### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41394 Summary Calendar

GEORGE BERGIN, Plaintiff – Appellant
v. LEWIS B. TATUM, Defendant – Appellee

Appeal from the United States District Court for the Eastern District of Texas U SDC No. 4:11-CV-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM: * Appellant George Bergin a p peals the district court’s grant of summary j u d gment on qualified immunity grounds for d efendant Lewis B. Tatum. We AFFIRM. FACTS AND PROCEDURAL HISTORY At around 5:30 p.m. on November 19, 2009, Kimberly Simpson, a City of Sulphur Springs police officer, was dispatched to an area o f Highway 19 in U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Decem ber 6, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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Sulfur Springs, located in Hopkins County, T exas, where ten to thirteen head of cattle w e re roaming. The cattle were not branded or tagged. The police department contacted approximately six potential owners of the cattle. According to Simpson, C arolyn Bergin arrived on the scene and stated that the cattle did n ot b elong to her brother, appellant George Bergin (“Bergin”). Bergin di s p ut es that Carolyn Bergin made this statement, but admits that “ I don’t know what she said to the police. I wasn’t there at the time.” Simpson ran the cattle into a wooded area, but a few hours l a t e r, she received a call that they had wandered b ack to the area around t h e h i gh way. She advised dispatch to s end Rocky Rivera, a Hopkins County impound officer, t o r o u n d up and i mpound the cattle. Rivera arrived on the scene a n d transported four head of cattle to his impound lot. During the impound process, one of the cows ran into a pool and drowned, and three remained at large. The next day, November 2 0, 2009, George Bergin called Rivera asking to inspect the cattle. Rivera was out of town, but g ave Bergin directions to the impound lot and told him that the impound fee wa s $950. 1 Rivera t o ld Bergin that “if the cattle were his, h e must pay the impound fee before he could take the cattle off of the impound lot.” Later that day, Rivera returned to the impound lot and f ound that the c attle were gone. Bergin admitted that he had taken his trailer to the lot and took the cattle. Rivera c alled the Hopkins County S heriff’s Office to r e port the missing cattle. Criminal investigator Lewis B. Tatum interviewed Rivera, who said he suspected that Bergin was r esponsible f or the missing cattle. Rivera also told Tatu m about his conversations with Bergin. Tatum additionally interviewed Officer S impson, who reported Carolyn Bergin’s alleged statement that George Bergin did not own the cattle.

1 Accord ing to O f

f icer Sim p s on’s incid ent r e p o r t , R i v e ra told Bergin the f ee w ould be $675. 2 Case: 12-41394 Document: 00512463042 Page: 2 Date Filed: 12/06/2013No. 12-41394

On November 24, 2 009, Tatum called Bergin’s home, but Bergin’s mother said that Bergin was too bus y t o s p eak. On November 30, Tatum spoke to Bergin by telephone and Bergin admitted th at he took the c a t t l e f r om the impound lot without paying the fee. Bergin also said that h e w a s t o o busy to meet with Tatum. On December 2, 2009, Tatum filed a complaint against Bergin for Theft of Livestock in violation of Texas Penal Code 3 1

. 0 3

. The c o mplaint read, in relevant part, that Tatum b e l i e v e[s] that on or about the 20th day of November, 2009

. . . George Bergin, hereinafter s t y l e d Defendant, did then and there unlawfully appro p r i ate, by acquiring and otherwise exercising control over, property, t o-wit: less th an ten h ead of cattle, of th e value of less than $20,000, from Rogue Rivera, the o w n e r thereof, and with intent to deprive the owner of the property. My reason for b elieving that the above Defendant committe d t h e above offense is based upon evidence which I obtained i n my o fficial capacity a s a p eace officer during my investigation o f t h i s offense. Further, c attle impounded b y Sulphur Springs Police Department, after having been disclaimed by [ Carolyn] B e r gi n , a cting as agent for defendant, d efendant r emoved cattle from the impound pens where Rogue Rivera placed the c attle. Fu rther, defendant admitted to Investigator Lewis Tatum that defendant removed the cattle.
That s ame day, a Hopkins County Justice of the Peace found that probable

cause e xisted to arrest Bergin for theft of livestock a nd signed a w arrant for his arrest. Bergin was arrested and h e l d at the Hopkins County Jail for approximately 1 8 hours. After the impound fee was paid, apparently by one of Bergin’s defense attorneys on Bergin’s behalf, the State dismissed the charges against him. O n J a n u a r y 3 , 2 0 1 1 , Bergin filed suit against Simpson, T a t u m , a n d Hopkins County. The c o m p l a i nt alleged that Simpson and Tatum made materially false representations, and claimed violation of Bergin’s Fourteenth

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Amendment right to due process as w e l l as a state claim of malicious prosecution. Simpson and Hopkins County were subsequently dismissed from the suit at the agreement of all parties, and the remaining parties agreed that the case would be tried before a magistrate judge. Tatum moved f

or summ a r y judgment. In deposition testimony, Tatum admitted that he knew the cattl e d i d n ot belong to Rivera, b ut that he did not know at the time the c omplaint was filed—or at the time of the deposition—that the cattle belonged to Bergin. However, when the complaint was filed, Tatum knew that Bergin claimed ownership of the cattle. He stated that the prosecutor had r e lied on the facts he laid out in the complaint to charge Bergin with theft. Tatum provided his understanding tha t “if no one provides ownership of cows that are impounded, th e i m p o u n d officer can at s ome point sell those c attle as if he owned them.” Rivera s ubmitted an affidavit stating that h e was “the person designated by the Sheriff o f Hopkins C ounty t o sell any cattle that I impound when the

owner is not identified o r when the impound fee is not paid.” Rivera relayed his understanding that after cattle are impounded, if “an owner i s n ever determined

or located

. . . a person d esignated by the Sheriff[] has title over the animal and

can sell t h e a n i m a l a t a public auction a s if they are the owner” a nd that if an

owner is “determined or located, he can retrieve the impounded cattle only after paying the impound fee.” The magistrate judge granted summary judgment to Tatum on November 14, 2012, on qualified immunity grounds. The magistrate judge found that even if T atum’s affid av i t c ontained misstatements, a reasonable o fficer could nonetheless find that the affidavit established pr o b ab l e c ause without the misstatements, because Bergin “had no ri ght to take the cattle without paying the impound fee” and “Rivera had a right to possess the cattle until that fee was t a ken.” With regard to Bergin’s state law claim of malicious prosecution, t h e

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magistrate j u d ge found both that there was n o evidence that Tatum a cted with malice against B ergin, and that T atum had official immunity under Texas law for the same reasons he had qualified immunity under federal law. DISCUSSION 1. Section 1983 Due Process Claim Tatum argues that his Fourteenth Amendment right to due process was violated when Tatum placed “material misstate m e n t s and omissions” before a H o pkins County justice of the peace, and that his affidavit was insuffici e n t t o establish probable cause to arrest Bergin for theft of livestock. Tatum has as s e r t e d qualified immunity in response to Bergin’s due
process claim. To assess qualified immunity, “we decide ( 1) wh e t h e r t he facts that the plaintiff has alleged make out a violation of a c onstitutional right; and ( 2 ) w h e ther the right at issue was clearly established at the time of t h e defendant’s alleged misconduct.” Ramirez v . Martinez , 716 F.3d 369, 3 7 5 ( 5 th Cir. 2013) (internal quotation marks omitted). Bergin argues that Tatum did not have probable c ause to arrest B ergin for t h e ft of livestock, for two reasons: first, because the complaint m isidentifie d Rivera as the o wner o f the ca t t l e , a n d second, because Rivera did n ot have statutory authority to impound the cattle. The summary j udgment record does arguably indicate at least a genuine issue of fact as t o whether T atum made false statements in the complaint, including that Rivera was “the owner” of the cattle a nd that Carolyn Bergin was “acting as agent f or” G eorge Be r gin. Misstatements in preparing a n affidavit for a plaintiff’s arrest can form the basis of a § 1983 claim where “the s tate had to concede that the s earch or seizure was undertaken without probable cause.” Jureczki v. City of Seabrook, Tex. , 760 F.2d 666, 668–69 (5th C ir. 1989); see also Crostley v. Lamar Cnty., Tex. , 717 F.3d 410, 423 (5th Cir. 2013) (holding that “the deficiency of any one piece of evidence used to demonstrate prob ab l e cause does not, on its own, mean that probable cause
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did not exist”); United States v. Privette , 947 F.2d 1259, 1260 ( 5 t h C ir. 1991) (“Because the affidavit supports a finding of probable cause when read without the challenged statements, the tri a l c o u r t did not err in d enying [the defendant’s] motion to suppress.”). Here, we cannot say that—even without the allegedly false statements—a reasonable officer in Tatum ’ s p o s iti o n w o ul d h av e lacked probable cause to arrest Bergin. “Probable cause exists when the totality of fac t s a n d c ircumstances within a police officer’s k nowledge at the m o m e n t o f arrest are sufficient for a reasonable person to conclude that the s uspect h a d committed o r was committing an offense.” Ramirez , 71 6 F .3d at 3 75 (emphasis omitted). The inquiry focuses on the validity of the arrest, not the validity of each individual charge made during the course of the arrest. See Price v. Roark , 256 F.3d 364, 369 (5th Cir. 2001). A p erson c ommits theft under Texas l aw if they “unlawfully appropriate[] property with intent to deprive the owner o f property.” Tex. Penal Code § 31.03(a). Under Texas law, “[e]v e n a t r ue owner, who takes from one who is lawfully in possession of property, may be guilty of theft.” Hudiberg Chevrolet, In c . v . G lobe Indem. Co. , 3 94 S.W.2d 7 92, 795 (Tex. 1965) (“There was a theft when a mortgagor took possession of two horses he had placed in the possession of another as security for a d ebt, a nd when the owner of a pistol took it from his pledgee. There was a theft when an owner o f a watch f raudulently took it from the p ossession of the man holding it as s ecurity for repairs. There may be a theft, when, as here, the ownership is in one person, and t h e p o s s e s s ion is in another.”). The Texas Agriculture Code provides that a sheriff, or the sh e r i ff’s designee, ca n i m p o u nd an “estray” (meaning “stray livestock,” see Tex. Agric. C o de § 142.001 (“Definitions”)) if, inter alia , “the owner of the e s t r a y i s unknown.” Texas Agric. C ode Ann. § 142.009(a)(1). After a certain amount of

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time has passed without anyone claiming ownership over the livestock, the county acquires title, considered “vested in the sheriff or th e sheriff’s designee” for purpose of sale at auction. Id. at § 1 42.013(a). The o wner of an e stray “may

recover possession

. . . at a ny time b efore the estray is sol d” i f, i n ter alia , “the

owner h as provided the

. . . sheriff’s designee with an affidavit of ownershi p ,” “the sheriff’s designee has approved the affidavit of ownership,” and “the owner has paid all estray handling expenses.” I d

. at § 1 42.010(a). In addition, the

s h e r i f f i s entitled to claim “ a collection f ee” in an amount “determined by th e sheriff,” and the owner may only challenge the amount of that fee b y petitioning the justice court. I

d

. There is no dispute in the record that Bergin t o o k t h e c attle from the impound lot without permission, without e s t ablishing any proof o f ownership, and without paying the impound fee or any e xpenses. Tatum was aware of these f a c t s , a n d he was also aware that Bergin’s sister had allegedly disclaime d Bergin’s o w n e r s h ip; that Rivera had impounded the cattle pursuant to his official duties; and that Bergin had asked Rivera to “ i n s p e c t” the cattle to determine if they were his. Because Texas law does not allow a purported owner t o r ecover impounded livestock without p roof of ownership and oth e r requirements, we cannot say that a reasonable officer in Tatum’s position could not have concluded that Bergin took the cattle without legal authority. Bergin also argues, f

or the first time on appeal, that Rivera did not have statutory authority a s Hopkins County’s impound officer because Simpson, who instructed Rivera to impound the cattle, worked for the city police department rather than the county sheriff. B e r gi n has waived this argument by not asserting it b efore the district court. See M a r tco Ltd. P

a r tnership v. Wellons, Inc. , 588 F.3d 864, 877 (5th Cir. 2009) (“We may only affirm an order granting
summary judgment on a basis that was presented to the district c o urt,” because

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“arguments not raised before the district court are waived a nd cannot be raised for the first time on appeal.”). 2. Malicious Prosecution Bergin’s claim f

or malicious prosecution under Texas l aw req u ires proof that, inter alia , Tatum l acked probable cause to initiate the prosecution and that Ta t u m acted with malice. See Kroger Texas Ltd. Partnership v . Suberu , 216 S.W.3d 788, 793 n.3 (Tex. 2006)

. “Texas recognizes an ‘official i mmunity’ defense to state law claims such as mali c ious p rosecution.” Crostley , 717 F.3d at 424 (citing L ancaster v. Chambers , 883 S.W.2d 6 50, 653 (Tex. 1994)). “Texas law of official immunity i s substantially the same as federal qualified immunity.” I d. (internal quotation marks and citation omitted). Where o fficers “re a s o n ab l y believed they had p rob able cause to proceed against” a plaintiff under the federal qualified immunity an a lysis, the plaintiff “cannot a ssert a claim for malicious prosecution” under Texas law. Id. (quoting Hart v. O’Brien , 127 F.3d 424, 452 (5th Cir. 1997)). Because we conclude that a reasonable officer in T a t u m’s position c ould have c onclu d e d th at p rob able cause existed, we therefore h old that Tatum is entitled to official immunity under Texas law. CONCLUSION For the foregoing reasons, we AFFIRM the magistrate judge’s grant of summary judgment to defendant.

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