Pena v. Jimenez

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 11, 2002
• Docket: 01-40337
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40337 Summary Calendar

RUBEN R. PEÑA,

Plaintiff-Appellant,

versus

JOSE ALFREDO JIMENEZ ET AL.,

Defendants,

JOSE ALFREDO JIMENEZ, Constable, Individually and in his official capacity; DANIEL CRUZ, Individually and in his representative capacity; CAMERON COUNTY, TEXAS,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-99-CV-84 -------------------- January 10, 2002 Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Ruben Peña appeals from the summary-judgment dismissal of his

civil rights claims against Cameron County, Texas. He argues that

the district court erred in holding that Constable Jimenez was not

a policymaker for purposes of 42 U.S.C. § 1983 liability.

This court reviews a grant of summary judgment applying the

same standard as the court below. Deas v. River W., L.P., 152 F.3d

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 471, 475 (5th Cir. 1998). "To establish county/municipality

liability under § 1983 . . . a plaintiff must demonstrate a policy

or custom which caused the constitutional deprivation." Colle v.

Brazos County, Tex., 981 F.2d 237, 244 (5th Cir. 1993). Local

governing bodies can be sued directly under § 1983 if the action

that is alleged to be unconstitutional implements or executes a

policy officially adopted or a custom or usage. Monell v. Dep't of

Soc. Servs. of City of New York, 436 U.S. 658, 690-95 (1978).

“Actual or constructive knowledge of such custom must be

attributable to the governing body of the municipality or to an

official to whom that body has delegated policymaking authority."

Matthias v. Bingley, 906 F.2d 1047, 1054 (5th Cir. 1990).

Unless officers or employees of a municipality execute

official policy, their actions do not render the municipality

liable under § 1983. Id. The government entity cannot be held

liable on a theory of respondeat superior for the acts of its

non-policy-making employees. Colle, 981 F.2d at 244. Whether an

official in fact has final policymaking authority is a question of

state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 123

(1988) (plurality opinion).

The issue whether Constable Jimenez is a policymaker for

purposes of 42 U.S.C. § 1983 liability is foreclosed by Rhode v. v.

Denson, 776 F.2d 107, 108-110 (5th Cir. 1985), which held as a

matter of law that the constable of a Texas county precinct was not

a policymaker, and, therefore, the county could not be held liable

for his acts or edicts.

2 The district court determined that the intermediate state-

court decision of Walsweer v. Harris County, 796 S.W.2d 269 (Tex.

App. 1990) was alone insufficient to override the precedent set by

Rhode. Peña does not argue that this determination was error.

Moreover, Peña raised the issue that Rhode is not controlling for

the first time in his reply brief. We therefore give it no

consideration. See Taita Chem. Co., Ltd. v. Westlake Styrene

Corp., 246 F.3d 377, 384 n.9 (5th Cir. 2001) (issues raised for the

first time in a reply brief are waived).

AFFIRMED.