated the policy of the City by terminating
Bolton in violation of Chapter XII, § 5, of the Charter. Bolton filed a motion for
reconsideration that included several arguments not initially raised before the
district court. The judge denied this motion. Bolton appealed both the grant of
summary judgment in favor of Dallas and the denial of his motion for
reconsideration.
                                               III.
       On appeal, Bolton argues that the discretion that Benavides had to
terminate personnel makes him a policymaker for the City with respect to the
employment action here.             Accordingly, the City is liable for Benavides’s
termination of Bolton. Dallas responds that, although Benavides did have
discretion to make employment decisions without the direct oversight of the city
council, the policies of the City are reflected in the Charter; acts contrary to the
Charter cannot be imputed to the City.1


       1
         As we noted above, Bolton also appealed from the district court’s denial of his motion
for reconsideration. The district court refused to consider new evidence and arguments that
Bolton presented in that motion and accordingly denied it. Bolton has included some of that
evidence in his brief, prompting Dallas to file a motion to strike those portions of Bolton’s brief.
Bolton does not, however, make any attempt in his brief to argue that the district court made
an error in the denial of the motion for reconsideration. Instead, Bolton addresses the motion
for reconsideration only in his response to the City’s motion to strike. “We deem abandoned
those issues not raised in an appellant's initial brief and we will not consider those issues not
raised in the trial court.” United States v. Ragsdale, 426 F.3d 765, 785 n.9 (5th Cir. 2005).

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                                       No. 07-10999

                                              IV.
                                              A.
       We review the district court’s grant of summary judgment de novo. Cousin
v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is proper “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact.” FED. R. CIV. P. 56(c). “On
a motion for summary judgment, the court must view the facts in the light most
favorable to the non-moving party and draw all reasonable inferences in its
favor.” Coury v. Moss, 529 F.3d 579, 584 (5th Cir. 2008).
                                              B.
       Municipal liability for civil rights violations under § 1983 is based on
causation rather than respondeat superior. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 692 (1978). The fact that a tortfeasor is an employee or an agent
of a municipality is therefore not sufficient for city liability to attach; the
municipality must cause the constitutional tort, which occurs “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.” Id. at 694.
       Bolton does not argue that the City has a written policy or unwritten
custom that has caused him constitutional harm. Instead, he argues that the
single decision and act of Benavides in terminating him constitutes the policy of
the City. It is well-established that a single unconstitutional action by a
municipal actor may give rise to municipal liability if that actor is a final
policymaker.       Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005).


Moreover, the district court plainly acted within its discretion in refusing to consider the new
evidence—Bolton’s argument that the district court’s summary judgment was sua sponte and
that he therefore had no notice that the evidence was relevant is contradicted by the record.
See Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). In any case, we DENY the
City’s motion to strike—and Bolton’s motion for leave to file a sur-reply—as moot.

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                                         No. 07-10999

Accordingly, this “court’s task is to ‘identify those officials or governmental
bodies who speak with final policymaking authority for the local governmental
actor concerning the action alleged to have caused the particular constitutional
or statutory violation at issue.’” McMillian v. Monroe County, 520 U.S. 781,
784–85 (1997) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).
This inquiry is specific to the particular action at issue, see id. at 785, and
depends on an analysis of relevant state and local law, see Jett, 491 U.S. at 737.2
       Our analysis must also take into account the difference between final
decisionmaking authority and final policymaking authority, a distinction that
this circuit recognized as fundamental in Jett v. Dallas Independent School
District, 7 F.3d 1241, 1247 (5th Cir. 1993). The distinction between final
decisionmaker and final policymaker has its origin in two Supreme Court
plurality opinions, Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), and City
of St. Louis v. Praprotnik, 485 U.S. 112 (1988). Both opinions concluded that
discretion to exercise a particular function does not necessarily entail final
policymaking authority over that function.3 Pembaur, 475 U.S. at 483–84;


       2
         “[C]ustom or usage having the force of law” may also be consulted, Jett, 491 U.S. at
737 (internal quotation marks omitted), but Bolton does not base his arguments on these
sources.
       3
           In a footnote, the Pembaur Court illustrated this distinction:

                [F]or example, the County Sheriff may have discretion to hire and
                fire employees without also being the county official responsible
                for establishing county employment policy. If this were the case,
                the Sheriff’s decisions respecting employment would not give rise
                to municipal liability, although similar decisions with respect to
                law enforcement practices, over which the Sheriff is the official
                policymaker, would give rise to municipal liability. Instead, if
                county employment policy was set by the Board of County
                Commissioners, only that body’s decisions would provide a basis
                for county liability. This would be true even if the Board left the
                Sheriff discretion to hire and fire employees and the Sheriff
                exercised that discretion in an unconstitutional manner; the
                decision to act unlawfully would not be a decision of the Board.

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                                       No. 07-10999

Praprotnik, 485 U.S. at 130.            In Jett, we understood the decisionmaking
addressed in Pembaur and Praprotnik to include decisions that were “final.”
7 F.3d at 1247. We noted that neither of the Supreme Court cases made a
“suggestion of any qualification such as ‘initial’ discretion or the decisionmaker’s
action being subject to appeal or the like.” Id. at 1247–48. And, moreover,
Praprotnik states that “[w]hen an official’s discretionary decisions are
constrained by policies not of that official’s making, those policies, rather than
the subordinate’s departures from them, are the act of the municipality.”
Praprotnik, 485 U.S. at 127.          We held that this statement “applies even to
individual decisions which are not reviewable.” Jett, 7 F.3d at 1248. Thus, Jett
“eschews the importance of administrative reviewability in distinguishing final
decisionmaking authority from final policymaking authority.” Gelin v. Hous.
Auth. of New Orleans, 456 F.3d 525, 530 (5th Cir. 2006).
       In Jett, we also recognized support for this position in a Seventh Circuit
case, Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), and in this circuit’s own
precedents. See Jett, 7 F.3d at 1248. In Auriemma, the Seventh Circuit
assumed that the Chicago Superintendent of Police had final, executive
authority to demote police officers.            Auriemma, 957 F.2d at 399.              But it
nevertheless held that such authority could not support municipal liability:
              If it were enough to point to the agent whose act was
              the final one in a particular case, we would have
              vicarious liability. Action in the course of one’s duty is
              the basis of vicarious liability. That a particular agent



              However, if the Board delegated its power to establish final
              employment policy to the Sheriff, the Sheriff’s decisions would
              represent county policy and could give rise to municipal liability.

475 U.S. at 483 n.12. And, as we noted in Jett, 7 F.3d at 1247, this example was revisited in
Praprotnik as a basis for its distinction between a final policymaker and a final decisionmaker.
485 U.S. at 129–30.

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                                        No. 07-10999

               is the apex of a bureaucracy makes the decision “final”
               but does not forge a link between “finality” and “policy”.
Id. at 400. And in this circuit, “[w]e took essentially the same approach . . .
where ‘we rejected the line of authority . . . which would permit policy or custom
to be attributed to the city itself by attribution to any and all officers endowed
with final or supervisory power or authority.’” Jett, 7 F.3d at 1248 (quoting
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc) (per
curiam)) (second alteration in original). The finality of an official’s action does
not therefore automatically lend it the character of a policy.4 See id. at 1246;
Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377, 382 n.17 (5th Cir. 2007).
       Here, where Dallas has a city council and a city manager, the state and
local law show that the city manager is an executive and administrative official


       4
           Gelin does note that “we have found the existence of effective administrative review
to be relevant in certain contexts.” 456 F.3d at 530. The cases cited by Gelin generally confirm
that review procedures can be relevant to showing that an official is not a final policymaker.
See, e.g., Beattie v. Madison County Sch. Dist., 254 F.3d 595, 603 (5th Cir. 2001) (holding that
a superintendent was not a final policymaker because her decision was subject to review by
the school board); Worsham v. City of Pasadena, 881 F.2d 1336, 1341 (5th Cir. 1989) (“The
existence of effective review procedures prevents the employees from wielding final
responsibility in the instant case.”). Further, we have since explicitly understood Beattie to
otherwise follow Jett. See Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377, 382 n.17 (“This
court in [Beattie] characterized Jett as holding that ‘a superintendent’s transfer of a teacher
to another position might be a final policy decision if that action was unreviewable, even if the
superintendent did not have complete control over the hiring and firing of district personnel.’
‘Might be’ does not mean ‘is,’ and a person is not a policymaker when he makes a decision
simply because that decision is unreviewable.” (quoting Beattie, 254 F.3d at 603)).

        Gelin also cites, and Bolton relies on, Brady v. Fort Bend County, 145 F.3d 691 (5th Cir.
1998), one of a number of cases in which we addressed the liability of a Texas county for the
actions of its sheriff. But Brady, and another case in this line cited by Bolton, Bennett v.
Pippin, 74 F.3d 578 (5th Cir. 1996), depend on a premise not present here: the special place
accorded by state statute to Texas sheriffs as the ultimate repository of legal authority in a
given county “not by virtue of delegation by the county’s governing body but, rather, by virtue
of the office to which the sheriff has been elected.” Turner v. Upton County, 915 F.2d 133, 136
(5th Cir. 1990); see also Brady, 145 F.3d at 699–701; Bennett, 74 F.3d at 586. Thus, Texas
sheriffs are policymakers as a direct result of state statute; their constitutional violations
result in county liability even if contrary to other state law or policy. Bennett, 74 F.3d at 586.
No such statute is present here.

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                                  No. 07-10999

with final decisionmaking authority in certain employment decisions; it does not
show that the Charter or the city council delegated policymaking power to the
city manager. Nor can Bolton otherwise build a case that Benavides had such
power in this instance. Bolton first cites state law:
            (a) The city manager shall administer the municipal
            business and the governing body of the municipality
            shall ensure that the administration is efficient.

            (b) The governing body by ordinance may delegate to
            the city manager any additional powers or duties the
            governing body considers proper for the efficient
            administration of municipal affairs.

            (c) The city manager must execute a bond. The bond
            must be conditioned that the manager will faithfully
            perform the duties of manager and must be in an
            amount prescribed by ordinance.
TEXAS LOCAL GOV’T CODE ANN. § 25.029. The repeated references to the city
manager’s responsibility for “administration” make clear that the position is
executive rather than legislative; that is, state law alone does not give to city
managers “the responsibility for making law or setting policy in any given area
of a local government’s business.” Praprotnik, 485 U.S. at 125. State law
instead reserves that role for the “governing body.”
      Nor does the local law that Bolton cites delegate to Dallas’s city manager
policymaking authority with respect to the employment decision here. The
Charter does give a broad degree of discretion to the city manager in the city
manager’s removal and appointment of employees, and it further prohibits the
city council from “dictat[ing]” the city manager’s decisions in that regard. Bolton
depends on this discretion—and its coordinate lack of review—to demonstrate
that Benavides is a final policymaker. But, as we discussed above, neither
complete discretionary authority nor the unreviewability of such authority



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automatically results in municipal liability.5 There must be more. And Bolton
points to no other relevant source of law showing that the City vested Bolton
with policymaking power.
       Further, Chapter XII, § 5, of the Charter—the relevant local law quoted
earlier—prohibits the specific action taken by Benavides. Thus, absent some
contrary custom not shown here, Benavides’s action clearly does not represent
final policy with respect to the removal of city officials like Bolton. It is the
Charter that announces the City’s policy in this regard. See Barrow, 480 F.3d
at 382 (“[A]n official whose discretionary decisions on a particular matter are
final and unreviewable, meaning they can’t be overturned, is constrained if
another entity has ultimate power to guide that discretion, at least
prescriptively, whether or not that power is exercised.” (footnotes omitted));
Auriemma, 957 F.2d at 400 (“Liability for unauthorized acts is personal; to hold
the municipality liable, Monell tells us, the agent’s action must implement
rather than frustrate the government’s policy.”); Praprotnik, 485 U.S. at 127.
There is no argument that Benavides was generally free to disregard the
Charter,6 or that the City had a custom of permitting such disregard. And
Bolton has not shown that Benavides was vested with policymaking authority


       5
        Bolton cites Neubauer v. City of McAllen, 766 F.2d 1567, 1573–74 (5th Cir. 1985),
overruled on other grounds by Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1992), for
the proposition that a city manager with final discretion to make employment decisions is
necessarily a final policymaker. But we have not understood Neubauer to announce such a
broad rule or to be inconsistent with Pembaur. See Jett v. Dallas Indep. Sch. Dist., 798 F.2d
748, 759 (5th Cir. 1986), aff’d in part and remanded in part on other grounds, 491 U.S. 701
(1989). And the Charter here imposes limitations on the city manager not present in
Neubauer. See 766 F.2d at 1573–74.
       6
          Bolton makes an ill-defined argument that the City did assert in earlier litigation that
Benavides was free to disregard Chapter XII, § 5, of the Charter and that its statements in this
respect should now be held against the City lest the integrity of the courts be compromised.
Bolton calls these statements “judicial admissions,” although his argument also has the
characteristics of a request for estoppel. In any case, it is evident that the City’s position now
is a direct consequence of our earlier ruling in Bolton’s favor. We find no reason to prevent the
City from advancing such an argument in this case.

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                                  No. 07-10999

such that municipal liability should attach despite the existence of a contrary
city policy. See Bennett, 74 F.3d at 586. Benavides was therefore not the final
policymaker with respect to his decision to terminate Bolton and municipal
liability cannot attach to that decision.
                                        V.
      Because state and local law demonstrate that Ted Benavides was not a
final policymaker with respect to his decision to terminate the employment of
Terrell Bolton, the City of Dallas cannot be held liable for that termination.
Accordingly, the district court’s grant of summary judgment in favor of Dallas
is AFFIRMED. The motions before us are DENIED as moot.




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