Craig Washington v. Jose Salazar ( 2019 )

Case: 19-20132 Document: 00515223405 Page: 1 Date Filed: 12/04/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-20132 FILED
December 4, 2019
Lyle W. Cayce
CRAIG A. WASHINGTON, Clerk
Plaintiff - Appellant
v.
CLAYTON K. SCOTT; HARRIS COUNTY,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-362
Before KING, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff Craig Washington briefs a single issue on appeal, whether
qualified immunity is a defense to a 42 U.S.C. § 1983 claim based on a violation
of the Second Amendment. But Washington appeals from a district-court
decision dismissing his claims for reasons that have nothing to do with
qualified immunity. Because we conclude that the qualified-immunity issue
that Washington identifies is not properly before us, we AFFIRM.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20132
I.
Late at night, the sound of breaking glass woke Craig Washington, who
was asleep in his Houston home. Taking a twelve-gauge shotgun with him,
Washington went outside to investigate and discovered several broken beer
bottles on his property. While carrying the shotgun, Washington asked the
valet at a nightclub across the street whether he had seen who threw the beer
bottles. Washington was unable to get any information from the valet and
began to return home. En route, law enforcement officers responding to an
unrelated noise complaint questioned Washington, who was still armed. Those
officers contacted the Harris County District Attorney’s Office, explained the
situation, and were told that charges against Washington would not be
accepted because Washington had not committed a crime.
Shortly thereafter, Sergeant Jose Salazar of the Houston Police
Department arrived on the scene. Washington alleges that Salazar decided
that he wanted to arrest Washington, again contacted the Harris County
District Attorney’s Office, and deliberately gave the office inaccurate
information. Specifically, according to Washington, Salazar said that
Washington had been carrying a handgun, not a shotgun. As a result of
Salazar’s report, Clayton Scott—an administrative assistant with the Harris
County District Attorney’s Office—signed an affidavit stating that Washington
had been carrying a handgun. Washington was then arrested and charged with
unlawfully carrying a handgun. Charges against Washington were filed but
later dismissed.
Washington filed suit against Salazar and his employer, the City of
Houston, as well as against Scott and his employer, Harris County.
Washington alleged that Salazar, the City of Houston, and Harris County were
all liable under 42 U.S.C. § 1983 for violating his rights under the Second,
Fourth, and Fourteenth Amendments. Additionally, Washington alleged that
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Scott was liable under 42 U.S.C. § 1985 for conspiring with Salazar to deprive
Washington of those rights.
The district court granted motions to dismiss filed by Harris County and
by Scott. The district court dismissed Washington’s § 1983 claims against
Harris County, because Washington did not allege facts indicating that a
county policy caused his rights to be violated, as required for municipal § 1983
liability, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978). Likewise, the
district court dismissed Washington’s § 1985 conspiracy claim against Scott,
because Washington did not allege any facts regarding racial animus, and
racial animus is an element of a § 1985 conspiracy claim, Horaist v. Doctor’s
Hosp. of Opelousas, 255 F.3d 261, 271 (5th Cir. 2001).
The district court did, however, permit Washington’s § 1983 claim
against Salazar to proceed to the summary-judgment stage. Washington later
settled his claims against Salazar and the City of Houston, and the district
court entered final judgment. Washington—who was represented by counsel
before the district court—then filed a pro se notice of appeal challenging the
district court’s order dismissing his claims against Harris County and Scott.
II.
A dismissal for failure to state a claim upon which relief can be granted
is reviewed de novo. Baughman v. Hickman, 935 F.3d 302, 306 (5th Cir. 2019).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
III.
We affirm the judgment of the district court, because Washington has
waived his ability to challenge the decision dismissing his claims against
Harris County and Scott. “Issues not raised or inadequately briefed on appeal
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are waived.” Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th
Cir. 2004). On several occasions, we have applied this principle to hold that
appellants waived their ability to challenge a district-court decision by failing
to address the basis for that decision. See, e.g., Jones v. Nueces Cty., 589 F.
App’x 682, 687 (5th Cir. 2014) (“By not attacking the basis of the district court’s
ruling, Jones has again waived the dismissal of his excessive force claim
against Nueces County.”); Shirley v. McIntosh, 434 F. App’x 373, 374 (5th Cir.
2011) (“Shirley has failed to brief an argument challenging the basis for the
district court’s decision, and thus he has waived any such challenge on
appeal.”); Austin v. Hardin, 306 F. App’x 84, 86 (5th Cir. 2009) (“Because
Austin fails to address the basis for the district court’s decision, the issue is
abandoned.”).
The district court dismissed Washington’s claims against Harris County
and Scott because it concluded that Washington did not allege facts sufficient
to state a claim. On appeal, Washington does not contest that conclusion.
Instead, he argues that qualified immunity is not available as a defense to a
Second Amendment claim. But even if that argument were convincing, it would
not mean that the district court erred by dismissing Washington’s claims
against Harris County and Scott, so Washington has not addressed the basis
of the district court’s decision. Thus, Washington has waived his ability to
challenge that decision.
Washington is proceeding pro se on appeal, but that fact does not change
the result of our waiver analysis. “[E]ven pro se litigants must brief arguments
in order to preserve them.” Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008).
Moreover, as a licensed attorney, Washington may not be entitled to the liberal
construction afforded other pro se litigants. See Cole v. Comm’r, 637 F.3d 767,
773 (7th Cir. 2011) (“We note that pro se litigants who are attorneys are not
entitled to the flexible treatment granted other pro se litigants.”); Tracey v.
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Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[A] lawyer representing himself
ordinarily receives no [special] solicitude at all.”); Andrews v. Columbia Gas
Transmission Corp., 544 F.3d 618, 633 (6th Cir. 2008) (concluding that it was
not an abuse of discretion to deny plaintiffs who were practicing attorneys
“special consideration on the basis of their pro se status”).
IV.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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