Opinion
NO. 3:99-CV-2293-X.
October 31, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment, filed on September20, 2000. This Court is of the opinion that it should be, and hereby is GRANTED, the Defendants' Motion to Supplement Expert Report should be, and hereby is DISMISSED AS MOOT, and Plaintiff's claims against Defendants should be, and hereby are DISMISSED WITH PREJUDICE to their refiling.
I. FACTUAL BACKGROUND
Plaintiff George Foster is currently incarcerated at the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Prior to this incarceration, he was under Super-Intensive Supervised Parole (SISP), administered by his Parole Officer, Defendant Paul Simpson. Plaintiff claims, under 42 U.S.C. § 1983, that Defendant Simpson and Defendant Michael Keck acted so as to cause two instances of false arrest. On May 8, 1999, Plaintiff's monitoring device became disconnected, and the monitoring company, upon receiving an alarm and failing to reach Plaintiff by telephone, informed the command center, which then issued a pre-revocation warrant on May 10, 1999. A pre-revocation hearing held on May 19, 1999 concluded that Plaintiff had not intentionally disconnected his monitoring device, and thus, revocation was unwarranted.
On June 8, 1999, Plaintiff contacted Defendant Keck and then the police about two teenagers who were allegedly threatening him. in his conversations with these officers, Plaintiff mentioned that his wife had a gun in the house, and that he would use this gun if threatened by the teenagers. Defendant Keck passed this information on to Defendant Simpson, who, subsequently asked for the issuance of a pre-revocation warrant. This resulted in Plaintiff's second arrest, on June 9, 1999, and a pre-revocation hearing on the charge of felon in possession of a firearm. On July 12, 1999, Plaintiff filed a motion for an examining trial. Two days later, the 354th District Court, Texas, dismissed the charge for insufficient probable cause and Defendants' failure to present evidence. On July 30, 1999, a grand jury indicted Plaintiff on the charge, and on May 4, 2000, a jury convicted him, Based on this conviction, which has not been overruled or reversed, Plaintiff's parole was revoked and he received a 25-year sentence.
Plaintiff filed this federal suit for release and damages, under 42 U.S.C. § 1983, on September 9, 1999. On September 20, 2000, Defendants filed their motion for summary judgment, arguing that they are entitled to summary judgment because; 1) § 1983 does not provide a remedy of release from confinement; 2) Plaintiff has not shown that his conviction has been reversed, thereby failing to exhaust his state court remedies; 3) Defendants were not personally involved in the allegedly false arrests; and 4) Defendants have qualified immunity against suit,
II ANALYSIS A. Standard for Summary Judgment
Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, the summary judgment record demonstrates that no genuine issue of material fact exists, and therefore, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the burden shifts to the nonmovant to establish, with significant probative evidence, that a material issue of fact exists. Kansa Reinsurance Co., Ltd. v. Congressional Mortgage Corp. of Tex., 20 F.3d 1362, 1371 (5th Cir. 1994). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial, Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The nonomovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The requirement is that there be no genuine issue of material fact." Liberty Lobby, 477 U.S. at 257.
B. Grounds for Summary Judgment
The Defendants' claim of qualified immunity is sufficient to decide this motion. Qualified immunity is designed not only to protect state officials from liability but also from suit. Gibson v. Rich, 44 F.3d 274 (5th Cir. 1995). Thus, this Court must resolve the issue of immunity before all other issues. The analysis of qualified immunity requires two steps. The court must first determine whether the Plaintiff has alleged the violation of a clearly established constitutional right. If so, the court must then ascertain whether the defendant's acts could reasonably have been thought consistent with that right. Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993). The reasonableness of the defendant's actions is judged objectively, by reference to existing law at the time of the conduct and to the information possessed by the defendant while acting. Mouile v. City of Live Oak, 977 F.2d 924, 928 (5th Cir. 1992).
For the purposes of determining qualified immunity, this Court construes Plaintiff's filings as alleging a § 1983 claim for two instances of false arrest in violation of his Fourteenth Amendment rights. This Court finds that with respect to the first arrest, no § 1983 claim exists, as Plaintiff has failed to allege how either Defendant acted to violate his constitutional rights. First, Defendant Keck had no involvement in the arrest, pre-revocation hearing, or incarceration; thus, no facts link him to the events or ground the resultant § 1983 claim. Likewise, the summary judgment record shows that Defendant Simpson testified in Plaintiff's favor at the first pre-revocation hearing, stating his belief in the testimony proffered by Plaintiff's wife. After this hearing, Plaintiff was released and his parole was not revoked. This Court is unable to find the constitutional violation within these events. Furthermore, since the uncontested summary judgment record shows that the command center, and not the Defendants, issued the pre-revocation warrant, no facts support a legal claim of false arrest against either Defendant. In sum, both Defendants are entitled to summary judgment on the first claim.
The determination of whether the Defendants acted reasonably with regard to the second offense is more factually intensive. The summary judgment evidence indicates that Plaintiff had informed a parole officer and a police officer that there was a gun in his household. Neither party contests this acknowledgment; rather, the parties disagree as to who possessed the weapon. Nonetheless, the mere fact a gun was present in Plaintiff's house leads this Court to find Defendants' actions objectively reasonable. The terms of the Parole Agreement unambiguously state that Plaintiff "shall not own, possess, use, sell, nor [sic] have under [his] control any firearm. . ." Defendants' Appendix, p. 6. Defendants, as Parole Officers, are responsible for ensuring compliance by their parolees, thus, once they received repeated firsthand information of a violation, they were entitled, and even required to act as they did Although Plaintiff states that the firearm belonged to his wife and was under her control, that claim does not render the pre-revocation arrest or the subsequent proceedings unreasonable. This court finds that no summary judgment evidence shows a genuine issue of material fact that the Defendants behaved unreasonably, so as to lose their claim of qualified immunity. Accordingly, they are entitled to summary judgment on this second count.
Defendants' qualified immunity from suit renders the other arguments, which are specific to § 1983, superfluous, and this Court declines to address them. As neither Defendant acted unreasonably in seeking Plaintiff's arrest for an admitted firearm violation, this Court finds that Defendants' Motion for Summary Judgment should be GRANTED, their Motion to Supplement Expert Witness Report should be DENIED AS MOOT, and Plaintiff's claims should be DISMISSED WITH PREJUDICE.
It is so ORDERED.