Rohde v. City of Austin TX

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-50644
Summary Calendar
GEOFFREY E. ROHDE,
Plaintiff-Appellant,
versus
CITY OF AUSTIN, TEXAS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CV-280-SS
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Geoffrey E. Rohde filed the instant 42 U.S.C. § 1983 action
to challenge an ordinance (“the Ordinance”) enacted by the City
of Austin that forbids smoking in public places. Rohde contended
that the Ordinance violated his First and Fourteenth Amendment
rights. The district court determined that Rohde had failed to
state a claim upon which relief could be granted and dismissed
his suit. Rohde appeals that dismissal.
*
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this opinion should not be published and is not precedent except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.
No. 04-50644
-2-
Our review of the record reveals that the district court did
not have jurisdiction to enter its amended judgment because this
judgment was entered after Rohde had noticed his appeal from the
district court’s original judgment. See Henry v. Indep. Am. Sav.
Ass’n, 857 F.2d 995, 997-98 (5th Cir. 1988). Accordingly, to the
extent that Rohde seeks to challenge the district court’s amended
judgment, which was the only judgment to address his Due Process
claim, that matter is not before us.
Rohde did timely notice his appeal from the district court’s
original judgment, which addressed Rohde’s First Amendment claim.
The First Amendment recognizes certain rights of association
involving private relationships and shields these relationships
from governmental interference. See Louisiana Debating and
Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1493 (5th
Cir. 1995). One type of relationship that qualifies for this
protection is associations that are marked by “deep attachments
and commitments to the necessarily few other individuals with
whom one shares not only a special community of thought,
experiences, and beliefs, but also distinctively personal aspects
of one’s life.” Roberts v. United States Jaycees, 468 U.S. 609,
620 (1984). Rohde has not shown that the disputed associations
fall into this category. See id. at 622.
The Constitution also protects associations that exist for
the purpose of engaging in expressive activities protected by the
First Amendment. Louisiana Debating and Literary Ass’n, 42 F.3d
No. 04-50644
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at 1493. Rohde has not shown that the disputed relationships
fall into this category, as he has not shown that he and his
friends meet for the purpose of engaging in activity that
communicates a certain message to those who witness it. See
Cabrol v. Town of Youngsville, 106 F.3d 101, 109 (5th Cir. 1997).
Rohde has not shown that the district court erred in concluding
that he had failed to state a First Amendment claim upon which
relief could be granted. The judgment of the district court is
AFFIRMED.