Jon Castorena v. Christopher Zamora, et al

Filing

UNPUBLISHED OPINION FILED. [16-20001 Affirmed ] Judge: EGJ , Judge: PEH , Judge: ECP Mandate pull date is 04/21/2017 [16-20001]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-20001

United States Court of Appeals
Fifth Circuit

FILED
March 31, 2017

JON PAUL CASTORENA,

Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
CHRISTOPHER MANUEL ZAMORA, Individually and in his official
capacity; CITY OF HOUSTON,
Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
On April 29, 2013, Defendant police officer Christopher Zamora
approached Plaintiff Jon Castorena’s home based on a noise complaint. Officer
Zamora claims that Castorena came to the door and pointed a gun at him,
which Castorena disputes. Nevertheless, Officer Zamora procured an arrest
warrant for aggravated assault on a peace officer. Hours later, the Houston
Police Department (“HPD”) SWAT team broke down Castorena’s front door

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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and arrested him. After being “no-billed” by a grand jury, Castorena sued
Defendants Officer Zamora and the City of Houston under 42 U.S.C. §§ 1983
and 1988 alleging Fourth Amendment violations of unlawful entry into his
home and unlawful seizure of his person. The district court granted summary
judgment to Officer Zamora on the basis of qualified immunity, and to the City
of Houston on the basis of insufficient evidence. We AFFIRM the district
court’s judgment.
I.
After midnight on April 29, 2013, a neighbor awoke to loud music from
Plaintiff Jon Castorena’s upstairs terrace. Castorena alleges he had fallen
asleep after inadvertently setting his iPad to play music on his fourth floor
terrace. The neighbor walked down the street, knocked on Castorena’s door,
and rang the doorbell. When he got no answer, he called the non-emergency
HPD phone number to report the noise. Defendant Officer Zamora, riding alone
that night, was dispatched to Castorena’s home.
Castorena and Zamora present differing accounts of their subsequent
interaction. Castorena alleged he awoke believing someone was breaking into
his house. He grabbed his firearm 1 and went to the top of the stairs, where he
crouched and looked down to his entryway. Due to the blurred glass on his
front door, he could only make out a figure. He yelled out to ask who the figure
was, and alleged the figure yelled, “Open this [expletive] door now!” Castorena
responded, “I have a gun and I will shoot you if you don’t back away from this
door.” Castorena also “racked his firearm with the barrel of the firearm
pointing downward to his right for safety.”
Contrary to Castorena’s recollection, Zamora stated that when he
arrived at Castorena’s house—in his police uniform—he heard loud music and

1

Castorena had a concealed handgun license.

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“what sounded like a man slurring his speech, yelling very loudly, trying to
sing with music that was playing.” Zamora knocked on Castorena’s door, rang
the doorbell, and announced himself as an HPD officer several times. At that
point, Zamora saw “a figure come to the door and yell ‘Who is it?’” Zamora again
identified himself and asked the figure to open the door. Instead of doing so,
Zamora heard a gun being racked. Zamora stepped back and pulled out his
own weapon. He then saw the figure inside the house point a gun at him and
yell, “Step back from the door. I have a pistol, and I’ll shoot you.” Officer
Zamora recounted that he did not have a hard time seeing Castorena through
the front door.
After this initial interaction, Zamora radioed the dispatcher that the
person had pointed a gun at him and he needed backup. Meanwhile, Castorena
went to his second floor balcony to peer out, where he says he realized that
Zamora was a police officer. Zamora looked up and saw Castorena on the
balcony and shined his flashlight up. The two then yelled back and forth to
each other, though they dispute what was said. Ultimately, Castorena went
inside and turned off the music. Other police officers arrived thereafter.
Castorena alleges he was terrified to go outside so he called 9-1-1, where
he was connected with an HPD sergeant. The sergeant told Castorena he would
get back to him, but after waiting in vain for a half hour, Castorena alleged he
became ill, took medication, and fell asleep. In the meantime, HPD Sergeants
Welch and Tewold arrived at the scene. 2 Upon learning from Officer Zamora
that a pistol was pointed at Zamora, Sergeant Tewold believed Castorena had
committed a crime.

At some point, Castorena communicated with Sergeant Welch, who confirmed that
Castorena had a gun but would not come outside.
2

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Sergeant Tewold contacted an assistant district attorney, who accepted
the charge for aggravated assault on a peace officer. SWAT was apprised of the
situation and instructed the primary officer to get an arrest warrant. Sergeant
Tewold sent Zamora to the DA to obtain the warrant. The ADA’s warrant
application included Zamora’s statement of probable cause:
Affiant, C. Zamora, is a Peace officer assigned to the [HPD] and he
has reason to believe and does believe that the Defendant, Jon
Castorena, committed the felony offense of Aggravated Assault on
a Police Officer . . .
Affiant states that on April 29, 2013 he went to a residence . . . in
Houston, Harris County, Texas in response to a loud music
disturbance. Affiant states that he went to the door in full police
uniform and he observed the Defendant, a person he identified by
viewing his driver’s license photograph on a computer screen, with
a gun in his hand. Affiant states that he observed the Defendant
point the weapon at your affiant while the Defendant was standing
in his house and your affiant was standing outside of the
Defendant’s house.
SWAT and the Hostage Negotiation Team (“HNT”) arrived at 3:44 a.m.
At 4:27 a.m., Castorena and HPD established communication. After back-andforth between the HNT and Castorena, SWAT broke the front door with a ram
device. Castorena claims they did so before he had a chance to peacefully exit
as discussed on the phone, but ultimately Castorena walked outside on his
own. Castorena states he was charged with “felony aggravated assault of a
police officer with a deadly weapon.” Ultimately, however, Castorena was “nobilled” by the grand jury.
Castorena filed his a complaint under 42 U.S.C. §§ 1983, 1988, alleging
Fourth Amendment violations of unlawful entry into his home with a falsified
warrant and unlawful seizure of his person. Defendants Zamora and City of
Houston separately moved for summary judgment, which the district court
granted. Castorena now appeals.
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II.

The district court’s jurisdiction was proper under 28 U.S.C. §§ 1331 and
1343, as is this Court’s under 28 U.S.C. § 1291. “We review a district court’s
grant of summary judgment de novo, applying the same legal standards as the
district court.” 3 “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 4 However,
[a] good-faith assertion of qualified immunity ‘alters the usual
summary judgment burden of proof.’ We draw all inferences in
favor of the plaintiff (i.e., the nonmovant), but once a state official
(i.e., the movant) asserts the defense, the burden shifts to the
plaintiff to show that the defense is not available. 5
“The plaintiff therefore bears the burden of showing a genuine and
material dispute as to whether the official is entitled to qualified immunity.” 6
“In conducting the qualified immunity analysis, we ‘may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.’” 7
III.

With respect to Defendant Zamora, Castorena has failed to show a
genuine and material dispute as to whether Zamora is entitled to qualified
immunity. With respect to Defendant City of Houston, Castorena has similarly
failed to show a genuine dispute of material fact with regard to the elements
of municipal liability. We accordingly affirm the district court’s judgment.

Ballard v. Devon Energy Prod. Co., L.P., 678 F.3d 360, 365 (5th Cir. 2012) (citation
omitted).
4 FED. R. CIV. P. 56(a).
5 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (citations omitted).
6 Id. (citation omitted).
7 Id. at 377 (quoting Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)).
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A.

“Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions. When properly
applied, it protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” 8 “The basic steps of our qualified-immunity inquiry are wellknown: a plaintiff seeking to defeat qualified immunity must show: ‘(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.’” 9 This appeal
focuses on the first step.
Castorena contended Zamora lied in order to procure an arrest warrant,
effectively alleging a civil Franks v. Delaware 10 claim. Castorena focuses his
dispute on two of the district court’s six “undisputed facts.” 11 He does not press
legal arguments nor does he respond to Officer Zamora’s legal theories.
Instead, Castorena reiterates his initial belief that Officer Zamora was an
intruder and did not make it clear otherwise, and recounts the events from the
night. Officer Zamora responds that qualified immunity was properly granted
because there was no violation of constitutional law. Notably, Zamora suggests
there is no Fourth Amendment violation if probable cause is established
independent of the alleged false information, and that a court must “include
undisputed facts that were not included in the warrant application” in its

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citation omitted).
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (citations omitted)).
10 438 U.S. 154 (1978).
11 Those disputed facts, which Castorena states require context and specificity, are:
(1) “Officer Zamora was in uniform and identified himself as an officer when he responded to
the noise complaints,” and (6), “Castorena, after realizing Officer Zamora was a police officer
and not a burglar, never exited the home to discuss [the] incident, but instead called 911 to
complain there was an officer who would not leave and then fell asleep.” Castorena does not
dispute the other four facts: “(2) Castorena had a gun; (3) Castorena ‘racked’ the gun; (4)
Castorena stated ‘I have a gun and I will shoot you if you don’t back away from this door[’];
(5) Officer Zamora heard either the racking or statement and retreated as if [he] was aware
Castorena had a gun he intended to use.”
8
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inquiry. Zamora then reasons that the undisputed facts established probable
cause for aggravated assault of a peace officer. 12
In Franks v. Delaware, the Supreme Court held that criminal defendants
may challenge allegedly false statements in warrant affidavits. 13 Plaintiffs
may bring civil Franks claims based on allegations of either an intentional
falsification or material omission in a warrant application. 14 In analyzing
Plaintiff’s claim, the district court adopted Officer Zamora’s stated test of
extracting the alleged falsity and analyzing everything else known to the
officer for probable cause. Castorena conceded to the use of this test, under
which Zamora is entitled to summary judgment.
Even though there is a question whether the district court applied the
proper legal test, Castorena abandoned any argument as to the legal test for
failing to brief it on appeal. “Issues submitted to this Court that are
inadequately briefed are considered abandoned.” 15 Here, Castorena did not
contest Zamora’s version of the governing legal test. As in Legate v. Livingston,
Castorena “fails to substantively address [this] issue[] in his brief . . . . A party

See TEX. PENAL CODE ANN. § 22.01(a) (West 2011); Id. at § 22.02(a) (“A person
commits an offense if the person commits assault as defined in § 22.01 and the person . . . (2)
uses or exhibits a deadly weapon during the commission of the assault.”).
13 Franks, 438 U.S. at 155–56.
14 See, e.g., Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006); Johnson v.
Norcross, 565 F. App’x 287, 289 (5th Cir. 2014) (per curiam) (unpublished). Our Court
recently granted rehearing en banc in Melton v. Phillips, 837 F.3d 502 (5th Cir. 2016), reh’g
en banc granted, No. 15-10604, 2017 WL 629267 (5th Cir. Feb. 15, 2017) (mem), which
concerns a similar context, but which does not affect our analysis in the present case.
15 Davis v. Davis, 826 F.3d 258, 266 (5th Cir. 2016) (citation omitted) (plaintiffs
abandoned claims they “only briefly mention” on appeal with “entirely conclusory”
arguments); FED. R. APP. P. 28(a)(8)(A) (argument on appeal must contain “contentions and
the reasons for them, with citations to the authorities and parts of the record on which the
appellant relies”).
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that fails to adequately address an argument asserted on appeal is deemed to
have waived that argument.” 16
Even in the court below, Castorena argued within the confines of Officer
Zamora’s stated legal test. Under this test, Officer Zamora is entitled to
qualified immunity. Based on Castorena’s threat and racking of his gun—facts
Castorena does not dispute—Officer Zamora had probable cause for
Castorena’s arrest. Castorena has not shown a genuine dispute of material fact
that Officer Zamora violated his constitutional rights.
B.

Defendant City of Houston is also entitled to summary judgment, as
Castorena has failed to offer sufficient evidence at this stage to show municipal
liability. Castorena alleges the district court improperly applied the summary
judgment standard, and points to factual inconsistencies and disagreements
with Defendant witnesses. Castorena expresses problems with the HPD policy
of classifying “special threat situations” based on a “barricaded suspect,”
because it improperly classifies homeowners who threaten people they believe
to be burglars. Similarly, Castorena suggests the HPD policy that did not
require Sergeant Tewold to report certain facts to the ADA, or include in his
incident report, is problematic.
The City of Houston argues that “Castorena has shown no evidence of a
policy, custom, or widespread practice,” nor has he shown that Houston’s
policymaker had knowledge of any widespread practice of unconstitutional
actions that was disregarded. Houston further maintains that HPD “General
Orders” constitute official policies, that HPD’s training policies exceed state
requirements and show a commitment to respecting civil rights, that there is

822 F.3d 207, 211 (5th Cir. 2016) (citations omitted), cert. denied sub nom. Legate v.
Collier, 137 S. Ct. 489 (2016) (mem), reh’g denied, No. 16-5915, 2017 WL 670685 (U.S. Feb.
21, 2017).
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no evidence to support Castorena’s failure to train, supervise, or discipline
claim, and that there is no evidence of either deliberate indifference or that
any policy constituted a “moving force” behind alleged constitutional
violations.
“Municipal liability inures only when the execution of a local
government’s policy or custom causes the injury.” 17 “[T]o hold a municipality
liable under § 1983, the plaintiff must prove three elements: (1) a policymaker;
(2) an official policy; and (3) a ‘violation of constitutional rights whose “moving
force” is the policy or custom.’” 18 In order to demonstrate “moving force,” “a
plaintiff must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link between the
municipal action and the deprivation of federal rights.” 19 As this Court has
explained:
The “moving force” inquiry imposes a causation standard higher
than “but for” causation. Under the culpability requirement, if the
policy is facially lawful, a plaintiff must also show that the
municipality “promulgated [the policy] with deliberate
indifference to the ‘known or obvious consequences’ that
constitutional violations would result.” Even a showing of
heightened negligence is insufficient to show the deliberate
indifference needed to prove municipal liability. 20

Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996) (citing Monell v. N.Y.C. Dep’t of
Social Servs., 436 U.S. 658, 694 (1978)).
18 Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 280 (5th Cir. 2015)
(citations omitted). “Official policy” means “[a] policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by the municipality’s lawmaking officers
or by an official to whom the lawmakers have delegated policy-making authority” or “[a]
persistent, widespread practice of city officials or 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.” Id. (citation omitted).
19 Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997).
20 Mason, 806 F.3d at 280 (citations omitted).
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In the district court, Castorena alleged municipal liability on the basis
of three policies: (1) a “barricaded suspect” policy that improperly classifies
homeowners, (2) a policy that does not require HPD officers to make it known
to homeowners that they are actually police officers when approaching homes
at night, and (3) a policy that allows officers to omit reporting “exculpatory”
information to the DA when calling in a potential crime. On appeal, Castorena
narrows his challenge to only the first policy, arguing that Houston’s “Special
Threat Situation” policy and closely related “Barricaded Suspect” policy led to
a violation of his constitutional rights.
Castorena has therefore abandoned his other two arguments as to
municipal liability. 21 But, even if Castorena had preserved those arguments,
they would fail. As to both of the other alleged policies, Castorena has offered
insufficient evidence to show a genuine issue of material fact that the policies
were a “moving force” behind any constitutional violation. To the extent
Castorena alleges policies of inadequate training, he has failed to offer
sufficient evidence of the required elements. 22
The remaining challenged policy is HPD’s “Special Threat Situation”
policy and “Barricaded Suspect” policy, explained in HPD General Order 60005. That order states in relevant part:
Davis, 826 F.3d at 266; Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per
curiam) (“Although we liberally construe briefs of pro se litigants and apply less stringent
standards to parties proceeding pro se than to parties represented by counsel, pro se parties
must still brief the issues and reasonably comply with the standards of Rule 28.” (citations
omitted)).
22 Baker, 75 F.3d at 200 (“In order to hold a municipality liable under § 1983 for its
employees’ acts, a plaintiff must show that a policy of hiring or training caused those acts.
Such a showing requires proof that (1) the training or hiring procedures of the municipality’s
policymaker were inadequate, (2) the municipality’s policymaker was deliberately indifferent
in adopting the hiring or training policy, and (3) the inadequate hiring or training policy
directly caused the plaintiff’s injury. Where the alleged policy is one of inadequate police
training, the plaintiff can only satisfy the first element of municipal liability if the failure to
train satisfies the ‘deliberate indifference’ standard that applies to supervisor liability.”
(citations omitted)).
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The [HPD’s] [SWAT] Detail and [HNT] shall be used in all special
threat situations as defined in this General Order.
Special Threat Situation. Any situation involving a . . .
barricaded suspect, hostage situation . . . or threatened suicide
involving a weapon or from an elevated structure such as a bridge
or building.
Barricaded Suspect. Any person who:
a. Has demonstrated capability and/or stated the intent to
cause death or serious bodily injury to any person, including
himself, and
b. Has achieved tactical superiority by location or the use of
a physical obstruction (e.g., an open field, a building, a
vehicle, any natural or man-made barrier).
Assuming arguendo that Castorena has shown (1) a policymaker, and (2)
that General Order 600-05 is an official policy, he has failed to show a genuine
and material dispute that the policy was the “moving force” of any alleged
violation of Castorena’s constitutional rights to privacy, to be free from
unreasonable searches and seizures, or to be free from excessive force.
Castorena has not offered sufficient evidence on summary judgment that
Houston promulgated General Order 600-05 “with deliberate indifference to
the known or obvious consequences that constitutional violations would
result.” 23 Furthermore, Castorena has not offered sufficient evidence of “a
direct causal link between the municipal action and the deprivation of federal
rights.” 24 Although Castorena has made arguments about Sergeant Tewold’s
response to the incident, and about whether General Order 600-05 allows too
much discretion as to who can be classified as a “barricaded suspect,” he has

23
24

Mason, 806 F.3d at 280 (citations and internal quotation marks omitted).
Brown, 520 U.S. at 404.

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not sufficiently shown that the policy was the “moving force” behind alleged
constitutional violations.
Moreover, to the extent Castorena argues that the policy was not the
official HPD General Order 600-05, but was rather a “persistent, widespread
practice” of labeling “Special Threat Situations” and “Barricaded Suspects” in
a certain manner, Castorena has failed to show that such a practice was “so
common and well settled as to constitute a custom that fairly represents
municipal policy.” 25 “Isolated violations are not the persistent, often repeated,
constant violations that constitute custom and policy.” 26 “[T]here is no issue for
trial unless there is sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.” 27 Here, Castorena has not offered sufficient
evidence to do so on his municipal liability claim.
Judgment AFFIRMED.

25
26

omitted).
27

Mason, 806 F.3d at 280 (citation omitted).
Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984) (en banc) (citations
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citation omitted).

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