Joe Cobarobio v. Midland County Texas , 695 F. App'x 88 ( 2017 )

Case: 15-50096 Document: 00514116419 Page: 1 Date Filed: 08/15/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-50096
Fif h Circuit
FILED
Summary Calendar August 15, 2017
Lyle W. Cayce
JOE LUIS COBAROBIO, Clerk
Plaintiff-Appellant
v.
MIDLAND COUNTY, TEXAS; GARY PAINTER, Midland County Sheriff;
GABRIEL SUBIA, Detective; BENNY DOE, Midland County Deputy Sheriff;
JOHN DOE, I, Midland County Deputy Sheriff; JOHN DOE, II, Midland
County Deputy Sheriff; EDELMIRA SUBIA, Midland County Deputy Sheriff;
CITY OF MIDLAND, TEXAS; JOHN DOE, I, Police Officer,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CV-111
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Joe Luis Cobarobio, Texas prisoner # 1867973, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim
upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50096
Cobarobio filed the complaint arguing that the defendants violated state law,
as well as federal law, when they interfered with his ability to photograph and
video record the aftermath of a train accident in Midland, Texas.
Before this court, Cobarobio does not address the district court’s
conclusion that he failed to allege a policy or custom of Midland County or the
City of Midland that caused him to be deprived of a federally protected right.
See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). He also fails
to address the district court’s conclusion that Midland County and the City of
Midland were not liable under § 1983 based on theories of ratification, de facto
policy, and respondent superior. Accordingly, Cobarobio has abandoned any
challenge he could have raised to the district court’s decision dismissing his
complaint against Midland County and the City of Midland for failure to state
a claim upon which relief may be granted. See Brinkmann v. Dallas County
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
As to the remaining defendants, Cobarobio reasserts his claim that the
defendants violated his First Amendment right to freedom of speech and
expression by interfering with his ability to photograph and video record the
aftermath of a train accident. He also reasserts his argument that the
defendants falsely arrested him and seized his property in violation of the
Fourth Amendment. Additionally, he raises a claim of retaliation. The district
court determined that these defendants were entitled to qualified immunity.
Qualified immunity protects government officials whose “conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Hathaway v. Bazany, 507 F.3d 312,
320 (5th Cir. 2007) (internal quotation marks and citation omitted). To defeat
the defense of qualified immunity, Cobarobio must plead facts to show a
violation of a right that was clearly established at the time of the incident and
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that, in light of that clearly established law, the defendant’s conduct was
objectively unreasonable. See Short v. West, 662 F.3d 320, 325 (5th Cir. 2011).
As determined by the district court, Cobarobio fails to establish that there was
a clearly established First Amendment right for him to record police activity
during an on-going emergency situation like the one involved in the instant
case. In Turner v. Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017), this
court held that “First Amendment principles, controlling authority, and
persuasive precedent demonstrate that a First Amendment right to record the
police does exist, subject only to reasonable time, place, and manner
restrictions.” However, we did so only after noting that “there was no clearly
established First Amendment right to record the police at the time of Turner’s
[2015 arrest].” Id. at 687. Because Cobarobio’s arrest occurred in 2012, he
cannot satisfy his burden of establishing that the defendants are not entitled
to qualified immunity. See Short, 662 F.3d at 325. Moreover, because there
was probable cause to arrest Cobarobio for interference with public duties,
Cobarobio cannot establish a Fourth Amendment violation. See Mesa v.
Prejean, 543 F.3d 264, 273 (5th Cir. 2008) (recognizing that motivation for
arrest is irrelevant if there was probable cause to support the arrest); Haggerty
v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004) (“To ultimately prevail on
his section 1983 false arrest/imprisonment claim, [the plaintiff] must show
that [the officer] did not have probable cause to arrest him.”); TEXAS PENAL
CODE ANN. § 38.15(a)(1).
Cobarobio does not challenge the district court’s determination that the
defendants are entitled to qualified immunity as to his claims of excessive force
and failure to intervene. These claims are thus deemed abandoned. See
Brinkmann, 813 F.2d at 748. Cobarobio also abandons the claims he fails to
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raise before this court on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
Accordingly, the district court’s judgment is affirmed. Cobarobio’s
motion to file an out of time reply brief is DENIED. The district court’s
dismissal of Cobarobio’s complaint for failure to state a claim counts as a strike
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Cobarobio is warned that if he accumulates three
strikes, he may not proceed in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED.
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