Finger v. Garza , 98 F. App'x 326 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 21, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-51282
Summary Calendar
JACK FINGER, ET AL.,
Plaintiffs,
JACK FINGER; NAZIRITE RUBEN FLORES PEREZ; TIM BUSHACKER; RON
SCHULTZ; JAMES LANGFORD; CHARLES ELLEY; WILLIAM MANUEL; DAVID
BENAVIDES; ELOISE BENAVIDES; ANDREA BARLOW,
Plaintiffs-Appellants,
versus
ED GARZA, Mayor, City of San Antonio, Individually and in his
official capacity; CITY OF SAN ANTONIO, TEXAS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CV-956
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jack Finger, Nazirite Ruben Flores Perez, and other plaintiffs
appeal the grant of summary judgment in their 42 U.S.C. § 1983 suit
in favor of Mayor Ed Garza and the City of San Antonio. The
*
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that this opinion should not be published and is not precedent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.
plaintiffs argue that genuine issues of material fact existed as to
their claim that their First Amendment rights had been infringed
when Finger and Perez were not allowed to speak at public meetings
regarding an annexation issue. The plaintiffs’ conclusory
allegation that Garza was “probably” motivated to stop them from
speaking to prevent criticism of the annexation plan is
insufficient to defeat summary judgment. See Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Moreover, the
plaintiffs’ argument that they were denied their right to make
three-minute statements as provided by City Ordinance No. 93921
because that ordinance was arbitrarily applied to them fails. The
plaintiffs offered no evidence to rebut the record evidence that
the annexation plan was listed as an agenda item, and thus that
Ordinance No. 93921’s content-neutral speaking limitation applied.
Because they concede that Ordinance No. 93921 is a reasonable time,
place, and manner restriction on the freedom of speech, summary
judgment for Garza on this claim was proper. See Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983).
The plaintiffs also argue that Garza unreasonably deprived
them of their right to speech guaranteed by TEX. LOC. GOV’T CODE
§§ 43.0561, 43.124(a). Grant of summary judgment for the
defendants regarding the plaintiffs’ claims that state law had been
violated was proper. See Cousin v. Small, 325 F.3d 627, 631 (5th
Cir.), cert. denied, 124 S. Ct. 181 (2003).
The plaintiffs argue that their due process rights were
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violated because they had a right to speak under TEX. LOC. GOV’T CODE
§ 43.124(a) and Ordinance No. 93921. Summary judgment was proper
because the record supports the conclusion that Perez and Finger
were denied the opportunity to speak about the annexation issue
because they had used up their allotted time speaking about other
agenda items.
The plaintiffs also argue that their equal protection rights
were infringed because everyone else was allowed to comment on the
annexation plan. However, the plaintiffs have offered no evidence
to show that similarly situated people, i.e., people who also had
used up their speaking limit under Ordinance No. 93921, were
allowed to speak regarding annexation. See Wheeler v. Miller, 168
F.3d 241, 252 (5th Cir. 1999).
Finally, the plaintiffs argue that Garza was not entitled to
qualified immunity and that the City was liable for Garza’s
unconstitutional acts. These arguments fail because the plaintiffs
have not shown the violation of a constitutional right. See Cantu
v. Jones, 293 F.3d 839, 845 (5th Cir. 2002).
AFFIRMED.
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