* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51396

Summary Calendar

GEORGE DE ANGELIS

Plaintiff–Appellant

v.

THE CITY OF EL PASO; EL PASO POLICE CHIEF CARLOS LEON,

Individually and in his Capacity as Chief of Police

Defendants–Appellees

Appeal from the United States District Court

For the Western District of Texas 

El Paso Division, No. 3:05-cv-113-DB

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

George De Angelis sued the City of El Paso (City) and Carlos Leon, the

former El Paso Police Chief, under 42 U.S.C. § 1983, after officers of the El Paso

Police Department(EPPD) allegedly arrested De Angelis without probable cause

and searched his home without a warrant. The district court granted summary

judgment in favor of the City and Leon. De Angelis appeals that ruling, as well

United States Court of Appeals

Fifth Circuit

F I L E D

February 18, 2008

Charles R. Fulbruge III

Clerk
No. 06-51396

2

as the district court’s denial of De Angelis’s recusal motion and the district

court’s imposition of sanctions against De Angelis for a frivolous motion to

compel. We affirm all of the district court’s rulings.

I

In April 2003, Frank Gonzalez told his brother-in-law Commander Michael

Czerwinsky of the EPPD that retired EPPD Assistant Chief of Police George De

Angelis had threatened former EPPD Chief of Police Carlos Leon. Specifically,

De Angelis allegedly said of Leon, who was not present, “one of these days the

first chance I get, I am going to put two rounds right here.” De Angelis then

gestured behind his ear. 

Czerwinsky relayed Gonzalez’s story to Deputy Chief Robert Almonte, who

in turn told Leon. Leon filed a complaint against De Angelis and requested

Almonte investigate the matter further. The next day, Almonte directed two

detectives, Jesus Pantoja and David Samaniego, to investigate the threat

further. Samaniego interviewed Gonzalez and found his story credible.

Czerwinsky further vouched for Gonzalez’s credibility given the two men’s

personal relationship. Pantoja met with Leon and concluded Leon legitimately

feared De Angelis’s threat. Pantoja then drafted an affidavit demonstrating

probable cause and delivered it to Judge Kosturakis Oaxaca, who reviewed the

affidavit and signed an arrest warrant. Later that night, Pantoja, Samaniego,

and several EPPD officers went to De Angelis’s house and arrested him. The

parties dispute whether De Angelis permitted the detectives inside.

De Angelis sued the City and Leon, and the district court granted

summary judgment in favor of both defendants. On appeal, De Angelis alleges

the district court erred by: (1) improperly granting summary judgment in favor

of the City and Leon; (2) improperly denying De Angelis’s motion to recuse; and

(3) sanctioning De Angelis.
No. 06-51396

1 FDIC v. Myers, 955 F.2d 348, 349 (5th Cir. 1992).

2 FED. R. CIV. PRO. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

3 Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005).

4

Id.

5 FED. R. CIV. PRO. 56(c).

6 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Pineda v. City of

Houston, 291 F.3d 325, 328 (5th Cir. 2002) (noting that a plaintiff may establish municipal

liability under § 1983 by establishing “[a] persistent, widespread practice of city officials or

3

II

De Angelis first argues thatthe trial court erred when it granted summary

judgment in favor of both the City and Leon. We review de novo the district

court’s grant of summary judgment.1 Summary judgment is proper when the

record shows that no genuine issue of material fact exists and that the movant

is entitled to judgment as a matter of law.2 To defeat summary judgment, the

nonmoving party must introduce specific facts demonstrating a genuine issue.3

The court must view the evidence in the most favorable light to the nonmovant

and draw all reasonable inferences in the nonmovant’s favor.4

A

De Angelis argues that summary judgment in favor of the City was

inappropriate. As an initial matter, he argues that the district court

acknowledged in its summary judgment order that “a dispute exists as to

whether the Detectives were invited in or entered the house without

permission.” Since summary judgment is appropriate only if “there is no

genuine issue as to any material fact,”5 De Angelis concludes that the district

court clearly erred. But as the district court further wrote, “[t]his factual dispute

is immaterial to the Court’s analysis.”

The Supreme Court has held that a municipality is liable under § 1983

when its official policies or customs violate the Constitution.6 However, a
No. 06-51396

employees which, although not authorized by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that fairly represents municipal policy.”).

7 Monell, 436 U.S. at 691.

8

Id. at 690.

9 Jason D.W. v. Houston Indep. Sch. Sys., 158 F.3d 205, 212 (5th Cir. 1998).

10 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).

11 Id. at 481.

12 Id.

13 Id. at 483.

4

municipality will not face liability under a respondeat superior liability theory.7

Thus, even if the City’s detectives entered De Angelis’s house without

permission, the City is not liable unless its customs or policies caused the

unlawful entrance.8 We pause to note that De Angelis pleaded that a City

custom existed that would establish liability, but he has waived that argument

on appeal since he presents no argument or evidence establishing that custom.9

The Supreme Court has held that a municipal policy maker’s single

decision might constitute an official policy, thus subjecting the municipality to

liability.10 In some situations, a municipality “chooses a course of action tailored

to a particular situation and not intended to control decisions in later

situations.”11 If an authorized decision maker—i.e., an individual with final

authority under state law to establish municipal policy—adopts the particular

course of conduct, this decision may constitute official policy.12 However,

“municipal liability under § 1983 attaches where—and only where—a deliberate

choice to follow a course of action is made from among various alternatives by

the official or officials responsible for establishing final policy with respectto the

subject matter in question.”13
No. 06-51396

14 Bryan County v. Brown, 520 U.S. 397, 404 (1997). 

15 Id.

16 Id.

17 Id. at 405.

18 Pembaur, 475 U.S. at 473-74.

19 Bryan County, 420 U.S. at 405.

5

Nonetheless, the Supreme Court has rejected the argument that merely

identifying some decision properly attributable to the municipality is sufficient

to prove liability.14 Rather, the plaintiff must prove that the municipality was

the “moving force” through “deliberate conduct.”15 The plaintiff should

demonstrate “the requisite degree of culpability and . . . a direct causal link”

between the municipal action and the rights violation.16“Where a plaintiff

claims thatthe municipality has not directly inflicted an injury, but nonetheless

has caused an employee to do so, rigorous standards of culpability and causation

must be applied to ensure that the municipality is not held liable solely for the

actions of its employee.”17

Thus, it is unsurprising that case law generally requires a close nexus

between the policy maker’s decision and the constitutional violation. For

example, in Pembaur v. City of Cincinnati, a county prosecutor—an authorized

decision maker—ordered police officers to enter the plaintiff’s office to execute

a warrant against a third person, a constitutional violation.18In other words,

the official ordered the actual violation. By contrast, in Bryan County v. Brown,

the Supreme Court rejected plaintiff’s argument that the county was liable for

a deputy’s use of excessive force because the Sheriff, the final decision maker

under state law, had hired the deputy after only a cursory review, thereby

setting in motion events leading to the injury.19 As the Supreme Court further

stated: “Where a claim of municipal liability rests on a single decision, not itself
No. 06-51396

20 Id. at 408.

21 Monell, 436 U.S. at 690-91; see also Bryan County, 520 U.S. at 410 (“To prevent

municipal liability for a hiring decision from collapsing into respondeat superior liability, a

court must carefully test the link between the policymaker’s inadequate decision and the

particular injury alleged.”).

22 Bryan County, 520 U.S. at 410.

23 Id.

6

representing a violation of federal law and not directing such a violation, the

danger that a municipality will be held liable without fault is high.”20

De Angelis argues thatLeon, as the final decision maker,“hand picked the

person, his own employee, who was to head the investigation.” But De Angelis

does not argue, and the record does not indicate, that Leon ordered the officers

to enter De Angelis’s house, or even ordered the officers to go to his house. De

Angelis provides no evidence of a causal link between Leon’s choice of

investigators and the alleged rights violation. Like the hiring decision in Bryan

County, Leon’s mere choice of investigators, a lawful action, does not, without

more, subject the City to liability for those officers’ acts. To hold the City liable

for Leon’s decision to appoint certain investigators, who allegedly violated De

Angelis’s rights, is to hold the City liable under a respondeat superior theory,

which the Supreme Court has explicitly rejected.21

Moreover, we also reject De Angelis’s argument that Leon’s decision

constituted deliberate indifference, another possible predicate for municipal

liability. The Supreme Court has said “‘deliberate indifference’ is a stringent

standard of fault, requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.”22 A mere showing of generalized risk is

insufficient to establish deliberate indifference;23 rather the plaintiff must show

that a reasonable policy maker would conclude that the rights deprivation that
No. 06-51396

24 Id. at 411.

25 42 U.S.C. §1983; see also West v. Atkins, 487 U.S. 42, 49-50 (1988) (“It is firmly

established that a defendant in a § 1983 suit acts under color of state law when he abuses the

position given to him by the State.”).

26 McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).

7

occurred was a “plainly obvious consequence” of his decision.24

De Angelis has pointed to no evidence, and we find none in the record,

suggesting that the plainly obvious consequence of Leon’s decision to appoint

Almonte was a violation of De Angelis’s rights. De Angelis speculates that since

Leon was the alleged victim, his appointed investigators would use any means

necessary to please their superior. This is, at best, a speculative showing of

generalized harm and misses the high bar the Supreme Court has set. We

conclude that the District Court correctly granted summary judgment in favor

of the City.

B

De Angelis also argues that the district court erred when it granted

summary judgment in favor of Leon. We construe De Angelis’s brief to argue

two theories: Leon is liable, first, in his personal capacity for pressing charges

against De Angelis and, second, in his official capacity for appointing Almonte

as the lead investigator. We note at the outset that Leon is not liable under

§ 1983 for pressing charges, because he was not acting under color of state law,25

a point De Angelis concedes. De Angelis fails to provide further arguments in

favor of personal liability or cite contrary authority supporting personal liability.

We now determine whether Leon is liable in his official capacity. Leon

invoked qualified immunity. When a defendant asserts a qualified immunity

defense, the plaintiff bears the burden to prove its inapplicability.26 The district

court agreed Leon was entitled to qualified immunity, determined that under the
No. 06-51396

27 Id. at 322-23 (“[C]ourts evaluating § 1983 claims based on allegedly unconstitutional

conduct by state actors should conduct a two-prong inquiry to determine whether the state

actors are entitled to qualified immunity. ‘The first inquiry must be whether a constitutional

right would have been violated on the facts alleged. If a violation could be made out on a

favorable view ofthe parties’ submissions, the next sequential step is to ask whether the right

was clearly established.’”) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)).

28 See id.

29 Mack v. City of Abilene, 461 F.3d 547, 551 (5th Cir. 2006) (citing Illinois v. Gates, 462

U.S. 213, 236 (1983)).

30 Id.

8

first prong27 of the qualified immunity analysis no constitutional violation

occurred, and granted Leon summary judgment. 

On appeal, De Angelis barely attempts to meet his burden. The brief does

not argue that qualified immunity is inapplicable. The brief provides no legal

analysis regarding qualified immunity, cites no case law for any legal

propositions regarding qualified immunity, and in fact does not even use the

term “qualified immunity.” Rather than discussing qualified immunity, De

Angelis’s brief argues that the officers who arrested De Angelis, and who are not

parties, lacked probable cause. De Angelis further notes that Gonzalez had a

criminal record, whereas De Angelis was awarded the “1998 El Paso Police

Department Executive of the Year.” Thus, he argues no reasonable officer could

have concluded probable cause existed.

Even if we construe these statements as an argument regarding the first

prong of qualified immunity analysis,28 we do notfind it persuasive and conclude

no constitutional violation occurred. The arresting officers obtained a warrant

signed by a magistrate. When reviewing a warrant’s issuance, we defer to the

magistrate’s determination of probable cause.29 The magistrate must have a

substantial basis for concluding probable cause exists.30In this case, the

magistrate reviewed affidavits and other documents that detailed what Gonzalez

had heard and the reasons the investigating officers believed Gonzalez credible.
No. 06-51396

31 See id. (finding a substantial basis for probable cause based on officer’s affidavit

concerning informant’s statements, basis of knowledge, and veracity).

32 Id. at 552 (quoting Baker v. McCollan, 443 U.S. 137, 145 (1979)).

33 Smith v. Gonzalez, 670 F.2d 522, 526 (5th Cir. 1982).

34 904 F.2d 322, 325 (5th Cir. 1990) (“Where the appellant notices the appeal of a

specified judgment only or a part thereof, however, this court has no jurisdiction to review

other judgments or issues which are not expressly referred to . . . .”).

9

Under our case law, the magistrate had a substantial basis for finding probable

cause.31 The fact that De Angelis was not ultimately charged or convicted does

not make his arrest unconstitutional. “The Constitution does not guarantee that

only the guilty will be arrested.”32 Moreover, this court has held that “if the facts

supporting an arrest are put before an intermediary such as a magistrate or

grand jury, the intermediary’s decision to issue a warrant or return an

indictment breaks the causal chain and insulates the initiating party.”33 Thus,

De Angelis’s arrest pursuant to a properly issued warrant is not

unconstitutional. Without proving a constitutional violation, De Angelis has

failed to meet his burden under the qualified immunity analysis.

III

De Angelis next challenges the district judge’s denial of De Angelis’s

motion to recuse. Leon, but not the City, argues that this court lacks jurisdiction

for this portion of the appeal, because De Angelis’s notice of appeal only

references the final judgment entered October 2, 2006 and not the July 14, 2005

Order denying De Angelis’s motion to recuse. Citing Warfield v. Fidelity &

Deposit Company,

34 Leon argues “the Court cannot fairly infer [De Angelis’s]

intent to appeal from the [recusal order].” We note that the rule articulated
No. 06-51396

35 Trust Co. of Louisiana v. N.N.P. Inc., 104 F.3d 1478, 1485 (5th Cir. 1997) (“[W]e have

held that an appeal from a final judgment sufficiently preserves all prior orders intertwined

with the final judgment.”).

36 In re Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993).

37 Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (quoting United States v.

Bremers, 195 F.3d 221, 226 (5th Cir. 1999)).

38 28 U.S.C. § 455(a).

39 28 U.S.C. § 455(b)(5)(i)-(iv).

10

in Warfield is inapplicable when the notice of appeal is from the final judgment35

as it is here. 

We review the district court’s decision to deny the motion to recuse for an

abuse of discretion.36 It is an abuse of discretion to deny recusal where a

“reasonable man, cognizant of the relevant circumstances surrounding the

judge’s failure to recuse, would harbor legitimate doubts about that judge’s

impartiality.”37

As a general matter, a judge shall grant the recusal motion if “his

impartiality might reasonably be questioned.”38 More specifically, a judge must

also grant recusal if:

He or his spouse, or a person within the third degree of relationship to

either of them, or the spouse of such a person: (i) is a party to the

proceeding, or an officer, director, or trustee of a party; (ii) is acting as a

lawyer in the proceeding; (iii) is known by the judge to have an interest

that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge’s knowledge likely to be a material witness in the

proceeding.39

De Angelis moved for recusal, arguing that the City’s mayor had recently

hired the district judge’s nephew, Matthew Briones, as an executive assistant.

De Angelis argued in his motion that Matthew Briones’s employment as an

executive assistant “was the equivalent to being an officer or a party,” and thus

§ 455(b)(5)(i) required recusal. After the motion was denied, De Angelis
No. 06-51396

40 Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004) (rejecting argument that

judge’s impartiality called into question whenever judge’s family member is an at-will

employee in office representing a party); United States ex rel. Weinberger v. Equifax, Inc., 557

F.2d 456, 463 (5th Cir. 1977) (holding the judge did not abuse his discretion by failing to recuse

himself from a case in which one party’s counsel employed the judge’s son as an associate

because “[h]is salary interest as an associate is too remote to fall under th[e] ‘financial interest’

prohibition”). See also In re Kansas Public Employees Retirement System, 85 F.3d 1353, 1364-

65 (8th Cir. 1996) (finding no abuse of discretion when judge denied recusal after his daughter

accepted defendant’s offer of employment as associate attorney).

41 28 U.S.C. § 455(d)(4) (“‘[F]inancial interest’ means ownership of a legal or equitable

interest, however small, or a relationship as director, adviser, or other active participantin the

affairs of a party . . . .”).

42 28 U.S.C. § 455(b)(5)(iv) (emphasis added).

11

identified Matthew Briones as a witness againstthe City. On appeal, De Angelis

argues the district judge’s impartiality might reasonably be questioned because

his nephew both works for the City and was a potential witness. 

Contrary to De Angelis’s assertion, Matthew Briones’s mere employment

as an executive assistant does not make him an officer, director, or trustee for

the City or the equivalent of a party to this lawsuit. Moreover, several cases in

this and other circuits hold that the mere salary interest of a judge’s relative

generally is not a “financial interest”40 as § 455 defines.41 Thus, Matthew

Briones’s position with the City was not automatic grounds for the district

judge’s recusal.

We also think that the judge’s failure to recuse himself after De Angelis

designated Matthew Briones a witness was, atthe worst, harmless error. Again,

§ 455(b)(5) requires a judge to recuse himself if his spouse or relative within the

third degree “is to the judge’s knowledge likely to be a material witness in the

proceeding.”42 De Angelis has shown, and the record exhibits, little evidence

demonstrating that Matthew Briones would have been a material witness. De

Angelis’s own recusal motion establishes that Matthew Briones was hired long

after the events at issue to work for a new mayor elected over two years after
No. 06-51396

43 Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002).

44 FED. R. CIV. PRO. 37(a)(5)(B).

12

those events occurred. Ultimately, since Matthew Briones never testified

because the case was dismissed at summary judgment, we cannot determine

whether he would have been a material witness. Nonetheless, we have reviewed

de novo the grant of summary judgment and concluded it was proper. Therefore,

no conflict arose and any error was harmless.

IV

De Angelis filed a motion to compel and a request for a temporary

restraining order; in both, De Angelis incorrectly represented that the City had

illegally attached secret grand jury testimony to a pleading filed in another

federal proceeding. In fact, the attached document was an indictment against

De Angelis, which was a public record. De Angelis’s motion to compel sought to

continue deposing the City’s attorney, who had attached the document,

regarding where she had obtained it. The court denied De Angelis’s motion to

compel as frivolous since the document was publicly available and awarded the

City costs and expenses for defending the motion. De Angelis argues that the

district court erred when it sanctioned De Angelis for filing a frivolous motion.

We review the district court’s decision for an abuse of discretion.43

A judge who denies a motion to compel “must, after giving an opportunity

to be heard, require the movant, the attorney filing the motion, or both to pay

the party or deponent who opposed the motions its reasonable expenses incurred

in opposing the motion, including attorney’s fees” unless “the motion was

substantially justified.”44 In Pierce v. Underwood,the Supreme Court wrote that

a motion is “substantially justified” if “there is a ‘genuine dispute,’ or ‘if

reasonable people could differ as to [the appropriateness of the contested
No. 06-51396

45 487 U.S. 552, 565 (1988) (brackets in original).

13

action].’”45

Reasonable people cannot have a genuine dispute regarding whether the

City improperly disseminated secret grand jury testimony when the document

at issue is not secret grand jury testimony but a public record that is clearly

labeled “indictment.” We find no abuse of discretion in the district court’s order.

* * *

We conclude thatthe district court properly granted summary judgement.

Additionally, we find the district court committed no error in denying De

Angelis’s motion to recuse or in ordering costs and expenses assessed against De

Angelis. For the foregoing reasons, we AFFIRM.