United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2004
Charles R. Fulbruge III
No. 03-21203 Clerk
Summary Calendar
BERNARD GARRETT,
Plaintiff — Appellant,
versus
CITY OF HOUSTON, TEXAS
Defendant — Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. 4:03-CV-1301
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Bernard Garrett appeals the dismissal of his claims
against the City of Houston. Appellant has not raised on appeal
the district court’s dismissal of his state law claim, and that
claim is, therefore, waived. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). The district court dismissed Appellant’s
Title VII claim without prejudice for failure to exhaust
administrative remedies, specifically, for failure to obtain a
right-to-sue letter from the Attorney General of the United States
*
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that this opinion should not be published and is not precedent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. 03-21203
-2-
pursuant to 42 U.S.C.A. §2000e-5(f)(1) (West 2004). “Under this
statute, a person seeking to file a Title VII lawsuit against a
government, governmental agency, or political subdivision, must
first be issued a right-to-sue letter by the Attorney General of
the United States.” Solomon v. Hardison, 746 F.2d 699, 701 (5th
Cir. 1984). Although not a jurisdictional prerequisite to suit,
see id., Appellant does not offer, nor do we find, any basis for
disturbing this portion of the judgment.
The remaining claims at issue on appeal were brought against
the City of Houston for alleged violations of rights established
pursuant to § 1981 and the Fourteenth Amendment to the United
States Constitution. Section 1983 is the proper vehicle for both
Appellant’s § 1981 and his Fourteenth Amendment claims. See Oden
v. Oktibbeha County, 246 F.3d 458, 463 (5th Cir. 2001) (holding
that § 1981 claims against local government entities must be
asserted through § 1983); Burns-Toole v. Byrne, 11 F.3d 1270, 1273
n.3 (5th Cir. 1994) (“[T]he proper vehicle for [First and
Fourteenth Amendment] allegations is § 1983.”).
“[A] municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Department of Social
Servs., 436 U.S. 658, 691 (1978). To hold a municipality liable
under § 1983, therefore, a plaintiff must allege that an official
policy or custom “was a cause in fact of the deprivation of rights
inflicted.” Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525
No. 03-21203
-3-
(5th Cir. 1994). An official policy “may be either a policy
statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the municipality’s governing body (or by
one or more officials to whom the governing body has delegated
policy-making authority), or a persistent, widespread practice of
city officials or employees that, although not authorized by
officially adopted policy, is so common and well settled as to
constitute a custom that fairly represents official municipal
policy.” McConney v. Houston, 863 F.2d 1180, 1184 (5th Cir. 1989).
Appellant’s claims fail because he has not alleged facts
sufficient to show an official policy. Appellant pleads no facts
to show a persistent, widespread practice. Appellant’s conclusory
allegation that the City is liable because the alleged retaliation
and discrimination against Appellant were “part of a pattern or
custom of the City of Houston” is insufficient. See generally
Fraire v. Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). Because
Appellant failed to sufficiently allege a policy or custom, the
district court properly dismissed Appellant’s claims against the
City. We, therefore, affirm the judgment of the district court.
AFFIRMED.