933 F.3d 414 (5th Cir. 2019), 18-40434, Cantú v. Moody

Docket Nº:18-40434
Citation:933 F.3d 414
Opinion Judge:ANDREW S. OLDHAM, Circuit Judge:
Party Name:Daniel Enrique CANTÚ, Plaintiff-Appellant, v. James M. MOODY; Erin S. LaBuz, also known as Erin S. Hayne; Nathan Husak; David de los Santos; Ryan Porter; Rosa Lee Garza; Alfredo Barrera; United States of America; Christopher Lee, Defendants-Appellees.
Attorney:Jerold Daniel Friedman, Law Office of Jerold D. Friedman, Los Angeles, CA, for Plaintiff-Appellant. David Louis Guerra, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, McAllen, TX, for Defendants-Appellees James M. Moody, Erin S. LaBuz, also known as Erin S. Hayne, Nat...
Judge Panel:Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:
Case Date:August 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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933 F.3d 414 (5th Cir. 2019)

Daniel Enrique CANTÚ, Plaintiff-Appellant,

v.

James M. MOODY; Erin S. LaBuz, also known as Erin S. Hayne; Nathan Husak; David de los Santos; Ryan Porter; Rosa Lee Garza; Alfredo Barrera; United States of America; Christopher Lee, Defendants-Appellees.

No. 18-40434

United States Court of Appeals, Fifth Circuit

August 5, 2019

Page 415

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Texas, Ricardo H. Hinojosa, U.S. District Judge

Jerold Daniel Friedman, Law Office of Jerold D. Friedman, Los Angeles, CA, for Plaintiff-Appellant.

David Louis Guerra, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, McAllen, TX, for Defendants-Appellees James M. Moody, Erin S. LaBuz, also known as Erin S. Hayne, Nathan Husak, David De Los Santos, Ryan Porter, Rosa Lee Garza, United States of America, Christopher Lee.

Bill L. Davis, Assistant Attorney General, Office of the Attorney General, Office of the Solicitor General, Seth Byron Dennis, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Defendant-Appellee Alfredo Barrera.

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

OPINION

ANDREW S. OLDHAM, Circuit Judge:

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Daniel Enrique Cantúis a member of the Texas Mexican Mafia. He says the U.S. Constitution and federal civil rights laws afford him money damages against state and federal law enforcement officers for claims arising from a drug bust. We disagree.

I.

A.

This case arises from a transnational drug-trafficking investigation. In 2010, the federal government began investigating the Texas Mexican Mafia. As part of its investigation, the government identified Jesus Rodriguez Barrientes as the gang’s leader in the Rio Grande Valley. Working with state and local law enforcement, the FBI planned a sting operation as part of Barrientes’s regular heroin purchases from Mexican drug smugglers.

FBI agents convinced Juan Pablo Rodriguez, a member of the Texas Mexican Mafia, to work as an informant. When Barrientes’s heroin shipment arrived, Rodriguez would meet the drug smugglers at the border and then drive everyone to a drop-off location. There Rodriguez would deliver the heroin to whomever Barrientes designated as his authorized recipient.

On the morning of August 10, 2011, things went mostly according to plan. Rodriguez, accompanied by an undercover police officer, drove to the Rio Grande where he met the drug smugglers. Then, at 7:30 a.m., Rodriguez called Cantúand asked him to come to an H-E-B parking lot so they could talk in person. According to Cantú, Rodriguez did not say what he wanted to talk about.

When Cantúarrived, he parked to the left of Rodriguez’s car and rolled down his passenger-side window. Rodriguez then got out of his car, went to the trunk, took out a cooler, and placed it through Cantú ’s open window and onto the passenger seat. "I need you to do me a favor," Rodriguez allegedly said. Cantúsays he had time to ask only one question— "What are you doing?"— before forty-five law enforcement officers descended on his vehicle. One of the officers, FBI Agent David de los Santos, pulled Cantúfrom his car, searched him, and placed him under arrest. The cooler contained nearly two kilograms of heroin.

Although Cantúsays he remained in his car the whole time and never touched the cooler, two federal agents swore otherwise in affidavits. FBI Agent James Moody said Cantúexited his vehicle and personally took the cooler from Rodriguez’s trunk. FBI Agent Erin LaBuz said Rodriguez handed the cooler to Cantú, who personally placed it in his passenger seat.

A federal grand jury indicted Cantú, Barrientes, his wife, and two smugglers for possession of heroin with intent to distribute and conspiracy. Barrientes, his wife, and one of the smugglers pleaded guilty and were sent to federal prison. Cantú

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elected to stand trial. On October 31, 2013, a federal jury acquitted him. By that time, he had spent more than two years in jail.

B.

Cantúthen sued a slew of defendants under Bivens, the Federal Tort Claims Act, § 1983, § 1985, and state law. In the complaint, he alleged twenty-one claims under the Fourth Amendment, Fifth Amendment, Fourteenth Amendment, and various tort theories— like malicious prosecution, false arrest, false imprisonment, assault, civil conspiracy, conversion, and negligence. And he offered his theory of how he went from his bed to a grocery store to a jail cell: Forty-five officers jeopardized a sophisticated, multi-year, multi-jurisdictional sting operation aimed at a transnational gang to frame an otherwise-innocent member of the Texas Mexican Mafia in an effort "to improve each of their professional arrest and conviction rate records against drug traffickers." However far-fetched that might seem, we take Cantú ’s well-pleaded allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 680-81, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Cantúalleges he was never the intended recipient of the heroin. He says Rodriguez, while driving to the H-E-B, tried and failed to get in touch with the actual recipient. So he called Cantúinstead. The gravamen of Cantú ’s complaint is that officers who were privy to Rodriguez’s audible— and Cantú ’s professed ignorance about why he was being called to the grocery store— knew Cantúwas not the guy who was supposed to show up that morning. Yet they permitted him to be arrested and then doubled down, fabricating facts about Cantú ’s behavior to create the impression he was the guy.

After several hearings, the district court dismissed all of Cantú ’s claims against all fifteen federal, state, and county defendants. It also granted Cantú ’s motion to voluntarily dismiss (with prejudice) his claims against the only remaining defendant— the private company that operated the prison where he was housed before trial. The court further denied Cantú ’s request to file a Fourth Amended Complaint. It later filed four separate dismissal orders. Cantúappealed the orders dismissing the federal, state, and county defendants.1

II.

In his briefs before our Court, Cantúpursues only a subset of his claims against only a subset of the defendants— FBI Agent James Moody, FBI Agent Erin LaBuz, FBI Agent David de los Santos, and

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Texas DPS Officer Alfredo Barrera. He has forfeited everything else. See United States v. Vasquez, 899 F.3d 363, 380 n.11 (5th Cir. 2018) (holding appellant’s "failure to clearly identify [an issue] as a potential basis for relief forfeits the argument on appeal").

We review the dismissal of Cantú ’s claims de novo . Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). We start with his § 1985 claim against the federal officers. It fails under Federal Rule of Civil Procedure 12(b)(6). Second, we address his § 1983 claims against Barrera. They fail under the same standard. Third, we hold the purported Bivens claim against Moody and LaBuz is not cognizable.

A.

Cantúalleges the federal defendants— Moody, LaBuz, and de los Santos— conspired to violate his civil rights under 42 U.S.C. § 1985(3). But he has two problems. Under our precedent, § 1985(3) does not cover every kind of defendant. And its plain text doesn’t cover every kind of conspiracy.

Our precedent holds § 1985(3) does not apply to federal officers. In Mack v. Alexander, 575 F.2d 488 (5th Cir. 1978) (per curiam), we concluded § 1983 and § 1985 "provide a remedy for deprivation of rights under color of state law and do not apply when the defendants are acting under color of federal law." Id. at 489; accord

Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971). Other circuits have criticized that holding for failing to grapple with Supreme Court precedent. See, e.g.,

Iqbal v. Hasty, 490 F.3d 143, 176 n.13 (2d Cir. 2007), rev’d on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Ogden v. United States, 758 F.2d 1168, 1175 n.3 (7th Cir. 1985). And the Supreme Court recently assumed § 1985(3) applies to federal officers. See Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 1865-69, 198 L.Ed.2d 290 (2017). Mack may not have aged well, but we need not decide whether it remains binding on us.

Even if we were inclined to ignore Mack, Cantú ’s claim would fail for an independent reason. The relevant text of § 1985(3) criminalizes only conspiracies that involve depriving someone of "equal protection of the laws" or "equal privileges and immunities under the laws." 42 U.S.C. § 1985(3); see Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). This kind of conspiracy requires some form of class-based discrimination. United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 834-35, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983).

Cantúsays "he belongs to a class of individuals who have felony convictions and/or were previously incarcerated." But the Supreme "Court ... has never held that nonracial animus is sufficient." Newberry v. E. Tex. State Univ., 161 F.3d 276, 281 n.2 (5th Cir. 1998). And we have held racial animus is required: "[I]n this circuit ... the only conspiracies actionable under section 1985(3) are those motivated by racial animus." Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987); see also Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 269-74, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993); Scott, 463 U.S. at 835-38, 103 S.Ct. 3352; Griffin, 403 U.S. at 104-05, 91 S.Ct. 1790 (noting that § 1985(3) was passed pursuant to the Thirteenth Amendment).

Even assuming § 1985(3) covers Cantús proffered class—...

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