Shields v. Twiss ( 2004 )


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  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    REVISED NOVEMBER 12, 2004
    October 22, 2004
    IN THE UNITED STATES COURT OF APPEALS
    Charles R. Fulbruge III
    FOR THE FIFTH CIRCUIT                     Clerk
    No. 03-51171
    HAROLD LLOYD SHIELDS; ET AL
    Plaintiffs
    DAN BALDWIN, Administrator for the Estate of
    Harold Lloyd Shields, Deceased
    Appellant
    v.
    CAROL L TWISS; KERR COUNTY TEXAS
    Defendants - Appellees
    Appeal from the United States District Court for the
    Western District of Texas, San Antonio
    Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit
    Judges.
    KING, Chief Judge:
    Plaintiff Harold Shields filed this suit after officials in
    Kerr County, Texas dropped charges against him for the aggravated
    sexual assault of a child.    Claiming that he never should have
    been charged in the first place, Shields sued Kerr County and two
    county employees for alleged violations of federal and state
    laws.     During the pendency of the lawsuit, Shields attempted to
    1
    stay the case to depose members of the grand jury that indicted
    him.    The district court issued orders that: (1) quashed the
    depositions of the grand jurors; (2) denied Shields’s requests to
    stay or continue the case while he sought state-court approval to
    depose the grand jurors; and (3) granted summary judgment on all
    counts in favor of the defendants.    Shields appeals these
    rulings.    For the following reasons, we AFFIRM the judgment of
    the district court.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    In November 1999, Kerr County Sheriff’s Deputy Carol L.
    Twiss began investigating the sexual assault of a young girl,
    “K.S.”    During the course of the investigation, K.S. told
    investigators that her grandfather and uncle had molested her.
    She also said that two non-family members--one of whom she
    referred to as “Mr. M”--were involved.
    Deputy Twiss suspected that Harold Lloyd Shields was Mr. M.
    Initially, the principal ground for suspicion appears to have
    been the fact that Shields was acquainted with K.S.’s
    grandfather.    Subsequently, during an interview conducted by
    Deputy Twiss and others, K.S. was presented with a photographic
    lineup and identified a picture of Shields as resembling Mr. M.
    In addition, Deputy Twiss and others interviewed Shields and
    considered several of his responses suspicious.
    Based on their investigation, Kerr County officials decided
    to prosecute Shields.    They began by seeking a grand-jury
    2
    indictment against him.   As part of this process, Deputy Twiss
    filed an affidavit and testified before the grand jury.
    Ultimately, the grand jury indicted Shields on three counts of
    aggravated sexual assault of a child.   Shields subsequently
    surrendered to Kerr County officials, was arrested, and paid a
    non-refundable bond fee of $10,000 to secure his release pending
    trial.   Before trial, however, K.S. recanted her allegations
    concerning Mr. M, and Kerr County dismissed the charges against
    Shields.
    Shields now contends that Deputy Twiss failed to conduct an
    appropriate investigation.   According to Shields, had an
    appropriate investigation been carried out, it would have
    revealed his innocence.   In support of this contention, he points
    to a series of facts that were inconsistent with his being Mr. M.
    For example, due to impotence, he was unable to perform some of
    the acts that K.S. alleged were done to her.   Additionally, he
    did not move to Texas until approximately two years after K.S.
    said that Mr. M began molesting her.    Shields also contends that
    the photographic lineup shown to K.S. was flawed and prejudicial
    because only the photograph of Shields bore physical
    characteristics similar to K.S.’s description of Mr. M.     Angered
    by these perceived lapses on the part of Deputy Twiss and Donnie
    Coleman, the Kerr County Assistant District Attorney who
    3
    prosecuted him, Shields sued.1
    In September 2001, Shields filed his second amended
    complaint.     In it, he named as defendants Deputy Twiss and
    Assistant District Attorney Coleman in their individual
    capacities.2    He also named Kerr County, Texas as a defendant.
    Proceeding under 42 U.S.C. § 1983, Shields alleged in his
    second amended complaint that each of the defendants violated his
    constitutional rights while acting under the color of state law.
    Specifically, Shields asserted claims of unreasonable arrest,
    unreasonable detention, and malicious prosecution under the
    Fourth and Fourteenth Amendments.      He further averred that Deputy
    Twiss and Assistant District Attorney Coleman failed to conduct a
    reasonable investigation.     Moreover, he contended that Kerr
    County should be held liable for these violations of his
    constitutional rights because it failed to supervise Deputy Twiss
    properly and to provide her with a manageable caseload, thereby
    preventing her from conducting a reasonable investigation.
    Similarly, he asserted that Kerr County did not properly train or
    1
    After Shields’s death in June 2002, Holly Rena Shields
    Robinson, the administrator of his estate, was substituted as the
    plaintiff in this case. Subsequently, Robinson was disqualified
    from being Shields’s personal representative by the District
    Court of McPherson County, Kansas, and Daniel L. Baldwin was
    appointed as the new administrator and personal representative.
    Accordingly, in June 2004, this court granted a motion to
    substitute Daniel Baldwin as the appellant. In the interest of
    clarity, the court will refer to the appellant as “Shields.”
    2
    On appeal, the claims against Donnie Coleman were
    dismissed by agreement of the parties.
    4
    supervise Deputy Twiss in the creation and presentation of
    photographic lineups.    Finally, Shields invoked the district
    court’s supplemental jurisdiction and pleaded four tort claims
    under Texas law against Twiss and Coleman: false arrest, false
    imprisonment, malicious prosecution, and negligent investigation.
    This case was originally assigned to the late Judge H.F.
    Garcia.   During discovery, Shields sought to depose several
    members of the state grand jury that indicted him, ostensibly to
    show that the indictment they returned was faulty because
    exculpatory evidence had been withheld from them.   The defendants
    moved to quash the subpoenas, arguing that both federal and state
    law require the proceedings of grand juries to be kept secret.
    In response to these motions to quash, Shields moved the court
    for leave to file a consolidated response.   In his consolidated
    response, Shields noted that there were no existing records of
    the grand-jury proceedings, and he contended that, as a result,
    he needed to depose the grand jurors to rebut the defendants’
    reliance on the indictment to preclude his constitutional claims.
    On January 7, 2002, the district court issued an order
    granting the defendants’ motions to quash and ordering Shields’s
    counsel not to contact any member of the Kerr County grand jury
    that indicted Shields.   This order was signed “Fred Biery
    [district judge] for H.F. Garcia.”    One day later, Judge Garcia
    granted Shields’s motion to file a consolidated response.
    Concerned that the court had not considered his consolidated
    5
    response when ruling on the motions to quash, Shields promptly
    filed a motion for reconsideration, which then-District Judge
    Edward Prado summarily denied.
    Undeterred, Shields next petitioned a Texas state court to
    permit him to depose the grand jurors.    He also asked the
    district court to stay this case pending the outcome of the
    ancillary state-court proceeding.     Judge Biery denied Shields’s
    request for a stay in August 2002.
    Each defendant filed a motion for summary judgment in March
    2003.   Later that month, this case was reassigned to Judge Royal
    Furgeson.   In July 2003, Judge Furgeson granted the defendants’
    motions for summary judgment.
    In his decision granting summary judgment for the
    defendants, Judge Furgeson first held that Shields failed to
    create a genuine issue of fact concerning whether Deputy Twiss
    and Assistant District Attorney Coleman withheld information from
    the grand jury.   Accordingly, Judge Furgeson held that the grand
    jury’s finding of probable cause precluded Shields’s Fourth
    Amendment claims regarding his arrest and imprisonment.    Judge
    Furgeson further stated that even if the indictment had not been
    returned, Shields’s claims would still fail because he did not
    show that Twiss and Coleman should be denied qualified immunity
    for acting unreasonably in determining that probable cause
    existed.    Second, Judge Furgeson found that Shields’s malicious-
    prosecution claim was also precluded by the grand jury’s finding
    6
    of probable cause.    Additionally, according to Judge Furgeson,
    Shields’s malicious-prosecution claim failed because he did not
    allege that either Twiss or Coleman acted with malice.    Third,
    Judge Furgeson found that there was no authority supporting a
    constitutional claim for “unreasonable investigation.”    Fourth,
    Judge Furgeson found that Kerr County could not be held liable
    because Shields put forward no evidence of any constitutional
    violation.    Likewise, Judge Furgeson found that Shields put
    forward no evidence showing that Kerr County had a policy or
    custom encouraging the use of unconstitutional photographic
    lineups.    Finally, Judge Furgeson found that summary judgment in
    favor of the defendants was appropriate on Shields’s state-law
    claims.    In support of this conclusion, Judge Furgeson stated
    that Shields’s failure to establish a genuine issue of fact
    concerning his constitutional claims doomed his state-law claims
    and, alternatively, that Shields had not presented evidence that
    Twiss and Coleman should be denied official immunity under Texas
    state law.    Accordingly, Judge Furgeson granted summary judgment
    for the defendants on all counts and dismissed Shields’s suit
    with prejudice.
    After summary judgment was granted against him, Shields
    filed a motion for reconsideration under Rule 59.    In this
    motion, he asked the district court to vacate its final judgment
    and stay the case while he appealed to the Texas Supreme Court an
    adverse state-court ruling regarding his request to depose the
    7
    grand jurors.   Judge Furgeson denied Shields’s motion, noting
    that the district court had itself considered the discoverability
    of the grand jurors’ testimony and refused to permit the
    depositions.
    Following the denial of his motion for reconsideration,
    Shields filed the present appeal.
    II. DISCUSSION
    Shields raises three issues in his appeal.       First, he
    maintains that the district court erred in quashing the
    depositions of the grand jurors.       Second, he asserts that the
    district court should have granted his request for a stay pending
    the outcome of the ancillary state-court litigation.       Third, he
    contends that the district court erroneously determined that
    there exist no genuine issues of material fact preventing the
    entry of summary judgment.   This court examines each of these
    claims in turn.
    A. The Request To Depose Grand Jurors
    The court begins with Shields’s claim that the district
    court erred when it quashed the depositions of the grand jurors.
    According to Shields, since no record existed of the grand jury’s
    proceedings, he needed to depose members of the grand jury to
    prove that Deputy Twiss and Assistant District Attorney Coleman
    withheld information from the grand jury.       Shields contends that
    by improperly quashing these depositions, the district court made
    it impossible for him to prove his malicious prosecution and
    8
    civil rights claims.
    This court reviews a district court’s decision to quash
    deposition subpoenas for abuse of discretion.       Theriot v. Parish
    of Jefferson, 
    185 F.3d 477
    , 491 (5th Cir. 1999); Tiberi v. CIGNA
    Ins. Co., 
    40 F.3d 110
    , 112 (5th Cir. 1994).
    At the outset, the court notes that under both federal and
    state law, a general rule of secrecy shrouds the proceedings of
    grand juries.   See FED. R. CRIM. P. 6(e); Douglas Oil Co. of Cal.
    v. Petrol Stops N.W., 
    441 U.S. 211
    , 218-19 (1979); TEX. CODE CRIM.
    PROC. ANN. art. 20.02 (Vernon Supp. 2004); In re 5 Byrd Enters.,
    
    980 S.W.2d 542
    , 543 (Tex. App.--Beaumont 1998, no pet.).        Even
    so, both federal and Texas law permit discovery of grand jury
    material when the party seeking discovery demonstrates a
    “particularized need” for the material.       United States v. Procter
    & Gamble Co., 
    356 U.S. 677
    , 682-83 (1958); accord FED. R. CRIM. P.
    6(e)(3)(E)(i); TEX. CODE CRIM. PROC. ANN. art. 20.02(d); In re 5
    Byrd 
    Enters., 980 S.W.2d at 543
    .       A party claiming a
    particularized need for grand jury material under Rule 6(e) has
    the burden of showing “that the material [it] seek[s] is needed
    to avoid a possible injustice in another judicial proceeding,
    that the need for disclosure is greater than the need for
    continued secrecy, and that [its] request is structured to cover
    only material so needed.”   Douglas Oil 
    Co., 441 U.S. at 222
    .
    This burden must be met even when the grand jury in question has
    concluded its operations, as is the case here.       
    Id. While a
    9
    party can in limited circumstances obtain grand jury material by
    showing a particularized need, the need for protection of the
    workings, integrity, and secrecy of grand jury proceedings is a
    well-established, long-standing public policy.    The secrecy of
    the grand jury proceedings is not something that is intruded into
    except in rare circumstances.
    In the present case, Shields has not shown a particularized
    need for compelling the disclosure of grand jury information,
    much less for compelling the depositions of grand jury members.
    Shields claims that he needs to depose members of the grand jury
    to prove that information was withheld from them.    He has not,
    however, put forward any evidence whatsoever showing that Twiss
    or Coleman withheld information from the grand jury, a point
    noted by the district court.3   Robinson v. Twiss, No. SA-01-CA-
    0289-RF, slip op. at 9-10 (W.D. Tex. Jul. 9, 2003) (holding that
    Shields provided no concrete evidence for his claim that
    information was withheld from the grand jury).    Twiss,
    conversely, has testified under oath that she presented all
    relevant information in her possession--both incriminating and
    exculpatory--to the grand jury.    Likewise, Donnie Coleman, the
    assistant district attorney who presented the case against
    Shields to the grand jury, testified under oath that Twiss gave
    3
    Indeed, for the most part, Shields does not allege that
    Twiss even possessed exculpatory information; rather, he
    maintains that she would have learned of exculpatory details if
    she had conducted a reasonable investigation.
    10
    the grand jury “the things . . . that matched up [and] the things
    . . . that didn’t match up.”
    Because Shields has utterly failed to rebut Twiss and
    Coleman’s sworn testimony, the district court had no reason to
    believe that any useful information would be uncovered if Shields
    were allowed to depose the grand jurors.    Without some evidence
    to support Shields’s claims that the defendants withheld
    exculpatory evidence, the district court certainly had no reason
    to believe that these depositions were necessary to “avoid a
    possible injustice,” one of the elements required for a showing
    of a particularized need for grand jury material.    See Douglas
    Oil 
    Co., 441 U.S. at 222
    (holding that a party claiming a
    particularized need for grand jury material must show that
    disclosure is necessary to avoid a possible injustice in another
    judicial proceeding).    Shields has presented no evidence that
    would justify a fishing expedition into the proceedings of the
    grand jury.   Accordingly, the district court did not abuse its
    discretion when it granted the motion to quash.
    Even if Shields had put forward evidence of his need for
    grand jury material--something he has not done--there is still
    the question of whether he could ever compel the depositions of
    grand jury members.   Shields has pointed to no authority for the
    proposition that one can take the depositions of grand jury
    members when, as is the case here, there is no transcript of the
    grand jury proceeding.    This court, like other courts, is unaware
    11
    of any authority supporting this proposition.   See, e.g., United
    States v. Roethe, 
    418 F. Supp. 1118
    , 1119 (D.C. Wis. 1976)
    (“Furthermore, [the defendant] has suggested no authority, and I
    am aware of none, in support of his request to conduct an
    examination of the grand jurors.”).   If depositions of grand
    jurors could ever be taken--a matter as to which this court
    expresses no opinion--it would take a far more substantial
    showing of particularized need than what Shields has made here.4
    Thus, the district court acted well within the bounds of its
    discretion when it granted the motion to quash Shields’s
    deposition notices.
    B.   The Request For A Stay
    The court next turns to Shields’s claim that the district
    court erred in denying his request to stay, abate, or continue
    its disposition of the case pending further discovery.
    This court reviews a district court’s denial of a motion for
    continuance brought under FED. R. CIV. P. 56 for abuse of
    discretion.   See Liquid Drill, Inc. v. U.S. Turnkey Exploration,
    Inc., 
    48 F.3d 927
    , 930 (5th Cir. 1995); Solo Serve Corp. v.
    Westowne Assoc., 
    929 F.2d 160
    , 167 (5th Cir. 1991).
    Both before and after summary judgment was granted against
    4
    Additionally, had Shields demonstrated a particularized
    need for deposing the grand jurors, the court would still have to
    address whether it can revisit the state court’s refusal to
    permit the depositions. Because Shields did not demonstrate a
    particularized need, however, the court need not reach this
    question.
    12
    him, Shields sought, and was denied, a stay or continuance from
    the district court pending the final resolution of the collateral
    proceeding that he initiated in state court in pursuit of
    permission to depose the grand jurors.   Shields now contends that
    by not staying or continuing the case pending resolution of this
    state-court litigation, the district court denied him a full and
    fair opportunity to discover information essential to his
    opposition to summary judgment, a denial that constitutes
    reversible error.    In support of this claim, Shields invites the
    court’s attention to Anderson v. Liberty Lobby, 
    477 U.S. 242
    , 250
    (1986), which holds that when a party is not given a full and
    fair opportunity to discover information essential to its
    opposition to summary judgment, the limitation on discovery is
    reversible error.
    Shields’s appeal of the district court’s denial of his
    requests for a stay or continuance is undermined by the fact that
    the state-court litigation has now been resolved against Shields.
    Specifically, the Texas Supreme Court denied review in the
    ancillary state-court proceeding on February 13, 2004, thereby
    making permanent the state trial court’s denial of Shields’s
    discovery request.    In re Grand Jury Proceedings 198.GJ.20, 
    129 S.W.3d 140
    (Tex.App.--San Antonio 2003, pet. denied).
    Consequently, the issue of whether the proceedings in this suit
    should have been stayed until the Texas Supreme Court acted is
    moot and need not be addressed on the merits by this court.
    13
    C. The Decision To Grant Summary Judgment
    Finally, the court turns to Shields’s claim that the
    district court erred by granting summary judgment in favor of the
    defendants.
    This court reviews summary judgments de novo, applying the
    same standard as the district court.     See Fierros v. Tex. Dept.
    of Health, 
    274 F.3d 187
    , 190 (5th Cir. 2001).     Specifically,
    “summary judgment is proper ‘if the pleadings, depositions,
    answers to interrogatories, and admissions on file, together with
    the affidavits, if any, show that there is no genuine issue as to
    any material fact and that the moving party is entitled to a
    judgment as a matter of law.’”    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986) (quoting FED. R. CIV. P. 56(C)).   Where, as
    here, the burden of production at trial ultimately rests on the
    non-movant, “the movant must merely demonstrate an absence of
    evidentiary support in the record for the non-movant’s case.”
    Byers v. Dallas Morning News, Inc., 
    209 F.3d 419
    , 424 (5th Cir.
    2000).    By contrast, the nonmoving party must come forward with
    “specific facts showing that there is a genuine issue for trial.”
    FED. R. CIV. P. 56(e).   According to the Supreme Court, “there is
    no issue for trial unless there is sufficient evidence favoring
    the nonmoving party for a jury to return a verdict for that
    party.”    
    Anderson, 477 U.S. at 249
    .   When a district court
    reviews the support for a nonmovant’s case, the “evidence of the
    14
    non-movant is to be believed, and all justifiable inferences are
    to be drawn in [its] favor.”   
    Id. at 255.
    1.    Shields’s Federal Law Claims
    In his second amended complaint, Shields alleges six
    constitutional violations that he claims are actionable under
    42 U.S.C. § 1983: (1) unreasonable arrest; (2) unreasonable
    detention; (3) malicious prosecution; (4) unreasonable
    investigation; (5) failure to supervise (against Kerr County)
    resulting in an inadequate investigation; and (6) failure to
    supervise and train (against Kerr County) with respect to the use
    of photographic lineups.   The court examines each of these claims
    in turn.
    With respect to Shields’s unreasonable arrest, unreasonable
    detention, and malicious prosecution claims, Shields principally
    contends that the district court erred in determining that he had
    not raised a genuine issue of material fact regarding whether
    there existed probable cause to charge and arrest him.   To the
    extent that Shields complains of the fact that charges were filed
    against him, he has not stated a cognizable federal claim after
    this court’s en banc decision in Castellano v. Fragozo, 
    352 F.3d 939
    , 953 (5th Cir. 2003) (en banc) (“[C]ausing charges to be
    filed without probable cause will not without more violate the
    constitution.   So defined, the assertion of malicious prosecution
    states no constitutional claim.”).
    Even so, Castellano does permit a plaintiff to assert a
    15
    Fourth Amendment claim based on an arrest made without probable
    cause.   Id.; see also Sorenson v. Ferrie, 
    134 F.3d 325
    , 328 (5th
    Cir. 1998) (“Whether an arrest is illegal . . . hinges on the
    absence of probable cause.”).   This circuit has held, however,
    that once “facts supporting an arrest are placed before an
    independent intermediary such as a . . . grand jury, the
    intermediary’s decision breaks the chain of causation” for these
    constitutional violations.    Taylor v. Gregg, 
    36 F.3d 453
    , 456
    (5th Cir. 1994) (citing Wheeler v. Cosden Oil & Chem. Co., 
    744 F.2d 1131
    , 1132 (5th Cir. 1984)).      Nevertheless, these claims may
    be maintained if the plaintiff affirmatively shows that “the
    deliberations of that intermediary were in some way tainted by
    the actions of the defendants.”     
    Taylor, 36 F.3d at 457
    (quoting
    Hand v. Gary, 
    838 F.2d 1420
    , 1427 (5th Cir. 1988)).     Shields
    claims that he can maintain his unreasonable arrest and detention
    claims in light of the indictment because exculpatory information
    was withheld from the grand jury and, accordingly, its
    deliberations were tainted.   However, as previously discussed, he
    has put forward no evidence whatsoever that exculpatory
    information was withheld from the grand jury, whereas both
    Coleman and Twiss have testified under oath that they provided
    exculpatory information to the grand jury.     Accordingly,
    Shields’s conclusory allegations that information was withheld
    are insufficient to create a fact issue warranting the denial of
    summary judgment, and Twiss cannot be held liable for
    16
    unreasonable arrest or unreasonable detention based on the
    absence of probable cause.       See, e.g., Douglass v. United Servs.
    Auto. Ass’n, 
    79 F.3d 1415
    , 1429 (5th Cir. 1996) (explaining that
    “conclusory allegations, speculation, and unsubstantiated
    assertions are inadequate to satisfy the nonmovant’s burden” at
    summary judgment).
    Regarding Shields’s “unreasonable investigation” claim,
    Shields has pointed to no legal basis for a § 1983 action of this
    sort, and the court knows of none.       Hence, this claim also fails.
    Finally, Shields asserts two failure-to-supervise claims.
    First, he claims that Kerr County overworked Twiss and made it
    impossible for her to investigate her cases properly, resulting
    in the Fourth Amendment violations that Shields alleges.       Second,
    Shields claims that Kerr County did not properly train Twiss in
    the use of photographic lineups and, as a result, Twiss used an
    unconstitutionally suggestive lineup during her investigation of
    him.5       With respect to Shields’s first failure-to-supervise claim
    5
    In his second amended complaint, Shields argues that
    Kerr County should be held liable for its failure to train Twiss
    in the use of photographic lineups. In his response to the
    defendants’ motion for summary judgment and in his appellate
    brief, he appears to expand the scope of this claim by attempting
    to hold Twiss personally liable for this violation as well. As
    the district court correctly noted, however, Shields has pointed
    to no authority suggesting that the use of an improper lineup
    constitutes a distinct constitutional violation giving rise to
    money damages under § 1983. The one case that Shields does cite,
    United States v. Merkt, 
    794 F.2d 950
    , 958 (5th Cir. 1986), only
    pertains to the admissibility of pretrial photographic
    identifications--it does not confer liability on individual
    defendants under § 1983. Hence, Shields’s attempt to hold Twiss
    17
    (i.e., that Kerr County overworked Twiss and did not supervise
    her workload), this circuit has held that municipal liability
    “under section 1983 attaches where a deprivation of a right
    protected by the Constitution or by federal law is caused by an
    official policy.”    Burge v. St. Tammany Parish, 
    336 F.3d 363
    , 369
    (5th Cir. 2003).    Here, however, Shields has not presented a
    genuine issue of fact concerning whether Deputy Twiss deprived
    him of any constitutional or federal rights.    Thus, Kerr County
    cannot be held liable for overworking or not properly supervising
    Twiss.   As for Shields’s second failure-to-supervise claim (i.e.,
    that Kerr County did not adequately train Twiss in the use of
    photographic lineups), Shields can only prevail by showing that
    an official policy or custom “was a cause in fact of the
    deprivation of rights inflicted.”     Spiller v. City of Tex. City,
    Police Dep’t, 
    130 F.3d 162
    , 167 (5th Cir. 1997) (quoting Leffall
    v. Dallas Indep. Sch. Dist., 
    28 F.3d 521
    , 525 (5th Cir. 1994)).
    To prevail, Shields must also point to evidence showing that Kerr
    County adopted the policy or custom in “deliberate indifference
    to the constitutional rights of its inhabitants.”     City of Canton
    v. Harris, 
    489 U.S. 378
    , 392 (1989).    Shields has put forward no
    evidence that Kerr County had a policy or training program that
    encouraged the use of unconstitutional photographic lineups.
    Likewise, he has not pointed to any evidence that Kerr County was
    personally liable for the photographic lineup fails.
    18
    deliberately indifferent to the constitutional rights of its
    residents.   Accordingly, this failure-to-supervise claim, like
    Shields’s other federal claims, fails.
    We recognize that this is an unfortunate case, but Shields
    has not established a constitutional violation.
    2.   Shields’s State Law Claims
    While Shields raises a number of state-law claims in his
    second amended complaint, on appeal he only briefs his allegation
    of malicious prosecution against Deputy Twiss.    Accordingly,
    since Shields failed to brief his other state-law claims, the
    court considers them waived.   See FED. R. APP. P. 28(a)(9)(A); L &
    A Contracting Co., 
    17 F.3d 106
    , 113 (5th Cir. 1994).    Only
    Shields’s malicious-prosecution claim under Texas law remains.
    Under Texas law, a plaintiff alleging malicious prosecution
    must establish: (1) the commencement of a criminal prosecution
    against him; (2) that the defendant caused the prosecution to be
    commenced; (3) termination of the prosecution in his favor; (4)
    his innocence; (5) the absence of probable cause for the
    proceeding; (6) malice in filing the charge; and (7) damages.
    Richey v. Brookshire Grocery Co., 
    952 S.W.2d 515
    , 517 (Tex.
    1997).
    When the district court ruled on Shields’s state-law
    malicious-prosecution claim under Texas law, it found that: (1)
    his claim failed because Shields had not created a genuine fact
    issue regarding the probable-cause and malice elements; and (2)
    19
    even if Shields could have proven the probable-cause and malice
    elements, his malicious-prosecution claim still failed because
    Deputy Twiss was entitled to official immunity.   In his appellate
    brief, Shields briefly discusses the district court’s holding
    regarding probable cause.    He does not, however, ever mention--
    much less contest--the district court’s alternative holding on
    official immunity.   Accordingly, the district court’s
    unchallenged holding on official immunity stands, Shields’s
    malicious-prosecution claim under Texas law fails, and the court
    need not address his argument regarding the probable-cause
    element of this claim.
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the judgment of the
    district court.
    20
    

Document Info

Docket Number: 03-51171

Filed Date: 11/12/2004

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (24)

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