United States Court of Appeals

for the Fifth Circuit ____________

No. 22-40653

Summary Calendar

____________

Beri Dave, 

Plaintiff—Appellant, 

versus

Claudine O’Carroll, Chief of Police - SPI Police Department; City 

of South Padre Island, City Government; Jaime Rodriguez, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 1:20-CV-209

______________________________

Before Clement, Graves, and Wilson, Circuit Judges.

Per Curiam:*

Beri Dave appeals the dismissal of his § 1983 claims against the City 

of South Padre Island and its various officials. We AFFIRM. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

April 18, 2023

Lyle W. Cayce

Clerk

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No. 22-40653

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I

Beri Dave is a First Amendment auditor. That means he often seeks 

out—and records—interactions with police across the country. He then 

uploads those videos to a public YouTube channel.

Back in 2020, Dave was filming one such video in South Padre Island, 

Texas.1 Hoping to “record the public actions of on-duty police officers,” he 

wandered down an alley behind the South Padre Island Police Department 

office. As he approached the building, two officers repeatedly asked if he 

needed help. Dave waited several moments before directing the officers to 

“go back to work” since that was “what [he] pays [them] to do.” 

Dave was then approached by Officer David Laird, who explained that

Dave was trespassing. Dave, incredulous that he could be trespassing on 

“public property that [he] pay[s] for,” asked for Laird’s name and badge 

number. In response, Laird grabbed Dave’s phone from his hand, placed it 

on the ground, and had another officer cuff him. Laird then demanded Dave

identify himself. Dave refused. 

SPIPD officers patted Dave for weapons as Laird spoke with another 

officer on the scene. After the two concluded that Dave was merely 

recording, had no weapons, and should be let go, Laird walked Dave a few 

feet away and removed his cuffs. Dave immediately returned to filming, 

letting everyone know that they’d be named in his impending lawsuit. Most 

officers then left the scene.

A short while later, Laird returned with Detective Jamie Rodriguez. 

The pair had a tense conversation—Dave insisted that the department 

_____________________

1 The following description of events is pulled from Dave’s two pleadings, as well 

as the several videos (from his phone and from officer bodycams) that he submitted with 

his complaints. 

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provide Laird’s name and badge number so he could press charges, while 

Rodriguez asked Dave over and over to identify himself. During the 

exchange, Dave never stopped recording. With the two at an impasse, Dave 

walked off the property, all the while demanding to see a supervisor so he 

could file a complaint against Laird. 

True to his word, Dave later filed suit. He alleged that the City, 

Officer Laird, Detective Rodriguez, and the SPIPD Chief of Police, Claudine 

O’Carroll, violated his First, Fourth, Fifth, Sixth, and Fourteenth

Amendment rights. The district court eventually dismissed all claims in two 

separate orders. First, following a report and recommendation from a 

magistrate judge, it dismissed all claims against Officer Laird and any claims 

against O’Carroll and the City of South Padre Island related to Laird’s 

conduct.

2 Several months later, again on the recommendation of the 

magistrate judge, the court dismissed all claims against Detective Rodriguez

and any claims against O’Carroll and the City of South Padre related to 

Rodriguez’s conduct. The court found first that because Rodriguez had died 

during the litigation and had never been properly served, he could not be sued 

in his individual capacity. It noted in the alternative, however, that should 

Dave’s claims proceed against Rodriguez’s estate, Dave nevertheless failed 

to show that Rodriguez violated any of his federal rights. It next found that 

Dave’s claims against Rodriguez in his official capacity were, in essence, 

claims against South Padre Island, and that Dave failed to identify a policy or 

custom that was the driving force behind any alleged deprivation of rights. 

Because Dave’s claims against O’Carroll and South Padre Island were 

_____________________

2 It appeared to do so on the merits, notwithstanding the fact that Laird was never 

properly served. 

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derived from his claims against Rodriguez, the court dismissed all three 

defendants. 

Dave now appeals only the second order focused on Detective 

Rodriguez. 

II

We review the grant of a motion to dismiss de novo. Thurman v. Med. 

Transp. Mgmt., Inc., 982 F.3d 953, 955 (5th Cir. 2020). “To survive a motion 

to dismiss, a complaint must contain sufficient factual matter which, when 

taken as true, states ‘a claim to relief that is plausible on its face.’” Innova 

Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 

726 (5th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). The pleadings and other filings of pro se litigants are construed 

liberally. Coleman v. United States, 912 F.3d 824, 828 (5th Cir. 2019). Our 

review is limited to the contents of the pleadings, any attachments to them, 

and any documents attached to a motion to dismiss that are referred to in the 

pleadings and that are central to the claims made. Collins v. Morgan Stanley 

Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000). If the allegations 

contradict any pleading exhibit, the exhibit controls. U.S. ex rel. Riley v. St. 

Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004). 

To start, we agree with the district court that Dave’s claims against 

Rodriguez cannot survive because Rodriguez died before he was properly 

served. That lack of service (which, before he died, Rodriguez properly 

contested in a Rule 12(b)(5) motion), means the court never held personal 

jurisdiction over him. See Omni Cap. Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 

104 (1987) (“Before a federal court may exercise personal jurisdiction over a 

defendant, the procedural requirement of service of summons must be 

satisfied.”); Miss. Publ’g Corp. v. Murphree, 326 U.S. 438, 444–45 (1946) 

(“[S]ervice of summons is the procedure by which a court . . . asserts 

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jurisdiction over the person of the party served.”). Because Rodriguez was 

never served (and nor was any derivative party against which Dave could 

proceed), the claims against him were properly dismissed.

We also agree with the district court’s resolution of Dave’s claims 

against O’Carroll. Dave’s claims against her are premised on the actions of 

Rodriguez. But supervisors cannot be held vicariously liable under § 1983 for 

the conduct of others, and so, Dave’s claims against O’Carroll must fail. See 

Est. of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th 

Cir. 2005). 

And finally, we agree with the district court that Dave’s claims against 

the City cannot proceed. To succeed against the City, Dave must satisfy the 

classic Monell test. See Webb v. Town of Saint Joseph, 925 F.3d 209, 214 (5th 

Cir. 2019); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) 

(“[T]he unconstitutional conduct must be directly attributable to the 

municipality through some sort of official action or imprimatur.”). Dave can 

demonstrate such an official action by showing either “written policy 

statements, ordinances, or regulations[, or] . . . a widespread practice that is 

so common and well-settled as to constitute a custom that fairly represents 

municipal policy[,]” or that the alleged unconstitutional action was done at 

the direction of an official or entity possessing “final policymaking 

authority.” Webb, 925 F.3d at 214–15 (cleaned up). Dave shows none of these 

things. He does not identify any official policy or regulation, nor any 

widespread practice, nor the order of any final policymaker, that constituted 

the moving force behind his alleged constitutional violation. Therefore, his 

claims against the City must also be dismissed.

III

The district court is AFFIRMED.

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