IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 summary judgment

dismissing his claims, and the denial of his motion for a continuance. The

district court found that Defendant-Appellee Albert Cavazos was entitled to

qualified immunity on Luera’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 or statutory rights and, consequently, granted

United States Court of Appeals

Fifth Circuit

F I L E D

February 15, 2012

Lyle W. Cayce

Clerk

 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.

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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,

when he was pulled over for speeding by Cavazos, a patrol sergeant with the

Kleberg County Sheriff’s Department. When Deputy Cavazos approached

Luera’s car, Luera presented the officer with both a driver’s license and a Texas

Commission on Law Enforcement Officer Standards and Education

(“TCLEOSE”) license. Upon further questioning, Luera told Deputy Cavazos

that he was employed with the Falfurrias Police Department.

During the course of the stop, Deputy Cavazos contacted 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 not 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 eventually dismissed by the Kleberg County

District Attorney’s Office.

On November 19, 2010, 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 prosecution and violation of his Fourth

Amendment rights as well as state law causes of action for malicious prosecution

and false imprisonment. Luera also sued Kleberg County under section 1983,

on the basis of malicious prosecution and that the County 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 treated the motion as unopposed. The district court proceeded to an

analysis on the merits and granted Cavazos’s motion. The court held that

Cavazos was entitled to qualified immunity on Luera’s constitutional claims

because Cavazos had probable cause to arrest Luera, had acted reasonably

under the circumstances, 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 constitutional

rights, Kleberg County moved for summary judgment on May 16, 2011, on

grounds that municipalities cannot be liable for violations of § 1983 if its officers

do not inflict any constitutional 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 district court granted summary judgment in favor of Kleberg

County, finding that there were no genuine issues of material 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 prejudice because he failed to file a response to Cavazos’s summary

judgment motion. We have approached 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 of extreme 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 find no merit to this

argument.

III.

Next, Luera argues that summary judgment was premature because there

remained unresolved questions whether Cavazos was entitled to qualified

immunity.2

The qualified immunity 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 constitutional right. Id. (citing Hale v.

Townley, 45 F.3d 914, 917 (5th Cir. 1995)). Second, if the plaintiff has alleged a

constitutional violation, the court must decide whether the conduct was

On appeal, Luera has forfeited his § 1983 malicious prosecution claim and both of his 1

state law claims. See generally United Paperworkers Int’l Union v. Champion Int’l Corp., 908

F.2d 1252, 1255 (5th Cir. 1990) (“[A]n appellant abandons all issues not raised in its initial

brief.”) (citations omitted). 

Luera also argues that there is a fact issue concerning whether Cavazos had probable 2

cause to arrest him and whether Cavazos’s actions violated Luera’s “statutory or

constitutional” right; these inquiries, however, are subsumed into the qualified immunity

analysis.

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objectively reasonable in the light of clearly established law Id. (citing Hale, 45

F.3d at 917). On this note, both parties concede that searches and seizure

completely lacking probable cause violate the clearly established bounds of the

Constitution. See generally Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)

(“[A] qualified immunity defense cannot succeed where it is obvious that a

reasonably competent officer would find no probable cause.”). 

The record shows that Cavazos had probable cause to arrest Luera for

impersonating a police officer. The Texas Penal Code provides: “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 . . . .” TEX. PEN. CODE § 37.11(a)(1). Furthermore, the undisputed

facts are: (1) that Luera presented his TCLEOSE license to Cavazos; (2) that

Luera informed Cavazos that he was employed by the Falfurrias Police

Department;(3)that Cavazos received reliable information suggesting that Luera

was not employed by the Falfurrias Police Department; and (4) that Cavazos “felt

like Luera was alleging that he was a peace officer with the Falfurrias Police

Department in order to induce [Cavazos] into not issuing [Luera] a ticket for

speeding.” In this situation, “at the moment the arrest was made . . . the facts

and circumstances within [Cavazos’s] knowledge and of which [he] had

reasonably trustworthy information were sufficient to warrant a prudent man

into believing” that Luera was violating § 37.11(a)(1) of the Texas Penal Code. 

Beck v. Ohio, 379 U.S. 89, 91 (1964) (articulating the test for probable cause). 

Moreover, Luera points to no potential evidence which would undermine the

reasonableness of Cavazos’ probable cause determination during the arrest.3

Thus, given that Cavazos had probable cause to arrest Luera, there was no

 Luera seeks to rely upon Cavazos’s deposition, where he cannot recite verbatim the 3

elements of the crime of impersonating a public officer. This, however, does not diminish the

reasonableness of Cavazos’ actions at the time of arrest.

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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.

United States, 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.” Cormier v.

Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (citing

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990)); 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 simply rely 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

unspecified 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 constitutional claim 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

 Luera filed the Rule 56 motion for a continuance almost two months after the court 4

entered summary judgment in favor of Cavazos. Thus, with regard to his claims against

Cavazos, the motion was untimely and procedurally barred. Furthermore, because the

continuance would not affect the court’s prior determination that Cavazos did not violate any

of Luera’s constitutional rights, it is unclear how Luera would derive any benefit whatsoever

from more discovery.

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denying Luera’s motion for a continuance. See generally, Access Telecom, Inc. v.

MCI Telecomms. Corp., 197 F.3d 694, 720 (5th Cir. 1999).

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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