Arnone v. Cnty. of Dall. Cnty.

• Decision Date: 23 March 2022
• Docket Number: No. 21-10597,21-10597
• Citation: 29 F.4th 262
• Parties: Christopher George ARNONE, Plaintiff—Appellant, v. COUNTY OF DALLAS COUNTY, TEXAS; William T. Hill, Jr., in his Individual capacity; Ron Goethals, in his Individual capacity, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

29 F.4th 262

Christopher George ARNONE, Plaintiff—Appellant,

v.COUNTY OF DALLAS COUNTY, TEXAS; William T. Hill, Jr., in his Individual capacity; Ron Goethals, in his Individual capacity, Defendants—Appellees.

No. 21-10597

United States Court of Appeals, Fifth Circuit.

FILED March 23, 2022

Stanley Rafe Foreman, Esq., Hutchison & Foreman, P.L.L.C., Lubbock, TX, for Plaintiff—Appellant.

Jason G. Schuette, Esq., Assistant District Attorney, District Attorney's Office for the County of Dallas - Civil Division, Dallas, TX, for Defendants—Appellees County of Dallas County, Texas, and William T. Hill, Jr.

William Francis Cole, Esq., Cody C. Coll, Esq., Office of the Attorney General of Texas, Office of the Solicitor General, Austin, TX, Jason T. Bramow, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Defendant—Appellee Ron Goethals.

Before Jolly, Willett, and Oldham, Circuit Judges.

Don R. Willett, Circuit Judge:

Christopher Arnone struck a plea deal after being charged with sexually abusing his son. While on community supervision, Arnone failed two polygraph tests. The district attorney sought to revoke Arnone's community supervision and proceed to adjudication. Arnone was convicted and sentenced to prison. Years later the Texas Court of Criminal Appeals ordered Arnone released since polygraph results are inadmissible under Texas evidence law. Arnone then sued Dallas County under 42 U.S.C. § 1983. The district court dismissed with prejudice for failure to state a claim. Because the district attorney's actions are not attributable to the county, we AFFIRM.

I

Dallas County prosecutors charged Christopher Arnone with sexually abusing his son. As part of his plea deal, Arnone pleaded nolo contendere to a single charge of felony injury to a child. The state court then placed him on ten-years deferred adjudication community supervision, which included the condition that Arnone submit to sex-offender treatment and polygraph tests.

Arnone was dismissed from sex-offender treatment because he failed two polygraph tests. The district attorney then moved to proceed to an adjudication of guilt. The trial court found Arnone guilty and sentenced him to prison. Nearly thirteen years later the Texas Court of Criminal Appeals ordered Arnone released. The Court explained that "the sole basis for the adjudication of [Arnone's] guilt was his dismissal from sex offender treatment which was based on failing two polygraph tests."¹ That entitled Arnone to release under another CCA decision, Leonard v. Texas , which holds that polygraph test results are inadmissible under Texas evidence law because they are "not reliable."²

Arnone sued, complaining that the district attorney's use of the polygraph tests amounted to an unconstitutional polygraph policy. He brought claims under 42 U.S.C. § 1983 against Dallas County, former District Attorney William Hill, and former Director of the Dallas County Community Supervision and Probation Department Ron Goethals.³ The district court dismissed Hill and Goethals with prejudice after it dismissed Arnone's Fourth Amended Complaint for failure to state a claim. Arnone repleaded. His Fifth Amended Complaint alleged a single § 1983 claim against Dallas County. Once again the district court dismissed Arnone's complaint; this time with prejudice as to Dallas County.

Arnone timely appealed. His notice of appeal suggested that he was appealing both the dismissal of his claims against Dallas County and the dismissal of his claims against the individual defendants. But Arnone's briefs make no mention of Goethals, let alone an argument supporting a plausible claim against him. Nor do Arnone's briefs make any argument supporting a plausible claim against Hill. We have said before that "[f]ailure adequately to brief an issue on appeal constitutes waiver of that argument."⁴ Since Arnone has waived his claims against the individual defendants, we need not address them.⁵ All that remains, then, is Arnone's sole § 1983 claim against Dallas County.

II

The standard of review is well settled. To survive a motion to dismiss, a plaintiff must plead his claim with "sufficient factual matter" to make it "plausible on [its] face."⁶ Here, the district court concluded that Arnone failed to state a facially plausible claim. We review this ruling de novo, accepting as true all well-pleaded facts in Arnone's complaint.⁷

III

Arnone contends his Fifth Amended Complaint stated a plausible § 1983 claim against Dallas County under different theories. His first theory is that Dallas County is liable under Monell v. Department of Social Services .⁸ But if we don't buy his first theory, then Arnone has a second: that Dallas County is liable for failing to train or supervise the district attorney's subordinates. We don't buy either.

A

We start with Arnone's main argument—that Dallas County is liable under Monell . In that case, the Supreme Court held that plaintiffs can bring § 1983 claims against local governing bodies, including counties like Dallas.⁹ But Monell claims require three elements: "(1) a policymaker; (2) an official policy; and (3) a violation of a constitutional right whose ‘moving force’ is the policy or custom."¹⁰ Arnone lacks the first.¹¹

(1)

Dallas County is not liable under Monell for just any official policy that violated Arnone's constitutional rights. No. Dallas County can be held liable only for those decided or acquiesced to by a county policymaker.¹² A policymaker is an "official[ ] whose decisions represent the official policy of the local governmental unit."¹³ In other words, an official who has "the power to make official policy on a particular issue."¹⁴ When he "speak[s]" on it, his words represent the local government's official policy.¹⁵

But sometimes a policymaker wears more than one hat. Again, only county policymakers count for liability under Monell . So what happens when an official sometimes acts for the county, and sometimes acts for another governmental entity, like the state? In those cases, we have to weigh state law and the policymaker's complained-of actions. Only then can we decide which entity is to blame.

The controlling Supreme Court decision on the dual-hat problem is McMillian v. Monroe County .¹⁶ In McMillian a man was convicted of murder. Then he was exonerated. Then, as here, he sued his county under Monell . The thrust of his claim was that the sheriff had suppressed exculpatory evidence, among other things.¹⁷ The parties agreed that the sheriff had " ‘final policymaking authority’ in the area of law enforcement."¹⁸ They disagreed, though, over whether the sheriff acted as a state or county policymaker when exercising it. The Court explained that courts do not categorize officials "in some categorical, ‘all or nothing’ manner."¹⁹ Rather, courts must "ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue."²⁰ That inquiry turns on the official's "actual function" under "relevant state law."²¹

Applying those principles, the Court held that the sheriff had acted as a state policymaker in McMillian .²² In support, the Court found that the most recent state constitution had added sheriffs to the state's "executive department" and made them impeachable by the state supreme court (rather than the county) for failures in properly enforcing the law;²³ the state supreme court had held that sheriffs were "state officers" and that tort claims against them "based on their officials acts" were "suits against the State," not county;²⁴ the state code allowed state judges to "order the sheriff to take certain actions," without similarly empowering county officials; the state code gave sheriffs "complete authority to enforce the state criminal law in their counties" without reserving any residual law-enforcement authority to the county itself;²⁵ and the state code gave the state governor and attorney general the power to direct sheriffs in their law-enforcement duties, but none to county officials.²⁶

The Court also explained why other provisions "that cut in favor of the conclusion that sheriffs are county officials" did not sway its analysis.²⁷ The state code provided that the county both paid the sheriff's salary and also provided him with "equipment (including cruisers), supplies, lodging, and reimbursement for expenses."²⁸ But paying the sheriff's salary did not "translate into control over him," said the Court.²⁹ And the county lacked discretion to deny the sheriff operational funds below what was "reasonably necessary."³⁰ "[A]t most," the county's purse-string power "exert[ed] an attenuated and indirect influence over the sheriff's operations."³¹ The state code also provided that the sheriff's jurisdiction was "limited to the borders of his county," and that he was "elected locally by the voters in his county."³² But neither fact mattered much since "district attorneys and state judges are often considered ... state officials, even though they, too, have limited jurisdictions and are elected locally."³³

Earlier this year we issued our en banc decision in Daves v. Dallas County .³⁴ That decision clarifies how to attribute a policymaker's actions under McMillian . In Daves the plaintiffs sought injunctive relief under Monell against Dallas County, among others, for alleged infirmities with the county's bail system—specifically, that promulgated "bail schedule[s]" created an unconstitutional "wealth-based pretrial detention system."³⁵ We explained that, under McMillian , "we examine function ... when deciding whether an official is acting for the state or local government in a case brought pursuant to Section 1983."³⁶ That examination turns on "what state law provides as to the specific relevant function, i.e. , the act that is being challenged in the litigation."³⁷ We also held that McMillian 's inquiry is distinct from what we use to decide whether an...