Aspenwood Apartments, et al v. Officer Hall, et al

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 5, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20206
JACK YETIV; ASPENWOOD APARTMENTS
PARTNERS, L.P.; PARK ON WESTVIEW
APARTMENTS PARTNERS, L.P.; MARIA
VARGAS,
Plaintiffs-Appellants,
versus
OFFICER HALL; INSPECTOR MELNIK;
INSPECTOR MCGEE; THE CITY OF HOUSTON,
Defendants-Appellees.
Appeal from the United States District Court for
the Southern District of Texas
(USDC No. 4:02-CV-3785)
_________________________________________________________
Before REAVLEY, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
The judgment is modified in part and otherwise affirmed, for the following
reasons:

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1. Appellants cannot rely on an ever-expanding body of claims. They were
allowed to amend their complaint, and are limited to the claims set forth in the live
second amended complaint (the complaint).
2. As to Yetiv, the complaint does not state a claim. Yetiv does not have standing
to complain of the alleged unconstitutional search of the premises owned by the plaintiff
limited partnerships, or the alleged unconstitutional criminal charge against Vargas. Even
if this conduct was motivated by a desire on the part of defendants to retaliate against
Yetiv personally, the complaint does not allege an injury-in-fact that is concrete,
particularized, and imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Yetiv argues that the city inspections have caused him and the apartment staff to incur
personal time responding to the defendants’ “harassment” and defending Vargas, but such
allegations do not in our view confer standing on Yetiv. Choosing to defend Vargas as
her attorney does not make Yetiv the victim of a constitutional violation. Furthermore,
there is no general constitutional tort for “harassment” of a property owner, or in Yetiv’s
case, the holder of a lien on property. To the extent that Yetiv complains that city
employees conducted their harassment by issuing citations and instigating legal
proceedings, we have held that there is no “freestanding constitutional right to be free
from malicious prosecution.” Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003)
(en banc), cert. denied, 125 S. Ct. 31, 33 (2004).
3. The judgment against Vargas was also warranted. The complaint alleges that
as a mere employee of the partnerships owning the apartment complexes, she is not

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individually, criminally liable for the failure to post the occupancy permit because state
law does not oblige her personally to post the permit. The complaint alleges that “[t]o
criminally charge an employee with misconduct for which she cannot possibly be
responsible is arbitrary and capricious and violates the individual’s Fourteenth
Amendment right to be free from such governmental abuse.” Vargas likewise sought
class certification for all similarly situated individual employees of certain businesses
“who have been written criminal citations for illegal conduct allegedly committed not by
the recipient of the citation but rather by the owners of these businesses.” The appellees
argue that Vargas was properly charged and prosecuted under state law. Both sides brief
whether state and municipal law impose liability on agents such as Vargas in these
circumstances. Vargas’s defense failed in state court. Regardless, Vargas does not state
a constitutional claim. A federal constitutional violation does not occur every time a
State prosecutes a defendant who has a colorable defense. Again, there is no freestanding
federal claim under § 1983 for malicious prosecution recognized in our circuit.
“[C]ausing charges to be filed without probable cause will not without more violate the
Constitution. So defined, the assertion of malicious prosecution states no constitutional
claim.” Castellano, 352 F.3d at 953.
4. Not every encounter between a citizen and a law enforcement officer implicates
the Fourth Amendment. INS v. Delgado, 466 U.S. 210, 215 (1984). Generally, police
questioning, by itself, does not fall within the ambit of Fourth Amendment protections.
Id. at 216. A seizure occurs when a reasonable person believes that he is not free to

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leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980). The complaint does not
allege that Vargas personally was seized under the Fourth Amendment or did not
reasonably feel free to leave. She was allegedly one of several apartment staff members
present when the city employees arrived at one of the apartment complexes.
5. The complaint alleges that defendants entered the “manager’s private office” at
one of the apartment complexes, but does not identify that manager, or specifically assert
a Fourth Amendment violation on behalf of the manager. It identifies plaintiff Vargas as
an assistant manager.
6. With respect to the two appellant limited partnerships and their respective
business and leasing offices, the novel issue presented is whether the partnerships had a
constitutionally protected expectation of privacy in offices, at least parts of which were
frequented by tenants, prospective tenants, and others, when various efforts were made to
restrict access to the apartment complexes as a whole for security or other reasons. The
complaint does not state whether the manager’s office was locked, closed off from the
rest of the offices, or even had a door. The factual circumstances alleged are quite
different from those involving a locked warehouse at issue in See v. City of Seattle, 387
U.S. 541 (1967), or the personal residence at issue in Camara v. Municipal Court of San
Francisco, 387 U.S. 523 (1967). The Supreme Court has stated that those cases “turned
upon the effort of the government inspectors to make nonconsensual entries into areas not
open to the public.” Donovan v. Lone Steer, Inc., 464 U.S. 408, 414 (1984). Even if a
constitutionally protected expectation of privacy exists in the circumstances alleged in the

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pending case, it is not clearly established, and at oral argument counsel for appellants
admitted as much by repeatedly referring to the issue is one of first impression. Absent a
clearly established right that was violated, the individual defendants are entitled to
qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We will not
reverse a judgment if the district court can be affirmed on any ground, regardless of
whether the district court articulated the ground. See United Indus., Inc. v. Simon-
Hartley, Ltd., 91 F.3d 762, 765 n.6 (5th Cir. 1996).
7. As to the city’s alleged liability to the partnerships, the complaint did not state
a claim for municipal liability. To establish such liability, the violation must be caused
by a municipal policy or custom reflecting a deliberate or conscious choice by city
policymakers, see City of Canton v. Harris, 489 U.S. 378, 389 (1989), or by an official
with final policymaking authority, see Pembaur v. City of Cincinnati, 475 U.S. 469, 481-
84 (1986). For all one can tell from the complaint, the latest alleged incidents of
harassment that form the basis of the complaint were unauthorized acts initiated by lower
level city employees and were not directed by city policymakers. It states, for instance,
that after appellate review was denied in an earlier legal skirmish, “City agents began
harassing Yetiv and his staff again,” but does not allege that those agents were
policymakers or were directed by a policymaker.
8. With respect to a state claim for trespass, the question of whether as a
substantive legal matter one or more appellants stated a claim for trespass was not briefed
below so far as we can tell or ruled upon by the district court. As we interpret the court’s

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action in dismissing the whole suit, the court followed the general rule it is proper to
decline to exercise supplemental jurisdiction over state law claims when all federal claims
are dismissed or otherwise eliminated from a case prior to trial. Batiste v. Island
Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999). We are convinced that the district
court, having dismissed the federal claims, was not inclined to exercise supplemental
jurisdiction over the trespass claim. However, the court should have dismissed the
trespass claim without prejudice, and we modify the judgment accordingly. The
judgment is
AFFIRMED AS MODIFIED.

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