Opinion
Case No. 3-98CV2227-R.
March 31, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Johnson ("Plaintiff") filed suit against Defendant James Davenport ("Defendant") in his individual capacity on September 21, 1998 alleging claims of illegal arrest, malicious prosecution, and abuse of process in violation of 42 U.S.C. § 1983, 1988. Now before this Court is Defendant's Motion for Summary Judgment (filed June 24, 1999). For the reasons stated below, the Motion is GRANTED.
I. FACTUAL BACKGROUND
The events surrounding this motion occurred on January 3 and 4, 1996. Around 9:30 p.m. on January 3, 1996, Defendant, a constable in Hunt County, along with a uniformed police officer, went to Plaintiff's home to serve a civil citation on Mr. James Johnson, Plaintiff's husband. Plaintiff answered the door. Defendant asked if Mr. Johnson was at home and Plaintiff stated that he was home but was already in bed. Defendant asked that Plaintiff awaken her husband and Plaintiff refused because of the early hour at which her husband arose to go to work. Plaintiff told Defendant to return the following day at 5:00 p.m. when her husband would be home from work. At this point Defendant informed Plaintiff that he was there to serve a citation and asked again that Plaintiff go awaken her husband. Plaintiff refused, again told Defendant to return the following day at 5:00 p.m., and then shut the door. Defendant had the civil citation since December 18, 1995. According to Plaintiff there were no attempts to serve the citation prior to January 3, 1996.
Defendant returned later that evening after obtaining a warrant to arrest Plaintiff for interfering with his attempt to serve the civil citation. Mr. Johnson answered the door. Defendant served the citation on Mr. Johnson and then arrested Plaintiff. Defendant transported Plaintiff to the Justice of the Peace. Plaintiff states that she was told she could pay a fine or spend the night in jail and post bond the following morning. Plaintiff opted to pay the fine. The following day, Plaintiff hired an attorney who appealed to the County Court. The County Court dismissed the criminal action on October 4, 1996 because the informations were quashed.
Plaintiff then filed the present action on September 21, 1998 alleging that because of Defendant's acts and omissions she was illegally arrested, maliciously prosecuted, and subjected to abuse of process in violation of the Fourth and Fourteenth Amendments. Defendant filed his Motion for Summary Judgment on June 24, 1999. The analysis that follows will demonstrate why Defendant's motion succeeds.
II. DISCUSSION
A. Summary Judgment
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitle to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party through the motion for summary judgment and evidence on file show the court that there is no genuine material fact issues. Once the movant makes this showing, the nonmoving party must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. The court must view the evidence in a light most favorable to the nonmoving party. If the nonmoving party does not show sufficient evidence to establish the existence of an element essential to her case then the moving party is entitled to summary judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
B. Statute of Limitations
Defendant maintains that Plaintiff's claims are precluded by limitations. He argues that the cause of action for both the alleged illegal arrest and alleged abuse of process accrued when the arrest occurred on January 3, 1996. Defendant asserts that Plaintiff brought her suit eight months beyond the two-year statute of limitations for a § 1983 claim. Defendant also asserts that the alleged malicious prosecution claim is precluded because the applicable time period is one year. In order to address Defendant's assertions the Court must determine the applicable state statute of limitations and the accrual date for the § 1983 cause of action.
The federal courts borrow the forum state's general personal injury limitation period. See Owens v. Okure, 488 U.S. 235 (1989). In Texas, the applicable period is two years. See TEX. CIV. PRAC. REM. CODE ANN. § 16.003(a) (West 1979). The Supreme Court in Owens held "that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions." 488 U.S. at 250. The limitation period begins when the cause of action accrued. Federal law governs when the cause of action arises. Under federal law, a cause of action arises "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Jackson v. Johnson, 950 F.2d 263, 264 (5th Cir. 1992) (quoting Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980). In this case, the injury from the alleged illegal arrest and alleged abuse of process occurred on January 3, 1996, the day Plaintiff was arrested.
Plaintiff argues that because the arrest was pursuant to a warrant, the limitations on both her arrest and prosecution did not begin to run until the date that the charges were resolved in the plaintiffs favor, October 4, 1996. Plaintiff argues that under Heck v. Humphrey, 512 U.S. 477 (1994), the § 1983 cause of action does not accrue until the conviction or sentence is reversed or vacated. The Court agrees with Plaintiff.
"[A] section 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Heck, 512 U.S. at 489-90. A § 1983 action does not test the validity of the conviction, but challenges directly the legality of police conduct. See Haring v. Prosise, 462 U.S. 306 (1983). A § 1983 damages action is not appropriate for challenging the validity of outstanding criminal judgments that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement. See Heck, 512 U.S. at 486. Heck states that the reason for the element of termination of the prior criminal proceeding in plaintiffs favor is to prevent the "creation of two conflicting resolutions arising out of the same or identical transaction" and to prevent a collateral attack on the conviction through the vehicle of a civil suit. Id. at 484.
The Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. This question turns on whether a judgment for the plaintiff in a § 1983 action would necessarily imply the invalidity of the criminal conviction. If a judgment in favor of the plaintiff in a § 1983 action would invalidate the criminal conviction, then the conviction has to be reversed, expunged, or otherwise invalidated before a § 1983 action can proceed. If a judgment would not invalidate the criminal conviction, then the § 1983 action can proceed. See id. at 487.
In Wells v. Bonner, 45 F.3d 90 (5th Cir. 1995), the Fifth Circuit applied the Heck holding to a § 1983 action alleging false arrest, excessive force, and malicious prosecution. The plaintiff was convicted of resisting a search, and the conviction was upheld on appeal. The court found that the false arrest and malicious prosecution claims were precluded by Heck. See id. at 94. The malicious prosecution failed because a judgment for Wells in a § 1983 action would imply the invalidity of his criminal conviction. See id. at 95. The false arrest failed because "Well's proof to establish his false arrest claim, i.e., that there was no probable cause to arrest . . . for resisting a search, would demonstrate the invalidity of Well's conviction for resisting a search." Id. The court concluded that the claims were not cognizable in the absence of the invalidation of his conviction for resisting a search. See id. The Fifth Circuit assumed that a finding of excessive force would not imply the invalidity of Well's conviction for resisting a search, and ruled that the excessive force claim failed because he could not establish that his constitutional rights had been violated. See id. at 96.
The Wells case differs from the instant case in that Well's conviction had not been reversed when he filed his § 1983 action. But the analysis can be applied to this case. The question is whether a finding in favor of Plaintiff regarding her Fourth Amendment violation created by the alleged illegal arrest, alleged abuse of process, and alleged malicious prosecution would necessarily imply the invalidity of her criminal conviction prior to the dismissal. All three claims arise out of the same harm related to her conviction.
Plaintiff alleges that Defendant lacked probable cause to execute the arrest. In order to establish her claim of illegal arrest, she would have to prove that there was no probable cause to arrest her for preventing execution of civil process (obstruction of justice). In doing so this would show the invalidity of her conviction. The malicious prosecution claim cannot be established without a termination in the plaintiffs favor. And the abuse of process occurs in conjunction with her arrest. Therefore, her conviction would have to be invalidated before she could proceed with a § 1983 cause of action. Plaintiff's conviction was invalidated when the County Court dismissed the complaint on October 4, 1996. Accordingly, Plaintiff's § 1983 cause of action accrued on October 4, 1996. Thus, Plaintiff as a matter of law, is not precluded by the statute of limitations for her illegal arrest, malicious prosecution, and abuse of process claims because she filed her § 1983 claim within the two year time period.
C. Section 1983
Section 1983 imposes civil liability upon any person "who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983 (1994). "The first inquiry in any § 1983 suit is whether the plaintiff has been deprived of a right `secured by the Constitution and laws.'" Baker v. McCollan, 443 U.S. 137, 139 (1979). The deprivation of a right must be caused by the conduct of a person acting under the color of state law. Defendant acted under color of Texas state law when he arrested Plaintiff pursuant to Defendant's authority as a Hunt County constable.
The only question that remains is whether Plaintiff has been deprived of any right secured by the Constitution and laws of the United States. Plaintiff argues that Defendant subjected her to illegal arrest, malicious prosecution, and abuse of process in alleged violation of the Fourth and Fourteenth Amendments. The Court will now examine each of Plaintiff's claims under § 1983.
1. Illegal Arrest
The Fourth and Fourteenth Amendments protect individuals from arrest without probable cause. "The right to be free from illegal arrest plainly enjoys [constitutional] protection." Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984). "The Constitution does not guarantee that only the guilty will be arrested." Baker v. McCollan, 443 U.S. 137, 145 (1979).
An illegal arrest occurs when there is no probable cause for the arrest. See Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998). Plaintiff has the burden of showing that Defendant lacked probable cause. If Plaintiff fails to make such a showing, then a constitutional right has not been violated and Defendant is entitled to qualified immunity. See id.
The Fifth Circuit in Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982), held that "an officer who acted with malice in procuring the warrant of the indictment will not be liable if the facts supporting the warrant or indictment are put before an impartial intermediary such as a magistrate or a grand jury, for that intermediary's `independent' decision `breaks the causal chain' and insulates the initiating party." See also Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994); Wheeler v. Cosden Oil Chem. Co., 744 F.2d 1131, 1132 (5th Cir. 1984); Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984); Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977) (en banc). In Hand v. Gray, 838 F.2d 1420, 1427 (5th Cir. 1988), the Fifth Circuit stated that "the chain of causation is broken only where all the facts are presented to the grand jury, where the malicious motive of the law enforcement officials does not lead them to withhold any relevant information or other independent intermediary from the independent intermediary." In other words, the chain is broken only when all the facts are presented to the magistrate and the officer's malicious motive does not prevent him from withholding relevant information. Therefore, the plaintiff would have to show that the deliberations of the magistrate were in some way tainted by the actions of the defendant. Hand, 838 F.2d at 1428.
In Malley v. Briggs, 475 U.S. 335, 346 n. 9 (1986), the Supreme Court stated that if no officer of reasonable competence would have requested the warrant and if the magistrate issues the warrant, then the officer's "action is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty." The issue is "whether a reasonable well-trained officer in [the Defendant's] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant." Id. at 345. See also Hart v. O'Brien, 127 F.3d 424, 444 (5th Cir. 1997); Bennett v. City of Grand Prairie, 883 F.2d 400, 408 (5th Cir. 1989). But, if officers of reasonable competence could disagree on this issue, immunity should be recognized. Probable cause exists when the facts available at the time of the arrest would support a reasonable person's belief that an offense has been, or is being, committed and that the individual arrested is the guilty party.
Probable cause exists when a reasonable officer could have believed the arrest to be lawful, in light of clearly established law and the information the arresting officers possessed. See Anderson v. Creighton, 483 U.S. 635, 641 (1987). The Fifth Circuit in Sorenson, 134 F.3d at 328, stated that the burden is on the plaintiff to establish that her actions were lawful under Texas law. If the law was not clearly established as to whether the conduct was legal, then a reasonable officer could have believed the arrest to be lawful. In this case, Defendant arrested Plaintiff under § 38.16 of the Texas Penal Code, which provides that "a person commits an offense if he intentionally or knowingly by words or physical action prevents the execution of any process in a civil cause." There is no case law in Texas to uphold as lawful Plaintiff's action in refusing to wake her husband in order to allow Defendant, a Hunt County constable, to serve a civil citation. Thus, Defendant had the necessary probable cause to apply for an arrest warrant. Further, the Justice of the Peace in Hunt County signed the arrest warrant, thereby issuing it.
"Where an arrest is made under authority of a properly issued warrant, the arrest is simply not a false arrest." Smith, 670 F.2d at 526; Rodriguez, 556 F.2d at 1193. "It is true that the [F]ourth [A]mendment does command that probable cause support a warrant. However, just because a person validly arrested is later discovered to be innocent does not make the arrest `unlawful' for [F]ourth [A]mendment purposes." Rodiguez, 556 F.2d at 1190-91. "A warrant is valid even though the court, through lack of information or otherwise, has issued it for the arrest of a person in fact innocent of the offense alleged." Rodiquez, 556 F.2d at 1191 n. 21; RESTATEMENT 2d OF TORTS § 123, com. a (1965).
Plaintiff alleges in her Response to the Motion for Summary Judgment that Defendant sought to punish her for exercising her constitutional rights of privacy and that Defendant misrepresented to the Justice of the Peace that she had committed any crime. Also in her Original Complaint, Plaintiff alleged that while Defendant was at her home he threatened to arrest her if she did not get her husband. Even assuming arguendo that Defendant acted with malice in obtaining the arrest warrant, Plaintiff has failed to establish a cause of action for illegal arrest. The fact that Defendant went with probable cause before Justice of the Peace Hunter and obtained a warrant breaks the causal chain and insulates Defendant from liability under § 1983. Further, Plaintiff has admitted that Plaintiff did not allow Defendant to serve the civil citation on Mr. Johnson at the moment that Defendant arrived.
2. Malicious Prosecution
State actors other than prosecutors may be liable for damages for malicious prosecution if their malice results in an improperly motivated prosecution without probable cause. See Hand, 838 F.2d at 1426; Wheeler v. Cosden Oil Chem. Co., 744 F.2d 1131 (5th Cir. 1984).
Under Texas law, to prevail on a malicious prosecution claim the plaintiff must show that (1) a criminal action was commenced against the plaintiff (2) the prosecution was caused by the defendant or with his aid; (3) the action terminated in the plaintiffs favor; (4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with malice; and (7) the criminal proceeding damaged the plaintiff. See Hayter v. City of Mount Vernon, 154 F.3d 269, 275 (5th Cir. 1998); Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).
It is clear that Plaintiff will be able to meet the burden of proving the first two elements. There was a criminal action against Plaintiff because she was arrested and convicted for preventing the execution of civil process. And Defendant caused the commencement of the criminal action by obtaining the arrest warrant.
However, it is not clear that the criminal action was terminated in Plaintiff's favor when the County Court granted a Motion to Dismiss because the information was quashed. Defendant argues that dismissal of charges is not termination of proceedings in a plaintiffs favor where there is no resolution of any of the factual elements of the offense and jeopardy has not attached. See Ledesma v. Dillard Dep't Stores, Inc., 818 F. Supp. 983, 986 (N.D. Tex. 1993). Ledesma can be distinguished from the present case. In Ledesma, the charge against the plaintiff was dismissed prior to any trial. As a result there was no resolution of the merits and jeopardy did not attach. Whereas in the instant case, there was a conviction prior to dismissal. Defendant then argues that a decision by the county attorney not to pursue a legal action to conclusion is not a termination in the plaintiffs favor. See KT Bolt Mfg. Co. v. Texas Elec. Coop., Inc., 837 S.W.2d 273, 275 (Tex.App.-Beaumont 1992, writ denied). KT Bolt can be distinguished by the fact that the lawsuit in that case was voluntarily dropped. A voluntary non-suit does not constitute a litigation of the issues. Again, the dismissal occurred prior to any judgment unlike the present case.
The question remains whether the post-conviction dismissal by the County Court is a termination in Plaintiff's favor. Plaintiff in this case was convicted in a Justice of the Peace Court. Plaintiff then appealed her conviction to the County Court. When an appeal is made to the County Court it is a trial de novo. See TEX. CODE CRIM. P. ANN. art. 44.17 (West 1979). This means that the case is treated as if the prosecution had been originally commenced in the County Court. See id. Plaintiff filed a Motion to Quash Complaint in the County Court prior to any trial. The motion alleged that the complaint in the Justice of the Peace Court failed to state the requisite criminal intent and failed to list specific facts showing that the plaintiff prevented the execution of civil process. The county attorney filed a Motion to Dismiss because the informations were quashed. Because the case before the County Court was a trial de novo, the question is whether the dismissal by the County Court is a pre-conviction dismissal like Ledesma and KT Bolt.
The order dismissing the case in the County Court stated that the cause had been adjudged. An adjudication is a final determination in which the claims have been considered and set at rest. At this point jeopardy should attach and the county attorney should not be able to bring the charge again. But the adjudication was not based on evidence of Plaintiff's guilt or innocence.
The Fifth Circuit recently stated that "the rule in this circuit . . . is that proceedings terminate in favor of the accused only when they affirmatively indicate that he is not guilty. . . . The disposition must affirmatively indicate a lack of guilt." See Evans v. Ball, 168 F.3d 856, 859 (5th Cir. 1999) (emphasis added). The fact that the disposition fails to indicate guilt is not enough. Evans also concerns a pre-conviction dismissal of criminal proceedings. Evans agreed to retire from the Forest Service in exchange for the prosecution dropping criminal charges. He argued that because the agreement did not involve even a tacit admission of guilt the prosecution terminated in his favor. The Fifth Circuit concluded that the disposition of this case, the agreement and dismissal of the indictment, did not affirmatively indicate that Evans was not guilty because Evans had to retire in exchange for a dismissal. See id. at 860.
In the instant case, there was no exchange made to have the charge dismissed. The county attorney simply granted the Motion to Quash the Criminal Complaint. The question now becomes whether the quashing of the criminal complaint means that the complaint was invalid or that Plaintiff was not guilty. If the county attorney quashed because the complaint did not properly set out the charge, then that says nothing about the guilt or innocence of Plaintiff. But if the county attorney quashed because the evidence did not support the charge then that would indicate that Plaintiff was not guilty. The only piece of evidence to make this determination is the Motion to Quash Complaint that was submitted in the Joint Appendix. It appears from this motion that the county attorney determined that the complaint was invalid. The motion alleged that the criminal complaint lacked the requisite allegation of criminal intent because it failed to allege that the Plaintiff's actions were done intentionally or knowingly. And the motion alleged that the complaint failed to allege what specific words or actions by the accused prevented the execution of the process. This does not affirmatively indicated that Plaintiff was not guilty. Plaintiffs innocence must be clearly defined to prevent relitigation of the criminal proceeding in a civil trial. Plaintiff does not adequately allege a § 1983 claim for malicious prosecution because the prosecution was not terminated in Plaintiff's favor.
However, even if the dismissal is considered a termination in Plaintiffs favor, she does not meet the burden of the third element of a malicious prosecution claim that plaintiff must be innocent. Request for Admissions show that Plaintiff denied that she refused to allow Defendant to serve the civil citation on Mr. Johnson but admitted the she refused to wake her husband and requested that Defendant return at a reasonable time. And in the Interrogatories Plaintiff admitted that she shut the door on Defendant.
The question under § 38.16 of the Texas Penal Code is whether the accused engaged in action, regardless, of what the action may have been, with the intent to prevent the execution of the civil citation or the knowledge that her actions would prevent the execution of the civil citation. See Herrera v. State, 915 S.W.2d 94, 98 (Tex.App.-San Antonio 1996, no pet.). Clearly Plaintiff knew that her actions would prevent Defendant from executing the civil citation on her husband. It does not matter for present purposes that Plaintiff offered Defendant an alternate time at which to return. Section 38.16 does not state such an exception. In other words, Plaintiff is not clearly innocent in this case because at the time Defendant arrived, Plaintiff took actions which she knew would prevent Defendant from executing civil process at that time on Mr. Johnson. In addition, Plaintiff presents no evidence to suggest that Defendant went beyond the scope of his authority when he arrived at the Johnson house at 9:30 p.m. Thus, Plaintiff fails on her malicious prosecution claim under § 1983 because it is not clear that the dismissal was a termination in Plaintiff's favor or that Plaintiff is innocent of the criminal charges.
Under the Statute of Limitations discussion, this Court concluded that Plaintiff's conviction was declared invalid by the County Court's dismissal. This conclusion does not conflict with the finding of no affirmative statement of innocence. A criminal action can be dismissed without ever deciding the guilt or innocence of the accused. But the dismissal of a criminal action can result in the invalidation of a conviction.
3. Abuse of Process
"Under Texas law, the elements of an action for abuse of process are (1) that the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process, (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process, and (3) that damage resulted to the plaintiff as a result of such illegal act." Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 577 (5th Cir. 1996). If the process is used for its intended purpose, even though accompanied by an ulterior motive, no abuse of process occurs. See id. There must be an improper use of the process after its issuance. It is presupposed under Texas law that an original valid and regular process was duly and properly issued. See Thompson v. City of Galveston, 979 F. Supp. 504, 512 (S.D. Tex. 1997). "To constitute an abuse of process, the process must have been used to accomplish an end which is beyond the purview of the process and which compels a party to do a collateral thing which he could not be compelled to do." Baubles Beads v. Louis Vutton, 766 S.W.2d 377, 379 (Tex.App.-Texarkana 1989, no writ).
There are no facts to support an abuse of process claim. An abuse of process claim does not turn on whether the arrest warrant is valid but whether the defendant made an improper use of the process. For example, in the present case, the issue is whether, after obtaining the arrest warrant, Defendant used it for some purpose other than to arrest Plaintiff for obstruction of justice. "The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as threat or a club." Dectenbeck v. Koester, 886 S.W.2d 477, 480 (Tex.App. — Houston [1st Dist.] 1994, no writ).
Defendant was merely attempting to execute the service of a citation upon Plaintiff's husband. The facts state that Plaintiff refused to allow Defendant to immediately serve the citation. Therefore, the arrest of Plaintiff was not an attempt to obtain a collateral advantage, but merely an attempt to punish Plaintiff for a purported violation of the Texas Penal Code. Plaintiff fails to meet the first element of the abuse of process claim. Thus, Plaintiff's abuse of process claim fails as a matter of law.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED. It is so ORDERED.
SIGNED THIS 31 DAY OF MARCH, 2000.