### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20235

APRIL WALKER, Plaintiff - Appellant,
v. HARRIS COUNTY; TOMMY THOMAS, Harris County Sheriff, Defendants - Appellees.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:08-CV-3763

Before STEWART, ELROD, and SOUTHWICK, Circuit Judges. PER CURIAM: * April Walker sued Harris County and Sheriff Tommy Th o m a s a l leging federal civil rights violations. After dismissing Walker’s claims against Sheriff T h o m a s , the district court granted summary judgment in favor of the County

. We AFFIRM. I. April Walker is a municipal judge and law professor at Te x a s S outhern University. According to her complaint, on January 1, 2008, she called the police U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May4, 201 2 Lyle W . Cayce Clerk

Purs uant to 5th Cir. R. 47.5 , the cour t has det erm ined that this op i n i o n s hould not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5th Cir. R. 47.5 .4. Case: 11-20235 Document: 00511845106 Page: 1 Date Filed: 05/04/2012No. 11-20235

to report an encounter she had with several individuals who were blocking the street near her ho m e . Two hours later, in the middle of the night, a sheriff’s deputy arrived at her house to arrest her for impersonating a public servant. Walker responded that as a municipal judge she is a public servant. She then 1 asked the deputy to return at daytime to pursue the investigation and called 911 to report the deputy’s behavior. Another deputy arrive d , e nt ered Walker’s home, and threw her down on the living room floor in front of her children. The deputy broke Walker’s munic i p a l court badge in half. Walker was charged with impersonating a public servant, but the charges were dismissed on January 3. Walker f

i l ed a complaint with Sheriff Thomas. Thereafter, she alleges that the sheriff’s department retaliated against her by threatenin g her employment at TSU and warning her that the charges would once again be filed if she did not withdraw her grievance. She refu s e d a n d was charged with impersonating a public servant, but the charges were dismissed for l a c k o f probable cause. In April 2008, Walker filed a federal lawsuit alleging 2 retaliation and c ivi l rights violations, but she agreed to dismiss that action without prejudice several months later. In July 2008, Walke r was involved in another incident with the sheriff’s department. Walker learned that sh e ri f f ’s deputies were called to one of her neighbor’s houses and had detained her son and other teenage boys. She arrived at the scene and tried to speak with the teenagers in the back of the patrol car. The deputies told her she was at the scene of an active investigation and ordered

Ac cor ding to Sher iff Thom as’ s brie f, Walk er wa s arr es ted and char ged w i t h 1 im per so natin g a pol ic e off ic er unde r Tex. Penal Code § 37.1 1, wh ich pr ohibit s im per so natin g any publ ic se rvant

. T h a t W a lk er wa s a mun icip al judge doe s not, of cour se , per mit her to im per so natea pol ice off icer

. The com plai nt is uncle ar as to wh ethe r the char ges we re brou ght and dis mi ss ed tw ice 2
or only once . It is pos sib le that this allegat ion me rely reit erat es the initial fil ing and dis mi ss al of the char ges. 2 Case: 11-20235 Document: 00511845106 Page: 2 Date Filed: 05/04/2012No. 11-20235

her back. She fled, followed by a sergeant, who caught up with her i n h er driveway, grabbed her, and “manhandled” her. Walker alleges that the officers recognized her as “the Judge” and treated her as they did in retaliation for her filing a civil rights lawsuit a g a i n s t the department. She was subsequently arrested and charged with leaving the scene of a crime. A grand jury terminated the charges in Walker’s favor. Walker sued in federal court, alleging governmental liabi l i ty under 42 U.S.C. §§ 1983, 1985, and 1988 for violations of her rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. C o n s titution. In conclusory fashion, she alleged that these violations resulted from an official policy, custom, or practice of the sheriff’s department and that Sheriff Thomas ratified these violations. Walker also asserted numerous state law claims. The 3 di s trict court dismissed the claims against Sheriff Thomas and Harris County sought summary judgment. Walker responded by requesting a continuance to conduct discovery; the court granted her request. On February 18, 2010, during

a hearing on a discovery dispute, the court expressly authorized Walker to take the deposition of Sheriff Thomas a s w e l l as other discovery. The court set a discovery deadline of September 24, 2010. Even though the district court had authorized the deposition eight months before the discovery deadline, Walker failed t o t a k e the deposition. Once discovery clo s e d, Harris County again sought summary judgment and, again, Walker sought a continuance to respond and conduct discovery. The court found

no good cause existed for Walker’s eight-month failure to conduct any discovery

Walk er fil ed sui t in st ate cour t agains t De put y Corey Alexand er and Ser geant Cook , 3 wh o we re dir ect ly involved in the January and July incid ents , res pec tivel y. The st ate dis tri ct cour t deni ed the off

icer s’ mo tio n for sum mary judgm ent, in wh ich they argued that the elec tio n of rem edi es pr ovis ion of the Texas Tort Claim s Act bars Walk er’ s sui t agains t them

. The st ate cour t of app eals aff

irm ed, and the off

icer s ’ p e tit ion for revie w is pend ing bef ore the Texas Sup rem e Court

. See Alexa nder v. Walker , 355 S. W.3 d 7 0 9 (T e x . App .—Ho ust on [1s t Di st .] 2011, p et. p endi ng). 3 Case: 11-20235 Document: 00511845106 Page: 3 Date Filed: 05/04/2012No. 11-20235

and denied her request for additional time to conduct discovery. The court did, however, grant a continuance to file a supplemental response to the motion for summary judgment. After reviewing the motion and response, the magistrate judge recommended granting summary judgment to Harris County. The district court adopted the magistrate judge’s recommendation. Walker timely appealed. II. Walker raises two issues on appeal. First, she argu es that the district court erred in gr anting summary judgment to Harris County. Second, she 4
argues that the district court abused its discretion by denying further discovery. A. The district court determined that there was no basis in the summary judgment record to support a claim for municipal liability against Harris County. We review the di s t rict court’s grant of summary judgment de novo . Hoog-Watson v. Guadalupe Cnt y . , Tex. , 591 F.3d 431, 434 (5th Cir. 2009). Summary judgment is proper if “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). Generally, municipalities, such as Harris County, are not liable for the constitutional torts of their employees unless those e m p l oyees act pursuant to

an official action or with approval. See Monell v. N.Y.C. Dep’t of Soc. Servs. , 436 U.S. 658, 663 n. 7 (1978). In order to assert a claim for municipal liability under § 1983, a plaintiff must establish proof of three elements: (1) a policymaker; (2)

a n official policy or custom; and (3) a violation of a constitutional right who s e

Walk er als o ask s this cour t to rever se the dis tri ct cour t’s dis mi ss al of Sher iff Thom as 4 in his individual cap acit y. Walk er has not, how ever, ide ntif ied any err or in the dis tri ct cour t’s qualif ied im mun ity analys is. Walk er has thus aband oned this cont enti on. See Bri nkm ann v. Da ll . Cnty. Dep uty Sheriff Abner , 813 F.2d 744, 748 (5t h Cir. 1987) ; seeals o Uni ted States v. Scroggins , 599 F.3d 433, 446 (5t h Cir. 2010) (“A par ty that ass ert s an argum ent on app eal, but fai ls to ade quate ly br ief it , is dee me d to have waived it. ”)

.

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“moving force” is the policy or custom. Piotrowski v. City of Houston , 237 F.3d 567, 578 (5th Cir.2001) (citing Monell , 436 U.S. at 694). Harris County moved for summary judgment because Walker’s claims are conclusory, there is no evidence of the existence of any unconstituti o n a l policy

or c u s t o m, and the actions that Walker claims to be unconstitutional do not

am o u n t to a persistent and widespread practice. Aside from her conclusory allegations, Walker did little to factually detail the policy or custom she claimed

was involved and how the particular injury was caused by the execution of that
p o l i c y . See Spiller v. City of Texas City, Police Dep’t , 130 F.3d 162, 167 (5 t h Cir.1997) (“The description of a policy or custom and its relationshi p t o th e underlying constitutional violation

. . . cannot be conclusory; it must contain specific facts.”). Thus, Walker cannot point to a policy, custom, or persistent and widespread practice that could serve as a basis for municipal liability. Moreover, even a s s u ming that Walker could establish the existence of a policy or custom, she has failed to present summary judgment evidence that the policy was the moving force behind the constitutional violation. E.g. James v. Harris Cnty. , 577 F.3d 612, 617 (5th Cir

. 2009) (“[T]here can be no municipal liability unless it is the moving force behind the constitutional violation.

. . . In other words, a plaintiff must show direct causation, i.e., that there was ‘a direct causal link’ between the policy and the violation.” (quoting Piotrowski , 237 F.3d at 580)). Absent summary judgment evidence that the deputy who arrested her had any knowledge of the a l l e g e d county policy of not disciplining deputies, it was impossible for Walker to establish the required causal link. Walker also argues that Harris County is liable based on Sheriff Thomas’s ratification of the deputies’ actions. We have str e s s e d that the ratification theory of municipal liability is only available in “‘extreme factual situations.’” Peterson v. City of Fort Worth, Tex. , 588 F.3d 838, 848 (5th Cir. 2009) ( quoting Snyde r v . T

re p a gnier , 142 F.3d 791, 798 (5th Cir. 1998)). Walker cites Sheriff

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Thomas’s deposition testimony from an unrelated cas e , claiming it creates a genuine fact issue regarding ratificat i o n . See Ibarra v. Harris Cnty. , 243 F. App’x 830, 836 (5th Cir. 2007) (per curiam) (unpublished). But Sheriff Thomas’s testimony that he supported his depu t i e s s o long as they “acted in good faith” does not mean that he ratified an illegal act. Se e Co o n v . Ledbetter , 780 F.2d 1158, 1161 (5th Cir. 1986) (precedent “does not stand for the broad proposition that if a policymaker defends his subordinates and if those s ub o r dinates are later found to have broken the law, then the illegal behavior can be assumed to have resulted from an official policy”). “Our precedent thus foreclos e s ratification liability in this case.” Peterson , 588 F.3d at 848. Walker has not produced summary judgment evidence that could support municipal liability. The district court properly granted summary judgment to 5 Harris County. B. Walker also contends that the district court erred in denying her motion for additional discovery. In February 2010, the district court authorized Walker to take Sheriff Thomas’s deposition. At an April status conference, the district court set a September 24, 2010 discovery deadl i n e and admonished counsel to contact the court as often as necessary to resolve any discovery problems as they occurred. Not until October 31, 2010, more than one month after the deadline, did Walker complain to the court that defense counsel had failed to cooperate in scheduling depositions. Despite the eight-month period of time, no depositions

were taken. We have held that a party who does not diligently pursue discovery is not entitled to relief. See Beattie v. M adison Cnty. Sch. Dist. , 254 F.3d 595, 606 (5th Cir. 2001). Because Walker failed to contact the district court prior to

Insof ar as Walke r chall engesthe dis tri ct court ’s rejec tio n of her clai ms for fai lure to 5 tra in or sup ervis e and fai lure to ade quate ly inves tigat e, she h a s i n a d equat ely brie fed thos e cont enti ons andhe nce aband onedt hem

. See Scroggins , 599 F.3dat446

. 6 Case: 11-20235 Document: 00511845106 Page: 6 Date Filed: 05/04/2012No. 11-20235

the discovery d e a dline, it was not an abuse of discretion to deny further discovery. III. For the foregoing reasons, the j u d g m e nt of the district court is AFFIRMED.

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