Case: 09-50079 Document: 00511042592 Page: 1 Date Filed: 03/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2010
No. 09-50079 Charles R. Fulbruge III
Clerk
ERNEST BUSTOS,
Plaintiff–Appellant
v.
MARTINI CLUB INCORPORATED; WAYNE E HARPER; ANNETTE
HARPER; GUILLERMO CANTU, Officer, also known as Willie; OFFICER
KYLE GOODWIN, Badge No. 0377; OFFICER PETE VEGA, Badge No. 1389;
OFFICER DAVID LARIOS, Badge No. 0202; OFFICER CARLOS ALEX
GARZA, Badge No. 681; CITY MANAGER SHERYL SCULLEY; WILLIAM
MCMANUS, Chief of Police; CITY OF SAN ANTONIO,
Defendants–Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CV-667
Before SMITH, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Ernest Bustos, pro se, appeals the district court’s grant of a motion to
dismiss in favor Officer Guillermo Cantu, Officer Kyle Goodwin, Officer Pete
Vega, Officer David Larios, Officer Carlos Alex Garza, Sheryl Sculley, William
McManus, and the City of San Antonio on his claims under 42 U.S.C. § 1983 and
Texas state law. Bustos also appeals the district court’s grant of summary
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judgment in favor of Martini Club Inc., Wayne Harper, and Annette Harper. For
the following reasons, we affirm.
I
Bustos’s claims arise out of a late-night confrontation with several off-duty
police officers at the Martini Club in San Antonio. Bustos’s complaint presents
the facts as follows. Bustos was at the bar, waiting to pay his tab, and a group
of San Antonio police officers were standing at the end of the bar near the front
door. In an effort to gain the bartender’s attention, Bustos moved toward the
officers, who “appeared intoxicated and were quite boisterous.” Officer Cantu
then accused Bustos of pushing him and cursed at Bustos. After Bustos “calmly
responded that he had not pushed Officer Cantu,” the officer cursed again and
lunged at him, “striking him in the face with the intent of causing permanent
damage to his eye.” Officers Goodwin, Vega, Larios, and Garza “watched and
laughed” as Bustos tried to defend himself.
According to the complaint, because the officers were blocking the front
door, Bustos tried to leave through the club’s backdoor. But when he attempted
to exit, the officers were waiting for him in the alley. They then reentered
through the backdoor, “holding each other’s shoulders as a group of SWAT
officers showing force.” As Bustos turned to go back towards the front door, “he
was violently and maliciously pushed from behind off the [elevated] main seating
area onto the concrete floor by Officer Goodwin.” Bustos alleges that he
sustained injuries to his face, left hand, and chest as a result of the fall.
Bustos’s complaint also contains allegations regarding events after the
alleged assault. He states that he immediately called 911, but that the operator
would not assist him since he could not identify the badge numbers of the
officers who assaulted him. He also alleges that he made a complaint about the
incident to the San Antonio Police Department Division of Internal Affairs but
that the division failed to investigate because of its “endemic corruption.”
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Bustos brought suit against Officers Cantu, Goodwin, Vega, Larios, and
Garza (collectively, the Officers), the City of San Antonio (the City), City
Manager Sheryl Sculley, and Chief of Police William McManus, as well as the
Martini Club and its owners, Wayne and Annette Harper. Bustos asserted a
claim under 42 U.S.C. § 1983 against the Officers, the City, Sculley, and
McManus for violation of his substantive due process rights. Bustos also
brought state law claims against the Officers for assault, battery, false
imprisonment, intentional infliction of emotional distress, and invasion of
privacy. Bustos asserted a state tort law claim against the City, Sculley, and
McManus for negligent hiring. He asserted state law claims against the Martini
Club and the Harpers for negligence, negligent hiring, and retaliation. In
addition, he attempted to bring various criminal charges against the Officers.
The district court granted a Rule 12(b)(6) motion to dismiss the claims
against the City, the Officers, Sculley, and McManus. The court then granted
summary judgment in favor of the Martini Club and the Harpers. Bustos now
appeals the dismissal of his state law and § 1983 claims against the Officers, the
City, Sculley, and McManus, as well as the grant of summary judgment in favor
of the Martini Club and the Harpers. He does not appear to contest the
dismissal of his attempts to bring criminal charges.
II
We review a district court’s grant of a motion to dismiss for failure to state
a claim de novo, “accepting all well-pleaded facts as true and viewing those facts
in the light most favorable to the plaintiff.” 1 To survive a Rule 12(b)(6) motion
to dismiss, the plaintiff must plead enough facts “to state a claim to relief that
1
True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009).
3
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is plausible on its face.” 2 Still, “[i]t is well-established that pro se complaints are
held to less stringent standards than formal pleadings drafted by lawyers.”3
A
Bustos first contends that the district court erred in determining that his
claims against the City were brought under the Texas Tort Claims Act (TTCA),
thereby requiring the dismissal of his state law claims against the Officers.
The TTCA provides a limited waiver of immunity for certain suits against
Texas governmental entities.4 But a plaintiff who sues under the TTCA must
elect pursuant to § 101.106 of that act between suing a governmental unit and
suing an employee of that unit. 5 A plaintiff’s suit under the TTCA “against a
governmental unit constitutes an irrevocable election by the plaintiff” and bars
suit “against any individual employee of the governmental unit regarding the
same subject matter.” 6 A plaintiff’s suit against an employee of a governmental
unit is also considered an “irrevocable election” and bars suit “against the
governmental unit regarding the same subject matter unless the governmental
unit consents.” 7 If the plaintiff sues both the governmental unit and any of its
employees under the TTCA, “the employees shall immediately be dismissed on
the filing of a motion by the governmental unit.” 8 As the Supreme Court of
2
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
3
Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (internal quotation marks and
citation omitted).
4
See TEX . CIV . PRAC . & REM . CODE § 101.021; Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 655 (Tex. 2008).
5
See TEX . CIV . PRAC . & REM . CODE § 101.106.
6
Id. § 101.106(a).
7
Id. § 101.106(b).
8
Id. § 101.106(e).
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Texas has explained, the provision’s “apparent purpose was to force a plaintiff
to decide at the outset whether an employee acted independently and is thus
solely liable, or acted within the general scope of his or her employment such
that the governmental unit is vicariously liable.”9
The district court ruled that § 101.106 required the dismissal of Bustos’s
state law intentional tort and invasion of privacy claims against the Officers.
The court acknowledged that Bustos did not specify that he was suing under the
TTCA. But it nevertheless dismissed the claims, relying on the reasoning in
Garcia. There, the Texas Supreme Court held that a suit asserting common law
claims against a Texas governmental unit, as distinguished from statutory
claims, is considered to be under the TTCA.10 The court reasoned that because
the TTCA “is the only, albeit limited, avenue for common-law recovery against
the government, all tort theories alleged against a governmental unit, whether
it is sued alone or together with its employees, are assumed to be ‘under the Tort
Claims Act’ for purposes of section 101.106.”11
The Garcia decision is at odds with this circuit’s interpretation of Texas
state law in Meadours v. Ermel.12 Because we are “a strict stare decisis court,”
one panel’s interpretation of state law is “no less binding on subsequent panels
than are prior interpretations of federal law.” 13 We accordlingly apply panel
precedent “absent a subsequent state court decision or statutory amendment
9
Garcia, 253 S.W.3d at 657.
10
Id. at 659.
11
Id.
12
483 F.3d 417 (5th Cir. 2007).
13
FDIC v. Abraham, 137 F.3d 264, 268 (5th Cir. 1998).
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which makes [the panel decision] clearly wrong.” 14 We must determine if the
Texas Supreme Court decision renders Meadours clearly wrong.
In Meadours, the plaintiffs brought a § 1983 claim against the City of La
Porte and several police officers for excessive force and also sued all of the
defendants under Texas state law on theories of gross negligence, assault and
battery, and intentional infliction of emotional distress.15 The panel determined
that § 101.106 did not require the dismissal of the plaintiffs’ state law claims
against the officers. The panel reasoned that the TTCA did not apply to
intentional torts,16 relying on a provision in the TTCA that explicitly states that
“[t]his chapter does not apply to a claim . . . arising out of assault, battery, false
imprisonment, or any other intentional tort.” 17 The panel thus concluded that
§ 101.106 did not bar plaintiffs’ claims since they were not covered by the
TTCA.18
In contrast, the Texas court held in Garcia that the TTCA applied and
could bar a plaintiff’s intentional tort claim against an employee when the
plaintiff had sued both the employee and the governmental unit that employed
him.19 In doing so, the court interpreted the following language in § 101.106(e):
“If a suit is filed under this chapter against both a governmental unit and any
of its employees, the employees shall immediately be dismissed on the filing of
a motion by the governmental unit.” The court explained that “under this
chapter” does not limit the statute’s reach to tort claims for which the TTCA
14
Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 425 (5th Cir. 2001).
15
483 F.3d at 421.
16
Id. at 424.
17
T EX . CIV . PRAC . & REM . CODE § 101.057(2).
18
Meadours, 483 F.3d at 424.
19
253 S.W.3d at 658-59.
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waives immunity.20 The court then reasoned that, because the TTCA was the
only avenue for common-law recovery against a governmental unit, all tort
claims against such units were assumed to be “under this chapter” for purposes
of § 101.106.21 As a result of this ruling, if a plaintiff brings virtually any state
common law tort claim against both a governmental unit and its employees,
§ 101.106(e) will allow the employee defendants to be dismissed if the
governmental unit so moves. That this holding applies to intentional torts is
clear since the claim at issue in Garcia was one for intentional infliction of
emotional distress, and since the court expressly noted an earlier decision in
which it had held that the previous version of § 101.106 applied to intentional
torts.22 The Meadours panel’s holding that § 101.106 does not apply to
intentional torts is contrary to the Texas Supreme Court’s subsequent holding.
Accordingly, we defer to the Supreme Court of Texas and hold that the election
of remedies provisions in § 101.106 apply to state law intentional tort claims
against a governmental unit and its employees.
B
Having determined that the district court correctly interpreted the law in
this regard, we must consider whether the district court correctly applied the
law to Bustos’s complaint. The court concluded that Bustos had alleged
common law causes of action for assault, battery, false imprisonment,
intentional infliction of emotional distress, and invasion of privacy against the
20
Id. at 658.
21
Id. at 659.
22
Id. at 658 (“[W]e held that former section 101.106’s limiting phrase ‘under this
chapter’ operated to bar an intentional tort claim against an employee after a final judgment
on a claim involving the same subject matter had been rendered against the governmental
unit, even though the [TTCA] by its terms expressly excluded intentional torts from the scope
of the Act’s immunity waiver.”) (citing Newman v. Obersteller, 960 S.W. 2d 621, 622-23 (Tex.
1997))(internal footnote omitted).
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Officers, and that he had alleged the same causes of action against the City
under theories of vicarious liability and ratification. The court therefore ruled
that Bustos’s claims fell under § 101.106(e), requiring dismissal of the claims
against the Officers.
We agree that Bustos’s claims against the Officers must be dismissed.
Although it is unclear whether Bustos alleged that the City was vicariously
liable for the intentional torts, he did bring a common law claim against the City
for negligent hiring and supervision that is rooted in the same alleged common
law violations. He does not state that the claim is under the TTCA, but because
it is a tort theory against a governmental unit without any statutory basis, it is
“assumed to be under the Torts Claims Act for purposes of section 101.106.”23
Since the suit is against “both a governmental unit and any of its employees,”
§ 101.106(e) applies. Accordingly, because the City moved to dismiss the
Officers, the district court was required by § 101.106(e) to dismiss the state law
claims against them.
III
Bustos also challenges the district court’s dismissal of his § 1983 claims
against the Officers. The district court ruled that Bustos had failed to plead that
the Officers acted under color of state law.
A
We will first consider Bustos’s claims against Officers Cantu and Goodwin,
who plaintiff alleges assaulted him. Section 1983 provides a claim against
anyone who “under color of any statute, ordinance, regulation, custom, or usage,
of any State” violates another’s constitutional rights.24 A person acts under color
of state law if he misuses “power ‘possessed by virtue of state law and made
23
Id. at 659 (internal quotation marks, brackets, and citation omitted).
24
42 U.S.C. § 1983.
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possible only because the wrongdoer is clothed with the authority of state law.’”25
“Under ‘color’ of law means under ‘pretense’ of law.” 26 Acts of officers performing
their official duties “are included whether they hew to the line of their authority
or overstep it,” but acts of officers “in the ambit of their personal pursuits” are
generally excluded.27
Whether an officer is acting under color of state law does not depend on his
on- or off-duty status at the time of the alleged violation.28 Rather, the court
must consider: (1) whether the officer “misuse[d] or abuse[d] his official power,”
and (2) if “there is a nexus between the victim, the improper conduct, and [the
officer’s] performance of official duties.” 29 If an officer pursues personal
objectives without using his official power as a means to achieve his private aim,
he has not acted under color of state law.30
We have previously considered cases concerning police officers pursuing
violent private aims. For instance, in United States v. Tarpley, we held that a
deputy sheriff acted under color of state law when he lured his wife’s former
lover to his home and assaulted him. 31 The court noted that Tarpley did not
25
West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
26
Screws v. United States, 325 U.S. 91, 111 (1945); see also Brown v. Miller, 631 F.2d
408, 411 (5th Cir. 1980) (explaining that an act of an officer, not taken with authority or under
cloak of authority, will not be considered under color of state law “simply because the
individual, although pursuing private aims, happens to be a state officer”).
27
Screws, 325 U.S. at 111.
28
United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991).
29
Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).
30
Id.
31
945 F.2d at 809.
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“simply” use his service weapon and identify himself as a police officer.32 He
claimed to have authority for his actions because he was an officer of the law.33
The court also found it significant that Tarpley summoned another officer to his
house, who identified himself as a fellow officer, and that they “proceeded to run
[the victim] out of town in their squad car.” 34 Because “[t]he presence of police
and the air of official authority pervaded the entire incident,” we concluded that
Tarpley acted under color of law.35
In United States v. Causey, we held that there was sufficient evidence for
a jury to conclude that a police officer acted under color of state law in arranging
for the murder of an individual who had filed a complaint against him with the
internal affairs division of the police department.36 We explained that the officer
had met with his co-conspirators in the police station, driven them in his police
car to areas the victim frequented, and had discussions with them during his
shifts.37 We further reasoned that the officer’s status as a police officer had “put
him in the unique position” to offer protection to his co-conspirators and cover
up the murder.38
In each of these cases, the officer used his official power to facilitate his
actions. But here, Bustos does not allege facts to suggest that the officers who
assaulted him misused or abused their official power. His allegations suggest
that, at the time of the incident, the officers were off-duty and enjoying drinks
32
Id.
33
Id.
34
Id.
35
Id.
36
185 F.3d 407, 415-16 (5th Cir. 1999).
37
Id. at 415.
38
Id.
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at the bar with female companions. He does not allege that either officer was in
uniform. He alleges that Officer Cantu assaulted him, but he does not allege
that Cantu used an official weapon or threatened him by asserting his authority
as a police officer. He alleges that Officer Goodwin “violently and maliciously
pushed [him] from behind,” but again, the allegations contain no suggestion that
the officer was misusing his official authority in any manner. Simply put, no
“air of authority” pervaded this barroom altercation.
We are mindful that we must construe Bustos’s pro se complaint
liberally.39 But because he asserts no facts that would suggest that the use of
force by Officers Goodwin and Cantu was a misuse of their power as state
officers, he has not sufficiently alleged that their actions were under color of
state law.
B
We will now consider Bustos’s claims against the bystander officers.
Under § 1983, to state a claim that inaction equates to action under color of state
law when the alleged wrongdoer is not a supervisory governmental official, the
plaintiff must identify “some cognizable duty that state or federal law imposes
upon the alleged ‘enactor.’” 40
The district court ruled that the off-duty officers had no duty to act under
state law. But this is incorrect, as under Texas law, “[i]t is the duty of every
peace officer to preserve the peace within the officer’s jurisdiction.”41 This
obligation applies to off-duty officers, since “[a]n off-duty police officer who
39
See Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th Cir. 1996).
40
Doe v. Claiborne County, 103 F.3d 495, 512 (5th Cir. 1996).
41
T EX . CODE CRIM . PROC . art. 2.13(a).
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observes a crime immediately becomes an on-duty police officer.” 42 However, not
every breach of a state law duty is action under color of state law.43 But we need
not decide whether this alleged breach of duty constitutes action under color of
state law, because Bustos has failed to allege a claim that the bystander officers
violated § 1983.
Bustos contends that the officers’ inaction violated his substantive due
process rights. In DeShaney v. Winnebago County Department of Social Services,
the Supreme Court held that “[a]s a general matter . . . a State’s failure to
protect an individual against private violence simply does not constitute a
violation of the Due Process Clause.” 44 The Court clarified that the rule is not
absolute, since when a state restrains an individual’s freedom to act on his own
behalf, the state creates a “special relationship” between the individual and the
state, and “the Constitution imposes upon [the state] a corresponding duty to
assume some responsibility for [the person’s] safety and general well-being.”45
As we noted in McClendon, a number of our sister circuits have read the
DeShaney opinion to suggest that in addition to the “special relationship”
exception to the general rule against state liability for private violence, a state
42
City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W. 2d 374, 377
(Tex. App.—Dallas 1994, no writ); see also Harris County v. Gibbons, 150 S.W. 3d 877, 882
(Tex. App.—Houston 2004, no pet.); Fifth Club, Inc. v. Ramirez, 196 S.W. 3d 788, 800 (Tex.
2006) (Brister, J., concurring).
43
Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1411 (5th Cir. 1995).
44
489 U.S. 189, 197 (1989).
45
Id. at 199-200; see also McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir.
2002).
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may be liable for private violence if it created or exacerbated the danger.46 But
this circuit has not adopted the state-created danger theory.47
Regardless, the state-created danger theory would not apply here. As
discussed supra, the alleged danger to Bustos was created by off-duty officers
who were not acting under color of state law. Bustos was allegedly harmed by
private individuals at a public club. That the alleged assaulters happened to be
off-duty police officers does not render the assault a state-created danger.48
Because the bystander officers had no constitutional duty to prevent the alleged
assault, Bustos has failed to state a claim against them under § 1983.
IV
Bustos next contends that the district court erroneously dismissed his
claims against the City.
A
A municipal liability claim under § 1983 requires a showing that “(1) an
official policy (2) promulgated by the municipal policymaker (3) was the moving
force behind the violation of a constitutional right.” 49
Bustos’s § 1983 allegations do not make clear which constitutional rights
the City allegedly violated. He alleges that the City “foster[ed] an environment
46
305 F.3d at 324.
47
Id. at 325; see also Rios v. City of Del Rio, 444 F.3d 417, 422 (5th Cir. 2006) (noting
that “neither the Supreme Court nor this court has ever either adopted the state-created
danger theory or sustained a recovery on the basis thereof”); Beltran v. Houston Indep. Sch.
Dist., 367 F.3d 299, 307 (5th Cir. 2004) (explaining that “[t]his court has consistently refused
to recognize a ‘state-created danger’ theory of § 1983 liability”); Rivera v. Houston Indep. Sch.
Dist., 349 F.3d 244, 249 & n.5 (5th Cir. 2003) (“We have never recognized state-created danger
as a trigger of State affirmative duties under the Due Process clause.”).
48
See Pitchell v. Callan, 13 F.3d 545, 548-49 (2d Cir. 1994) (holding that DeShaney
barred a claim against an off-duty policy officer who failed to intervene when another officer,
not acting under color of state law, shot a guest in his home).
49
Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009).
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of obstruction” which allowed its police officers to violate his civil rights and
“failed to train and control SAPD officers.” He alleges that the City’s conduct
“was such that it shocks the conscience.” Bustos further alleges that the City’s
911 dispatcher failed to come to his aid since he could not identify the badge
numbers of the officers involved.
Because Bustos has alleged no constitutional injury attributable to the
Officers, Bustos has failed to state a claim that a City policy was the moving
force behind a violation of his constitutional rights. The Supreme Court has
explained that a municipality cannot be liable “[i]f a person has suffered no
constitutional injury at the hands of the individual police officer.” 50 While other
courts have cautioned that a municipality may still be liable if the alleged
injuries are not “solely attributable to the actions of named individual
defendants,” 51 Bustos’s injuries from his failure-to-train claim stem solely from
the Officers’ conduct. Since the Officers did not violate Bustos’s constitutional
rights, neither did the City.
In addition, we can ascertain no constitutional violation from Bustos’s
claim that a 911 dispatcher failed to respond to his call for aid. Accordingly, the
district court correctly dismissed Bustos’s § 1983 claims against the City.
B
The district court also correctly dismissed Bustos’s state law tort claims
against the City. Under Texas common law, a municipality is immune from tort
50
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). But see Brown v. Lyford, 243
F.3d 185, 191 n.18 (5th Cir. 2001) (explaining that a municipality may be liable if a plaintiff
states a claim against an official but the official is protected by qualified immunity).
51
Curley v. Village of Suffern, 268 F.3d 65, 71 (2d Cir. 2001); see also Thomas v. Cook
County Sheriff’s Dep’t, 588 F.3d 445, 456 (7th Cir. 2009) (explaining that a municipality can
be held liable when the officers are not liable “unless such a finding would create an
inconsistent verdict”).
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liability for its acts or the acts of its agents unless the TTCA waives liability.52
Because the TTCA does not waive liability for the claims Bustos alleges,53 the
district court did not err in dismissing the claims on immunity grounds.
V
Bustos contends that the district court erred in dismissing his § 1983
claims against Sculley and McManus. He alleges that Sculley and McManus
had “a history of civil rights violations” and “fostered an environment” that
allowed the Officers to violate his civil rights. He further alleges that both were
“derelict in the performance of [their] duties.”
Supervisors cannot be held liable on a theory of vicarious liability.54 But
they can be held liable when the “enforcement of a policy or practice results in
a deprivation of federally protected rights.” 55 As noted, Bustos has failed to
allege that the Officers violated his constitutional rights. Consequently, Bustos
has failed to show that any policy or practice of Sculley or McManus resulted in
the violation of his rights, and the district court properly dismissed the claims
against Sculley and McManus.
VI
Lastly, Bustos contests the district court’s grant of summary judgment in
favor of the Martini Club and the Harpers. He essentially argues that the
district court improperly decided factual issues at the summary judgment stage
and “failed to properly review” the evidence.
52
City of Amarillo v. Martin, 971 S.W. 2d 426, 427 (Tex. 1998).
53
See TEX . CIV . PRAC . & REM . CODE §§ 101.021, 101.0215, 101.055(3), 101.057, 101.065.
54
Alton v. Texas A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999) (citing Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 691-95 (1978)).
55
Id.
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We review the grant of a motion for summary judgment de novo, applying
the same standard as the district court.56 Summary judgment is appropriate
when the competent summary judgment evidence demonstrates that there are
no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law.57
On summary judgment, once the moving party establishes that there are
no factual issues, the burden shifts to the nonmoving party to produce evidence
that a genuine issue of material fact exists for trial.58 The nonmoving party
must then “go beyond the pleadings,” and by affidavits or other competent
summary judgment evidence cite “specific facts” that show there is a genuine
issue for trial.59 But a district court may not grant a motion for summary
judgment merely because it is unopposed.60
The defendants submitted competent summary judgment evidence
showing that there were no genuine issues of fact for trial as to the foreseeability
of the altercation. They also submitted evidence that the Martini Club did not
serve individuals who appeared to be intoxicated, had not violated any Texas
Alcoholic Beverage Commission rules, and that the Club’s premises were not
unsafe. Bustos did not respond to the motion for summary judgment in the
district court and therefore failed to carry his burden of showing that material
factual issues existed. He cannot now assert that the district court’s reliance on
56
Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998).
57
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
58
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
59
Id. at 324.
60
Hibernia Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279
(5th Cir. 1985).
16
Case: 09-50079 Document: 00511042592 Page: 17 Date Filed: 03/05/2010
No. 09-50079
defendants’ uncontested evidence was improper. The district court did not err
in granting summary judgment.
* * *
Therefore, for the reasons discussed above, we AFFIRM the district
court’s judgment.
17