author: HAYNES, Circuit Judge:

text:
    Jonathan DAVIDSON, Plaintiff-Appellant v. CITY OF STAFFORD, TEXAS; Bonny Krahn, Chief of Police, City of Stafford, Texas; Henry Garcia, Police Officer, City of Stafford, Texas; Steven Flagg, Police Officer, City of Stafford, Texas; Dan Jones, Police Officer, City of Stafford, Texas, Defendants-Appellees
    No. 16-20217
    United States Court of Appeals, Fifth Circuit.
    FILED February 7, 2017
    REVISED March 31, 2017

      Jerad Wayne Najvar, Esq., Andrew Scott Patchan, Najvar Law Firm, Houston, TX, for Plaintiff-Appellant.
    Heidi J. Gumienny, Senior Counsel, Andrew Meyer Scott, Steven Dan Selbe, Senior Counsel, Gordon & Rees, L.L.P., Houston, TX, for Defendants-Appellees.
    Before KING, OWEN, and HAYNES, Circuit Judges.
   HAYNES, Circuit Judge:

Plaintiff Jonathan Davidson was arrested during a protest of a Planned Parenthood in Stafford, Texas. Davidson subsequently brought suit under 42 U.S.C. § 1983 for violations of his rights under the First and Fourth Amendments against Defendants Officer Steven Flagg, Officer Dan R. Jones III, Chief of Police Bonny Krahn, and the City of Stafford. The district court held that the individual officers were entitled to qualified immunity and that Davidson failed to create a dispute of fact for municipal liability for the City of Stafford. Davidson appeals. For the reasons discussed below, we AFFIRM IN PART, REVERSE IN PART, and REMAND.

I. Factual and Procedural Background

On March 31, 2013, Davidson'arrived at the Planned Parenthood clinic (the “Clinic”) in Stafford, Texas to protest and express his pro-life views. The Clinic is part of a commercial strip center located along the southbound feeder of U.S. 59. During his protest, Davidson stood in a green space between the parking lot of the commercial strip center and U.S. 59. The green space was bounded by the parking lot, U.S. 59, and at least one entryway from U.S. 59 to the parking lot.

Davidson’s protest consisted of standing in the green space, holding a sign that said “Pray to End Abortion,” and waving at cars both on U.S. 59 and in the parking lot. If a car stopped, Davidson would speak to the passengers and offer them a card with a phone number to a service that offers free pregnancy tests and ultrasounds.

During his protest, Davidson was approached by a Clinic employee, Marilyn Chosed. Although the parties disagree on what exactly happened, both agree that Chosed informed Davidson that he had to leave. This exchange prompted Chosed to contact the Stafford Police Department (“Stafford PD”). During her phone call to Stafford PD, Chosed stated that “we have a protester out here and he keeps coming off of the area that he’s supposed to and flagging down our patients before they come in the clinic.” Chosed also provided the operator with a physical description of Davidson. The operator subsequently put out a dispatch stating that there was a “suspicious person call at Planned Parenthood.” The operator then said “There’s a white male ... who is flagging down customers before they come in.”

Officer Steven Flagg of the Stafford PD was dispatched to the Clinic following the dispatch call. Upon arrival, he observed Davidson standing in the green space outside the parking lot. Officer Flagg proceeded to enter the Clinic and speak with Chosed, who informed Officer Flagg that Davidson had been walking in front of the Clinic and in the parking lot, approaching patients on the sidewalk and in the park; ing lot, and delaying or inconveniencing patients as they attempted to enter the Clinic. Chosed also informed Officer Flagg that she had warned Davidson that he was both trespassing on Clinic property and harassing Clinic patients, and that he needed to leave. Based on his conversation with Chosed, Officer Flagg believed that Davidson was walking in the parking lot and following patients to the entryway of the Clinic. Officer Flagg clarified that Chosed did not inform him where exactly Davidson had been walking. Officer Flagg also testified that Chosed did not state anything about Davidson stopping vehicles, and that, based on Chosed’s description, he did not believe Davidson was delaying vehicles.

A second officer, Dan R. Jones III, was dispatched as a backup unit to Officer Flagg and arrived shortly after Officer Flagg arrived. Together, the officers approached Davidson and asked him to come to them in the parking lot. Davidson responded that he could not, but the officers again asked Davidson to approach them. At this stage, the parties’ facts diverge. On the one hand, Davidson claims that the officers began accusing him of harassing Clinic customers, to which Davidson responded that he was there to pray, hold his sign, and hand out cards. Davidson also claims to have informed the officers that he had no way of knowing which people entering the parking lot were Clinic customers. On the other hand, Officers Flagg and Jones each claim that Officer Flagg asked Davidson whether he was approaching patients or stopping vehicles, to which Davidson responded in the affirmative. The officers also claim that Officer Flagg asked Davidson where he was approaching patients, but Davidson did not provide a direct response. Finally, Davidson’s police report indicates that Officer Flagg asked Davidson whether he was on business property, to which Davidson stated that he knew what he was and was not allowed to do.

At this point, Davidson backed away from the officers and acted as if he was going to continue protesting. Officer Flagg asked Davidson to come back and continue speaking to both officers. Officer Flagg also asked Davidson for identification. Davidson said he did not have any identification and that his name was “Jonathan.” Officer Flagg repeatedly asked Davidson for identification or his last name, to which Davidson responded with either “Jonathan” or “Jon.” Based on these responses, Officers Flagg and Jones arrested Davidson. As they arrested Davidson, the officers stated “you don’t ID, you go to jail” and “you fail to ID, you got to jail.” Upon a request from Davidson to know why he was being arrested, one of the officers stated “fail to ID, when we’re conducting an investigation, did not identify yourself to the police.” Davidson again informed the officers that his name was Jonathan and that he was not operating a motor vehicle, but an officer stated “when we’re conducting an investigation, fail to give your name to the police, you go to jail.”

Davidson was charged with failure to identify under Texas Penal Code § 38.02 and taken to Fort Bend County Jail. He was released later that night. Approximately a year later, Davidson’s attorney sent a letter to the City of Stafford (“the City”) to confirm that Davidson would not be subject to any present or future prosecution. The City responded that it would not prosecute Davidson for his previous conduct but did not state whether it would prosecute Davidson for similar conduct in the future. Davidson testified that he intends to protest the Clinic in the future but had not returned because he does not want to end up back in jail.

Davidson subsequently filed suit, alleging claims under 42 U.S.C. § 1983 for violations of his rights to both freedom of speech under the First Amendment and freedom from unreasonable searches and seizures under the Fourth Amendment. Davidson also asserted an as-applied challenge to Texas Penal Code §§ 38.02 and 42.03. Davidson named Officers Flagg and Jones, Chief of Police Bonny Krahn, and the City as defendants. Davidson’s complaint sought damages, including punitive damages, as well as a declaration that Defendants’ actions, policies, and practices violated the Constitution.

Following an answer by the Defendants and discovery, Defendants filed motions for summary judgment. The district court ultimately granted summary judgment in favor of the Defendants on all claims. The district court held that (1) Officer Flagg, Officer Jones, and Chief Krahn were entitled to qualified immunity and (2) the City was entitled to summary judgment because Davidson failed to demonstrate any policy that caused Davidson’s alleged constitutional violation.

II. Jurisdiction and Standard of Review

The district court had subject matter jurisdiction over Davidson’s claim under 28 U.S.C. § 1331, and this court has jurisdiction to review the final judgment under 28 U.S.C. § 1291.

An appeal from a grant of summary judgment is reviewed de.novo. Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). “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.” Fed. R. Civ. P. 56(a). “When considering a motion for summary judgment, the court views all facts and evidence in the light most favorable to the non-moving party.” Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016) (quoting Moss, 610 F.3d at 922), cert. denied, 137 S.Ct. 815 (2017).

III. Discussion

Davidson’s appeal both challenges the district court’s grant of summary judgment on his § 1983 claims and argues that the district court failed to address his claims that the City’s actions chilled his speech. We address each of these arguments in turn.

A. Section 1983

Davidson seeks to reverse the district court’s grant of summary judgment as to all three groups of Defendants: Officers Flagg and Jones, the City, and Chief Krahn. We agree with Davidson that' reversal is appropriate' as to Officers Flagg and Jones, but hold that the district court correctly granted summary judgment to the City and Chief Krahn.

1. Officers Flagg and Jones

The district court held that Officers Flagg and Jones were entitled to qualified immunity on Davidson’s claims of violations of both his First Amendment right to free speech and his Fourth Amendment right to be free from unlawful searches and seizures. The district court initially found that Officers Flagg and Jones did not have actual probable cause to arrest Davidson for failure to identify. Nevertheless, the district court determined that the officers were entitled to summary judgment because (1) Davidson had been ordered to move under Texas Penal Code § 42.04 and (2) Flagg and Jones “at least arguably had probable cause because [they] reasonably believed that Davidson made passage through the parking lot and into [the Clinic] unreasonably inconvenient by harassing [the Clinic’s] patients and stopping vehicles as they entered and exited the parking lot.” This latter conduct, according to the district court, constituted obstruction of a highway or other passage under Texas Penal Code § 42.03.

“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (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.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity ‘gives government officials breathing room to make reasonable but mistaken judgments,’ and ‘protects all but the plainly incompetent or those who knowingly violate the law.’ ” Messerschmidt v. Millender, 565 U.S. 535, 546, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (quoting al-Kidd, 563 U.S. at 743, 131 S.Ct. 2074).

A warrantless arrest without probable cause violates clearly established law defining an individual’s rights under the Fourth Amendment. See Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013). Individuals who protest are also protected under the First Amendment from retaliatory actions by government officials. Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016). But if an officer has probable cause to seize that individual, “the objectives of law enforcement take primacy over the citizen’s right to avoid retaliation.” Id. at 245 (quoting Keenan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir. 2002)). Probable cause “means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Hogan, 722 F.3d at 731 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)).

Officers are therefore entitled to qualified immunity unless there was no actual probable cause for the arrest and the officers were objectively unreasonable in believing there was probable cause for the arrest. See Crostley v. Lamar Cty., 717 F.3d 410, 422-23 (5th Cir. 2013); see also Cooper v. City of La Porte Police Dep’t, 608 Fed.Appx. 195, 199 (5th Cir. 2015) (“[0]fficers are entitled to qualified immunity unless there was not probable cause for the arrest and a reasonable officer in their position could not have concluded that there was probable cause for the arrest.” (citing Crostley, 717 F.3d at 422-23)). This probable cause may be for any crime and is not limited to the crime that the officers subjectively considered at the time they perform an arrest. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).

The district court held that Officers Flagg and Jones had “arguable” probable cause to arrest Davidson for obstructing a highway or other passage in violation of Texas Penal Code § 42.03. In relevant part, § 42.03 states:

(a) a person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly:
(1) obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others;
(b) For purposes of this section, “obstruct” means to render impassable or to render passage unreasonably inconvenient or hazardous.

Tex. Penal Code § 42.03.

We agree with the district court that there was no actual probable cause for Davidson’s arrest. At the time Officers Flagg and Jones arrested Davidson, the only crime charged to Davidson was failure to identify under § 38.02. This is further confirmed in Davidson’s police report, which charged Davidson with failure to identify under § 38.02(a). But § 38.02(a) applies only when an officer “has lawfully arrested the person and requested the information.” Tex. Penal Code § 38.02(a). At the time they performed the arrest for the alleged § 38.02 violation, Davidson was not under arrest for any other violation, thus, the “failure to identify” statute clearly was not triggered. We therefore conclude that the district court correctly determined that the officers had no actual or “arguable” probable cause for arresting Davidson under § 38.02. We consider whether they had probable cause under any other statute below.

Turning to objective or “arguable” probable cause, and taking the facts in the light most favorable to Davidson, it is clear that the officers were objectively unreasonable in believing that there was probable cause for Davidson’s arrest under the only other section posited here, § 42.03. Based on the information available to Officers Flagg and Jones, Davidson had not “render[ed] impassable or ... rendered] passage unreasonably inconvenient or hazardous” for Clinic patients. Tex. Penal Code § 42.03. At the time Officer Flagg arrived at the Clinic, Davidson was standing in the grass easement next to the parking lot. Officer Flagg proceeded to speak with Chosed, who informed him that Davidson had been both (1) walking both in front of and in the parking lot of the Clinic and (2) approaching, delaying, and/or inconveniencing patients as they attempted to enter the Clinic. Officer Flagg later testified in his deposition that he took Chosed’s description of Davidson’s behavior to mean that Davidson was not impeding vehicle traffic. Officers Flagg and Jones could infer from Chosed’s statements that Davidson had slowed down people entering both the parking lot and the Clinic in order to speak with them and offer them informational cards. But while these actions could be considered inconvenient based on Chosed’s description, they cannot be construed, by an objectively reasonable officer in Officers Flagg’s or Jones’s position, as rendering entry to the Clinic impassable or unreasonably inconvenient as required under § 42.03.

A review of Texas state court decisions applying § 42.03 further supports our holding that no reasonable officer would conclude that probable cause existed to arrest Davidson. The description of Davidson’s actions provided to Officer Flagg included two key facts that the Texas Court of Criminal Appeals has previously seized upon in determining whether conduct rises to the level of obstruction under § 42.03. See Haye v. State, 634 S.W.2d 313, 314-15 (Tex. Crim. App. [Panel Op.] 1982). First, Chosed stated that Davidson was walking, approaching, harassing, and delaying Clinic patients, but not stopping or preventing their entry into the Clinic. This distinction of movement by the defendant, as opposed to the defendant standing in place or making a pathway impassible, requires a finding of no obstruction. Compare Sherman v. State, 626 S.W.2d 520, 528 (Tex. Crim. App. 1981) (no obstruction where a defendant caused a momentary stop by walking in front of a car), with Haye, 634 S.W.2d at 314-15 (obstruction where a defendant stood on the sidewalk and forced an individual to walk around him and through mud). Second, any delay caused by Davidson was based on Davidson’s abortion protest. Reasonable officers in Officers Flagg’s and Jones’s position must therefore consider the balance between Davidson’s First Amendment rights and the right of the public to have access to the Clinic. See Sherman, 626 S.W.2d at 526 (“By requiring [under § 42.03] that passage be severely restricted or completely blocked ... we give ample breathing room for the exercise of First Amendment rights. At the same time, such a definition adequately protects the right of the public to have access to the ... premises.”). Given that the information available to Officers Flagg and Jones at the time of Davidson’s arrest indicated that (1) Davidson had delayed (by his words, not physically), but not prevented anyone from entering the Clinic and (2) Davidson was exercising his First Amendment rights by protesting, it was objectively unreasonable for these officers to conclude that there was probable cause to arrest Davidson under § 42.03.

In addition to cases establishing the lack of probable cause, there was fulsome case law clearly establishing that an arrest without probable cause violates both First and Fourth Amendment rights at the time of Davidson’s arrest in 2013. Specifically, Officers Flagg’s and Jones’s conduct violated Davidson’s clearly established rights as demonstrated in federal case law. See Club Retro, 568 F.3d at 206 (“The Fourth Amendment right to be free from false arrest — arrest without probable cause — was clearly established at the time of [the] arrests [in 2006].”); Keenan, 290 F.3d at 262 (“If no reasonable police officer could have believed that probable cause existed for the law enforcement actions of [the officers] against the plaintiffs, then their retaliation violated clearly established law of this circuit.” (citing Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996))). Their actions also violated Davidson’s rights as recognized by the highest state courts in Texas. See Faust v. State, 491 S.W.3d 733, 745 (Tex. Crim. App. 2016) (“There is no dispute that [the protestors] had a First Amendment right to express their views in a public forum.”), cert. denied, — U.S. -, 137 S.Ct. 620, — L.Ed.2d -, 85 U.S.L.W. 3324 (U.S. Jan. 9, 2017); Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 205 (Tex. 1981) (“The rights to picket and demonstrate in public places, particularly streets, sidewalks, and parks, are extended [F]irst [A]mendment protection.” (citations omitted)); see also Operation Rescue-Nat’l v. Planned Parenthood of Hous. & Se. Tex., Inc., 975 S.W.2d 546, 567-68 (Tex. 1998) (limiting injunction against protestors who threatened to block clinic entrances to only that necessary to allow ingress and egress while protecting the right of the protestors to be heard). These federal and state decisions make clear that Davidson’s arrest without probable cause was a violation of his First and Fourth Amendment rights.

On the second prong of the qualified immunity defense, recent Supreme Court decisions addressing claims for excessive force have “reiterate[d] the longstanding principle that ‘clearly established law5 should not be defined ‘at a high level of generality.’ ” White v. Pauly, — U.S. -, 137 S.Ct. 548, 551-52, 196 L.Ed.2d 463 (2017) (per curiam) (quoting al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074); see also Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015). Our cases outside the excessive force area involving warrantless arrests and limits on speech have not specifically mentioned this aspect of Supreme Court cases. See, e.g., Deville v. Marcantel, 567 F.3d 156, 166 (5th Cir. 2009); Evett v. DETNTFF, 330 F.3d 681, 687 (5th Cir. 2003). Assuming arguendo that the specific White/Mullenix admonition applies to all qualified immunity cases regardless of the constitutional violation charged, the officers here still come up short. The cases cited above clearly demonstrate what does and does not violate § 42.03 and also clearly establish the unconstitutionality of warrantless arrests without probable cause.

Even if he had not been exercising core First Amendment rights, Davidson was not (even arguably) in violation of § 42.03 when he stood outside of the Clinic. Additionally, his right to protest prohibited the officers’ application of § 42.03 in the manner employed here. Resolving all factual disputes in favor of Davidson, the objective unreasonableness displayed by Officers Flagg, and Jones in the face of law clearly establishing Davidson’s rights leads us to the conclusion that qualified immunity cannot shield their actions against Davidson. We conclude that in Davidson’s case, “every reasonable official would have understood that what he is doing violates” Davidson’s rights. Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074). The district court improperly granted summary judgment in favor of Officers Flagg and Jones.

2. The City of Stafford

Davidson next argues that there are three bases from which we may find that the City had an official policy of improperly applying § 38.02: (1) Chief Krahn’s testimony concerning his interpretation of § 38.02, (2) evidence that Chief Krahn ratified the conduct of Officers Flagg and Jones, and (3) evidence concerning an alleged pattern of misapplication of § 38.02 by the Stafford PD. We find none of Davidson’s arguments persuasive, and therefore affirm the district court’s grant of summary judgment in favor of the City.

Municipalities are persons susceptible to suit under § 1983, but they cannot be found liable on a theory of vicarious liability or respondeat superior. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). At the summary judgment stage, a plaintiff making a direct claim of municipal liability must demonstrate a dispute of fact as to three elements: that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right. Culbertson v. Lykos, 790 F.3d 608, 628 (5th Cir. 2015).

Each of Davidson’s arguments before us goes to the first element, an official policy on the part .of the City. Davidson’s first argument relies on Chief Krahn’s deposition testimony that an officer performs a legal arrest under § 38.02 if an officer has probable cause to believe that the person has committed some other crime at the time they fail to identify. In “rare circumstances,” a single unconstitutional action may be sufficient to impose municipal liability “if undertaken by the municipal official or entity possessing ‘final policymaking authority’ for the action in question.” Howell, 827 F.3d at 527 (citation omitted). An unconstitutional policy may be found when a policymaker performs the specific act that forms the basis of the § 1983 claim. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 482, 484-85, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Howell, 827 F.3d at 528; Anderson v. City of McComb, 539 Fed.Appx. 385, 388 n.2 (5th Cir. 2013). But even if we assume arguendo that Chief Krahn was a policymaker for the City, his testimony alone is insufficient to demonstrate an official policy for the City because testimony is not a specific act by a policymaker that results in a constitutional violation susceptible to a § 1983 claim. Unlike the situations in Pembaur, Howell, and Anderson, Davidson has presented no evidence that Chief Krahn performed the arrest that forms the basis of Davidson’s § 1983 claim. Without this evidence, Davidson fails to demonstrate that Chief Krahn’s testimony constitutes the type of “rare circumstance” in which this court may find that the City had a policy of unconstitutionally interpreting § 38.02.

Davidson’s second argument also relies on deposition testimony from Chief Krahn. Davidson argues that Chief Krahn ratified the conduct of Offícérs Flagg and Jones when he reviewed Davidson’s arrest and determined that there was no violation from which he could discipline the officers. “If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” Peterson v. City of Fort Worth, 588 F.3d 838, 854 (5th Cir. 2009) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). Ratification, however, is limited to “extreme factual situations.” World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009) (quoting Peterson, 588 F.3d at 848). “[A] policymaker who defends conduct that is later shown to be unlawful does not necessarily incur liability on behalf of the municipality.” Peterson, 588 F.3d at 848 (citation omitted). Further, good faith statements made while defending complaints of constitutional violations by municipal employees do not demonstrate ratification. Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010). Here, the underlying conduct by Officers Flagg and Jones, while unconstitutional, was not sufficiently extreme to qualify for a finding of ratification. See Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985). Chief Krahn’s conduct is more analogous to the conduct in Zamow, where we did not find ratification when a municipality defended the constitutionality and propriety of its officers’ actions, despite our later determination that the officers’ actions violated the Fourth Amendment. Zarnow, 614 F.3d at 169; see also Medina v. Ortiz, 623 Fed.Appx. 695, 701 (5th Cir. 2015) (no ratification where the sheriff accepted an officer’s use of force report, refused to turn over evidence until a lawsuit was filed, and defended the deputies’ actions in the case). Chief Krahn’s actions in investigating Officers Flagg’s and Jones’s conduct thus cannot support an allegation of ratification resulting in an official policy on the part of the City.

Davidson’s final argument attempts to impute a policy of unconstitutionally enforcing § 38.02 to the City by relying on seven incidents between January 2010 and June 2013 in which Stafford PD arrested individuals due to, among other things, a violation of § 38.02. In order to find a municipality liable for a policy based on a pattern, that pattern “must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees.” Peterson, 588 F.3d at 850 (quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc)). A pattern requires similarity, specificity, and sufficiently numerous prior incidents. Id. at 851. But Davidson’s evidence of an alleged pattern lacks the detail necessary to find a policy on the part of the City. As an initial matter, Davidson provides no evidence that any of the previous arrests resulted in subsequent litigation alleging a constitutional violation. Looking to these prior arrests, most appear to involve facts demonstrating that the arrestees had committed or were in the act of committing another crime, in addition to their failure to identify. Under this court’s precedent, these arrests likely did not involve a constitutional violation, as the officers likely had probable cause to arrest these defendants for the other crime. Club Retro, 568 F.3d at 204. If we remove these cases from our consideration, Davidson’s pattern relies on three cases (two from the records obtained by Davidson and Davidson’s case) over three-and-a-half years to form the basis of the alleged pattern of constitutional violations. Without further context of the size of Stafford PD or the amount of arrests made over the corresponding period, these incidents are insufficient to establish a pattern of constitutional violations by the Stafford PD. See, e.g., Carnaby v. City of Houston, 636 F.3d 183, 189-90 (5th Cir. 2011) (no pattern: two reports of violations of a policy in four years in Houston); Peterson, 588 F.3d at 851 & n.4 (no pattern: twenty-seven complaints of excessive force over four years in Fort Worth); Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002) (no pattern: eleven incidents of warrantless searches in Houston). Because Davidson’s arguments on an official policy on the part of the City and ratification based on Chief Krahn’s conduct also fail, we affirm the district court’s grant of summary judgment in favor of the City on Davidson’s § 1983 municipality liability claim.

3. Chief Krahn

Davidson’s final argument concerns the liability of Chief Krahn in his individual capacity. According to Davidson, Chief Krahn’s endorsement of an unconstitutional interpretation of § 38.02 caused a pattern of constitutional violations, and Davidson’s arrest was the obvious consequence of Krahn’s misinterpretation of the statute. In order to survive summary judgment against a § 1983 claim for supervisory liability, a plaintiff is required to create a dispute of fact that (1) the supervisor either failed to supervise or train the subordinate officer; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiffs rights, and (3) the failure to train or supervise amounts to deliberate indifference. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452-53 (5th Cir. 1994) (en banc) (citing Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986), abrogated in part by Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989)).

Davidson’s allegations and evidence fail to demonstrate, a material dispute of fact as to deliberate indifference. “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (alteration omitted)). “Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference and do not divest officials of qualified immunity.” Id. (quoting Alton v. Tex. A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999)). Deliberate indifference can be demonstrated in two ways. Kitchen v. Dallas Cty., 759 F.3d 468, 484 (5th Cir. 2014), abrogated in part by Kingsley v. Hendrickson, — U.S. -, 135 S.Ct. 2466, 2473-76, 192 L.Ed.2d 416 (2015). First, a plaintiff may demonstrate “that a municipality had notice of a pattern of similar violations.” Id. (alteration omitted) (quoting Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010)). Second, a plaintiff may demonstrate liability based on a single incident if the constitutional violation was “ ‘the highly predictable’ consequence of a particular failure to train.” Id. (citing City of Canton v. Harris, 489 U.S. 378, 390 n.10, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) and Connick v. Thompson, 563 U.S. 51, 63-68, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011)). If we find that Davidson cannot establish a dispute of fact as to deliberate indifference, we need not address the other two prongs of supervisory liability. Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009).

As a threshold matter, the proper inquiry for supervisory liability here would be Chief Krahn’s alleged failure to train or supervise, not his interpretation of § 38.02. But even if Chief Krahn’s interpretation of § 38.02 was the equivalent of a failure to train or supervise, Davidson has failed to demonstrate a material dispute of fact concerning the deliberate indifference of Chief Krahn. Davidson’s evidence is insufficient to demonstrate either a pattern, as discussed in section III.A.2, supra, or that his injury was a highly predictable consequence of Chief Krahn’s understanding of § 38.02. That is, Chief Krahn’s understanding of § 38.02 does not lead to the highly predictable consequence of officers arresting individuals (including Davidson) without probable cause. On this point, our prior decision in Brown v. Bryan County, 219 F.3d 450 (5th Cir. 2000) is instructive. There, we found deliberate indifference where the municipality in question had not trained or supervised the officer who committed the allegedly unconstitutional conduct. Id. at 462. We further emphasized the fact that the policymaker, a sheriff, had recently investigated the officer and was aware of the officer’s “youth, inexperience, personal background, and ongoing [improper] arrest activities.” Id. at 458, 462. None of the facts in Davidson’s case provide the same cause for concern we recognized in Bryan County. Defendants provided evidence demonstrating the extensive training completed by Officers Flagg and Jones, and Davidson points to no evidence concerning the officers’ backgrounds or activities with the Stafford PD that demonstrate the high probability of Davidson’s arrest. Davidson’s evidence therefore fails to create a material dispute of fact as to deliberate indifference, and the district court correctly granted summary judgment on his claim for the liability of Chief Krahn in his individual capacity.

In conclusion, we agree with the district court that Davidson’s claims against the City and Chief Krahn cannot survive summary judgment. But we hold that Officers Flagg and Jones are not entitled to qualified immunity, as they had no actual probable cause and were objectively unreasonable to believe they had probable cause to arrest Davidson.

B. First Amendment As-Applied Claim

Davidson also argues that the district court failed to address his claims that Defendants’ understanding of sections 38.02 and 42.03 and Davidson’s arrest resulted in an as-applied violation of Davidson’s First Amendment rights. We agree. The district court appears to have addressed only Davidson’s First Amendment claim in the context of § 1983 retaliation, where the district court granted Defendants summary judgment due to its determination that Officers Flagg and Jones had “arguable” probable cause. But Davidson provided undisputed evidence and argued in his filings before the district court that he intends to continue protesting the Clinic and that Defendants intend to continue enforcing sections 38.02 and 42.03 in an unconstitutional manner. This evidence is sufficient to demonstrate standing for a First Amendment challenge. Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014). Regardless of the outcome of Davidson’s other § 1983 claims, Davidson has stated a valid claim that sections 38.02 and 42.03, as applied to his conduct, violate his First Amendment rights. On remand, the district court shall consider this claim and, if necessary, fashion a remedy in the form of a declaration specific to Davidson and his protesting at the Clinic. Cf. McCullen v. Coakley, — U.S. -, 134 S.Ct. 2518, 2541, 189 L.Ed.2d 502 (2014) (invalidating overly broad Massachusetts buffer zone statute regarding healthcare facilities where abortions are performed). This declaration must clearly define what is and is not allowed by both Davidson, the City, and its officers under sections 38.02 and 42.03 in light of this opinion.

IV. Conclusion

Except as provided in Section III.B. above, we AFFIRM the district court’s grant of summary judgment to the City and Chief Krahn on Davidson’s § 1983 claims. We REVERSE the district court’s grant of summary judgment to Officers Flagg and Jones, and REMAND these § 1983 claims to the district court. On remand, the district court shall also consider Davidson’s First Amendment claim and, fashion a declaration, in accordance with this opinion, delineating both Davidson’s right to protest the Clinic and the scope of Defendants’ authorization under sections 38.02 and 42.03.

      . Evidence in the record demonstrates that, while Davidson occasionally crossed the entryway to stand on another green space, he remained on one green space during the interaction that led to his arrest.

      . During his deposition, Davidson clarified that he protested with the intent to persuade women not to go into the Clinic because he "[doesn’t] want abortions to happen.”

      . There appears to be some dispute over whether the officers thought Davidson was stopping cars during his protest. Officer Jones's affidavit also states his belief that Davidson was approaching cars.

      . If the conduct regulated under § 42.03(a) consists of "speech or other communication” or "a gathering ... to otherwise express ... a position on social, ... political, or religious questions,” Texas Penal Code § 42.04 requires that “the actor must be ordered to move, disperse, or otherwise remedy the violation [under § 42.03] prior to his arrest if he had not yet intentionally harmed the interest of others which those sections seek to protect.” Tex. Penal Code § 42.04(a). Given our determination that the officers had no probable cause to arrest Davidson under § 42.03, § 42.04 becomes inapplicable to Davidson’s conduct, as that statute requires "conduct that would otherwise violate section ... 42.03 (Obstructing Passageway)” and Davidson’s conduct did not violate the statute. Id.

      . The facts of Grandstaff were described in a subsequent opinion as follows:
      [I]n response to a minor traffic violation, three patrol cars engaged in a high speed chase during which they fired wildly at the suspected misdemeanant; the object of this chase took refuge on an innocent person's ranch, where the entire night shift of the city police force converged and proceeded to direct hails of gunfire at anything that moved; although nobody except the police was ever shown to have fired a shot, the innocent rancher was killed when the police shot him in the back as he was emerging from his own vehicle; after this “incompetent and catastrophic performance," which involved a whole series of abusive acts, the officers’ supervisors "denied their failures and concerned themselves only with unworthy, if not despicable, means to avoid legal liability.”

        Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986) (citations omitted).

      . That we would have to consider whether each prior incident constitutes an unconstitutional arrest further cuts against a finding of a pattern. See Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002) (“The weakness in the approach is apparent in its practical effects. It requires the City to defend 'cases within cases’ from historical records to justify searches conducted without a warrant.”).

      . Defendants’ intent to unconstitutionally enforce sections 38.02 and 42.03 was further demonstrated during oral argument through defense counsel's erroneous interpretation of the statutes.


source: Caselaw Access Project

author: EDITH BROWN CLEMENT, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Gabriel Heriberto CRUZ-ROMERO, also known as Gabriel H. Cruz-Romero, Defendant-Appellant
    No. 15-51181
    United States Court of Appeals, Fifth Circuit.
    Filed February 8, 2017

      Joseph H. Gay, Jr., Assistant U.S. Attorney, Diane D. Kirstein, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Gerald Conway Moton, Esq., Moton Law Office, San Antonio, TX, for Defendant-Appellant.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

Gabriel Heriberto Cruz-Romero appeals his sentence for possession with intent to distribute 100 kilograms or more of marijuana. He argues that the government breached the plea agreement by opposing a safety valve adjustment to his sentence. For the reasons set forth below, we dismiss Cruz-Romero’s appeal as barred by the appeal waiver in the plea agreement.

I

Cruz-Romero, a citizen of Mexico, was pulled over near the U.S.-Mexico border. When police approached his vehicle, they observed a bundle of sugar sacks, commonly used to smuggle illegal narcotics. Police ultimately discovered fifteen bundles of marijuana in the vehicle weighing 146.8 kilograms.

Cruz-Romero and his passenger were arrested and read their Miranda rights. Cruz-Romero declined to make a statement, but the passenger admitted he had been hired to transport marijuana into the United States.

Cruz-Romero was indicted for (1) conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, and (2) possession with intent to distribute 100 kilograms or more of marijuana. He pleaded guilty to the second count, and the district court dismissed the first count. In his plea agreement with the government, Cruz-Romero waived his right to appeal his conviction or sentence on any ground other than ineffective assistance of counsel or prosecutorial misconduct. Also in the plea agreement, the government agreed not to oppose Cruz-Romero’s eligibility for a safety valve adjustment at sentencing if he complied with the relevant criteria. These include that, no later than sentencing, a defendant provide all information and evidence he has regarding the offense to the government.

Prior to sentencing, the government scheduled a debriefing meeting with Cruz-Romero but he canceled on the day it was set to take place. Cruz-Romero never made any post-arrest statement or otherwise volunteered information to the government.

The statutory minimum sentence for Cruz-Romero’s conviction was 60 months. Without the statutory minimum, the Guidelines range would have been 37 to 46 months. The Presentence Report did not include a safety valve adjustment, which would have required the district court to sentence Cruz-Romero without regard to any statutory minimum. Cruz-Romero objected, arguing that the government breached the plea agreement by requiring more information than what he had stipulated to in the plea agreement in order to qualify for the adjustment. • The government responded that Cruz-Romero did not qualify because he (1) did not provide a post-arrest statement, (2) canceled his debrief with the government, and (3) did not provide even the most basic information about his offense to the government, such as who hired him or where he was taking the marijuana. The probation officer referred the objection to the district court for ruling.

Cruz-Romero reiterated his objection at sentencing. He again argued that his stipulation to facts in the plea agreement satisfied his safety valve obligation. The district court disagreed, stating that Cruz-Romero had not provided any information to the government and chose not to debrief. After overruling Cruz-Romero’s objection, the district court sentenced him to the statutory minimum of 60 months.

Cruz-Romero appeals his sentence. Although he knowingly and voluntarily waived his right to appeal his sentence in the plea agreement, he contends that the appeal waiver is unenforceable because the government breached its express promise not to oppose his eligibility for a safety valve adjustment. He further argues that the district court erred in denying him the adjustment.

II

We review de novo whether an appeal waiver bars an appeal. United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In doing so, we also review de novo whether the government breached a plea agreement. United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). In examining the government’s compliance with its promises in the plea agreement, we ask “whether the Government’s conduct was consistent with the parties’ reasonable understanding of the agreement.” United States v. Harper, 643 F.3d 135, 139 (5th Cir. 2011). The defendant has the burden of proving the facts constituting a breach of the agreement by a preponderance of the evidence. Id.

III

The threshold issue is whether the government breached the plea agreement by opposing a safety valve adjustment. If not, then the appeal waiver must be enforced.

The purpose of a safety valve adjustment is “to allow less culpable defendants who fully assisted the Government to avoid the application of the statutory mandatory minimum sentences.” United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995). There are five criteria. See U.S.S.G. § 5C1.2(a)(1)-(5); see also 18 U.S.C. § 3553(f)(1)-(5). If they are satisfied, the district court must impose a sentence without regard to a statutory minimum. U.S.S.G. § 5C1.2(a).

Here, the government promised not to oppose Cruz-Romero’s eligibility for a safety valve adjustment if he satisfied the relevant criteria prior to sentencing. The parties dispute only whether Cruz-Romero met the fifth criterion. It requires that a defendant, “not later than the time of the sentencing hearing ... truthfully provide!!] to the Government all information and evidence [he] has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” U.S.S.G. § 602.1(a)(6).

The defendant has the burden of ensuring complete disclosure of information and evidence to the government under Section 5C1.2(a)(5). See United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996). Cruz-Romero argues that his stipulation to the factual basis in the plea agreement satisfied this burden. But “[t]he plain language of the statutes and guidelines requires that [the defendant] truthfully provide all information and evidence regarding the offense to be eligible for the [safety valve] reduction.” United States v. Moreno-Gonzalez, 662 F.3d 369, 375 (5th Cir. 2011) (emphasis added); see also Rodriguez, 60 F.3d at 196 (explaining that benefit of safety valve adjustment applies only to those who “fully assisted the Government”). Cruz-Romero did not dispute, or offer any evidence to contradict, the government’s claim that he had failed to provide all relevant information known to him. Stipulating to some basic facts in the plea agreement obtained wholly from a co-defendant, without more, did not obviate Cruz-Romero’s burden of assisting the government. Cfi Rodriguez, 60 F.3d at 196 (“A defendant’s statements to a probation officer do not assist the Government.”). Cruz-Romero had ample opportunity to offer assistance to the government, including a scheduled debrief, but he declined to do so. He fails to show that the government’s conduct in opposing his eligibility for a safety valve adjustment, based on his failure to comply with Section 5C1.2(a)(5), was inconsistent with a reasonable understanding of the plea agreement.

Cruz-Romero also argues that the plea agreement barred the government from challenging his eligibility for a safety valve adjustment because it reserves the government’s right to contest his eligibility only for a substantial assistance adjustment. The safety valve and substantial assistance provisions are contained in separate paragraphs of the plea agreement, and the limitation provision in question appears only in the latter. It has no bearing on the safety valve provision, the text of which explicitly reserves the government’s right to oppose an adjustment thereunder if Cruz-Romero' does not satisfy Section 5C1.2(a).

Lastly, Cruz-Romero argues that the appeal waiver is unenforceable because the plea agreement does not explicitly reserve the government’s right to oppose the application of Section 5C1.2 or define what constitutes “cooperation” on his part, rendering it fatally ambiguous. This argument is conclusory, and we deem it abandoned. See United States v. Charles, 469 F.3d 402, 407-08 (5th Cir. 2006).

Because Cruz-Romero fails to show that the Government breached the plea agreement, his appeal is barred by the appeal waiver.

IV

The appeal is DISMISSED.


author: PER CURIAM:

text:
    Regina Nachael Howell FOSTER, Plaintiff-Appellant v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee; Ocwen Loan Servicing, L.L.C.; Power Default Services, Defendants-Appellees
    No. 16-11045 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed February 8, 2017

      Regina Nachael Howell Foster, Pro Se.
    Richard Dwayne Danner, Litigation Counsel, Emily G. Stroope, McGlinchey Stafford, P.L.L.C., Dallas, TX, for Defendants-Appellees.
    Before JOLLY, SMITH and GRAVES, Circuit Judges.
   PER CURIAM:

This appeal concerns an attempted mortgage foreclosure sale of property located in Grand Prairie, Texas, by Deutsche Bank National Trust Company (“Deutsche Bank”), Ocwen Loan Servicing, LLC (“Ocwen”), and Power Default Services (“Power Default”). Regina Foster appeals the district court’s denial of her motion for remand based on its finding that Power Default, a non-diverse defendant and substitute trustee for the attempted foreclosure, was improperly joined in the proceeding because the foreclosure did not take place. Foster also appeals the district court’s grant of summary judgment in favor of the defendants-appellees. Finding no error, we AFFIRM.

I.

In September 2004, Regina Foster’s then-husband, Carlos Foster, executed a promissory note to finance the purchase of a house in Grand Prairie, Texas. Regina Foster was not listed as an obligor on the promissory note. She is, however, listed as a co-borrower with Carlos on a deed of trust, which was executed on the same day as the promissory note. Regina later filed for divorce. During the divorce proceedings, the state court issued a temporary order awarding exclusive use of the Grand Prairie property to Regina.

Carlos defaulted on the loan and, after receiving notification, failed to cure the default. In 2014, Power Default sent a Notice of Acceleration and Notice of Substitute Trustee Sale to the Grand Prairie home address, where Regina received the notices. The trustee sale notice listed Ocwen as the mortgage servicer and Deutsche Bank as the mortgagee. Power Default was the substitute trustee. The foreclosure sale was scheduled for May 6, 2014.

On May 5, 2014, Regina Foster filed her original petition in the Judicial District Court in Tarrant County, Texas, alleging wrongful foreclosure and requesting a temporary restraining order and injunctive relief and, in the alternative, a reformation of the deed of trust. She also alleged that she did not receive proper notice of the foreclosure sale and that she was not given an opportunity to cure the default. The state court then issued a temporary restraining order, putting a halt to the foreclosure sale. Ocwen did not pursue the foreclosure sale on May 6, 2014. Defendants Deutsche Bank and Ocwen removed the case to federal court on the basis of diversity jurisdiction, notwithstanding Power Default’s involvement as a non-diverse defendant. In their Notice of Removal, Deutsche Bank and Ocwen argued that Power Default was improperly joined for the sole purpose of defeating diversity. The federal district court concluded that removal was proper and dismissed all claims against Power Default with prejudice.

Then, in February 2016, the district court granted summary judgment in favor of defendants Deutsche Bank and Ocwen and dismissed with prejudice the claims in Foster’s second amended petition, including: a claim of attempt to wrongfully foreclose on the property, a claim that the defendants violated Texas Property Code § 51.002(b), a claim that the deed of trust failed to create a valid lien upon the property, a request for permanent injunctive relief, and a request for reformation of the deed of trust.

The district court observed that it was undisputed that no foreclosure sale had taken place and that Foster still resided on the property. Because no foreclosure occurred, the district court rejected Foster’s claims for attempted wrongful foreclosure and violation of § 51.002(b). Further, the court found that the reasons Foster provided to support her invalid hen claim— that her name was misspelled as “Reeba Nqchael Howell Foster” on the deed of trust and that the document number was incorrectly given as Dallas County Document No. 3088999 on the Notice of Substitute Trustee Sale — did not support a finding “that these discrepancies have caused her any confusion or harm.” Because Foster’s substantive claims failed on the merits, the district court denied her request for a permanent injunction. Foster’s request for reformation of the deed of trust was likewise denied because she failed to demonstrate why such reformation was necessary.

Foster then filed a Motion for Reconsideration and, in the alternative, urged the district court to refer her case to the bankruptcy court. The court reasoned that Foster’s legal claims arose after she filed for Chapter 7 bankruptcy in 2012 and therefore were not part of the bankruptcy estate; thus, there was no basis on which to refer the case to the bankruptcy court. The district court denied both requests. Foster timely appealed.

II.

We review a district court’s denial of a motion to remand de novo, applying the same standard as the district court. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995). Grants or denials of summary judgment likewise receive de novo review. LeMaire v. Louisiana Dep’t of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III.

Foster challenges the district court’s denial of her motion to remand and its improper joinder finding, asserting that she had a possibility of recovery against Power Default as a substitute trustee under Texas property law. The district court found that the defendants satisfied their burden of showing improper joinder. Improper joinder can be established by the showing of either: “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Foster v. Deutsche Bank Nat’l Trust Co., No. 4:14-CV-436-Y, 2014 WL 12591926, at *2 (N.D. Tex. Aug. 22, 2014) (quoting Smallwood v. III. Cent. R. Co., 385 F.3d 568, 572-73 (5th Cir. 2004) (en banc)).

In its analysis, the district court noted that Power Default is listed in Foster’s amended petition solely in the context of its role as substitute trustee. A substitute trustee has a duty under the deed of trust to “act with absolute impartiality and fairness to the grantor in performing the powers vested in him by the deed of trust.” Id. (quoting Hammonds v. Holmes, 559 S.W.2d 345, 347 (Tex. 1977)). The court observed that breach of a trustee’s duty does not constitute an independent tort; rather, it yields a cause of action for wrongful foreclosure. Id. (citing Allied Capital Corp. v. Cravens, 67 S.W.3d 486, 492 (Tex. App. 2002); Marsh v. Wells Fargo Bank, N.A., 760 F.Supp.2d 701, 708 (N.D. Tex. 2011)). A claim of wrongful foreclosure cannot succeed, however, when no foreclosure has occurred. See Marsh, 760 F.Supp.2d at 708. The court concluded that, here, Foster has no wrongful foreclosure claim against Power Default absent an actual foreclosure. Because she would have been unable to assert a cause of action against Power Default in state court, the court found that joinder of Power Default as a defendant was improper. We agree with the district court’s analysis and conclusion denying Foster’s motion to remand the case to state court.

Foster also challenges the district court’s grant of summary judgment in favor of the defendants. The district court found that Foster’s wrongful foreclosure and statutory claims could not succeed because no foreclosure of the property took place. Because the case was removed to federal court based on diversity jurisdiction, the district court applied the substantive laws of Texas in analyzing whether summary judgment was appropriate. Foster v. Deutsche Bank Nat’l Trust Co., No. 4:14-CV-436-Y, 2016 WL 695658, at *2 (N.D. Tex. Feb. 22, 2016) (citing Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506, 510 (5th Cir. 2007)). Ordinarily, Texas recognizes the following elements of a wrongful foreclosure claim: “(1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price.” Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App. 2008). We have noted, in an unpublished opinion, however, that a party cannot “state a viable claim for wrongful foreclosure” if the party “never lost possession of the Property.” James v. Wells Fargo Bank, N.A, 533 Fed.Appx. 444, 446 (5th Cir. 2013) (citing Motten v. Chase Home Fin., 831 F.Supp.2d 988, 1007-08 (S.D. Tex. 2011) (“[Bjecause recovery is premised upon one’s lack of possession of real property, individuals never losing possession of the property cannot recover on a theory of wrongful foreclosure. As such, courts in Texas do not recognize an action for attempted wrongful foreclosure.”))- Because the foreclosure of Foster’s property has not taken place, we agree with the district court and find that Foster may not assert a cause of action for wrongful foreclosure.

Moreover, because foreclosure of the property did not occur, we need not revisit the district court’s conclusions as to whether Foster has a viable notice-of-foreclosure cause of action under Section 51.002 of the Texas Property Code.

IV.

In sum, for the foregoing reasons, we AFFIRM.

      . In its order denying the remand motion, the district court also stated it would "disregard[ ] Power's joinder for purposes of determining jurisdiction.” Foster v. Deutsche Bank Nat’l Trust Co., No. 4:14-CV-436-Y, 2014 WL 12591926, at *3 (N.D. Tex. Aug. 22, 2014).

      . Section 51.002(b) of the Texas Property Code sets forth the procedures for notice of a foreclosure sale:
      (b) Except as provided by Subsection (b-1), notice of the sale, which must include a statement of the earliest time at which the sale will begin, must be given at least 21 days before the date of the sale by:
      (1) posting at the courthouse door of each county in which the property is located a written notice designating the county in which the property will be sold;
      (2) filing in the office of the county clerk of each county in which the property is located a copy of the notice posted under Subdivision (1); and
      (3) serving written notice of the sale by certified mail on each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt.
      Tex. Prop. Code § 51.002(b).


text:
    CLAIMANT ID 100212278, Requesting Party-Appellant, v. BP EXPLORATION & PRODUCTION, INCORPORATED; BP America Production Company; BP, P.L.C., Objecting Parties-Appellees.
    No. 16-30102 Consolidated with Cases 16-30117, 16-30598, 16-30599 and 16-30606
    United States Court of Appeals, Fifth Circuit.
    Filed February 9, 2017

      Jeffrey W. Willis, Esq., Rogers & Hardin, L.L.P., Atlanta, GA, for Requesting Party-Appellant.
    Richard Cartier Godfrey, Esq., James Andrew Langan, Esq., Martin R. Martos, II, Chicago, IL, Jeffrey Bossert Clark, Sr., Esq., Scott Payne Martin, Gibson, Dunn & Crutcher, L.L.P., Washington, DC, Kirkland & Ellis, L.L.P., Don Keller Haycraft, Liskow & Lewis, P.L.C., New Orleans, LA, for Objecting Parties-Appellees.
    Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
   PER CURIAM:

The appellant is a company that filed Business Economic Loss claims under the Deepwater Horizon Economic and Property Damages Settlement Agreement on behalf of five of its stores. Each claim was denied by the Court Supervised Settlement Program, and each denial was affirmed by an Appeal Panel. The company sought review by the district court, which the district court denied in every case. In this consolidated appeal, the company challenges the district court’s denial of discretionary review in each case. Because the district court did not abuse its discretion, we AFFIRM.

I.

This case involves BP’s obligations under the Deepwater Horizon Economic and Property Damages Settlement Agreement. The appellant, which describes itself in its briefing as an automotive parts provider, sought to obtain compensation under the Settlement Agreement as a tourism business. Designation as a tourism business would have relieved the appellant of the need to demonstrate loss causation. However, the Court Supervised Settlement Program (CSSP) and the Appeal Panel determined that the stores were not tourism businesses and denied the claims for failure to satisfy the causation requirement.

Exhibit 2 to the Settlement Agreement defines tourism as follows:

Tourism means businesses which provide services such as attracting, transporting, accommodating or catering to the needs or wants of persons traveling to, or staying in, places outside their home community. Therefore, if you are in one of the following businesses or work for such a business, you are in the Tourism Industry.

Exhibit 2 then lists forty-one North American Industry Classification System codes (NAICS codes) identifying various categories of businesses that qualify as tourism businesses.

The appellant claimed that it fell under NAICS code 452990 (All Other General Merchandise Stores), which is listed in Exhibit 2. It also argued, in the alternative, that it was a business “accommodating or catering to the needs or wants of persons traveling to, or staying in, places outside their home community.” It claimed to be a tourism business on these grounds.

Under the Settlement Agreement, the appropriate NAICS code for a claimant is to be determined based on review of: “(a) the NAICS code shown on an Entity Claimant’s 2010 tax return, (b) 2010 business permits or license(s), and/or (c) other evidence of the Entity’s activities necessary for the Settlement Program to determine the appropriate NAICS code.” Claims Administrator Final Policy 480 v.2 clarifies that the “appropriate” NAICS Code for an entity shall be the one that “most accurately describes [its] primary business activities” during the relevant time frame.

Claims Administrator Final Policy 289 v.2 further discusses the designation of a claimant as a tourism business. It states the Claims Administrator’s finding that Exhibit 2’s list of NAICS codes is illustrative, not exhaustive. Based on this finding, it states that a claimant without one of the NAICS codes listed in Exhibit 2 may be considered a tourism business “if the Cláims Administrator determines in his discretion” and “based on the totality of the circumstances” that it “provide[s] services such as attracting, transporting, accommodating or catering to the needs or wants of. persons traveling to, or staying in, places outside their home community.” Finally, Policy 289 v.2 provides that when a claimant submits separate claims for separate facilities, as in this case, the Claims Administrator “will evaluate each facility separately to determine whether it meets the definition of Tourism ..., notwithstanding what NAICS code may have been assigned to the Entity as a whole.”

The CSSP determined that the stores were not tourism businesses and that the appropriate NAICS code for each of the stores was 441310 (Automotive Parts and Accessories Stores), a code not listed in Exhibit 2. The Appeal Panel affirmed the CSSP determination for each store. In the first of its opinions, the Appeal Panel noted that the store in question advertised itself as an auto-parts store and that it did not fit the NAICS definition of “All Other General Merchandise Stores” because its auto parts line of products predominated over other product lines. It also explained that the store had not established with concrete evidence that it was engaged in the business of “accommodating or catering to the needs or wants of persons traveling to, or staying in, places outside their home community.” According to the Appeal Panel, the claimant’s observation that its website included a list of products that drivers should inspect and consider replacing before a long trip was insufficient to qualify it for designation as a tourist business. This was particularly true since the store was not located in a tourist area and the possibility of occasional tourists stopping by the store for auto parts was “far too incidental.” Based on this same reasoning, the Appeal Panel went on to affirm the denial of each store’s claim. The stores appealed the decisions of the Appeal Panel to the district court, which denied discretionary review. The stores then appealed to this court.

II.

We review the district court’s denial of discretionary review for abuse of discretion. Holmes Motors, Inc. v. BP Exploration & Prod., 829 F.3d 313, 315 (5th Cir. 2016). We generally assess whether the district court abused its discretion by looking to “whether the decision not reviewed by the district court actually contradicted or misapplied the Settlement Agreement, or had the clear potential to contradict or misapply the Settlement Agreement.” Id. However, we have been careful to note that it is “wrong to suggest that the district court must grant review of all claims that raise a question about the proper interpretation of the Settlement Agreement.” Id. at 316; see also In re Deepwater Horizon, 785 F.3d 986, 999 (5th Cir. 2015) (“We do not intend any part of this opinion to turn the district court’s discretionary review into a mandatory review. To do so would frustrate the clear purpose of the Settlement Agreement to curtail litigation.”). It is not an abuse of discretion to deny a request for review that “involve[s] no pressing question of how the Settlement Agreement should be interpreted or implemented, but simply raise[s] the correctness of a discretionary administrative decision in the facts of a single claimant’s case.” In re Deepwater Horizon, 641 Fed.Appx. 405, 410 (5th Cir. 2016). It may be an abuse of discretion to deny a request for review that raises a recurring issue on which the Appeal Panels are split if “the resolution of the question will substantially impact the administration of the Agreement.” In re Deepwater Horizon, 632 Fed.Appx. 199, 203-04 (5th Cir. 2015).

III.

The appellant has not attempted to show on appeal that the district court abused its discretion or that its request for review raised an important, recurring issue on which the Appeal Panels are split. Instead, it argues for de novo review and repeats substantially the same arguments it made before the CSSP and Appeal Panel. According to the appellant, the district court’s denial of its request for review constitutes an interpretation of the Settlement Agreement, which is a question of contract law subject to de novo review. However, the appellant does not challenge the Appeal Panel’s interpretation of the Settlement Agreement. Rather, it disputes the Appeal Panel’s factual determination that its stores were not tourism businesses within the meaning of the Settlement Agreement. We do not review de novo whether this determination was correct. Claimant ID 100250022 v. BP Exploration & Prod., No. 16-30258, 847 F.3d 167, 170, 2017 WL 365495 (5th Cir. Jan. 25, 2017). Instead, we ask whether it constitutes an abuse of discretion. Id.

The stores’ evidence that they were engaged in “accommodating or catering to the needs or wants of persons traveling to, or staying in, places outside their home community” does not demonstrate that the Appeal Panel abused its discretion in determining otherwise. They rely on two pieces of evidence. First, the appellant’s website displays a list of automotive products that drivers should consider replacing before long trips. Second, the stores carry storage and cargo equipment primarily used by vacationers. BP contends that the Appeal Panel correctly determined there was insufficient concrete evidence to show that any of the specific stores in question qualified as a tourism business. In particular, none of the stores offers evidence regarding its actual sales of cargo equipment or sales of products on the website’s list and none offers evidence of sales to non-local customers as contemplated by the Settlement Agreement. The Appeal Panel expressly considered the possibility that although the stores were not located in tourist areas, they might incidentally serve some tourists while pursuing their primary business as sellers of automotive parts and accessories. Notwithstanding this possibility, it determined that the totality of the circumstances did not show the stores to be tourism businesses. The stores have not shown that this was an abuse of discretion.

The stores’ alternative argument that they should have been classified under NAICS code 452990 (All Other General Merchandise Stores) rather than NAICS code 441310 (Automotive Parts and Accessories Stores) also fails to show an abuse of discretion. The appellant does not dispute that its stores advertised themselves as auto-parts stores. The Appeal Panel determined that the stores did not fit the NAICS definition of “All Other General Merchandise Stores” because their auto parts line of products predominated over other product lines. Moreover, the Settlement Agreement directs that “the NAICS code shown on an Entity Claimant’s 2010 tax return” should be considered in determining the appropriate NAICS code, and the appellant used code 441310 on its 2010 tax return. The appellant itself has stated on appeal that it is an automotive parts provider. Thus, it was not an abuse of discretion to classify the stores under NA-ICS code 441310 as automotive parts and accessories stores.

IV.

Because the district court’s denial of discretionary review does not constitute an abuse of discretion, we AFFIRM.

      . Under the Settlement Agreement, claims are initially submitted to the Court Supervised Settlement Program, which is overseen and managed by the Claims Administrator. In re Deepwater Horizon, 785 F.3d 986, 989 (5th Cir. 2015). A decision by the Court Supervised Settlement Program may be appealed to an Appeal Panel. Id. Although the Settlement Agreement does not establish a right of automatic appeal to the district court, the district court that authorized the settlement has retained the discretionary right to review decisions by Appeal Panels. Id. at 989-90.

        . BP has raised one question of interpretation in an alternative argument that we need not reach. It argues that, even if the stores were engaged in "accommodating or catering to the needs or wants of [tourists],” that is not sufficient to make them tourism businesses. According to BP, the NAICS codes listed in Exhibit 2 constitute an exhaustive list of tourism businesses, and Policy 289 v.2 impermis-sibly modified the terms of the Settlement Agreement by interpreting the list to be merely illustrative of a larger category of businesses “accommodating or catering to the needs or wants of [tourists].” Because the Appeal Panel determined that the stores were not businesses accommodating or catering to the needs or wants of tourists and did not abuse its discretion in doing so, we need not determine whether Exhibit 2’s list of NAICS codes is exhaustive.

      . The appellant notes that this factor is not conclusive under Policy 480 v.2 but does not explain why any of its stores ought to have a different NAICS code than the one on the company’s tax return.


author: EDWARD C. PRADO, Circuit Judge:

text:
    Randy CHILDERS, Plaintiff-Appellant, v. Ed IGLESIAS; Anne Hollis, Defendants-Appellees.
    No. 16-10442
    United States Court of Appeals, Fifth Circuit.
    Filed February 9, 2017

      Franklin W. Cram, Mansfield, TX, for Plaintiff-Appellant.
    Stephen Robert Marsh, David Kloster-boer & Associates, Richardson, TX, for Defendants-Appellees.
    Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Plaintiff-Appellant Randy Childers brought suit against Defendants-Appellees Ed Iglesias and Anne Hollis for unlawful arrest under 42 U.S.C. § 1983. The district court granted the Defendants’ motion to dismiss on the ground that Childers failed to allege a constitutional violation. For the reasons stated below, we AFFIRM.

I. BACKGROUND

Childers owns a ranch in Parker County, Texas. On September 15, 2013, Childers went to his ranch to evict an individual whom he was allowing to stay there. After he arrived, he requested assistance from the Parker County Sheriffs Office. When Hollis and Iglesias, who are Parker County Deputy Sheriffs, arrived, Childers’s truck was parked in front of the gate to the ranch. The Defendants parked their car in front of Childers’s truck. Childers alleges'that he was intending to leave the ranch at that point, but that the Defendants’ parked car prevented him from leaving.

Childers then attempted to explain the situation to Hollis. While Childers was speaking with Hollis, Iglesias asked Child-ers to move his truck. Childers did not immediately comply; instead he “attempted to complete his explanation.” Iglesias then placed Childers under arrest for interfering with the officers’ duties. Childers alleges that the Defendants could have driven around his truck, and that Hollis agreed; Iglesias, however, did not believe he could drive around the truck.

Although the district attorney eventually dismissed the charge, Childers was held in jail for over twenty-four hours and incurred legal fees as a result of his arrest. Childers subsequently brought suit in state court under 42 U.S.C. § 1983, claiming that the Defendants arrested him without probable cause in violation of the Fourth Amendment. After removing the case to federal court, the Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Defendants asserted qualified immunity and argued that Childers’s allegations do not support a constitutional violation. The district court agreed and granted the Defendants’ motion to dismiss. This appeal followed.

II. DISCUSSION

A. Standard of Review and Applicable Law

We review de novo a district court’s dismissal under Rule 12(b)(6), “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Hines v. Alldredge, 783 F.3d 197, 201 (5th Cir.) (quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)), cert. denied, — U.S. -, 136 S.Ct. 534, 193 L.Ed.2d 426 (2015). “If the complaint has not set forth ‘enough facts to state a claim to relief that is plausible on its face,’ it must be dismissed.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

To survive a motion to dismiss, Childers must allege facts that show the Defendants lacked probable cause to arrest him. Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001). “Probable cause exists “when the totality of the facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.’” Haggerty v. Tex. S. Univ., 391 F.3d 653, 655-56 (5th Cir. 2004) (quoting Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001)). Moreover, the Defendants are “entitled to qualified immunity if a reasonable officer in [their] position could have believed that, in light of the totality of the facts and circumstances of which [they were] aware, there was a fair probability” that Childers committed an offense — namely, interfering with a police officer’s official duties. Id. at 656; see also Tex. Penal Code § 38.15 (“A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with ... a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.”).

B. Analysis

Childers principally argues that he did nothing to interfere with the Defendants’ official duties. Although Childers concedes that he did not move his truck when Deputy Iglesias requested he do so, he contends that the Defendants could have driven around his truck or simply walked past it to enter the ranch. Childers also argues that he merely attempted to explain the situation to the Defendants, which he suggests was protected speech under the First Amendment. See City of Hous. v. Hill, 482 U.S. 451, 462-63, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (recognizing “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest”).

Childers cites Carney v. State, 31 S.W.3d 392, 396 (Tex. App.—Austin 2000, no pet.), in support of his argument that he did not interfere with the Defendants’ official duties. In Carney, the Texas Court of Appeals reversed a conviction under Texas Penal Code § 38.15 on the ground that the defendant’s interference “consisted of speech only,” which is a complete defense to a conviction under that statute. 31 S.W.3d at 395. Carney was trying to prevent police officers from entering his house to execute a search warrant. Id. at 397. The court found that the defendant did not physically block the officers from entering the, house; he merely argued with the officers, thereby delaying their entry. Id. at 398. The court held that mere argument was insufficient to support a conviction under Texas Penal Code § 38.15. Id.

The district court found that Childers’s case is factually distinguishable from Carney because Childers’s truck blocked the Defendants’ entry to the property. Specifically, the district court inferred that because “Childers admits that the police were blocking his ability to exit the property, ... it follows that the officer’s passage was also obstructed.” This was improper fact-finding; on a motion to dismiss, we must assume that the plaintiffs allegations are correct. See Hines, 783 F.3d at 201.

Even assuming that Childers’s truck was not blocking the Defendants’ entry, however, Carney is distinguishable based on the fact that Childers failed to move his truck when Deputy Iglesias instructed him to do so. This instruction was made within the scope of the official duty Deputy Igle-sias was performing: trying to access the ranch through the gate that was indisputably located behind Childers’s truck. Moreover, this instruction concerned the moving of Childers’s truck rather than the content of his speech. Thus, Childers did more than just argue with police officers; he failed to comply with an officer’s instruction, made within the scope of the officer’s official duty and pertaining to physical conduct rather than speech.

Texas courts have found that failure to comply with an officer’s instructions under similar circumstances violates Texas Penal Code § 38.15 and is not protected speech. Specifically, several courts have affirmed convictions of defendants who failed to comply with an officer’s instruction to move away from a crime scene. See Duncantell v. State, 230 S.W.3d 835, 842 (Tex.App. — Hous. [14th Dist.] 2007, pet. ref'd) (finding that defendant violated Texas Penal Code § 38.15 by repeatedly disregarding officers’ orders to stand away from crime scene); Key v. State, 88 S.W.3d 672, 676 (Tex.App.—Tyler 2002, pet. ref'd) (concluding that defendant “engaged in conduct other than speech in refusing to obey the directives of’ a police officer to remain on the sidewalk, which the officer “believed was necessary to prevent [defendant] from assaulting” another individual).Likewise, this Court has held that failure to comply with a police officer’s instruction to stand back is not protected speech and gives the officer probable cause to arrest under Texas Penal Code § 38.15. See Haggerty, 391 F.3d at 657 (“[W]hile Haggerty’s relevant actions included speech, a reasonable officer could have believed that they were not limited to speech: Haggerty stepped forward toward [an officer] after having previously been warned to not interfere and was within relative proximity (10 to 15 feet away).”). Based on this precedent, a reasonable officer could have believed that there was a fair probability that Childers violated Texas Penal Code § 38.15 by failing to comply with Iglesias’s instruction to move the truck.

III. CONCLUSION

For the foregoing reasons, the district court’s order of dismissal is AFFIRMED.

      . Childers neither alleges in his complaint nor argues on appeal that the Defendants were not performing duties authorized by law. Indeed, Childers himself requested police assistance at the ranch. Childers also neither alleges nor argues that he lacked the criminal negligence required by Texas Penal Code § 38.15.

      . Although Childers argues, correctly, that his attempt to explain the situation to the Defendants was protected speech, see Freeman v. Gore, 483 F.3d 404, 414 (5th Cir. 2007), he does not argue that his refusal to move his truck was itself expressive conduct that might be protected by the First Amendment.

      . In an unpublished case, a Texas appellate court has extended this principle to failure to comply with an officer's instruction to move a tent. Momentoff v. State, No. 02-12-00335-CR, 2013 WL 5967107, at *7 (Tex. App. — Fort Worth Nov. 7, 2013, no pet.) (holding that defendant's "act of standing in his tent and refusing to allow the officer to remove it did not constitute ‘speech only’ ”).