Opinion
Civil Action No. 3:99-CV-0672-L
April 18, 2002
MEMORANDUM OPINION AND ORDER
Before the court are the Motion for Summary Judgment of Defendants City of Royse City, Dana Thomason, and Bill Vegas, filed July 5, 2000; and, Defendants Betsy Brockmann's, Melody East's, and Judy Cotter's Motion Summary Judgment, filed April 21, 2000. After careful consideration of the parties' briefs, the summary judgment evidence, and the applicable law, the court grants in part and denies in part the Motion for Summary Judgment of Defendants City of Royce City, Dana Thomason, and Bill Vegas; and grants Betsy Brockmann's, Melody East's, and Judy Cotter's Motion Summary Judgment.
I. Procedural and Factual Background
Plaintiffs Matthew and Brenda Bennett (respectively, "Matthew" and "Bennett;" collectively, "Plaintiffs") filed this action against Defendants City of Royce City, Texas, Police Chief Dana Thomason. and Officer Bill Vegas (collectively, the "Royse City Defendants") on March 26, 1999. Plaintiffs also sue Betsy Brockmann, Melody East, and Judy Cotter (collectively, the "State Defendants"). At all times relevant herein, Defendant Dana Thomason was the Chief of Police for Royse City and Defendant Bill Vegas worked as an officer under his supervision. Defendants Brockmann Cotter, and East were employed by the Texas Department of Protective and Regulatory Services ("Child Protective Services" or "CPS"). Plaintiffs bring this action pursuant to 42 U.S.C. § 1983, contending Defendants, either jointly or individually, through various actions and omissions (1) violated their privacy, (2) entered their home illegally, (3) detained them illegally, (4) caused them to suffer injury from an unlawful eviction, (5) deprived them of their property, (6) deprived them of their right to freedom of association, (7) interfered unlawfully with the mother-son relationship between Matthew and Bennett, (8) prosecuted Bennett maliciously without any legal basis, and (9) deprived them of their right to be free from illegal discrimination.
The court has carefully reviewed Plaintiffs' First Amended Complaint. The court construes Plaintiffs' Complaint to assert federal claims only. The Complaint references alleged violations of federal law, not state law. See Pls.' First Am. Compl. ¶ 1, 2, 13, 15, 17, 25, 26, 28-30. Accordingly, the court will make no analysis of a state law claim.
Defendants move for summary judgment on all of Plaintiffs' claims. Defendants contend they have not deprived or caused Plaintiffs to be deprived of any right secured by the United States Constitution or laws of the United States. Additionally, the individual Defendants assert the defense of qualified immunity, and Defendant Royce City contends that it had no unconstitutional custom, policy, or practice that caused any injury to Plaintiffs.
A. Seizure of Matthew Bennett
Most of the relevant facts in this case are not in dispute; however, when they are in dispute, they are presented and viewed in the light most favorable to Matthew and Bennett. The court cites only those facts which are relevant and material to decide the pending summary judgment motions. On March 14, 1997, CPS received a confidential call concerning the welfare of Matthew Bennett, who was then fifteen years old. The caller reported concerns that Matthew was over-medicated and sedated, and that Bennett was manipulating the medical system by taking Matthew to an inordinate number of doctors, failing to disclose Matthew's current medications to some of the doctors in an attempt to obtain additional prescriptions, and insisting that Matthew suffered from diseases which he did not have. Defendant Brockmann was assigned to handle the initial investigation for CPS. During this initial investigation, Brockmann spoke with various area police departments and with two of Matthew's physicians, Dr. Deborah Baird and Dr. John Anderson, who also expressed concern about Matthew's condition.
After conducting this preliminary investigation, Brockmann petitioned for an order of protection in state district court. On March 24, 1997, Judge Sue Pirtle of the 382nd Judicial Court of Rockwall County, Texas, issued an "Order for Protection of Child in Emergency and Notice of Hearing" (the "Order"), authorizing CPS to consent to medical and psychological examinations for Matthew to determine whether he was an abused child. The Order further authorized CPS to enter Plaintiffs' home and have access to Matthew "for purpose of interviewing and examining [him], and otherwise investigating the referral for abuse." The Royse City Police Department had no involvement in the preparation or procurement of the Order signed by Judge Pirtle on March 24, 1997.
On March 25, 1997, Brockmann and Cotter went to the Bennett's residence so that Brockmann could take Matthew to a doctor's office for examination. Prior to their visit, Cotter requested that Royse City police officers accompany the CPS workers to the Bennett residence. It appears to be a statewide, standard practice for police officers to accompany CPS workers on home visits. Chief Thomason, Officer Vegas, and Rockwall Deputy Sheriff Garlington agreed to accompany Brockmann and Cotter to the Bennett residence. Defendant East was not present, nor had she yet been assigned to the case. Upon arrival, Brockmann explained the purpose of their visit and requested permission to have Matthew examined by an independent physician. Although Bennett was initially upset about Matthew being taken for a medical examination, she eventually acquiesced. Matthew rode to the appointment with Brockmann and a police officer in a van. At no time was Matthew handcuffed or otherwise restrained. Matthew also admits that no one ever yelled at him. Cotter stayed behind to interview Bennett, obtaining information about Matthew's medical history, current health, and schooling.
There exists some confusion in the record and in the parties' briefs concerning the date on which these actions took place. Plaintiffs allege in their complaint that the State and Royse City Defendants "illegally seized and removed Matthew Bennett from his home" on March 26, 1997. Pls.' First Am. Compl. ¶ 12-14. CPS records indicate, however, that these events took place on March 25, 1997. Plaintiffs further allege that on March 27, 1997, Defendants Brockmann and Vegas returned to the Bennett residence and "seized Matthew Bennett and then caused [him] to be incarcerated in a mental hospital in Greenville, Texas." Id. ¶ 16. The allegations in the complaint thus suggest that the State and Royse City Defendants visited the Bennett residence at least twice concerning the seizure of Matthew Bennett. These facts were subsequently clarified by Bennett's deposition in which she admitted that the State and Royce City Defendants came to her residence only once on March 25, 1997.
Defendant East's only involvement in these matters was to monitor the case from approximately June 1997 through October 1997. During this period, she met with Matthew and his family and with other professionals involved in the case.
En route to the appointment, Brockmann received a call from the doctor's office informing her that the examination was canceled because of an unrelated emergency at the hospital, and the appointment would have to be rescheduled. Consequently, Brockmann immediately returned Matthew to the custody of Brenda Bennett. Later that same day, CPS learned that Bennett admitted Matthew to a psychiatric hospital, and, as a result, Brockmann was unable to have Matthew examined the following day.
On March 26, 1997, Judge Pirtle issued a Writ of Attachment, granting CPS temporary managing conservatorship of Matthew for the sole purpose of completing its investigation on the referral of abuse. On April 2, 1997, the court ordered Bennett and her ex-husband, Larry Bennett, to surrender Matthew to Glen Oaks hospital in furtherance of the investigation. Bennett delivered Matthew to the hospital the following day. Brockmann and Cotter continued to investigate the allegations. By court order dated May 21, 1997, Matthew's father, Larry Bennett, was given temporary managing conservatorship of Matthew. The order expressly authorized the placement of Matthew in the Bennett residence under the supervision of Larry Bennett. On September 29, 1997, the court granted CPS a nonsuit, and conservatorship was returned jointly to Larry and Brenda Bennett.
B. Malicious Prosecution
In a wholly unrelated matter, Plaintiff contends Defendants Royse City and Police Chief Thomason maliciously caused Plaintiff to be prosecuted for criminal mischief. On or around March 3, 1998, Plaintiff was charged with tampering with her water meter and/or diverting public water. At some point prior to March 3, the Royse City Water Department terminated Bennett's water service for non-payment of the bill. With the consent of her neighbor, Sandy Poole, Plaintiff ran a garden hose from Poole's outdoor water faucet into her garage. Thomason warned Plaintiff to stop using her neighbor's water. Plaintiff refused. Plaintiff states that Thomason trespassed onto private property and turned off Poole's faucet. Plaintiff further states that Thomason then trespassed onto her property, entered into her garage when she was away from her house, and attempted to cut the hose with a knife. Thomason denies these allegations.
Sometime later, Thomason prepared an Offense Report, alleging probable cause for criminal mischief. Plaintiff was prosecuted and subsequently convicted by a jury. The verdict was reversed on appeal. The appellate court determined no reasonable jury could have found all of the elements of the offense beyond a reasonable doubt.
C. Seizure of the Chevrolet Blazer
In another unrelated matter, Bennett contends Officer Vegas seized her Chevrolet Blazer without probable cause in April 1997. Plaintiff further contends that the Royse City Defendants sold her vehicle without notice. On April 26, 1997, Chanda Bennett ("Chanda"), Derrick Moore ("Moore"), and another passenger were traveling in Bennett's Chevrolet Blazer on their way to a convenience store. According to Chanda, Officer Vegas stopped the vehicle for speeding. He then ordered all of the passengers out of the car and demanded to inspect their licenses. He further demanded that Moore produce evidence of financial responsibility. Chanda contends she attempted to produce proof that the Blazer was insured, but that Officer Vegas refused to allow her back into the vehicle to retrieve the insurance card. Officer Vegas subsequently issued a citation to Moore for driving without a license and for failure to maintain financial responsibility. Officer Vegas then impounded the Blazer, and it was subsequently sold at auction sometime later. Bennett contends that she kept proof of insurance in the vehicle at all times, and further contends that she did not receive notice that the vehicle would be sold.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id; see also Skotak v. Tenneco Resins, Inc, 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are irrelevant and unnecessary will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Defendants' Qualified Immunity Defense
Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Defendants Brockmann, Cotter, East, Vegas, and Thomason plead this defense.
In deciding a motion for summary judgment that raises the defense of qualified immunity, the court must first decide "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabberi, 526 U.S. 286, 290 (1999) ( citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991)); see also Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999). The second prong of the test requires the court to make two separate inquiries: whether the right allegedly violated was clearly established at the time of the event giving rise to the plaintiffs' claim, and if so, whether the conduct of the defendant was objectively unreasonable. Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999). Although many cases continue to state that the determination of the qualified immunity issue requires the application of a bifurcated test, the analytical framework for resolving issues of qualified immunity necessarily requires, or may require, a three-step analysis. See Kerr, 171 F.3d at 339; Evans, 168 F.3d at 860; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995).
Whether a defendant acted within the scope of his authority performing a discretionary function and whether a reasonable official in his position would have deemed his conduct unconstitutional are not to be considered by the court unless each part of the three-step inquiry has been answered affirmatively on behalf of the plaintiff Kerr, 171 F.3d at 339. In other words, only after a plaintiff demonstrates the existence and violation of a clearly established constitutional or statutory right is the defendant required to show that he was performing a discretionary function and that a reasonable official would not have considered his actions to be unconstitutional at the time of the incident in question. Id. at 338.
A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson, 483 U.S. at 640; Stefanoff v. Hays County, 154 E.3d 523, 525 (5th Cir. 1998); Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997).
In Anderson v. Creighton, 483 U.S. at 641, the Supreme Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether an action is legal], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) ( citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster, 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson, 483 U.S. at 640. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances." Pierce, 117 F.3d at 882; Stefanoff, 154 F.3d at 525.
B. Seizure of Matthew Bennett
Plaintiffs contend the temporary seizure of Matthew Bennett from his home on March 25, 1997, violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution. Specifically, Plaintiffs contend the seizure of Matthew Bennett violated his Fourth Amendment rights because the seizure was not based upon probable cause. Additionally, Plaintiffs contend the forced separation of Matthew from his mother violated their substantive due process rights to family integrity guaranteed by the Fourteenth Amendment. Defendants Brockmann, Cotter, East, Vegas, and Thomason (the "Individual Defendants") contend they are entitled to the defense of qualified immunity on these claims.
Both Plaintiffs assert claims under the Fourth and Fourteenth Amendments, but do not distinguish between themselves whose rights were allegedly violated. In the interest of analytical precision, the court notes only Matthew Bennett may assert a Fourth Amendment right based on these facts. The Supreme Court has held "if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997). Thus, "[s]ubstantive due process analysis is . . . inappropriate . . . if [the] claim is `covered by' the Fourth Amendment." County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). Moreover, "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174 (1969). When faced with a similar factual scenario, the Ninth Circuit held that "[t]he claims of the parents in this regard should properly be assessed under the Fourteenth Amendment standard for interference with the right to family association. . . . Because only the children were subjected to a seizure, their claims should properly be assessed under the Fourth Amendment." Wallis v. Spencer, MD., 202 F.3d 1126, 1137 n. 8 (9th Cir. 2000) (internal citations omitted). Thus, the court concludes only Matthew Bennett asserts a Fourth Amendment claim based on the events of March 27, 1997. Brenda Bennett's claims are therefore assessed under the Fourteenth Amendment.
1. Fourth Amendment Claim
Plaintiff Matthew Bennet first contends the Individual Defendants illegally seized and removed him from his home and the custody of his mother on March 25, 1997. In the context of removing a child from his home based on allegations of abuse, courts uniformly require either a court order, probable cause, or evidence of imminent harm before the child may be constitutionally seized. See Wooley v. City of Baton Rouge, 211 F.3d 913, 926 (5th Cir. 2000); Brokaw v. Mercer County, 235 F.3d 1000, 1010 (7th Cir. 2000) (stating a seizure is reasonable if made pursuant to a court order, supported by probable cause, or is justified by exigent circumstances); Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) (stating officials may remove child from custody of parent without prior judicial authorization only with reasonable cause to believe child is in imminent danger); Tenenbaum v. Williams, 193 F.3d 581, 603-05 (2d Cir. 2000) (analyzing whether a court order, probable cause, or exigent circumstances justified removal of child from home); JR. v. Washington County, 127 F.3d 919, 929-30 (10th Cir. 1997) (applying probable cause standard to determine whether child was constitutionally removed from home). In this context, a court order authorizing the temporary removal of a child from his home is the equivalent of a warrant. See Tenenbaum, 193 F.3d at 602; JR., 127 F.3d at 930 (finding court order authorizing removal of child from home "tantamount to an arrest warrant issued by a magistrate"). Because the Individual Defendants were in possession of a court order authorizing Matthew's removal on March 25, 1997, the court finds Matthew has not alleged or established the deprivation of a constitutional right at all. The court therefore concludes the Individual Defendants are entitled to qualified immunity on Plaintiffs' Fourth Amendment claim.
The summary judgment evidence demonstrates that CPS received a confidential call reporting that Matthew was over-medicated and sedated, and that Bennett was manipulating the medical system to obtain additional prescriptions. Based on this information, Defendant Brockmann began an investigation. The evidence indicates that Brockmann spoke with various area law enforcement agencies, and with two of Matthews physicians, Dr. Deborah Baird and Dr. John Anderson. After making these initial inquiries, Defendants Brockmann petitioned the 382nd Judicial District Court, Rockwall County, Texas, for an order authorizing an independent medical and psychological evaluation of Matthew. On March 24, 1997, Judge Sue Pirtle granted petitioner's request, and issued an "Order for Protection of Child in Emergency and Notice of Hearing" (the "Order"). The Order authorized CPS workers "to consent to such medical and psychological examinations as may be required to thoroughly investigate whether the child is a victim of abuse." The Order further authorized CPS workers "entrance and access . . . for the purpose of interviewing and examining the child, Matthew Bennett, and otherwise investigating the referral for abuse." Defendants attempted to execute the Order on March 25, 1997.
Plaintiffs do not dispute that Defendants acted under the authority of Judge Pirtle's order on March 25, 1997. Instead, Plaintiffs contend Defendants never had probable cause or a reasonable basis to believe that Matthew Bennett was in any sort of immediate or imminent danger, or that the care provided by Brenda Bennett threatened Matthew's health or safety. Plaintiffs further contend that Defendants Brockmann, Cotter, and East obtained an illegal and unconstitutional court order from "a corrupt judge who routinely violates the Texas Family Code and the United States Constitution." Pls.' First Am. Compl. ¶ 13; Pls.' Resp. to Defs. Brockmann, Cotter and East's Mot. for Summ. J. ¶ 9. Plaintiffs fail, however, to offer any competent summary judgment evidence to substantiate any of these contentions. In contrast, Defendant Brockmann, Cotter and East offer pages of evidence and testimony that document Brockmann's investigation of the case before she petitioned the state district court for an Order of Protection. This evidence more than satisfies any concern that Brockmann, or any of the other Individual Defendants, acted without probable cause or reasonable suspicion before or after obtaining Judge Pirtle's order. Plaintiffs also fail to offer any competent summary judgment evidence to substantiate their conclusory allegation that Judge Pirtle is "corrupt" or that she "routinely violates the Texas Family Code." Accordingly, the court grants summary judgment in favor of all of the Individual Defendants on Plaintiffs' Fourth Amendment claims. 2. Fourteenth Amendment Claims
Plaintiffs assert a number of other claims based on the events surrounding Matthew's seizure. Plaintiffs contend, for example, that the Individual Defendants "invaded the Plaintiffs' home for a second time and seized Matthew Bennett and then caused Matthew Bennett to be incarcerated in a mental hospital in Greenville, Texas." Pls.' First Am. Compl. ¶ 16. The summary judgment evidence, however, conclusively establishes that this allegation is not true. instead, the evidence indicates, and Bennett admits, that she took Matthew to the hospital herself, after Judge Pirtle issued her March 26, 1997 order. The undisputed facts demonstrate that neither Officer Vegas nor any of the other Individual Defendants ever visited the Bennett residence on March 27, 1997 or transported Matthew to Greenville as Bennett alleges in her complaint. To the extent these allegations state a claim separate and distinct from the Fourth Amendment claims analyzed above, the court grants summary judgment in favor of all Defendants on this claim because the allegations on which it is based are not true.
Bennett also contends "Defendants caused [Plaintiffs] ex-husband to be placed into her home without payment of rent, thusly, depriving [Plaintiff] of property without due process of law." Pls.' First Am. Compl. ¶ 17. The court finds no merit to this claim. The evidence establishes that by Order dated May 21, 1997. Larry Bennett was given temporary managing conservatorship of Matthew, so long as Larry Bennett lived in the Bennett residence. The evidence further establishes that Bennett had ample notice and opportunity to be heard on the issue before Judge Pirtle issued her order. In any event, to the extent these allegations state a claim under federal law, Bennett provides no competent summary judgment evidence to substantiate this claim. Accordingly, the court grants summary judgment in favor of all Defendants.
Matthew and Brenda Bennett next contend the Individual Defendants violated their substantive due process rights to "family integrity." It is well established that, as a general rule, the Fourteenth Amendment protects a parent's right to the care, custody, control, and management of their children from governmental interference. Wooley, 211 F.3d at 920-21 ( citing Stanley v. Illinois, 405 U.S. 645 (1972)). This right, however, is not absolute, and "must be balanced against the state's interest in protecting the health, safety, and welfare of children." Id. at 924; see also Morris v. Dearborne, 181 F.3d 657, 669 (5th Cir. 1999) (explaining the state may separate a child from his parents in cases of abuse or neglect). Thus, cases "claiming governmental interference with the right of family integrity are properly analyzed by placing them, on a case by case basis, along a continuum between the state's clear interest in protecting children and a family's clear interest in privacy." Morris, 181 F.3d at 671.
In a trio of cases, Hodorowski v. Ray, 844 F.2d 1210 (5th Cir. 1988); Doe v. State of La., 2 F.3d 1412 (5th Cir. 1993); and Kiser v. Garrett, 67 F.3d 1166 (5th Cir. 1995), the Fifth Circuit determined that social workers are entitled to qualified immunity for actions taken during investigations regarding allegations of child abuse. See also Morris, 181 F.3d at 669 (clarifying scope of qualified immunity in child protection cases). In Hodorowski, child welfare officers temporarily removed two children from their parents' home without a prior court order, after having received information that the children were being sexually abused. The court held that the social workers were entitled to qualified immunity to ensure the effectiveness of child-abuse investigations. Hodorowski, 844 F.2d at 1216. The court further held that reasonable officials would not have known "that their conduct in removing [the children] from the home violated the nebulous right of family integrity." Id. at 1217; see also Kiser, 67 F.3d at 1173 (finding a substantive due process right to family integrity, but stating "the contours of that right are not well-defined, and continue to be nebulous, especially in the context of a state's taking temporary custody of a child during an investigation of possible parental abuse"); Doe v. State of La., 2 F.3d at 1418 (determining social workers were entitled to qualified immunity because the court could not conclude their conduct violated the "nebulous" right to family integrity). More recently, the Fifth Circuit explained that the right to family integrity "may properly be categorized as nebulous" when the facts of a case involve the power of child welfare employees to take temporary custody of children about whom they have received reports of abuse. Morris, 181 F.3d at 671.
The court believes the allegations in this case fall squarely within the scope of immunity recognized by the Fifth Circuit in Hodorowski, Doe, and Kiser. In Hodorowski, the Fifth Circuit granted qualified immunity to child welfare officials who took custody of two children for approximately three days without having first obtained a court order. Here, the uncontroverted evidence demonstrates the Individual Defendants took custody of Matthew for less than one hour, and, moreover, that they possessed a court order authorizing their conduct. Based on this evidence, the court concludes that the Individual Defendants are entitled to qualified immunity. Accordingly, the court grants summary judgment in favor of the Individual Defendants on Plaintiffs Matthew and Brenda Bennett's substantive due process claims.
Although Chief Thomason and Officer Vegas were not employed as a child welfare officers, the doctrine of qualified immunity nevertheless protects them from liability on these claims. See Wooley, 211 F.3d at 924 ("The requirements of due process may also be satisfied where police officers are authorized to effect a transfer of custody in furtherance of the state's prerogative to protect the welfare of children.").
In applying Hodorowski, Doe, and Kiser, the court finds that the facts of this case satisfy the second prong of the qualified immunity analysis. In other words, the court concludes, based on these opinions and the facts of this case, that the right allegedly violated was not clearly established at the time of the event giving rise to Plaintiffs' claims. The court also holds, however, that Plaintiffs have not, based on these facts, demonstrated or established the violation or deprivation of a constitutional right at all. As explained above, the right to family integrity is not absolute, but must be balanced with the state's interest in the protection of children. Here, the State Defendants acted upon allegations of abuse and in accordance with a court order authorizing their conduct.
Plaintiffs also complain, somewhat inarticulately, that the Individual Defendants interfered with their right of privacy guaranteed by the Fourteenth Amendment. The Individual Defendants contend that Plaintiffs' substantive due process rights to privacy overlap, or are subsumed in, Plaintiffs' substantive due process rights to familial association. The court agrees. To the extent Plaintiffs' state a separate and distinct claim based on these events under the Fourteenth Amendment right to privacy, the court grants summary judgment in favor of the Individual Defendants on this claim.
C. Malicious Prosecution
Plaintiff Brenda Bennett next contends Chief Thomason and Royse City maliciously prosecuted her for tampering with a water meter device without the effective consent of the owner. The Fifth Circuit has long recognized a Fourth Amendment right to be free from malicious prosecution. See Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995); Sanders v. English, 950 F.2d 1152, 1159 (5th Cir. 1992); Hand v. Gary, 838 F.2d 1420, 1424 (5th Cir. 1988). The elements of a claim for malicious prosecution include (1) a criminal action commenced against the plaintiff; (2) that the prosecution was caused by the defendants or with their aid; (3) that the action terminated in the plaintiffs' favor; (4) that the plaintiff was innocent; (5) that the defendants acted without probable cause; (6) that the defendant acted with malice; and, (7) that the criminal proceeding damaged the plaintiff. See Kerr, 171 F.3d at 440. To survive Thomason's motion for summary judgment, Bennett must demonstrate either (1) the record affirmatively establishes each element of the claim, or (2) enough genuine material factual disputes exist regarding each element that the ultimate finding of that element is the subject of a genuine, material factual dispute. Id. The court concludes, based on the summary judgment evidence, that Plaintiff has met her burden.
Plaintiff's claim for malicious prosecution against Royse City is discussed more fully under the section entitled "Municipal Liability."
Most of the elements of Plaintiffs' claim are undisputably satisfied. The summary judgment evidence conclusively establishes, for example, that a criminal action was commenced with the aid of Chief Thomason on or around March 3, 1998, regarding Plaintiffs use of her neighbor's water. The evidence further establishes that Bennett was innocent of any crime, and that the action ultimately terminated in her favor, See Bennett v. State of Texas, No. 05-98-01212-CR, 1999 WL 326299 (Tex.App.-Dallas May 25, 1999, no pet.) (unpublished). Defendants Thomason and Royse City contend, however, that Plaintiff offers no evidence that demonstrates they acted without probable cause or with malice. Defendants further contend that Plaintiff offers no evidence of damage or harm.
In the context of malicious prosecution, the Fifth Circuit defines "probable cause" as "the existence of such facts and circumstances as would excite the belief; in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted." Kerr, 171 F.3d at 340 ( quoting Moore v. McDonald, 30 F.3d 616, 620 n. 2 (5th Cir. 1994)). Defendants charged Bennett with tampering with a water meter device without the effective e consent of the owner, and with diverting the public water supply by running a water hose from a neighbor's home to her own. Defendants contended these acts constituted "criminal mischief" as defined by Tex. Penal Code § 28.03(a)(2) (Vernon 1994). Defendant Thomason does not point to any specific evidence in the record to support his assertion that he had probable cause to believe Plaintiff was guilty of criminal mischief. By contrast, Plaintiff offers her testimony and the affidavit testimony of her neighbor Sandy Poole, who stated she gave Plaintiff permission to connect a garden hose to her water faucet and run the hose into her garage. Further, Plaintiff testified that Thomason knew Plaintiff had not tampered with her water meter, knew she was not diverting water around a metering device, and knew Poole had given her permission to use her water. The court concludes Plaintiff has provided sufficient evidence to suggest Chief Thomason acted without probable cause.
Section 28.03(a)(2) provides "[a] person commits an offense if, without the effective consent of the owner: he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person."
The court also concludes Plaintiff has provided sufficient evidence with respect to the malice and damage elements of her claim, thus enabling her to survive summary judgment. In a malicious prosecution action, malice may be inferred from a lack of probable cause or the conclusion that the government acted in reckless disregard of an individual's rights. See Brown v. United States, 653 F.2d 196, 199 (5th Cir. 1981). Moreover, malice may be inferred from circumstantial evidence. See Martin v. Thomas, 973 F.2d 449, 457 (5th Cir. 1992) (noting the tender of false information or the deliberate concealing or failing to disclose exculpatory evidence can give rise to an inference of malice). Finally, the court notes that malice is a question of intent, an inherently fact based inquiry rarely susceptible to summary judgment. Plaintiff's affidavit testimony and the affidavit testimony of Poole strongly indicate that Thomason lacked probable cause to initiate or maintain his prosecution of the case. Moreover, Bennett testified that Thomason engaged in other acts demonstrating his ill will, namely, the trespass on Plaintiffs' property and the severing of the water hose. In this case, the court believes a jury could find, based on the facts noted above, a strong inference of malice.
Finally, the court believes Plaintiff has offered sufficient proof of damages or harm. The summary judgment evidence demonstrates that Plaintiff suffered through a jury trial, was convicted of a nonexistent offense, and was forced to appeal the verdict. The court concludes that a reasonable jury could find, based on these facts, that Plaintiff suffered harm as a result of the malicious prosecution. Thus, construing all reasonable inferences in favor of the nonmovant, the court concludes a reasonable jury could return a verdict in favor of Plaintiff on this claim if it believed her version of the facts. Moreover, a reasonable jury could conclude that no reasonably competent police officer could have believed that probable cause existed to prosecute Bennett for the crime with which she was charged. Thomason is therefore not entitled to qualified immunity. Accordingly, Defendants' Motion for Summary Judgment on Plaintiffs' malicious prosecution claim is denied.
D. Seizure of the Chevrolet Blazer
Plaintiff next complains that in May 1997, Defendants Vegas and Thomason "seized Plaintiff Brenda Bennett's Chevrolet Blazer automobile, without probable cause or warrant and then sold her vehicle and deprived her of her vehicle without notice to her or cause to seize." Pls.' First Am. Compl. ¶ 20.
1. Probable Cause
Bennett contends Officer Vegas did not have probable cause to seize and impound her vehicle on the date in question. In Maricle v. Biggerstaff, 10 F. Supp.2d 705 (N.D. Tex. 1998), affirmed by Maricle v. Biggerstaff 168 F.3d 486 (5th Cir. 1999), the court determined the police have probable cause to seize a vehicle when the driver fails to present evidence of financial responsibility. The court further held that because the plaintiffs admitted having failed to present evidence of financial responsibility, the seizure of their vehicles was reasonable as a matter of law, and thus did not violate their constitutional rights. Id. at 708.
See Tex. Transp. Code Ann. § 601.051 which provides in pertinent part [a] person may not operate a motor vehicle in this state unless financial responsibility is established for that vehicle . . . .
In this case, the undisputed facts establish that Officer Vegas issued a citation on April 26, 1997, to Moore for driving without a license and for failure to maintain financial responsibility. Officer Vegas contends neither Moore nor any of the passengers in the car had a driver's license or proof of insurance. As a result, Officer Vegas impounded the automobile. Bennett, however, contends the Blazer was insured at the time of the incident, and that she kept an insurance card in the pocket located on the driver's side door. Bennett offers as evidence a true and correct copy of the insurance card that she alleges was in the Blazer on the date in question. Further, Chanda alleges that she offered to present proof of insurance to Officer Vegas, who refused to acknowledge such proof. Because the court must construe all inferences in favor of the nonmovant, the court concludes there exist genuine issues of material fact regarding whether Officer Vegas had probable cause to seize Bennett's vehicle on April 26, 1997. Accordingly, the court denies the Royse City Defendants' motion for summary judgment on this claim.
2. Notice
Bennett also contends that the Royse City Defendants officials sold her vehicle at auction without notice. Although Plaintiff nowhere expressly states her theory of recovery, the court construes Plaintiffs' claim under the Fourteenth Amendment as a deprivation of her procedural due process rights. Under the federal constitution, a person is entitled to notice and an opportunity to be heard at a meaningful time and in a meaningful manner before a deprivation of liberty or property. See Mathews v. Eldridge, 424 U.S. 319 (1976); Price v. City of Junction, 711 F.2d 582, 589 (5th Cir. 1983). Plaintiff testified that her vehicle was sold at auction without notice. Applying the applicable summary judgment standard, the court believes there exist material issues of disputed fact regarding this claim. Accordingly, the court denies the Royse City Defendants' motion for summary judgment on this claim.
E. Municipal Liability
Plaintiffs' suit against Thomason in his official capacity is treated as a claim against Royse City, the governmental entity that employs him. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Brooks v. George County, 84 F.3d 157, 165 (5th Cir. 1996). The court will therefore consider this claim with Plaintiffs' claims against Royse City. A governmental entity can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Board of the County Comm'rs of Bryan C'ounty v. Brown, 520 U.S. 397, 403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id; see also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [city] lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of [city] officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents [city] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the [city] or to an official to whom that body had delegated policy-making authority.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). A plaintiff must identify the policy, connect the policy to the governmental entity itself and show that his injury was incurred because of the application of that specific policy. Bennett, 728 F.2d at 767. A plaintiff must establish that the governmental entity through its deliberate conduct was the moving force behind the injury or harm suffered and must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Bryan County v. Brown, 520 U.S. 397, 403-04 (1997).
Liability must rest on official policy, meaning the governmental entity's policy, and not the policy of an individual official. Bennett, 728 F.2d at 769. The official complained of must possess
[f]inal authority to establish [city] policy with respect to the action ordered. . . . The official must also be responsible for establishing final government policy respecting such activity before the [city] can be held liable. . . . [W]hether an official had final policymaking authority is a question of state law.Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee agency or board and cannot review the action or decision of the employee, agency or board. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989).
If a plaintiff fails to raise a fact issue concerning any underlying constitutional violation, the governmental entity is not liable as a matter of law. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). In other words, if a plaintiff cannot establish an underlying constitutional violation, the alleged unconstitutional policy as a matter of law cannot be the basis of governmental liability. With the exception of her malicious prosecution claim against Chief Thomason and her claims concerning the seizure of her Chevrolet Blazer, Plaintiffs Bennett and Matthew fail to establish or raise a fact issue concerning the violation or deprivation of a constitutional right at all. Given the court's holdings on Plaintiffs' Fourth and Fourteenth Amendment claims, the court concludes the Royse City cannot be held liable as a matter of law. The court therefore grants summary judgment in favor of Royse City on the aforementioned constitutional claims.
With respect to the malicious prosecution claim, Plaintiff has simply produced no competent summary judgment evidence that Royse City authorizes, encourages, or condones malicious prosecution. At best, Plaintiff provides evidence of an isolated incident motivated by Chief Thomason's alleged ill will towards Plaintiff alone. That a malicious prosecution occurs in no way suggests that a governmental entity condones or approves the use of unconstitutional conduct. Further, Plaintiff fails to provide sufficient facts that demonstrate Chief Thomason's role as a policymaker, or that he enacted such policies with deliberate indifference to the constitutional rights of others. Other than Plaintiffs' conclusory allegations in this regard, the record is devoid of any such evidence that demonstrate these crucial facts. Accordingly, the court grants summary judgment in favor of Royse City on Plaintiffs' malicious prosecution claim.
Plaintiffs' claims against Royse City for the seizure and sale of her Chevrolet Blazer fail for the same reasons. Plaintiffs' conclusory allegation that Chief Thomason failed to train Officer Vegas does not raise a fact issue regarding the liability of Royse City. Moreover, a failure to train allegation can be the basis for liability under § 1983 only if the "failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Canton v. Harris, 489 U.S. 378, 388 (1989); see also Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir. 1998). Plaintiff has not even marginally established any such "deliberate indifference" in this case, and except for conclusory allegations, which are insufficient as a matter of law, Plaintiff offers no evidence to specify how the training was deficient. Moreover, the record establishes that Officer Vegas and Chief Thomason meet or exceed the standards required for certification as a peace officers set by the Texas Commission of Law Enforcement Officers Standards and Education. Accordingly, the court grants summary judgment in favor of Royse City on Plaintiffs' claims concerning the seizure and sale of her Chevrolet Blazer. III. Remaining Claims
Plaintiffs' Complaint contains a hodgepodge of other failure to train allegations. The record is devoid of an competent evidence to establish that Royse City was deliberately indifferent in training its police officers in any respect. By way of clarification, the court notes that every claim Plaintiffs make against Royse City is made with conclusory and unsubstantiated allegations. Plaintiff provides no competent summary judgment evidence to establish a policy or custom of Royse City that deprives Plaintiffs of a constitutional right. Royse City is therefore entitled to summary judgment on all of Plaintiffs' claims regarding municipal liability.
Finally, Plaintiffs raise a hodgepodge assortment of claims concerning a series of largely unrelated events involving the Individual Defendants and Royse City. The number of unsubstantiated assertions found in Plaintiffs' First Amended Complaint give the court more than a passing concern that such pleadings come perilously close to violating violated Fed.R.Civ.P. 11(b)(2) and (3). These pleadings and the purported claims unnecessarily consume the court's most precious resource-time. The court will examine these claims below; however, Plaintiffs' counsel should seriously consider Rule 11 when filing future pleadings.
Fed.R.Civ.P. 11 provides in pertinent part
[b]y presenting to the court . . . a pleading . . . an attorney . . . is certifying that the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . .
(2) the claims, defenses, and other legal contentions therein are warranted by existing law . . .
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
A. Alleged Statements Made to the Social Security Administration
Plaintiffs contend in March or April 1997, Defendants Brockmann, Cotter, and East "notified the Social Security Administration that Brenda Bennett was not entitled to receive Medicare and SSI benefits from the Social Security Administration on behalf of her son, Matthew Bennett." Pls.' First Am. Compi. ¶ 18. Plaintiffs further contend these "false and malicious" statements caused the termination of certain social security benefits. Nowhere, however, do Plaintiffs explain how these allegations, standing alone, state a claim under federal law. To the extent these allegations are actionable under § 1983, the record establishes that these Defendants denied making these statements. Other than the vague and conclusory allegations found in the complaint, Plaintiffs do not point to any summary judgment evidence that controverts these denials. The court therefore grants summary judgment in favor of the Individual Defendants on this claim.
B. Service of Arrest Warrants
Plaintiffs next contend members of the Royse City Police Department "[o]n numerous occasions including, October 28, 1997 and October 15, 1998 . . . in order to serve arrest warrants for minor misdemeanor traffic violations upon Chanda Bennett . . . and the Plaintiffs ex-husband Larry Bennett, forced their way into the front door of the Plaintiffs' home without announcing either purpose or authority." Pls.' First Am. Compl. ¶ 19. The undisputed evidence, however, establishes that the Rockwall County Deputy Sheriff; a nonparty to this lawsuit, served the arrest warrant on Chanda Bennett in Rockwall County, at a location other than Bennett's residence. Further, in regard to the October 15, 1998, incident, the summary judgment evidence conclusively establishes that the Royse City Defendants properly arrested Larry Bennett, after being found hiding in a locked closet in the Bennett residence, on several outstanding arrest warrants. Plaintiffs offer no other competent summary judgment evidence to controvert these facts or to substantiate any of the vague and conclusory allegations in the complaint. Accordingly, the court grants summary judgment in favor of Defendants Royse City and the Individual Defendants on these claims.
A police officer in the possession of a facially valid warrant has the limited authority to enter that person's residence and execute the warrant if the officer has "reason to believe" that the person lives at and is inside the residence. Payton v. New York, 445 U.S. 573, 603 (1980); United States v. Route, 104 F.3d 59, 62 (5th Cir. 1997). Plaintiffs offer no competent summary judgment evidence to contest the validity of the officers' warrant, or to contest that the officers had "reason to believe" that Larry Bennett was anywhere other than hidden in Brenda Bennett's home.
C. Discrimination, Disparate Treatment, and Improper Surveillance
Finally, Plaintiffs make various unsubstantiated claims that the Royse City Police Department and Chief Thomason violated their rights to association by ordering African Americans not to visit with Plaintiffs, Pls.' First Am. Compl. ¶ 10; treated Plaintiffs differently because of their financial status, Id ¶ 9; and, unlawfully encouraged members of the Royse City Police Department to place Plaintiffs' home under surveillance, Id. ¶ 11. Other than the vague and conclusory allegations contained in the complaint, which are insufficient as a matter of law, Plaintiffs offer no competent summary judgment evidence to substantiate any of these claims. Because the court finds no basis in either fact or law regarding these claims, the court grants summary judgment in favor of Defendants Royse City and Thomason. IV. Conclusion
Plaintiffs' right to association claim fails for the additional reason that the Constitution does not recognize a "generalized right of `social association.'" City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir. 1996).
For the reasons stated herein, the court grants in part and denies in part the Motion for Summary Judgment of Defendants City of Royce City, Dana Thomason, and Bill Vegas, and grants Betsy Brockmann's, Melody East's, and Judy Cotter's Motion Summary Judgment. This action is dismissed with prejudice against Defendants Brockmann, East, Cotter, and Royse City. Accordingly, the only remaining claims before the court that await disposition are Plaintiff Brenda Bennett's claims against Defendant Thomason, individually, for malicious prosecution and her claim against Defendants Thomason and Officer Vegas, in their individual capacities, for the illegal seizure and sale of her vehicle on April 26, 1997. The court will set Plaintiffs' remaining claims for jury trial in July 2002 by separate order.