Case: 14-41410      Document: 00513172688         Page: 1    Date Filed: 08/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                     FILED
                                      No. 14-41410                               August 27, 2015
                                                                                  Lyle W. Cayce
                                                                                       Clerk
RUBEN NAVARRO; GLORIA MARTINEZ; YOLANDA ALVARADO;
RAMIRO TREVINO; MINERVA J. NAVARRO, Individually; RUBEN
BRANDON NAVARRO; MEAGAN V. NAVARRO; PRESTON R. NAVARRO;
JUAN LUIS ALVARADO, SR.; SANDY ALVARADO

              Plaintiffs - Appellants

v.

CITY OF SAN JUAN, TEXAS; CHIEF JUAN GONZALEZ, In his Individual
Capacity and Official Capacity and as Agent of the City of San Juan;
HUMBERTO (BOBBY) RODRIGUEZ, City Secretary in his Individual
Capacity and Official Capacity as City Secretary and Agent of the City of San
Juan; SERGEANT RODOLFO LUNA, In his Individual Capacity and In his
Official Capacity as a Police Officer and Agent of the City of San Juan; J.
JERRY MUNOZ, Individually and In his Official Capacity as the City
Attorney of the City of San Juan

              Defendants - Appellees



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 7:12-CV-66


Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        No. 14-41410
       Plaintiffs Ruben Navarro, Gloria Martinez, Yolanda Alvarado, Ramiro
Trevino, Minerva J. Navarro, Juan Luis Alvarado, Sr., and Sandy Alvarado
appeal the district court’s grant of summary judgment for Defendants in this
42 U.S.C. § 1983 case. For the reasons that follow, we AFFIRM. 1
                            FACTS AND PROCEEDINGS
       Pursuant to § 1983, Plaintiffs filed the present lawsuit against six
Defendants, 2 alleging violations of their First, Fourth, Fifth, and Fourteenth
Amendment rights. Four of the Plaintiffs, Ruben Navarro, Gloria Martinez,
Yolanda Alvarado, and Ramiro Trevino (collectively, “Recall Plaintiffs”)
initiated a recall petition demanding the removal of four city commissioners
for the city of San Juan, Texas, “due to inefficiency and mismanagement of city
affairs.”    The city charter detailed the requirements and procedures for
submitting a valid recall petition, providing that “[t]he people of the City
reserve the power to recall any elected officer of the City and may exercise such
power by filing with the City Secretary a petition signed by at least 10% of
qualified voters in the last City election.” The city charter provided that “[n]o
signature shall be counted where there is reason to believe it is not the actual
signature of the purported signer or that it is a duplication of name and no
signature shall be counted unless the residence address of the signer is shown.”
Significantly, the city charter also required that the “circulator” of the petition


       1  Defendants challenge this court’s jurisdiction over the appeal, contending that the
Plaintiffs did not file a timely notice of appeal and did not show excusable neglect or good
cause for failing to do so. However, Plaintiffs filed a timely motion for an extension of time
to file a notice of appeal, see Fed. R. App. P. 4(a)(5)(A), which the district court granted.
Because we find that the district court did not abuse its discretion in granting the motion for
extension, we have jurisdiction over this appeal. See Stotter v. Univ. of Tex. at San Antonio,

, 920 (5th Cir. 2007) (“This court reviews a district court’s ruling on a Rule 4(a)(5)
motion based on a determination of excusable neglect for an abuse of discretion.”).
        2 In previous versions of the complaint, Plaintiffs asserted claims against Defendants

who were subsequently dropped from the case. In Plaintiffs’ Sixth Amended Complaint, six
Defendants were named. After filing the Sixth Amended Complaint, Plaintiffs settled their
claims against Defendant Ricardo Tamez and moved to dismiss him from the lawsuit.
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attach an affidavit verifying that “he, and he only, personally, circulated the
foregoing paper, that it bears a stated number of signatures[,] that all
signatures appended thereto were made in his presence, and that he believes
them to be the genuine signatures of the persons whose names they purport to
be.” Finally, the city charter provides that “[w]ithin thirty (30) days after . . .
[a] petition is filed, the City Secretary shall determine whether the name is
properly signed by the requisite number of qualified voters.”
      On December 3, 2010, the Recall Plaintiffs submitted the petition, with
1,438 signatures, to the Defendant City Secretary Humberto Rodriguez. Each
of the Recall Plaintiffs executed the requisite authenticity affidavit, attesting
that they circulated the petition and that all signatures were made in their
presence, and had the affidavits notarized by former-Plaintiff Notary Elisa
Sanchez.    Despite these representations, Plaintiffs assert that “a private
individual,” J.J. Garcia, assisted them in gathering the signatures. J.J. Garcia
gathered at least some of the signatures by telling people that they were
signing a petition related to a taco food truck. Plaintiffs allege that J.J. Garcia
conspired with the Defendants to undermine the recall petition by volunteering
to help them gather signatures but then gathering those signatures through
lies and deceit.
      After the recall petition was submitted, Plaintiffs allege that City
Secretary Rodriguez forwarded the list of signatures to Defendant City
Attorney Munoz, in contravention of the city charter. Rodriguez acknowledges
that when he received the recall petition, he contacted City Attorney Munoz to
discuss what they should do. After consulting with Munoz, they both decided
that it would be best to seek independent, outside legal counsel. Rodriguez
reached out to two outside attorneys, one of whom he considered to be “an
expert in these kind of petitions.” After receiving advice from legal counsel,
Rodriguez reviewed the list of petition signatures, and compared them to the
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Secretary of State election website to determine whether the signers were
registered voters.     Outside legal counsel, Bradford Bullock, separately
reviewed the signatures and then Rodriguez and Bullock compared the results.
Both Rodriguez and Bullock reached the conclusion that the petition lacked
the requisite number of qualified voter signatures.
      According to the city charter, if the City Secretary determines that the
petition is insufficient, “the City Secretary shall notify the person filing the
petition and it may be amended within ten (10) days from the date of such
notice by filing a supplementary petition upon additional paper signed and
filed as provided for in the original petition.” By letter dated January 3, 2011,
Rodriguez notified Recall Plaintiffs of the deficiency and informed them that
they had ten days to file a supplementary petition. At some point, Recall
Plaintiffs submitted seventy-seven additional signatures. Bullock informed
Rodriguez that “being as liberal as . . . the most liberal judge would be,” and
even counting all seventy-seven additional signatures, Recall Plaintiffs still
had not obtained the requisite number of signatures. Therefore, Rodriguez
notified Recall Plaintiffs on February 14, 2011, that “[p]ursuant to [section]
11.04 of the City Charter the amended petition is found to be insufficient, [and]
no further proceedings shall be had with regard to the December 3, 2010 recall
petition.”
      During Rodriguez’s examination of the signatures, some of the
Commissioners who were the subject of the recall petition looked at the list of
names.       The Commissioners informed Munoz that the petition contained
signatures of friends and relatives, whom they believed would never knowingly
sign such a document.      Munoz subsequently hired a private investigator,
former-Defendant Tamez, to conduct an investigation into the validity of the
signatures. Before becoming a private investigator, Tamez worked for the
McAllen Police Department for eighteen years.         Tamez testified that his
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assignment was to canvas recall-petition signatures to determine if the
petition had been done correctly—that the signers were registered voters in
San Juan, read the petition, and signed in the presence of the circulator, among
other requirements. Munoz provided Tamez with affidavit forms, which listed
certain statements about the signer’s knowledge, or lack of knowledge,
regarding the petition. According to Munoz, the signers could choose to sign
the affidavit, not sign the affidavit, or “scratch off those portions with which he
or she did not agree.”
        Tamez investigated the petition from about December 8 to December 23,
2010.     Tamez interviewed sixty petition signers and obtained fifty-two
affidavits indicating non-compliance with the city charter provisions. The
affidavits indicated that some of the signers did not sign in the presence of the
circulator and some were “misled or misinformed” about the petition. Tamez
stated that “it was evident that the citizens I interviewed and took affidavits
from were misled, lied, deceived, their signatures were forged and some never
met with the circulators who signed a sworn affidavit indicating they had met
with them in person. In certain cases the petitions were circulated by a friend,
neighbor or family member . . . .”
        On January 4, 2011, there was a city meeting at which City Attorney
Munoz informed Defendant Police Chief Gonzalez that a recall petition had
been submitted, which contained potentially forged signatures and signatures
obtained through lies. Gonzalez subsequently met with Defendant Sergeant
Luna and told Luna to look into these allegations. Luna received copies of the
Tamez affidavits and called some of the affiants to confirm that they had
signed the affidavits and that the information in them was correct. Luna
discussed his investigation with Assistant District Attorney Paul Tarlow, who
advised him to pursue felony charges against the Recall Plaintiffs. Luna also


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spoke with Chief Gonzalez, who “cleared” the case to be presented to the judge
after he found out that Luna had already met with the district attorney.
       On January 30, 2011, Luna met with Magistrate Judge Perez and
presented him with complaints and warrants for the Recall Plaintiffs’ arrests.
After reviewing all of the documents and talking with Luna for about one hour,
Perez signed the warrants. Each of the Recall Plaintiffs was charged with
multiple counts of knowingly making a false entry in a government record, and
knowingly presenting a document that included signatures with knowledge of
falsity. The Recall Plaintiffs were subsequently arrested. On September 14,
2011, a grand jury subsequently returned a “no bill” on the charges against the
Recall Plaintiffs.
       On January 30, 2012, Plaintiffs filed the present lawsuit in Texas state
court against various city officials, which was later removed to federal court.
In the Sixth Amended Complaint, Plaintiffs alleged that the City of San Juan
was liable based on a municipal policy. 3             Plaintiffs alleged that “all the
Defendants conspired with one another to bring about the wrongful arrest of
Recall Plaintiffs and Plaintiff Elisa Sanchez, causing them great mental and
emotional anguish, suffering, distress, humiliation and damages.” Each of the
individual Defendants filed a motion for summary judgment, asserting the
defense of qualified immunity.          In five separate orders, the district court
granted summary judgment to the Defendants. 4 The district court evaluated
the Plaintiffs’ claims for § 1983 conspiracy as well as their claims against




       3  On appeal, Plaintiffs have abandoned this argument, conceding that “[t]he
contention that the City had such a custom or policy is not supported by the record” and that
the district court correctly granted summary judgment to the City on that theory.
       4 As to Defendant Luna, the district court granted in part and denied in part, denying

summary judgment as to Plaintiff Notary Sanchez’s claim for wrongful arrest. Defendant
Luna and the City of San Juan subsequently settled with Sanchez. Plaintiff Elisa Sanchez
and her husband Cesar J. Sanchez are not pursuing this appeal.
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                                  No. 14-41410
individual Defendants under the Fourth Amendment and the First
Amendment. The district court determined that each of the defendants was
entitled to qualified immunity and that the Plaintiffs failed to put forth
evidence of an issue of material fact necessary to survive summary judgment.
We agree.
                            STANDARD OF REVIEW
      “We review the district court’s summary judgment decision de novo,
applying the same standards as the district court.” Poole v. City of Shreveport,

, 626-27 (5th Cir. 2012). Summary judgment is appropriate when
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for
summary judgment has the burden to show the absence of a genuine dispute
as to a material fact. See Little v. Liquid Air Corp., 

, 1075 (5th
Cir. 1994) (quoting Celotex Corp. v. Catrett, 

, 323 (5th Cir. 1994)).
A fact is material if it “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 

, 248 (1986). If the movant
meets this burden, the burden shifts to the nonmovant to show that there is a
genuine issue for trial. Liquid Air 

. The nonmovant’s
burden “is not satisfied with some metaphysical doubt as to the material facts,
by conclusory allegations, by unsubstantiated assertions, or by only a scintilla
of evidence.” 

internal quotation marks omitted). “We resolve
factual controversies in favor of the nonmoving party, but only when there is
an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” 

the remaining individual defendants asserted the defense of
qualified immunity. “When properly applied, [qualified immunity] protects all
but the plainly incompetent or those who knowingly violated the law.” Ashcroft
v. al-Kidd, 

, 2085 (2011) (citation and internal quotation marks
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                                     No. 14-41410
omitted). “Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’
at the time of the challenged conduct.” 

“When a defendant invokes
qualified immunity, the burden is on the plaintiff to demonstrate the
inapplicability of the defense.” McClendon v. City of Columbia, 

,
323 (5th Cir. 2002); see also Michalik v. Hermann, 

, 258 (5th Cir.
2005) (“The plaintiff bears the burden of proving that a government official is
not entitled to qualified immunity.”).
                                    DISCUSSION
       On appeal, Plaintiffs do not present a coherent theory of liability, making
it difficult to evaluate their claims. Plaintiffs proceed only on their Fourth
Amendment false arrest claim and have abandoned all other theories of
liability. 5 See Cinel v. Connick, 

, 1343 (5th Cir. 1994) (“A party
who inadequately briefs an issue is considered to have abandoned the claim.”).
Before addressing each individual Defendant, Plaintiffs contend that because
they “asserted a civil conspiracy,” they did not “have to allege specific acts or
adduce proof of specific acts by [the Defendants].” Plaintiffs assert that they
“show[ed] that the City Secretary, the City Commission, the City Attorney, and
the police-types all acted together to defeat the recall petition. This proof of
concerted action precluded summary judgment.”
      As this court has explained, “[u]nder § 1983 conspiracy can furnish the
conceptual spring for imputing liability from one to another”; however, “it
remains necessary to prove an actual deprivation of a constitutional right; a
conspiracy to deprive is insufficient.” Villanueva v. McInnis, 

, 418


      5  Other than in their introductory argument, urging the panel to adopt a more
stringent summary judgment standard in “political free speech cases,” which we will address
below, Plaintiffs do not mention the First Amendment.
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(5th Cir. 1984). Therefore, in order to succeed on a § 1983 conspiracy claim, a
plaintiff must show: 1) an agreement between the alleged conspirators to
commit an illegal act, and 2) an actual deprivation of constitutional rights. See

. Plaintiffs here have shown neither. 6
       “The Fourth Amendment ensures that ‘[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause.’” Club Retro, LLC v. Hilton, 

, 195 (5th Cir.
2009). The constitutional claim of false arrest, in violation of the Fourth
Amendment, requires a showing that there was no probable cause.                             See
Haggerty v. Tex. S. Univ., 

, 655 (5th Cir. 2004); Glenn v. City of
Tyler, 

, 313 (5th Cir. 2001) (“The Fourth Amendment requires that
an arrest be supported by properly issued arrest warrant or probable cause.”).
“The Supreme Court has defined probable cause as the ‘facts and
circumstances within the officer’s knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit
an offense.’” Piazza v. Mayne, 

, 245-46 (5th Cir. 2000) (quoting
Michigan v. DeFillippo, 

, 37 (1979)). Officers will be entitled to
qualified immunity for an arrest “if a reasonable person in their position could
have believed he had probable cause to arrest.” 

(citation
and internal quotation marks omitted).




       6 While we decide this case on the ground that Plaintiffs have not demonstrated that
their Fourth Amendment rights were violated, we note also that, as the district court found,
Plaintiffs’ evidence of an agreement between Defendants is insufficient. See McAfee v. 5th
Cir. Judges, 

, 222 (5th Cir. 1989) (“It is now well settled in this Circuit that mere
conclusory allegations of conspiracy cannot, absent reference to material facts, state a
substantial claim of federal conspiracy.” (citation and internal quotation marks omitted)).
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      Before the district court, “Plaintiffs had not attempted to argue that
Luna lacked probable cause to request warrants for Recall Plaintiffs’ arrests.”
In fact, as the district court explained, “[w]ith the exception of [Plaintiff]
Notary Sanchez, Plaintiffs do not challenge Luna’s . . . sworn statement of
probable cause in each of the complaints.” Because of this court’s “general rule
. . . that arguments not raised before the district court are waived on appeal,”
Balentine v. Thaler, 

, 848 (5th Cir. 2010), the fact that the
Plaintiffs did not contest probable cause before the district court should end
our analysis. Even if we were to consider Plaintiffs’ new arguments on appeal,
however, they would still fail.
      Crucially, Plaintiffs do not challenge the finding of Tamez’s investigation
and Defendant Luna’s interviews, that some of the signatures on the submitted
recall petition were obtained improperly. Plaintiffs do not attempt to contest
probable cause until page forty-four of their brief, when they claim that
“Gonzalez did not train Luna on probable cause.” They assert that a recall
petition is not a government document and, therefore, one of the elements of
the crime—tampering with a government document—was missing. Plaintiffs
cite two cases, one from the Supreme Court of Washington and one from the
Supreme Court of Nebraska, which they contend prove that a recall petition is
not a government document in Texas. First, neither of these cases stands for
the proposition that Plaintiffs assert. In fact, the language that Plaintiffs
purport to quote from State ex rel. Lottman v. Bd. of Educ. of Sch. Dist. No.
103, 

(Neb. 1978), regarding the filing of a recall petition, does
not appear in that case. Second, neither of these cases sheds any light on
whether a recall petition is a government document under Texas law. This
inapposite caselaw does not demonstrate that Defendant Luna obtained arrest
warrants without probable cause. Because Plaintiffs have failed to show, and
in fact barely allege, that they were arrested without probable cause, they have
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                                  No. 14-41410
not put forth evidence sufficient to support a Fourth Amendment false arrest
claim. Accordingly, we hold that the district court properly granted summary
judgment in favor of Defendants.
         Plaintiffs also claim to “advance[] a good-faith argument for a more
stringent standard for rendering summary judgment in political free speech
cases.” Plaintiffs cite inapplicable caselaw pertaining to pleading standards
and motions to dismiss, rather than summary judgment, and compare this
suggestion to the more liberal pleading standard that applies to pro se
litigants. Plaintiffs assert that because “Free Speech is the First Article in the
Bill of Rights . . . [i]ts priority, its ‘firstness’, should prompt the Court to
consider such a more rigorous measure in political free speech proceedings.”
But see Liquid Air 

(“[T]he nonmoving party’s burden is
not affected by the type of case; summary judgment is appropriate in any case
‘where critical evidence is so weak or tenuous on an essential fact that it could
not support a judgment in favor of the nonmovant.’” (citation omitted)).
Because Plaintiffs’ legal support for its suggestion that the panel adopt a new
summary judgment standard for free-speech cases is inapposite, we decline to
do so.
                                CONCLUSION
         For the reasons above, approving of the reasons given by the district
court in its thorough orders granting summary judgment to Defendants, we
AFFIRM.




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