Mohamed Aly v. City of Lake Jackson

Filing

UNPUBLISHED OPINION FILED. [14-20431 Affirmed ] Judge: EHJ , Judge: FPB , Judge: JEG Mandate pull date is 04/03/2015 [14-20431]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20431
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 13, 2015

MOHAMED A. ALY,
Plaintiff - Appellant

Lyle W. Cayce
Clerk

v.
CITY OF LAKE JACKSON,
Defendant - Appellee

Appeal from the United States District Court
for the Southern District of Texas, Houston Division
USDC No. 4:13-cv-1216
Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Mohamed A. Aly (“Aly”) appeals the district court’s
dismissal of his claims on a motion for summary judgment filed by DefendantAppellee City of Lake Jackson (“City”). For the reasons below, we AFFIRM
the judgment of the district court.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20431
I.

FACTS
Aly is a merchant and American citizen of Egyptian national origin who

operates a retail business at the Brazos Mall. On May 7, 2013, Aly filed a
complaint against City, alleging the deprivation of equal protection, first
alleging that City’s policy or custom was in violation of 42 U.S.C. § 1983, and
second alleging that City’s conspiracy was in violation of 42 U.S.C. § 1985.
Regarding his claim under § 1983, Aly alleged that City has a policy of delaying
or denying police protection based on an individual’s nationality, and this
policy denied him equal protection compared to other merchants. 1 Specifically,
Aly asserted that City’s police response to his reports of theft and attempted
theft were inadequate, compared to the response to other merchants.
Regarding this claim under §1985, Aly alleged that City police conspired with
private security personnel at the Brazos Mall to similarly deny adequate
response to criminal activity.
The district court initially dismissed the case for failure to prosecute,
before reinstating the case on motion by the plaintiff. Thereafter, on June 12,
2014, the district court granted City’s motion for summary judgment, and
dismissed Aly’s complaint in its entirety, noting that Aly had failed to file a
response in opposition. 2 Aly thereafter filed a response and Rule 59(e) motion
to amend or set aside the summary-judgment order, 3 which the district court
denied. 4
Although Aly asserted unwarranted traffic stops as another type of violation, he has
not asserted that basis on appeal. See ROA.449. As a result, Aly has waived that argument
on appeal, notwithstanding City’s addressing the argument in their brief. See Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
2 ROA.448-454.
3 ROA.456-534.
4 ROA.535-540. On appeal, Aly asserts that certain evidence was presented as part of
his response. See Blue Br. 10-11. However, though Aly apparently sent the response to
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II.

DISCUSSION
This court reviews de novo a district court’s grant of summary judgment

under Federal Rule of Civil Procedure 56. 5 Accordingly, we will find summary
judgment appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” 6 In this context, a fact is
“material” if its resolution could affect the outcome of the action, 7 while a
“genuine” issue is present “only if a reasonable jury could return a verdict for
the non-movant.” 8 The movant bears the initial burden of showing the absence
of a genuine issue of material fact, 9 even when all reasonable doubts and
inferences are resolved “in the light most favorable to the non-movant.” 10 Upon
the movant’s satisfaction of this initial burden, however, the non-movant must
show the existence of a genuine issue of material fact with specificity, that is
“identify specific evidence in the record, and to articulate the precise manner
in which that evidences support[s] their claim.” 11 Importantly for this case,
“conclusory allegations unsupported by specific facts will not prevent an award
of summary judgment; ‘the plaintiff [can]not rest on his allegations . . . to get

opposing counsel, see Red Br. 2; ROA.440-444, Aly failed to properly file the response, and it
was therefore not timely before the district court at the time of the summary-judgment order.
Furthermore, since Aly does not appeal the district court’s denial of his motion to amend or
set aside, we consider only the evidence properly before the district court at the time of the
summary-judgment order.
5 Mongrue v. Monsanto Co., 249 F.3d 422, 428 (5th Cir. 2001); Fed. R. Civ. P. 56.
6 Fed. R. Civ. P. 56(c).
7 Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007).
8 Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006).
9 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
10 McKee v. City of Rockwall, 877 F.2d 409, 410 (5th Cir. 1989) (internal citation
omitted).
11 Willis v. Cleco Corp., 749 F.3d 314, 319 (5th Cir. 2014) (quoting Forsyth v. Barr, 19
F.3d 1527, 1537 (5th Cir. 1994)).

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to a jury without significant probative evidence tending to support the
complaint.’” 12
A. Claim under 42 U.S.C. § 1983
Municipal liability under § 1983 requires a tri-partite showing of a
policymaker, a policy or custom, and a constitutional violation whose moving
force is the policy or custom, 13 which collectively establishes the requisite
“direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” 14 Thus, a plaintiff cannot prevail absent a showing
of a constitutional violation. In the police context, it is well settled that “a
State’s failure to protect an individual against private violence does not
constitute a violation of the Due Process Clause.” 15 Further, while the
differential treatment in the denial of protective services might constitute a
violation of the Equal Protection Clause, 16 a plaintiff must nevertheless
provide evidence of differential treatment. 17
After finding that City had met its initial burden as movant, the district
court below ruled that Aly had failed to provide summary judgment evidence
establishing a genuine issue of material fact regarding either a constitutional
violation, or a direct causal connection to a municipal policy. 18 We agree.
On appeal, Aly concedes that “[t]he roles and specific actions of the
various arresting and charging officers are unclear.” 19 To the contrary, the only
evidence before the district court clearly supported appropriate police response

Nat’l Ass’n of Gov’t Emps v. City Public Service Bd. of San Antonio, 40 F.3d 698, 712
(5th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
13 See Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001).
14 City of Canton v. Harris, 489 U.S. 378, 385.
15 DeShaney v. Winnebago Cnty. DSS, 489 U.S. 189, 1004 (1989).
16 See id. at 1004 n.3.
17 McKee v. City of Rockwall, Tex., 877 F.2d 409, 413-414 (5th Cir. 1989).
18 ROA.
19 Blue Br. 12.
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to Aly’s service requests, and a lack of differential treatment based on national
origin. Furthermore, the record was wholly bereft of any evidence supporting
a causal connection between municipal policy and a constitutional violation,
i.e. evidence of a policymaker, or policy or custom, or the latter’s role as a
moving force behind a constitutional violation.
B. Claim under 42 U.S.C. § 1985
Municipal liability for conspiracy under § 1985 requires a showing of
“class-based, invidiously discriminatory animus behind the conspirator’s
action.” 20 We agree with the district court’s conclusion that Aly failed to
provide evidence supporting the existence of a conspiracy. Even more, in the
same way that Aly failed to provide evidence of differential treatment in
support of his § 1983 claim, he has similarly failed to create a genuine issue of
material fact regarding discriminatory animus to support his § 1985 claim.
III.

CONCLUSION
For the foregoing reasons, the judgment of the district court is

AFFIRMED.

Moffett v. Bryant, 751, F.3d 323, 326 (5th Cir. 2014) (quoting Bryant v. Military
Dep't, 597 F.3d 678, 687 (5th Cir.2010)).
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