Opinion
Civil Action No. 3:01-CV-1823-L
April 11, 2003
MEMORANDUM OPINION AND ORDER
Before the court is Defendant Lisa Matz's Motion for Summary Judgment, filed February 5, 2003, Plaintiff's motion to file First Amended Complaint, filed on September 12, 2002; and Plaintiff's Motion for Extension to File Reply, filed on June 6, 2002. After carefully considering the motions, Plaintiff's response, and the applicable law, the court grants Plaintiff's Motion for Summary Judgment; denies Plaintiff's motion to file First Amended Complaint; and denies as moot Plaintiff's Motion for Extension to File Reply for the reasons herein stated.
I. Background
On September 14, 2001, Plaintiff R. B. Brown Jr. ("Brown" or "Plaintiff"), a prisoner proceeding pro se, brought this civil rights action against Defendants Lisa Matz ("Matz" or "Defendant") and Mary Belton ("Belton") under 42 U.S.C. § 1983 for denial of his due process right of access to the courts. Brown was a criminal defendant in a Texas trial court where he was convicted of an unspecified offense. Brown brought this suit against Matz, the Clerk for the Texas Fifth District Court of Appeals in Dallas, Texas, for unspecified relief, because Belton, the court reporter in his criminal trial, failed to timely prepare his trial transcript for appeal. Brown alleges that Matz should have, but did not, notify the Fifth District Court of Appeals "[s]o that the [a]ppellate [c]ourt [c]ould make whatever order that is [a]ppropriate [t]o [a]void further [d]elay and [p]reserve [all of Plaintiff Brown's rights.]"
Belton is no longer a party to this action. The court dismissed without prejudice Brown's claims against Belton for failure to respond to her Motion for Reply under Fed.R.Civ.P. 7(a) as directed by the court in its July 16, 2002.
Because it was not clear from this allegation whether Brown was suing Matz in her official capacity or individual capacity, the court, out of an abundance of caution, evaluated Brown's claim as if he was suing her in both her official and individual capacity in deciding Matz's Motion to Dismiss, filed on November 19, 2001. By order dated July 16, 2002, the court determined that Matz was entitled to Eleventh Amendment immunity, and dismissed Brown's cause of action to the extent he was suing Matz in her official capacity, leaving only Brown's claims against Matz in her individual capacity. In her Motion for Summary Judgment, Matz maintains that she is entitled to summary judgment, because Brown's claim against her in her individual capacity is barred by qualified immunity.
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.), cert. denied, 513 U.S. 871 (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.), cert. denied, 506 U.S. 832 (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
Plaintiff contends that Matz impeded or impaired his open and equal access to the courts by failing to notify the appellate court of the delay and that the length of the delay was unreasonable. Matz, on the other hand, contends that she is entitled to qualified immunity and bears no burden to articulate facts or provide any evidence to support her claim of immunity and meet her summary judgment burden as the party moving for summary judgment on the basis of governmental immunity. She, nevertheless, argues that she is entitled to qualified immunity because: (1) Brown has not alleged and cannot establish a violation of a clearly established constitutional right; and (2) Matz's conduct was objectively reasonable in light of clearly established constitutional law. Matz also contends that Brown's § 1983 due process claim fails, because he did not suffer any harm as a result of the delay.
A. Doctrine of Qualified Immunity
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). Defendant Matz has pleaded 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. Gabbert, 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 v. Lyford, 171 F.3d at 339; Evans v. Ball, 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), cert. denied, 517 U.S. 1191 (1996).
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 v. Lyford, 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 v. Creighton, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir. 1998); and 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)). Qualified immunity is designed to protect from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. at 341. 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 v. City of Lake Jackson, 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 v. Creighton, 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 v. Smith, 117 F.3d at 882; Stefanoff v. Hays County, 154 F.3d at 525.
B. Application of Qualified Immunity to Brown's Due Process Claim
Undertaking the required three-step analysis for resolving the issue of qualified immunity, the court first determines that Brown has alleged a constitutional violation. The Fifth Circuit has held that "due process can be denied by any substantial retardation of the appellate process, including an excessive delay in the furnishing of a transcription of testimony necessary for completion of an appellate record." Mims v. LeBlanc, 176 F.3d 280, 282 (5th Cir. 1999) (quoting Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980)); see also United States v. Bermea, 30 F.3d 1539, 1568 (5th Cir. 1994) (noting that a state can violate due process if it substantially delays the appellate process it provides for convicted criminal defendants). Second, this right was clearly established at the time Brown filed his notice of appeal January 11, 2001, because Mims v. LeBlanc, which was decided in 1999, quotes Rheuark v. Shaw, and neither Rheuark nor Mims has been overruled. The court, however, concludes that Brown failed to show that Matz's conduct was objectively unreasonable.
The Fifth Circuit does not require that an official demonstrate that [she] did not violate clearly established federal rights; our precedent places that burden upon plaintiffs. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992).
The question that must be answered regarding the reasonableness of Matz's conduct is whether a reasonable court clerk could have believed that her conduct was lawful in light of clearly established law and the information they possessed at the time of Brown's appeal. See Anderson v. Creighton, 483 U.S. at 641. Stated another way, Brown must establish, or raise a genuine issue of material fact, that no court clerk of reasonable competence could agree on the reasonableness of Matz's conduct in processing Brown's appeal. See Malley, 475 U.S. at 341. Brown asserts that the length of the delay caused by Matz was "unreasonable on its face in light of the circumstances" and Defendant's actions. For support, he cites a law review article for the proposition that "[i]n post-trial proceedings, especially after incarceration, [courts] will presume that 'appellate delay is always harmful to the defendant.'" See Marc M. Arkin, Speedy Criminal Appeal. A Right Without a Remedy, 74 Minn. L.Rev. 437, 474 (1990).
In the law review article cited by Plaintiff, Marc M. Arkin ("Arkin") criticizes the Fifth Circuit's approach to due process claims for appellate delay in Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980), cert. denied, 450 U.S. 931 (1981). According to Arkin, "appellate delay is always harmful to the defendant to the extent that it postpones finality of judgement and increases the likelihood of unjust incarceration." Id. at 471-75. Law review articles, however, are not binding precedent and merely express the writer's opinion. In any event, Rheuark v. Shaw is still good law. See Mims, 176 F.3d at 282 (quoting Rheuark, 628 F.2d at 302). Moreover, Plaintiff's conclusory and unsubstantiated assertion that Matz's conduct is unreasonable is not competent summary judgment evidence and cannot defeat a motion for summary judgment. Hugh Symons Group, PLC v. Motorola, Inc., 292 F.3d 466, 470 (5th Cir.), cert. denied, ___ U.S., 123 S.Ct. 386 (2002). The court therefore concludes that Brown failed to establish, or raise a genuine issue of material fact, that Matz's conduct was objectively unreasonable. Accordingly, Matz is entitled to qualified immunity.
Alternatively, the court notes that even if Brown had presented summary judgment evidence on this issue, the court would have nevertheless concluded that his § 1983 claim for denial of due process fails, because Matz's conduct at most only slightly delayed the processing of Brown's appeal. According to Matz's affidavit, the record from the trial court was due on January 12, 2001. When the court of appeals did not receive the record, one of the clerks under Matz's supervision notified the trial court on January 26, 2001 that the court reporter's record had not been filed by the deadline. After receiving an extension, Belton eventually filed the transcript of the reporter's record on October 17, 2001. Thus, only fourteen days of the nine month delay is attributable to Matz. Under these circumstances, the court could not find Matz's conduct unreasonable.
C. No Evidence of Prejudice
Alternatively, Matz contends that Brown suffered no harm as a result of the delay. The court agrees. To determine whether a state's delay in processing a prisoner's appeal violates due process, the Fifth Circuit applies the following factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant. Id. at 303 n. 8. of these factors, the most important factor is prejudice to the defendant. See Bermea, 30 F.3d at 1569. The "three types of potential prejudice that may result from appellate delay" include:
Although Brown relies on qualified immunity as the basis of her summary judgment motion, her argument regarding harm or prejudice is really one that goes to the merits of the case. Frankly speaking, given the facts of this case, Matz could have moved for summary judgment on the merits rather than on qualified immunity, because the evidence necessarily fails to establish that her conduct excessively or substantially delayed Brown's appeal. At best, only fourteen days of the nine-month delay can be attributed to Matz's conduct. Had this approach been taken, the court would not have been required to undertake the qualified immunity analysis, and considerable time would have been saved. The court notes that the only reason it was able to use the merits as an alternative ground is Matz's oblique reference that Brown suffered no harm. In other words, qualified immunity should have been the alternative ground as opposed to the court's ruling on the merits.
1) extended oppressive incarceration pending appeal; 2) the anxiety and concern of the convicted party awaiting the outcome of the appeal; and 3) impairment of the convicted party's grounds for appeal or the viability of his defenses in the event of retrial.Mims, 176 F.3d at 282; Shaw, 628 F.2d at 303 n. 8.
Assuming without deciding that Brown has satisfied the other three factors set forth in Bermea, the court determines that Matz is entitled to summary judgment, because the only prejudice alleged by Brown is that Matz impeded or impaired his access to the courts; that he was denied equal access to the appellate process; and denied access to records normally available to non-indigent litigants. Aside from these conclusory assertions, Brown has offered no evidence to show he was prejudiced by the alleged delay. As stated previously, conclusory assertions are insufficient to defeat a motion for summary judgment. Hugh Symons Group, PLC, 292 F.3d at 470.
Moreover, after reviewing the record, the court found nothing to indicate that Brown had been denied access to the courts or impeded in any way as he alleges. Brown's due date for filing his appellate brief was November 16, 2001. He requested and obtained an extension to file his brief on January 17, 2002 and subsequently filed his brief on this date only to later withdraw his appeal on March 19, 2002, before the case was submitted to the court of appeals. Any potential prejudice was therefore minimized or eliminated. See Mims, 176 F.3d at 283. Although the delay was unfortunate, the prejudice alleged by Brown is insufficient to qualify as a due process violation. Id. Because Brown has alleged no other prejudice, the court determines that he failed to establish, or raise a genuine issue of material fact, that he was prejudiced by Matz's alleged failure to timely notify the trial court or court of appeals that the court reporter's record had not been filed. Matz is therefore entitled to summary judgment.
IV. Miscellaneous
On July 16, 2002, the court dismissed without prejudice Brown's claims against Belton as a sanction against Brown for his failure to comply with the court's May 24, 2002 order granting his May 13, 2002 Motion to Extend Time to File Reply and directing him to file a reply to Belton's Rule 7(a) motion by June 12, 2002. Brown subsequently filed another motion for extension of time to reply to Belton's motion on June 6, 2002, requesting that he be given until June 12, 2002 to file his reply. The court did not act upon this motion, because th relief requested had already been granted, and the motion was therefore moot. On September 12, 2002, Brown filed a First Amended Complaint without leave of court, requesting the reinstatement of his lawsuit against Belton and requesting that he be allowed to respond to Belton's Rule 7(a) motion. Brown also filed a Reply to Court Order on Qualified Immunity on September 12, 2002, which was in response to the court's August 13. 2002 order directing him to file a reply by September 13, 2002 to Matz's motion for a Rule 7(a) reply. As an explanation for his failure to file a reply to Belton's motion by June 12, 2002, Brown states that his failure to prosecute was due to his being transferred from unit to unit within the Texas Department of Criminal Justice system and not receiving his mail for weeks, because it had to be routed through TDCJ's internal mailing system. Brown maintains that by the time he received his mail, the deadline to reply to Belton's motion had already passed.
Because Brown did not seek leave of court, his First Amended Complaint was not docketed as a pending motion or ruled on. No new facts were alleged in the amended complaint.
The court finds Brown's explanation inadequate and inconsistent with his previous filings. First, none of Brown's statements was made under oath. Second, Brown fails to establish diligence in filing a reply, that is, he failed to set forth facts establishing that he immediately attempted to comply with the court's order upon discovering its existence. Moreover, Brown filed two motions for extensions of time to reply to Belton's Rule 7(a) motion after the court initially directed him to file a response in its April 12, 2002 order. His first motion, which the court granted on May 24, 2002, was filed on May 13, 2002 and the second was filed on June 6, 2002. From this, it is apparent that, contrary to Brown's assertion, he was well aware of the court's order directing him to file a reply by June 12, 2002. The court therefore denies Plaintiff's motion to file First Amended Complaint, filed on September 12, 2002, and it is hereby stricken for failure to obtain leave of court. The court also denies as moot Plaintiff's Motion for Extension to File Reply, filed on June 6, 2002.
V. Conclusion
For the reasons stated herein, Plaintiff's motion to file First Amended Complaint is denied; Plaintiff's First Amended Complaint is hereby stricken; and Plaintiff's Motion for Extension to File Reply is denied as moot. There being no genuine issues of material fact regarding Matz's entitlement to qualified immunity or Plaintiff's § 1983 due process claim, Defendant Lisa Matz's Motion for Summary Judgment is granted, and the action against Matz is dismissed with prejudice.
With respect to costs, Fed.R.Civ.P. 54(d)(1) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Rule 54(d) creates a strong presumption that the prevailing party will be awarded costs. Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985). Because Brown, the losing party, is proceeding prose and in forma pauperis, and presumably does not have the means to pay costs, the court does not believe that the imposition of costs against him is warranted. Accordingly, the parties shall bear their own respective costs. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.