Case: 17-40940       Document: 00514462739         Page: 1    Date Filed: 05/08/2018




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

                                    No. 17-40940                             FILED
                                  Summary Calendar                        May 8, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
JOSE VELASCO,

               Plaintiff – Appellant,

v.


CAMERON COUNTY; PETE SEPULVEDA, JR., In His Official Capacity;
ARMANDO VILLALOBOS, In His Official Capacity as Cameron County
District Attorney; ELIUD PLATA, In His Individual and Official Capacity,
Cameron County Investigator; OMAR LERMA, In His Individual and Official
Capacity, Cameron County Investigator,

               Defendants – Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:15-CV-143


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jose Velasco appeals the district court’s grant of summary judgment to
Defendants, contending that there are fact disputes as to whether Defendants


       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                        No. 17-40940
violated his constitutional rights by subjecting him to false arrest.                    We
AFFIRM.
      A Cameron County deputy arrested a suspect for the crime of knowingly
and intentionally possessing a usable quantity of marijuana. Documents filed
with the Cameron County Sheriff’s Department (including the case report,
arrest information report, voluntary statement of the accused, Miranda
waiver, and property receipt) identified the suspect as “Jose Velasquez.”
According to Velasco, County records created later erroneously identified “Jose
Velasco” as the suspect arrested for possession of marijuana. Based on this
alleged misidentification, Velasco was arrested about two years later pursuant
to a writ of capias for allegedly failing to appear for a scheduled court date.
Following this arrest, Velasco appears to have spent over sixty days in jail
before charges were dropped and he was released.
      The claims before the district court fall into three categories: (1) Monell 1
municipal liability claims against the County; (2) Fourth Amendment false-
arrest claims against Omar Lerma and Eliud Plata in their individual
capacities—both Lerma and Plata were County investigators at the time of the
events underlying this lawsuit; and (3) a Fourteenth Amendment stigma-plus-
infringement claim against Lerma and Plata in their individual capacities.
      Before the district court, Velasco argued that the County adopted and
promulgated as an official custom or policy a “pay-to-play” scheme in which it
pressured Lerma and Plata (and others) to keep the number of arrestees high
by wrongfully arresting people. The district court determined that Velasco
failed to offer any summary-judgment evidence of this and thus granted
summary judgment to the County on the Monell claims.




      1   Monell v. Dep’t of Soc. Servs. of N.Y.C., 

(1978).
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                                  No. 17-40940
      As to the Fourth Amendment claims, the district court reasoned that
“[t]here is no basis to conclude, solely from the use of the name ‘Jose Velasquez’
on one set of documents and ‘Jose Velasco’ on some of the documents in the
record, that Plaintiff was falsely arrested.” As to Lerma, the district court
determined that Velasco had provided no summary-judgment evidence to show
that Lerma knowingly or recklessly misrepresented material facts in
processing the arrest. Similarly, the district court concluded that Velasco
failed to raise a factual dispute as to whether Plata knowingly or recklessly
misrepresented a material fact in his sworn affidavit. Moreover, the district
court determined that Velasco failed to raise a factual dispute as to whether
Plata acted unreasonably.
      Regarding Velasco’s Fourteenth Amendment stigma-plus-infringement
claim, which Velasco does not discuss on appeal, the district court ruled that
Velasco had provided “no evidence that there was a false communication or
false assertion directed towards [him],” citing Blackburn v. City of Marshall,

, 936 (5th Cir. 1995). Thus, the district court granted summary
judgment to Lerma and Plata on qualified-immunity grounds on all of the
claims against them.
      “We review a grant of summary judgment de novo.” N.Y. Life Ins. Co. v.
Travelers Ins. Co., 

, 338 (5th Cir. 1996). “[W]e may affirm the
district court’s decision on any grounds supported by the record.” U.S. ex rel.
King v. Solvay Pharm., Inc., 

, 323 (5th Cir. 2017) (quoting Phillips
ex rel. Phillips v. Monroe County, 

, 376 (5th Cir. 2002)). “The
evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 

, 255
(1986). To overcome a defendant’s assertion of qualified immunity, a plaintiff
must show first that “the official violated a statutory or constitutional right”
and second that “the right was clearly established at the time of the challenged
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                                 No. 17-40940
conduct.” Melton v. Phillips, 

, 261 (5th Cir. 2017) (en banc)
(quoting Morgan v. Swanson, 

, 371 (5th Cir. 2011) (en banc)).
      On appeal, Velasco argues that the “bulk of the evidence proves” that
Defendants misidentified and wrongfully arrested him; that the County has
misidentified suspects in other instances; and that the County was involved in
an illegal “pay-to-play” scheme. As to Lerma specifically, Velasco alleges that
he was falsely arrested because of Lerma’s “reckless misrepresentation of the
facts”—according to Velasco, Lerma identified him as the initial suspect even
though Lerma had not processed that suspect’s fingerprints at the time of the
arrest. As to Plata specifically, Velasco asserts that Plata signed without
reading the affidavit and arrest warrant that led to the alleged wrongful arrest.
      On this record, the district court did not err in granting summary
judgment on all of Velasco’s claims. Most of what Velasco alleges is simply not
in the summary-judgment record. Moreover, the district court did not err in
concluding that the use of the name “Jose Velasquez” on some documents and
“Jose Velasco” on others is insufficient—standing alone—to create a fact issue
on false arrest. While we view the evidence in the light most favorable to the
non-moving party, there must actually be evidence to credit in the non-
movant’s favor. “[U]nsupported allegations or affidavits setting forth ‘ultimate
or conclusory facts and conclusions of law’ are insufficient to . . . defeat a
motion for summary judgment.” Galindo v. Precision Am. Corp., 

, 1216 (5th Cir. 1985) (quoting Charles A. Wright, Arthur R. Miller &
Mary K. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983)).
Velasco’s arguments suffer from just such conclusory assertions of fact and law.




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                                       No. 17-40940
Simply put, the district court did not err in determining that Velasco failed to
bring forth evidence to defeat summary judgment. 2
       AFFIRMED.




       2  We note that while Velasco relies heavily on the panel opinion in Melton v. Phillips,

(5th Cir. 2016), to establish Lerma’s liability, that opinion is no longer the law
in this circuit. Our en banc opinion in Melton clarifies that “an officer must have assisted in
the preparation of, or otherwise presented or signed a warrant application in order to be
subject to liability under [Franks v. Delaware, 

(1978)].” Melton v. Phillips, 

, 263 (5th Cir. 2017) (en banc). Velasco’s allegations fall woefully short of making
the required showing; there is no evidence in the record that Lerma presented, signed, or
assisted in preparing the writ of capias. However, even under the reasoning of the prior
panel decision, Velasco fails to create a fact dispute as to whether Lerma knowingly or
recklessly misrepresented information in support of Velasco’s arrest.

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