IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50096

Summary Calendar 

JOE LUIS COBAROBIO, 

Plaintiff-Appellant 

v. 

MIDLAND COUNTY, TEXAS; GARY PAINTER, Midland County Sheriff; 

GABRIEL SUBIA, Detective; BENNY DOE, Midland County Deputy Sheriff; 

JOHN DOE, I, Midland County Deputy Sheriff; JOHN DOE, II, Midland 

County Deputy Sheriff; EDELMIRA SUBIA, Midland County Deputy Sheriff; 

CITY OF MIDLAND, TEXAS; JOHN DOE, I, Police Officer, 

Defendants-Appellees 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 7:13-CV-111

Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Joe Luis Cobarobio, Texas prisoner # 1867973, appeals the district 

court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim 

upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A. 

 

* 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.

United States Court of Appeals

Fif h Circuit

FILED

August 15, 2017

Lyle W. Cayce

Clerk

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Cobarobio filed the complaint arguing that the defendants violated state law, 

as well as federal law, when they interfered with his ability to photograph and 

video record the aftermath of a train accident in Midland, Texas. 

Before this court, Cobarobio does not address the district court’s 

conclusion that he failed to allege a policy or custom of Midland County or the 

City of Midland that caused him to be deprived of a federally protected right. 

See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). He also fails 

to address the district court’s conclusion that Midland County and the City of 

Midland were not liable under § 1983 based on theories of ratification, de facto 

policy, and respondent superior. Accordingly, Cobarobio has abandoned any 

challenge he could have raised to the district court’s decision dismissing his 

complaint against Midland County and the City of Midland for failure to state 

a claim upon which relief may be granted. See Brinkmann v. Dallas County 

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

As to the remaining defendants, Cobarobio reasserts his claim that the 

defendants violated his First Amendment right to freedom of speech and 

expression by interfering with his ability to photograph and video record the 

aftermath of a train accident. He also reasserts his argument that the 

defendants falsely arrested him and seized his property in violation of the 

Fourth Amendment. Additionally, he raises a claim of retaliation. The district 

court determined that these defendants were entitled to qualified immunity. 

Qualified immunity protects government officials whose “conduct does 

not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.” Hathaway v. Bazany, 507 F.3d 312, 

320 (5th Cir. 2007) (internal quotation marks and citation omitted). To defeat 

the defense of qualified immunity, Cobarobio must plead facts to show a 

violation of a right that was clearly established at the time of the incident and 

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that, in light of that clearly established law, the defendant’s conduct was 

objectively unreasonable. See Short v. West, 662 F.3d 320, 325 (5th Cir. 2011).

As determined by the district court, Cobarobio fails to establish that there was 

a clearly established First Amendment right for him to record police activity 

during an on-going emergency situation like the one involved in the instant 

case. In Turner v. Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017), this 

court held that “First Amendment principles, controlling authority, and 

persuasive precedent demonstrate that a First Amendment right to record the 

police does exist, subject only to reasonable time, place, and manner 

restrictions.” However, we did so only after noting that “there was no clearly 

established First Amendment right to record the police at the time of Turner’s 

[2015 arrest].” Id. at 687. Because Cobarobio’s arrest occurred in 2012, he 

cannot satisfy his burden of establishing that the defendants are not entitled 

to qualified immunity. See Short, 662 F.3d at 325. Moreover, because there 

was probable cause to arrest Cobarobio for interference with public duties, 

Cobarobio cannot establish a Fourth Amendment violation. See Mesa v. 

Prejean, 543 F.3d 264, 273 (5th Cir. 2008) (recognizing that motivation for 

arrest is irrelevant if there was probable cause to support the arrest); Haggerty 

v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004) (“To ultimately prevail on 

his section 1983 false arrest/imprisonment claim, [the plaintiff] must show 

that [the officer] did not have probable cause to arrest him.”); TEXAS PENAL 

CODE ANN. § 38.15(a)(1). 

Cobarobio does not challenge the district court’s determination that the 

defendants are entitled to qualified immunity as to his claims of excessive force 

and failure to intervene. These claims are thus deemed abandoned. See 

Brinkmann, 813 F.2d at 748. Cobarobio also abandons the claims he fails to 

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raise before this court on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 

(5th Cir. 1993). 

Accordingly, the district court’s judgment is affirmed. Cobarobio’s 

motion to file an out of time reply brief is DENIED. The district court’s 

dismissal of Cobarobio’s complaint for failure to state a claim counts as a strike 

for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

387-88 (5th Cir. 1996). Cobarobio is warned that if he accumulates three 

strikes, he may not proceed in forma pauperis in any civil action or appeal filed 

while he is incarcerated or detained in any facility unless he is under imminent 

danger of serious physical injury. See § 1915(g).

AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED. 

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