# United States Court of Appeals for the Fifth Circuit

____________ No. 23-50108

____________ Stanley Mason, PlaintiffAppellant ,

versus City of Waco; Ryan Holt, Former Acting Chief and Former Chief of The City of Waco Police , DefendantsAppellees

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______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 6:20-CV-844

______________________________ Before Wiener, Haynes, and Higginson, Circuit Judges

. Per Curiam: * Plaintiff-Appellant Stanley Mason a ppeals the district courts grant of the defendants motion for summary judgment. For the reasons set forth below, we AFFIRM

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* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED February 26, 2024 Lyle W. Cayce Clerk Case: 23-50108 Document: 70-1 Page: 1 Date Filed: 02/26/2024No. 23-50108

2 I. Factual and Procedural Background Mason served as a police officer in the Waco Police Department (Department) for approximately 25 years, until he resigned in 2019. In 2016, Mason began posting a Facebook Live broadcast, which eventually evolved into a radio blog called Behind the Blue Curtain. His broadcasts covered a range of topics including issues related to policing. In July 2016, another officer employed by the Department complained that Mason had posted a video online in which Mason called police officers executioners while wearing his uni form. Then-Assistant Police Chief Ryan Holt 1 called for an investigation. The investigation determined that the complaints were unfounded and that Mason had not committed any wrongdoing. Mason was not sanctioned or disciplined as a result. In total, Mason complains of three inquiries co nducted by the Department into his conduct, but there is no evidence that any of them led to any findings of wrongdoing or sanctions against Mason.
Mason also stated in a sw orn affidavit that he experienced slow back up responses from the time [he] began [h is] broadcasts. He points to one specific incident in October 2018, when he responded to a domestic violence call and had to wait down the street from the reported location of the offense for more than 30 minutes before his backup arrived. Lastly, Mason complains that an officer with the Department failed to timely report that an arrestee had thre atened Masons life. Holt learned about this incident during a February 2019 phone call with Mason. Holt testified that he immediately began an investigation, which resulted in the

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1 Holt served as Assistant Police Chief of the Department from 2008 until he was promoted to Chief of Police in January 2017. He served as Chief of Police from January 2017 until February 2020. Case: 23-50108 Document: 70-1 Page: 2 Date Filed: 02/26/2024No. 23-50108

3 officer apologizing for forgetting to report the threat. The Department took corrective action against that officer. More than a year after resigning from the Department, Mason filed suit against the City of Waco and Holt. Mason asserted claims under 42 U.S.C. § 1983 for alleged violations of his First, Fourth, and Fourteenth Amendment rights. Both parties consented to the jurisdiction of a magistrate judge. The defendants filed a motion for summary judgment, which the magistrate judge granted in full.
II. Jurisdiction and Standard of Review The district court had jurisdiction over this case pursuant to 28 U.S.C. § 1331. With both parties consent, the district court referred this case to a magistrate judge to conduct the proceedings and enter final judgment, in accordance with 28 U.S.C. § 636(c)(1) and Federal Rule of Civil Procedure 73. We have appellate jurisdiction over the magistrate judges grant of summary judgment pursuant to 28 U.S.C. § 636(c)(3). See Fed. R. Civ. P. 73(c) (In accordance with 28 U.S. C. § 636(c)(3), an appeal from a judgment entered at a magistrate judge s direction may be taken to the court of appeals as would any ot her appeal from a district-court judgment.); see also Trufant v. Autocon, Inc. , 729 F.2d 308, 309 (5th Cir. 1984). We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that partys favor. Pierce v. Dept of the U.S. Air Force , 512 F.3d 184, 186 (5th Cir. 2007) (italics adjusted). Summary judgment is appropriate when the mova nt shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict Case: 23-50108 Document: 70-1 Page: 3 Date Filed: 02/26/2024No. 23-50108

4 for the non-moving party. Austin v. Kroger Tex., L.P. , 864 F.3d 326, 328 (5th Cir. 2017) (per curiam) (quotation omitted).
III. Discussion On appeal, Mason raises two issues : (1) [w]hether the Magistrate erred in granting summary judgment on an admittedly poorly pleaded case when the court had other options, and (2) [w]hether properly citing the lengthy record would have revealed genuine issues of material fact. As a preliminary matter, we note that the party opposing summary judgmenthere, Masonhas the burden to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his . . . claim. Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998). But Mason concedes in his briefing before us that his response to the defendants summary judgment motion failed to make adequate references to a lengthy appe ndix. He also admits that his shortcoming and frailty here is . . . a failure to adequately identify [evidence]. It was not the magistrate judges duty to sift through the record in search of evidence to support [Masons] opposition to summary judgment. See id. (quotation omitted). We therefore cannot agree with Masons argument that the magistrate judges a lleged failure to do so constitutes error. Nor will we permit Mason to use his briefs in this forum as a substitute memorandum in opposi tion to the defendants motion for summary judgment below. See Lewis v. Greenwood Motor Lines, Inc. , No. 22- 10758, 2023 WL 2810881, at *2 (5th Cir. Apr. 6, 2023) (per curiam). Masons briefing before us does no t discuss the alleged Fourth or Fourteenth Amendment violations, so he has waived those claims. See United States v. Thibodeaux , 211 F.3d 910, 912 (5th Cir. 2000) (per curiam) (It has long been the rule in this circ uit that any issues not briefed on appeal are waived.). We therefore focus this analysis exclusively on Masons First Case: 23-50108 Document: 70-1 Page: 4 Date Filed: 02/26/2024No. 23-50108

5 Amendment retaliation claim. We conclude that no reasonable jury could have found that Masons First Amend ment rights were violated, based on the facts as referenced by both parties in their summary judgment briefing before the magistrate judge. As such, his claims against both defendants fail.
A. First Amendment To succeed in a First Amendment retaliation claim under § 1983, a public employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the governments interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action. Wilson v. Tregre , 787 F.3d 322, 325 (5th Cir. 2015) (internal quotation marks and citation omitted) . Masons claim fails at the first element. Mason does not allege that he was fired, demoted, reprimanded, or sanctioned in any way. Rather, Mason argues that his voluntary resignation from the Department qualifies as constructive discharge. We have previously recognized th at constructive discharge may be an appropriate basis for a [§] 1983 action. Kline v. N. Tex. State Univ. , 782 F.2d 1229, 1234 (5th Cir. 1986). To establish constructive discharge, a plaintiff must offer evidence that the employer made the employees working conditions so intolerable that a reasonable employee would feel compelled to resign. Stover v. Hattiesburg Pub. Sch. Dist. , 549 F.3d 985, 991 (5th Cir. 2008) (quotation omitted). Mason argues that the three inquiries into his conduct, one belatedly reported death threat, and one instance of delayed backup combined to create an environment so intolerable that any reasonable officer would have resigned. We disagree. Mason cites no cases that show Holts July 2016 investigation into Masons videoin which Mason wore his police uniform Case: 23-50108 Document: 70-1 Page: 5 Date Filed: 02/26/2024No. 23-50108

6 while commenting on matters related to the Departmentwould be improper. More importantly, none of the inquiries that Mason complains of resulted in any sanctions or negative action taken against him, and investigations alone are not adverse employment actions. See Benningfield v. City of Houston , 157 F.3d 369, 376 (5th Cir. 1998). Mason also failed to provide evidence of any time in which slow back up responses put him at risk. Regarding the October 2018 incident, the evidence shows that Mason waited down the street for backup to arrive, did not respond to the call alone, and was never in any danger. The evidence presented also shows that one officer was dispatched to back up Mason, but then proceeded to another call involving his direct supervisor. So, a third officer then filled in to back up Mason. The notion that the everyday difficulties in being a police officer, standing alone, constitute a constructive discharge is without support. Lastly, Holt immediately initiated an investigation upon learning about the untimely death threat, which resulted in the Department taking corrective action against the offending officer. A mistake made by a colleague in the police station who is then sanctioned is not reasonably viewed as a constructive discharge. A reasonable jury could not conclude that these events collectively created an environment so intolerable that a reasonable police officer in Masons position would have felt compelled to resign. 2 See Stover , 549 F.3d at 991. As such, no genuine dispute of material fact exists regarding whether Mason suffered an adverse emplo yment action, so Masons First Amendment claim fails.

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2 Because we reach this conclusion, we need not assess whether any individual acts are time barred. Case: 23-50108 Document: 70-1 Page: 6 Date Filed: 02/26/2024No. 23-50108

7 B. Defendant Holt Holt asserted a defense of qualified immunity, so the burden shifted to Mason to raise a genuine and materi al dispute as to whether [Holt] is entitled to qualified immunity. See Trent v. Wade , 776 F.3d 368, 376 (5th Cir. 2015). Holt is entitled to qualified immunity unless Mason can raise a fact issue showing (1) Holt violated constitutional law, and (2) the right at issue was clearly established at the time of Holts alleged misconduct. See Pearson v. Callahan , 555 U.S. 223, 232 (2009). As detailed in the previous section, Mason has failed to raise any fact issues that support a First Amendment constitutional violation. We thus need not reach the clearly established prong. See id. at 236. Holt is entitled to qualified immunity, and summary judgment on Masons claims against him was proper.
C. Defendant City of Waco To establish municipal liability under § 1983, a party must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violat ion of a constitutional right. Peterson v. City of Fort Worth , 588 F.3d 838, 847 (5th Cir. 2009). We have stated time and again that without an underlying constitutional violation, an essential element of municipal liab ility is missing. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys , 675 F.3d 849, 86667 (5th Cir. 2012) (en banc) (alteration adopted) (internal quotation marks and citation omitted). Because Mason has failed to raise a fact issue supporting a First Amendment violation, he has failed to establish municipal liability, so summary judgment on Masons claims against the City of Waco was proper. Case: 23-50108 Document: 70-1 Page: 7 Date Filed: 02/26/2024No. 23-50108

8 IV. Conclusion For the foregoing reasons, we conclude that the defendants are entitled to summary judg ment on all of Masons claims. Accordingly, we AFFIRM

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