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. ______________________________ 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 appeals the district courts grant 

of the defendants motion for summary judgment. For the reasons set forth 

below, we AFFIRM. 

_____________________ *

 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: 02/26/2024
No. 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 uniform. Then-Assistant Police Chief 

Ryan Holt1 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 conducted 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 sworn affidavit that he experienced slow back 

up responses from the time [he] began [his] 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 threatened 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 _____________________ 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: 02/26/2024
No. 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 judges direction may be taken to the court 

of appeals as would any other 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 movant 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: 02/26/2024
No. 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 appendix. 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 alleged failure to do so 

constitutes error. Nor will we permit Mason to use his briefs in this forum 

as a substitute memorandum in opposition 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 not 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 circuit 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: 02/26/2024
No. 23-50108 

5 

Amendment retaliation claim. We conclude that no reasonable jury could 

have found that Masons First Amendment 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 that 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: 02/26/2024
No. 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 employment action, so Masons First 

Amendment claim fails. _____________________ 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: 02/26/2024
No. 23-50108 

7 

B. Defendant Holt 

Holt asserted a defense of qualified immunity, so the burden shifted 

to Mason to raise a genuine and material 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 violation 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 liability 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: 02/26/2024
No. 23-50108 

8 

IV. Conclusion 

For the foregoing reasons, we conclude that the defendants are 

entitled to summary judgment on all of Masons claims. Accordingly, we 

AFFIRM. 

Case: 23-50108 Document: 70-1 Page: 8 Date Filed: 02/26/2024