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

No. 11-40774 Summary Calendar

JOHN DAVID LUERA, Plaintiff - Appellant
v. KLEBERG COUNTY TEXAS; Deputy CAVAZOS, Defendants - Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:10-CV-369

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * Plaintiff-Appellant John David Luera appeals the su m m a ry judgment dismissin g h i s c l aims, and the denial of his motion for a continuance. The district court found that Defendant-Appellee Albert C av azos was entitled to qualified immunity on L u era’s constitutional claims and official immunity on Luera’s state law claims. The court further held that Cavazos had not violated any of Luera’s constitutional o r s tatutory rights and, consequently, granted 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 Februa ry 15 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * 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 forth in 5 T H C IR

. R. 47.5 .4. Case: 11-40774 Document: 00511759956 Page: 1 Date Filed: 02/15/2012No. 11-40774

summary judgment in favor of Kleberg County. We AFFIRM the judgment of the district court, based on its well-reasoned opinion. I. On June 25, 2010, Luera was driving through Kleberg County, Texas,

w h e n he was pulled over for speeding by Cavazos, a patrol sergeant with the Kleberg County Sheriff’s Department. When Deputy C av a zos approached Luera’s car, Luera presented the officer with both a driver’s license and a Texas C ommission on Law Enforcement Officer Standards and Educa t i o n (“TCLEOSE”) license. Upon f u rth er questioning, Luera told Deputy Cavazos that he was employed with the Falfurrias Police Department. During the course of the stop, Deputy Cavazos c o ntacted the Kleberg County Sheriff’s Department and requested that it verify Luera’s employment

as a Falfurrias police officer. In response, the Falfurrias Police Department said that Luera had n ot been employed as a police officer for almost two months. Luera told Cavazos that he was not an active police officer because of an injury; however, he insisted that he was still employed with the department and that his TCLEOSE license was still active. Nevertheless, Cavazos arrested Luera for impersonating a public servant and booked him in the Kleberg County jail where he was detained for two days. All charges against Luera were eventua ll y dismissed by the Kleberg County District Attorney’s Office. On November 19, 2 0 10, Luera filed a complaint against Cavazos in the United States District Court for the Southern District of Texas, alleging § 1983

causes of action for malicious prose c u tion and violation of his Fourth Amendment rights as well as state law causes of action for malicious prosecution and false imp ri s o nment. Luera also sued Kleberg County under section 1983,

on the basis of malicious prosecution and that th e C o u n ty failed to properly supervise and train its employees.

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On March 14, 2011, Cavazos filed a motion for summary judgment. Luera did not respond to Cavazos’s motion for summary judgment, and the district court treat e d th e motion as unopposed. The district court proceeded to an analysis o n the merits and granted Cavazos’s motion. The court held that C avazos was entitled to qualified immunity on Luera’s constitutional claims because Cavazos had probable cause to arrest Luera, had acted reasonably under the ci r c u m s t a nces, and had not violated any of Luera’s constitutional rights. The court further ruled on Luera’s state law claims finding that Cavazos

was entitled to official immunity under Texas state law and that the Texas Tort Claims Act does not apply to intentional torts. Given the district court’s prior determination that Cavazos had probable

cause to arrest Luera and that Cavazos did not violate Luera’s con s t i t u t i o nal rights, Kleberg County moved for summary judgment on May 16, 2 0 1 1 , on grounds that municipalities cannot be liable for violations of § 1983 if its officers do not inflict any c o n s titutional harm. Instead of responding to Kleberg County’s motion, Luera requested additional time for discovery and moved for reconsideration of the court’s grant of summary judgment to Cavazos. On June 27, 2011, the di s t ri ct court granted summary judgment in favor of Kleberg County, finding that there were no genuine issues of mate ri a l fact to be discovered and that Luera’s constitutional rights had not been violated. In turn, the district court denied Luera’s motion for a continuance. Luera appeals the district court’s judgment on the basis (1) that the court improperly dismissed the suit with prejudice as a sanction, because Luera failed to respond to the defendants’ motions for summary judgment; (2) that summary judgment was improper because there are many genuine issues of material fact

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that have not been resolved; and (3) that the court erred by rejecting Luera’s motion for a continuance. 1 II. First, Luera contends that the district court improperly dismissed his suit with prejudi c e because he failed to file a response to Cavazos’s summary judgment motion. We have appr o a c h ed the automatic grant of a dispositive motion, such as a grant of summary judgment based solely on a litigant’s failure to respond, with considerable aversion; and we have permitted such dismissals only when there is a record o f e xt r e m e delay or contumacious conduct. See Ramsey v. Signal Delivery Serv., Inc. , 631 F.2d 1210, 1214 (5th Cir. 1980). In this
case, however, the record makes clear that the district court dismissed the suit based on its merits and not as a sanction. Thus, we f i n d n o merit to this argument. III. Next, Luera argues that summary judgment was premature because there remained unresolved questions whether Cava zos was entitled to qualified immunity. 2 The qualifi e d i m m u n i ty analysis is a two-step inquiry. Glenn v. City of Tyler , 242 F.3d 307, 312 (5th Cir. 2001). First, the court must determine whether the plaintiff has alleged a violation of a constituti onal right. Id. (citing Hale v. Townley , 45 F.3d 914, 917 (5th Cir. 1995)). Second, if the plaintiff has alleged a
co n s t itutional violation, the court must decide whether the conduct was

On app eal, Luera has forfei ted his § 1983 mal icio us pr os ecut ion clai m and both of his 1 st ate law clai ms . See general ly Uni ted Pap erw orke rs Int’l Uni on v. Cham pi on Int’l Corp

. , 908 F.2d 1252, 1255 (5t h Cir. 1990) (“ [A] n a p p e l l ant aband ons all iss ues not rais ed in its ini tial brie f. ”) (cit atio ns om itt ed)

. Luera als o argues that ther e is a fac t iss ue conc erni ng wh ethe r Cavazos had pr obable 2
caus e to arr es t him and wh ethe r Cavazos ’s act ions violat ed Luera’ s “s tat u t o ry o r cons ti t u t i onal” right ; thes e inquiries , how ever, are sub sum ed into the qualif ied im mun ity analys is. 4 Case: 11-40774 Document: 00511759956 Page: 4 Date Filed: 02/15/2012No. 11-40774

objectively reasonable in the light of clearly established law Id. (citing Hale , 45 F.3d at 917). On thi s n o t e , both parties concede that searches and seizure completely lacking probable cause violate the clearly e s t ab l i shed bounds of the Constitution. See generally Babb v. Dorman , 33 F.3d 472, 477 ( 5 th C i r . 1994) (“[A] qualified immunity defens e c a n n o t succeed where it is obvious that a reasonably competent officer would find no probable cause.”). The record shows that Cavazos had probable c a u s e t o arrest Luera for impersonating a police officer. The Texas Penal Code p r o vi d e s: “A person commits an offense if he

. . . impersonates a public servant with intent to induce another to submit to his pretended official authority or to rely on his pretended official acts

. . . .” T E X
. P E N
. C O D E § 37.11(a)(1). Furthermore , th e undisputed facts are: (1) that Luera presented h i s T C L EOSE license to Cavazos; (2) that Luera informed Cavazos that he was employed by th e Falfurrias Police Depart m e nt ; ( 3) th at C ava z o s re c eive d reli ab l e inf or mation suggesting that Luera

was not employed by the Falfurrias Police Department; and (4) that Cavazos “felt like Luera was alle ging that he was a peace officer with the Falfurrias Police Department in order to induce [Cavaz o s ] into not issuing [Luera] a ticket for

s peeding.” In this situation, “at the moment the arrest was made

. . . the facts and circumstances within [Cavazos’s] knowledge and o f w h ich [he] had reasonably trustworthy information were sufficient to w a rr a nt a prudent man into believing” that Luera was violating § 37.11(a)(1) of the Te x a s P e n a l Code. Beck v. Ohio , 379 U.S. 89, 91 (19 6 4) ( a rt iculating the test for probable cause). Moreover, Luera points to no potential evi d e n ce which would undermine the

reason ab l e n e ss of Cavazos’ probable cause determination during the arrest. 3 Thus, given that Cavazos had probable cause to arrest Luera, th e r e was no

Lue ra se ek s to rely uponCavazo s’ s dep os itio n, wh erehe c annotr ecit e ve rbat imthe 3 elem ents of the cri me of im per so natin g a publ ic off icer

. This , how ever, doe s not dim inis h the reas onable nes s of Cavazos ’ act ions att he tim e o f arr es t. 5 Case: 11-40774 Document: 00511759956 Page: 5 Date Filed: 02/15/2012No. 11-40774

constitutional violation in this case; and Cavazos and Kleberg County were therefore entitled to summary judgment. IV. Finally, Luera contends that the district court erred by denying his Rule 56 motion for a continuance. A district court is not required to allow parties to conduct discovery before ruling on a motion for summary judgment. McCarty v. Unit e d S t a t e s , 929 F.2d 1085, 1088 (5th Cir. 1991). To obtain a Rule 56 continuance, the party opposing summary judgment “must present specific facts explaining how postponement of a ruling on the motion will enable him to rebut the movant’s showing of the absence of a genuine issue of fact.” Cormie r v. Pennzoil Exploration & Prod. Co. , 9 6 9 F

. 2d 1559, 1561 (5th Cir. 1992) (citing Washington v. Allstate Ins. Co. , 901 F.2d 1281, 1285 (5th Cir. 1 9 9 0) ) ; see also Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas , 364 F.3d 274, 304-05 (5th Cir. 2004) (holding that when ruling on a Rule 56 motion, “[a] district court may not si m p l y r e ly on vague assertions that additional discovery will produce needed, but unspecified, facts”) (citation omitted). Moreover, “[i]t is not sufficient to allege that discovery is incomplete or that it will produce needed but
unspe c ified facts.” McCarty , 929 F.2d at 1088 (citing Washington , 901 F.2d at 1284-85). Here, Luera did not demonstrate what facts, if any, he would discover that would give rise to a constituti o n a l c l a i m against Kleberg County. Thus, 4

even though Rule 56 motions for a continuance should be “liberally” granted, no genuine issues of fact remained in this case, and the district court did not err by

Lue ra fil ed the Rule 56 m oti on fora cont inuanc e a lm os t tw o m onth s aft er thecourt 4 ente red sum mary judgm ent in favor of Cavazos

. Thus, wi th regar d t o his clai ms agains t Cavazos , the mo tio n wa s untim ely and pr oce dur ally barr ed

. Furtherm ore , beca use the cont inuanc e wo uld not aff ect the cour t’s prior det erm inati on that Cavazos did not violat e any of Luera’ s cons tit utio nal right s, it is uncle ar how Luera wo uld derive any benef it wh ats oever fr omm oredisc overy. 6 Case: 11-40774 Document: 00511759956 Page: 6 Date Filed: 02/15/2012No. 11-40774

denying Luera’s motion for a continuance. See generally , Access Telecom, Inc. v. MCI Telecomms. Corp. , 197 F.3d 694, 720 (5th Cir. 199 9). V. We conclude that the district court did not err by granting summary judgment in favor of Cavazos and Kleberg County or by denying Luera’s Rule 56 motion for a continuance. Accordingly, essentially for the reasons given by the district court in its well-considered opinion, the judgment is AFFIRMED.

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